Marriage is one of the seven sacraments of the Catholic church, (I do not propose to enter into the discussion as to whether the Church of England is Catholic or Protestant which would be a distraction).
Marriage is also a lawful contract, perhaps the most important contract there is. The contract is one of procreation and confers inheritance rights on the offspring of the marriage.
Marriage is a product of its times and the often harsh reality of life in bygone times. Marriage arose before the welfare state as a community led way of ensuring the security of women and children in the world. In the days before contraception and abortion, when infant mortality and death during child birth were relatively common, the lot of a woman was not to be the dominant gender that they are today.
Women were the property of their father until they were 'given away' to their husband often with a large sum of money, a dowry to be used to support the daughter after marriage. After marriage they became the property of their husband. It was only once widowed that women were allowed to own property in their own name. At this time when the majority of people were subsistence farmers, the wealthiest people other than the nobility were tailors. Unmarried women are still called 'spinsters' because they would earn their livelihood by spinning wool for the tailor to turn into clothing.
Marriage was rarely a match of love, but rather something organised between families to ensure future success and co-operation between the two families. The relatives of the two people marrying 'in law' became family. The motive was more often political, dynastic or economic rather than one of personal choice. Arranged marriages were as common in Europe as they are in India today.
That a woman should not have sex before marriage and only with her husband was simply a very sensible rule, the consequences of becoming pregnant outside of marriage were dire for women, with abortion on demand and contraception this is no longer so necessary. As there were no paternity tests and as only legitimate offspring had inheritance rights, it would be too easy for a woman to claim any man was the father otherwise.
So what changes have occurred to render a contract of marriage unnecessary?
1) Paternity Tests - now it is possible to prove beyond a reasonable doubt the ancedents of any individual. This law was changed following the submission to the Legislation Committee by Progress Jersey back in 2006 at the same time the rules on naming children were changed.
2) Contraception and Abortion - personally I am anti-abortion and don't really see the point of contraception for myself. Whilst as a Libertarian I don't feel the State has a right to intervene on the contraception issue, on the abortion issue I feel the State has a duty to protect the rights of the unborn child. The law as it stands - abortion only on medical grounds - has been abused by the Civil Servants as most laws are and its purpose has been corrupted to being effectively abortion on demand. (You would be advised to take note of how the intentions of a law are quickly corrupted by the bureaucracy to serve the bureaucracy and not the will of the people).
That aside, the need for marriage to protect the security of a woman has been removed.
3) Inheritance rights - except in Jersey, people are more or less free to leave their estate to whomever they like (as long as they leave a significant proportion to the State of course!). These rights are included within a 'Civil Partnership' which is open to both heterosexuals and homosexuals.
When considering whether the disallowing of 'gay marriage' is contrary to Human Rights, once must consider if the individuals are suffering any discrimination.
As homosexuals are not able to procreate, lacking the biological components necessary to undertake such a venture, to enter into a contract in which the parties are unable to complete the terms of the contract is patently absurd and thus any such contract is unsustainable in Law.
We must also look to the rights of individuals to freedom of religious belief and to consider whether it is possible to differentiate between a heterosexual and homosexual partnership. Clearly it is, one is not better or worse than the other, but they are different and thus it is appropriate to use different terms to describe them. We assign different names to help define minute differences in the various species of bird in order that we can communicate our meaning to each other precisely. The fact that something is different does not hold any implication of comparative value.
Marriage as a lawful contract has been rendered unnecessary by social 'advances', if it is unnecessary then why does it continue to exist?
Marriage as a religious right remains important to a great number of people, it is their human right to freedom of religious belief which is being threatened here.
So what is the alternative. If we are to protect the freedom of religion of the larger proportion of society then perhaps the preferable course is to remove the term marriage from law altogether. All marriages should be referred to as civil partnerships in law. Should people wish to be married in a religion then it should be free for each religion to specify the terms upon which it will conduct the ceremony.