The BBC website reports that, contrary to what was set out in the Government’s consultation on same-sex marriage, David Cameron has announced that the forthcoming legislation on marriage for same-sex couples in England and Wales will allow religious organisations that wish to do so to conduct religious same-sex wedding ceremonies. He is quoted as saying that he does not want same-sex couples to be “excluded from a great institution” but that he would not force religious groups to conduct such ceremonies:
“Let me be absolutely 100 per cent clear: if there is any church or any synagogue or any mosque that doesn’t want to have a gay marriage it will not, absolutely must not, be forced to hold it. That is absolutely clear in the legislation. Also let me make clear, this is a free vote for Members of Parliament, but personally I will be supporting it”.
The BBC says that the Government’s response to the consultation will be published next week – but it is pretty clear from the PM’s reported remarks that ministers have made up their minds on the matter.
Another report by MSN News quotes a “Government spokesman” as follows:
“The Government is committed to bringing equal civil marriage forward and the consultation results will be announced next week. We are very clear that religious organisations must be protected and that no religious organisation will be forced to conduct same-sex marriage ceremonies. The European Convention on Human Rights guarantees freedom of religion and we will additionally bring in very strong legal locks to ensure the protection is watertight”.
You can see the interview clip on Huffington Post (after the advert!).
Comment: The immediate reaction from Tory MP Mark Pritchard was that he feared that any exemptions for places of worship in the legislation on same-sex marriage were likely to be ruled unlawful by the Supreme Court or the EtCHR “within months”, despite Government assurances it would not be – and indeed, who knows what the outcome would be of a challenge.
The Government is presumably relying on the judgment in Schalk and Kopf v Austria 30141/04  ECHR 218 (16 February 2010): that Article 12 enshrines the traditional concept of marriage as being between a man and a woman and that, even though some states parties have extended marriage to same-sex partners, same-sex marriage as a concept does not flow from an interpretation of the fundamental right to marry as laid down in the Convention in 1950 (para 38).
But what happens where a state has conceded same-sex marriage in some circumstances but not in others? Does the principle in Schalk and Kopf still hold true? Adam Wagner suggests on UKHRB that if equal marriage were to be enacted without provision for marriage on religious premises, that law would be seriously vulnerable to challenge under the domestic equalities legislation or at Strasbourg.
And he may well be right. But perhaps we had better stop speculating and wait to see the actual legislation…