Treat Us Like Lesbians!

I had wondered what happened to the Burden sisters, the elderly English couple who had devoted their lives to taking care of family members and then each other. They loved each other, lived in financial interdependence in the same house. But they were not having sex and were not eligible for marriage or a recognized Civil Partnership under English law. As a result the survivor faced heavy inheritance taxes on the death of her sister that would result in the loss of her home. Had they been a lesbian couple in a civil partnership, they would receive the same relief from the full force of the inheritance (death) tax as a married couple.

The case, which they lost on their final appeal to the European Court of Human Rights, is sad and appalling. It is manifestly a grave injustice.

It also raises interesting questions about legal recognition of same-sex partnerships as marriage or marriage-equivalents. Marriage has been recognized in all, or nearly all societies as socially approved sexual intercourse between a man and a woman such that any children resulting from that union would belong legally, morally, socially, and emotionally to the two parents who made them. Marriage, the main topic of the earliest legal codes long before churches became involved, was a legal development with the aim of creating fatherhood as a legal and social role for the protection of the man's children and their mother.

Marriage was fundamentally about sex--specifically a kind of sexual act that is in principle capable of generating children. Marriage was consummated by that act and could be annulled, both in canon and civil law, where one of the parties had refused or proved physically incapable of performing the act in question.

Christianity insisted that a valid marriage must be willingly entered into on both sides, and recognized the "unitive" as well as the "procreative" aspects of the marital act. Marriage did not depend for its validity on the couple's capacity or willingness to produce children, i.e., on their fertility. But the institution of marriage was everywhere defined in terms of the coupling, the one-flesh union of a man and a woman, the kind of sexual act, that is, that is in principle (per se if not per accidens) apt for generation.

When marriage is redefined as being about the feelings--the love and commitment--of two people, rather than about the kind of sex that produces children and about the needs of the children who result from it, its whole rationale seems to fall apart.

Why is the state interested in the feelings or the sexual practices of two people where such practices are by their very nature incapable of producing children?

If marriage is defined by the feelings--the love and commitment of the two people involved--who decides the quality of those feelings? Traditionally, a marriage is valid if entered into voluntarily by both man and woman and consummated by sexual intercourse. Of course the state does not supervise the marital act to assure the validity of the marriage, but normally assumes it where the couple cohabit. The point is that the marriage is not defined or validated by the purity of the couple's feelings for each other. Many marriages involve mixed feelings and impure motives--Charles and Diana come to mind, as well as marriages in which wealth, status, or beauty play a prominent role--but none of that invalidates the marriage.

Often, we hear the argument from advocates of same-sex marriage (SSM) to the effect that being too old for fertility or childbearing upon marriage does not invalidate the marriage. No, because the marriage is not defined by the fertility of the couple but by their commitment to a sexual relationship in which the defining marital act is of the kind that in principle is capable of producing children. SSM, in contrast, rests upon a sexual relationship that is by its very nature incapable of being generative, regardless of the circumstances of a particular couple.

But if the place of potentially generative sex is taken by feelings, what about "marriages" in which the feelings are mixed and motives less than pure? What or who determines the validity of the marriage?

Is sex still essential to the definition of marriage? If so, what kind of sexual act must be performed by the couple before the marriage can be said to have been consummated and be valid in law?

If it is not essential to marriage and the legal and social benefits thereof, why should couples who are not in a sexual relationship be excluded?

In this regard, Hawaii's reciprocal beneficiaries law seems much fairer and more sensible than same-sex marriage or its equivalents. Here, any couple may register as reciprocal beneficiaries so long as both are adults and are barred legally from marriage. They must only be over 18 and prohibited by law from marrying--such as brother and sister, uncle and niece, aunt and nephew, widowed mother and her unmarried son, and two persons of the same sex. The Burden sisters would be eligible to register under it here.

In either case, it is not clear what the logic is for restricting marriage or its equivalent to two persons if marriage is now about feelings and commitment and not sex and the children that result from it. Why should a polyamorous group committed to sex in a long-term relationship be excluded from marriage, regardless of the members' sex or number?

It seems very clear that same-sex marriage, though it may directly affect very small numbers, fundamentally changes the nature of marriage as a social institution, in particular as the institution through which children are the responsibility of the two parents who made them and through which one generation sacrifices for the next. Instead of being about children's needs and rights, it is redefined as about the desires and freedoms of adults. Marriage has been our most pro-child institution, the most important protective factor in offsetting the risks faced by poor families and communities. Its collapse and hence the collapse of fatherhood as a social role, in poor, and especially Black, communities has been devastating. (See Kay Hymowitz and also James T. Patterson)

I have often heard advocates of SSM ask how their marriage would affect mine, but like jesting Pilate, they do not wait for an answer.


If like me, you wondered what happened to the sad case of the Burden sisters, here is the answer:


April 30, 2008
Sisters Joyce and Sybil Burden lose legal appeal over death duties
Frances Gibb, Legal Editor

Two elderly sisters fighting for the same rights as married and gay couples have lost a final legal appeal for equal treatment.

In a 15-2 vote, the European Court of Human Rights in Strasbourg ruled that Joyce and Sybil Burden, who have lived together all their lives, do not face unfair discrimination under Britain’s inheritance tax rules.

Joyce, 90, and Sybil, 82, have been fighting for 32 years to avoid crippling inheritance tax on their £900,000 home in Marlborough, Wiltshire, when one of them dies.

They claimed that tax laws breached their human rights by exempting married and gay couples from paying inheritance tax, but not cohabiting siblings.

But the Grand Chamber of the European Court of Human Rights upheld an earlier human rights ruling yesterday that national governments were entitled to some discretion when deciding taxation arrangements.

The decision means that when one of the sisters dies the other will have to sell their four-bedroom property to pay the 40 per cent inheritance tax on its value above £300,000. If they had won their case, inheritance tax law would have had to change, to place cohabiting couples on an equal footing with married couples and “civil partnerships” in being exempt from inheritance tax.

The sisters have written to the chancellor of the day before every Budget since 1976, pleading for recognition under the tax rules as a cohabiting couple.

When the Civil Partnership Act of 2004 first recognised gay and lesbian couples for inheritance tax purposes, the sisters turned to the European Court of Human Rights, claiming that the Act violated articles of the European Convention on Human Rights outlawing discrimination and guaranteeing the “protection of property”.

In 2006 the Burdens lost the case by a 4-3 majority of the panel of seven human rights judges, although three members of the court described their inheritance tax plight as “awful” and “particularly striking”.

But the appeal hearing, before a larger 17-member panel of human rights judges, produced a more decisive 15-2 majority against the sisters yesterday. The ruling marks the end of the sisters’ legal fight, but they vowed to continue lobbying Parliament on the issue after their “bitter disappointment”.

They said in a statement issued by their lawyers: “We are still struggling to understand why two single sisters in their old age, whose only crime was to choose to stay single and look after their parents and two aunts to the end, should find themselves in such a position in the UK in the 21st century. We certainly do not regret our decision to look after our family for a single moment; we were glad to repay them for the happy, good, Christian upbringing they gave us.”
“But we have been fighting for 32 years just to gain the same rights, as regards inheritance tax, as married couples and couples in civil partnerships.”

After losing the first case in 2006, Joyce Burden commented: “If we were lesbians we would have all the rights in the world. But we are sisters, and it seems we have no rights at all.”

Retrieved September 17, 2010 from http://www.timesonline.co.uk/tol/news/uk/article3837715.ece