The Guardian's third leader yesterday was well chosen, on an anniversary I ought to have noted before now:
Its proponents described homosexuality as a disability, and it allowed for the continuing legal persecution of gay people - the activist Peter Tatchell even claims it was followed by an increase in prosecutions. But the Sexual Offences Act, which received royal assent 40 years ago this weekend, was momentous. It gave a lead to public opinion that was still stuck in the dark days of the 1950s, kick-starting a transformation in attitudes that would become a revolution.
This is more than a truism. There was an interesting retrospective in The Observer last month about the campaign for decriminalising gay sex between men. The argument advanced by reformers such as the Labour MP Leo Abse was one of compassion for those - as the mores of the time had it - thus afflicted. That was by no means an ignoble argument: it is obvious that lifting the legal persecution of gay men, and rendering unnecessary their subterfuge, removed a cause of much unnecessary suffering. But as Peter Tatchell is quoted as saying in the article, there was a notable lack of reference to such issues as love or justice. I have long objected to Tatchell's campaigning tactics on this issue - his 'outing' of undeclared homosexuals in public life is in my view despicable - but his criticism here is apt. What he does not say, or at least not in this article, but I am certain is true, is that legislation precipitated change in public attitudes.
The change, in legislation and in culture, from decriminalising homosexual acts between men through to the introduction of civil partnerships for same-sex couples is clearly immense. Halfway between then and now, the late Times columnist Bernard Levin wrote a piece that nicely illustrates this. (The column was published in The Times on 28 December 1987, and is reproduced in Levin's book All Things Considered, 1988, pp. 45-9.) Levin is commenting on the tawdry and populist introduction by the then government of a clause tacked on to a bill about local government, prohibiting local authorities from the "promotion" of homosexuality. This was the notorious Section 28 of the Local Government Act, 1988, which was repealed in England only four years ago. Levin states:
[T]he legislation is not the worst or the most important item in the rising temperature of hate, except in so far as it will inevitably turn up the flame. And the tragedy of it all is that, after the 1967 Act, there had been a slow but real advance in understanding - which, in these matters, is much more important than an Act of Parliament. More and more people had come to see that homosexuality is not evil in itself, nor a threat to heterosexuals, nor disgusting, nor a chosen way of life, nor more likely than heterosexuality to include paedophiliac tendencies, nor necessarily accompanied by a lisp, a flapping of limp hands or the wearing of women's underclothes.
Levin is of course mocking the attitudes he describes, and his voice on homosexual law reform was one of reason and principle. But it's striking just how far the attitudes he derides have retreated from public life - not, obviously, in all quarters, and certainly not from private life, but from our civic discourse. Matthew Parris noted in The Times last week that "in the whole history of mankind there has been no better, luckier, time or place to be gay than Britain in 2007".
I can't prove this, but I believe that part of the explanation for this advance is that, contrary to Levin's argument, legislative changes have preceded rather than followed the growth in public understanding. There was, from my recollection, no huge public pressure for civil partnerships, compared even with the campaign a decade ago for a common age of consent; it was just the right thing to do. The effect of the Civil Partnership Act of 2004, in giving civic recognition to same-sex relationships, has been so marked, however, that, despite other welcome legislation, we may now be in a new stage where public attitudes risk outstripping political life on a central issue.
In so far as I reflected at all on the subject, I believed even a few years ago that full equality before the law between heterosexual couples and same-sex couples would definitely come, and would be right, but that it would be a matter of time before cultural shifts enabled that outcome. I now believe the issue is more urgent than that. Equality under the law is the social contract that binds us. As one particularly thoughtful writer, Jonathan Rauch, has argued in his book Gay Marriage: Why it is Good for Gays, Good for Straights and Good for America, 2004, p. 97-8, that implicit contract challenges exclusion from civic institutions:
When it became obvious that blacks were not children and that women could think for themselves, the country had to make a choice: expand the franchise or see it lose its legitimacy. Marriage's position today is similar. As gay couples (and their children) weave themselves into their neighborhoods and communities, new facts are arising on the ground. To say, "Well, that may be, but marriage simply cannot accommodate those facts and still be marriage," is no answer at all. It assures that other, nonmarital arrangements will arise and gain legitimacy. Worse, nonmarriage - civil unions, domestic partnerships, cohabitation - may acquire greater legitimacy than marriage. After all, isn't a nondiscriminatory institution better?
If - per impossible - I were the Leo Abse of our time, an MP with a private member's bill to bring, I should propose legislation to make marriage open to couples of the same sex, with equal rights and responsibilities in every respect to those of heterosexual couples. It would be the fulfilment of an important legislative process that Abse initiated.