Last month, Britain’s Telegraph ran stories telling of two elderly sisters who brought the British government before the European Court of Human Rights. The sisters, both in their eighties, lived and worked on their family farm all their lives, caring for their parents and aunts as they grew older. When their parents passed away, the sisters inherited the property. And now, as the sisters look toward their own passing, they know that when one sister passes away, the other sister will inherit the property, and a resulting tax. The problem? The house, which was built at a price tag of £7,000 in 1965, is now valued at £875,000, which means there will be an estimated £236,000 inheritance tax levied upon the surviving sister. Neither sister has that kind of money. To pay the tax, the surviving sister will be forced to sell the entire property.
According to the Telegraph , the sisters have feared this result for some time now and for the past thirty-one years have been fighting to change the law so that it excludes family members from the inheritance tax (or death tax, as it is often called). This tax is not paid by spouses or civil union partners , but is paid by siblings and other familial descendants. And as the sisters note, other women who live in stable, loving, committed relationships¯as the sisters have for all of their lives¯are now granted civil partnerships by the state. One sister, Joyce Burden, told the Daily Mail, "If we were a lesbian couple, we would not be facing massive inheritance bills." But, precisely because they are sisters, and not lesbians, they do not qualify as civil partners. For in the government’s eyes, there are profound differences between siblings and couples: "Couples enjoy a relationship of choice. Siblings, however, enjoy a relationship of consanguinity. Further, the relationship between siblings is forever, whereas couples may part." And for these reasons, the government grants civil partnerships to couples but not to sisters. In Ms. Burden’s view, "This is an insult to single people who have looked after elderly parents. I don’t call that justice." The sisters are now suing, citing two clauses of the Human Rights Convention¯the right to enjoy private property and principles of anti-discrimination.
It is not readily apparent why this case should fall to a court of human rights : There isn’t any human right prohibiting inheritance taxes or mandating specific governmental recognition of filial relationships. Nonetheless, the rationale offered by the government for its policy is deeply problematic, for it simply gets the relationship between family and state wrong. With respect to both the inheritance tax and laws regarding civil unions, the government has simply forgotten that the human family stands prior to, and independent of, the state. The state does not create marriage or the family; it merely recognizes and¯where sound law and policy are in place¯respects and supports this natural and indispensable human institution. This has profound implications for both the inheritance tax and civil partnerships.
If the family is a pre-political, basic institution of civil society, then the goods of the family, including material possessions, should be recognized by the state as residing in the family and not narrowly, or exclusively, in either the individuals who comprise the family nor the state to which the family belongs. Hence, upon the death of an individual, his property should be allowed to remain with his family, with his wife, children, and any other designated relatives. The family enterprise that labored to generate the wealth should be allowed to be the institution that retains the wealth. On the current scheme, however, things appear exactly backwards: The state stands as the prime organ of civil society, and upon one’s death, one’s possessions are returned to the state, to be divvied up as the state sees fit. In this case, one sister’s property will be returned to the government upon her death, to be bought back by the other sister at the price of the current death tax.
But this makes no sense, for the family is the basic and natural institution. The state, though important and even necessary to advance and protect the well-being of persons and families, is instrumentally but not intrinsically valuable. In this case, after one sister’s passing, the other sister’s life will continue as before, particularly with regard to the estate and house. She does not really inherit anything; she merely loses her sister. Thus, when the government argues that couples "enjoy a relationship of choice" while siblings "enjoy a relationship of consanguinity," the government fails to recognize that this "consanguinity" is the basis of all civil society and as such demands recognition, particularly when those ties of consanguinity truly bind. For consider the case of the family business, run by father and son, operated out of the first floor of their home, the family living in the upper floors. Upon the father’s passing, the business, home, and other aspects of his estate will be officially passed on to the son, but as far as the son’s¯and the rest of the family’s¯daily life goes, their material possessions have not changed. What was the father’s was the son’s, and what was the son’s was the entire family’s. None of it should be transferred to the state, only to be returned to the family upon paying the price of the inheritance tax.
The fatal flaw in the state’s approach to the inheritance tax is that it fails to account for the fact that human beings, in most cases, do not live as solitary individuals. Rather, they exist in communities, in families. Property law, however, views estates as the sole possession of one individual and thus, upon death, views the property as "transferred" or "inherited" even where there hasn’t been any real change, just a legal fiction. Then the inheritance tax kicks in, often leaving the survivors¯as in the case of these sisters¯in a position of having to sell the property in order to pay the tax. If the state will reject the false idea that humanity is composed only of atomistic individuals, and if the state will genuinely respect the natural institution of the family, cases like these could easily be avoided¯and without any reference to domestic partnerships or civil unions. Members of a family should not need to enter into civil or domestic partnerships in order to protect their family farms, businesses, heirlooms, and other family possessions from misguided tax schemes.
Moreover, the government’s policy on civil partnerships is equally misguided. The state has long recognized the exclusive, permanent, and sexual union of a man and woman in marriage, and thus has treated married individuals as a single entity¯a couple¯and the fruit of their sexual union as part of that single entity¯a family. But, in the wake of modernity’s sexual revolution, elected officials believed they had to recognize formally same-sex sexual arrangements. The solution they devised was civil partnerships: recognized domestic relationships between adults of the same sex.
The problem with this, however, was that it dictated that these relationships be sexual in nature. Thus, a middle-aged woman taking care of her elderly mother, or, as in this case, two elderly sisters living domestically¯but not sexually¯with each other do not qualify. This is lunacy. And all because the real push for civil partnerships was to create gay "marriage" without having to call it marriage. The legislature made a profound and dangerous error when it assumed that marriage is something the state created and thus something the state can refashion at will. If, on the contrary, marriage objectively exists as a given, and if marriage exists precisely because of its nature as a sexual and potentially procreative relationship, then the creation of any other recognized sexual relationship is certain to spell disaster. Witness the plight of the elderly sisters in England. They are denied rights that they would otherwise have solely because they are not in a sexual relationship with each other.
If the government deems it necessary to recognize other adult relationships besides marriage, then it cannot discriminate against competing relationships on the basis of sexual activity. For in venturing beyond marriage¯with its contours based precisely on complementary sexual union¯the state has no available reasons for citing sexual activity as the defining attribute of other adult relationships. In other words, civil domestic partnerships must be open to all adult domestic partners whether or not they are (or are willing to say they are) sexual partners.
In the end, the government’s faulty understanding of marriage and family and the family’s relationship to the state yields troubling results. If the state were to acknowledge the givenness of marriage and its pre-political nature, it would neither penalize surviving family members upon the death of a relative nor create alternative family arrangements that exclude and discriminate against those not engaged in sexual relations.
Ryan T. Anderson is a Junior Fellow at First Things .