A judge on the UK’s highest court has told an audience in Belfast of the legal reasons why he backs gay marriage.
Lord Wilson, who sits on the Supreme Court, said that he suspected Northern Ireland will not “for long be able to hold back the tide in favour of same sex marriages”, which is being introduced in England, Wales and Scotland, as well as countries abroad.
In a wide-ranging talk on the subject, in which he emphasised that he was speaking personally and not on behalf of the court, Lord Wilson outlined the history of marriage since the institution emerged in Mesopotamia around 2000BC.
He said that as an Englishman, he “envied” the greater strength of traditional family values in Northern Ireland than elsewhere in the UK, and that he was “convinced that sexual relationships which lead to full cohabitation between adults are valuable, in particular to any resulting children”.
He said that he was in no position to disagree with those who believed for religious reasons that marriage can only be entered into by people of the opposite sex.
But he said that marriage “can be invalid for religious purposes yet valid for secular purposes”.
In his 50-minute address at Queen’s University on Tuesday night, Lord Wilson described how “societies have readily changed their rules surrounding marriage to meet changing circumstances and perceptions”.
Outlining “examples of the disparate boundaries of entitlement to marry”, Lord Wilson said that he hoped the audience would understand why he had “come to consider that the concept of marriage is entirely capable of embracing people of the same sex”.
Lord Wilson discussed polygamy, and how the right to take multiple wives “is a deeply rooted facet of marriage in other respected cultures”.
“Old Testament Kings, such as Abraham, David and Solomon practised it,” he said, and it is practised today in parts of the Muslim world.
Northern Ireland law recognises such marriages, he said, “provided that it was celebrated abroad and is only potentially polygamous”.
Lord Wilson said that rules which prohibit marriage between certain family members were also changeable.
“If today, for example, you want to marry your uncle, you should leave the UK and go to Australia, where you would be allowed to enter into what they call an avunculate marriage,” he said.
Lord Wilson also referred to how the age at which people can marry has varied between countries and eras.
“In Shakespearian England the common law provided that the minimum age was 12 for a girl and 14 for a boy on the basis that, once they were physically capable of becoming parents, they should be capable of getting married,” he said.
“The modern increase in the minimum age has been driven partly by a desire to prevent older men using marriage as a front for sexual abuse of young girls.”
Lord Wilson also considered marriage laws with regard to people who have changed sex. A man who became a woman, he noted, can then enter into a civil partnership with a female. But if that person had as a man been married to a female, then their gender reassignment will not be recognised under British law until the marriage has been dissolved.
Lord Wilson said that it was not even a requirement that marriage be “between two living persons”. In France, a posthumous marriage is possible when someone dies before the wedding and their surviving partner can prove that they were engaged.
“It seems bizarre but, if it really helps the broken-hearted, we have at least to ask: why not?” he said.
Lord Wilson noted that slaves in the US prior to abolition “had no legal status as persons and were therefore incapable of consenting to marriage”.
In Ireland until 1863, he added, a marriage between a Protestant and a Roman Catholic was void, while in parts of America as late as the 20th century, it was illegal for a white person to marry a black person.
Divorce, Lord Wilson said, had made “an extraordinary inroad” upon the traditional Christian concept of marriage.
At church weddings, he said, “while we listen to the happy couple as they make [their vows], we also fear for them because we know that about 42 per cent of marriages celebrated in the UK today will not endure until death do them part”.
Discussing the legal effects of marriage, Lord Wilson said that for centuries a wife had no right to property because her legal identity was covered up by her husband.
It was a criminal offence to commit adultery until 1857, he said.
Lord Wilson said that the Supreme Court’s decision in 2010 recognising the pre-nuptial agreement of a German heiress “was a dramatic shift towards accepting that the parties could agree to opt out of bits of [marriage]”.
The judge continued: “Heterosexuals, some of whom, understandably in the light of their genetic orientation, may instinctively recoil from the contemplation of some homosexual acts, should not allow their own sexual instincts to invade ... their judgment upon what the law should permit gay people to do.”
Observing that same sex marriage had been allowed in ancient Egypt and in Republican Rome, Lord Wilson said that “for the next 1,500 years, Christian doctrine – and I say this as a committed member of the Church of England – cast an irrational opprobrium upon all sexual acts other than procreative ones”.
In concluding comments, the judge said: “I wonder whether Northern Ireland will for long be able to hold back the tide in favour of same sex marriages which laps against all Western shores.”
He acknowledged, however, that “societies in Africa, Asia and the Middle East regard the issue very differently”.
Lord Wilson said that it is not enough merely to state “marriage is between a man and a woman” because such an argument elevates “a feature of the practice of marriage in a number of prior centuries, however universal, into a necessarily intrinsic constituent of it”.
Lord Wilson was speaking at a private meeting of the Northern Ireland Medico-Legal Society, but his speech has been published at www.supremecourt.uk which is the Supreme Court website.