Closure of the Home Office GEO Consultation Equal Civil Marriage on 14^th June was preceded by a flurry of media headlines and editorials, summarized here and here, giving prominence to the response of the Church of England, and suggesting that the proposed legislation, if carried, could trigger a split between Church and State.  Although the text of the Church’s response did not contain the more emotive terms ‘constitutional crisis’ and ‘disestablishment’ used in the press, early reference was made to its established status, (question 1) and later to the consequent obligations on its clergy, (Annex I, paras. 6 and 21).  Whilst it noted “… the consultation overlooks the implications of what is proposed for the position of the established Church” (para.25), this comment was made in the context of the status and effect of the canonical provisions relating to the Church’s doctrine of marriage, a different but equally significant issue.

Inclusion of ‘establishment’ in the response had a headline-grabbing effect and tended to adumbrate other responses from the Roman Catholic Church, the Church in Wales and others.  Whilst establishment is undoubtedly an important issue for the UK and the Church, the resulting headlines have obscured many of the valid arguments within the response, and introduced counter-productive discussion which detracts from the main issues.   Given the opposition to same-sex marriage by many faith groups, it is surprising that greater significance was not placed on this in the individual responses.  For example, the Church of England’s statement that its disagreement with the proposed legislation was:

“drawn from [its] commitment, as the established church in England, to the common good of all in society”.

is much stronger when linked with that of the Catholic Bishops of England and Wales:

“In the interest of upholding the uniqueness of marriage as a civil institution for the common good of society, we strongly urge the Government not to proceed with legislative proposals which will ‘enable all couples, regardless of their gender to have a civil marriage ceremony”.

Moving away from the practical aspects of lobbying, it is important to bear in mind that this and the associated Scottish Consultation are only proposals, although many including the Church of England are concerned that the Equalities Minister, Lynne Featherstone, was quoted in the Daily Telegraph as giving:

‘[a] cast iron guarantee that gay civil marriages would be law by the next general election, and that the essential question is not whether we are going to introduce same-sex civil marriage but how’.

This has echoes of the Coalition’s approach to reform of the NHS,  and the judicial comment in Department of Health v IC & Veolia E S Nottinghamshire Ltd & Rt Hon John Healey MP & Nicholas Cecil (Freedom of Information Act 2000) [2012] UKFTT EA 2011 0286 & 0287 (GRC) (5 April 2012) which noted (para.85) that this was:

“introduced in an exceptional way.  . . . . . . . Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament.”

Nevertheless, it would be wrong to view the present consultation as anything other than a further interim measure in the complex and developing area of gender equality, for as the Consultation document itself note (para. 1.5):”From [the ‘listening exercise’ in autumn 2010] it became clear that the immediate issue that needed consideration was enabling same-sex couples to have a civil marriage”.

Although the States within the Council of Europe permitting same-sex marriage are in the minority – currently 7 out of the total of 47 – the number is rising, and legislation in an eighth, Demark, becomes effective today, significant aspect of which is the automatic reclassification of existing civil partnerships to ‘married’ status.  However, whilst such countries remain in the minority, the European Court of Human Rights is unlikely to go beyond its interpretation of Article 12 in Schalk and Kopf v Austria and force states to permit same-sex marriage.

With regard to the government consultation, however, the issue is whether the limitation of same-sex marriage to civil ceremonies will be subject to challenges on human rights grounds on the basis of an inability to extend this to religious ceremonies conducted by faith groups.  Put another way, the proposal intends to retain a muddled but common definition of ‘marriage’, but deny same-sex couples the opportunity of the religious option, and deny opposite sex couples the opportunity of a civil partnership.  Citing Schalk as authority the ECHR stated in Gas and Dubois v France (para.66):

‘[d]e plus, elle a estimé que lorsque les Etats décident d’offrir aux couples homosexuels un autre mode de reconnaissance juridique, ils bénéficient d’une certaine marge d’appréciation pour décider de la nature exacte du statut conféré (Schalk et Kopf, § 108).

Both Schalk and Gas and Dubois considered a state’s margin of appreciation in relation to the legal recognition of same-sex couples rather than status conferred or the ceremony by which this is achieved.  It is generally accepted that the proposed legislation will confer few, if any, additional legal rights and obligations on same-sex couples, and the government’s approach of separating ‘civil marriage’ and ‘religious marriage’, despite its apparent illogicality, may prove effective – in the short term.