As readers will be aware, Equal civil marriage: a consultation has attracted a wide range of comment both in this blog and elsewhere, ranging from those who do not see it as a threat to the Church to those who foresee dire consequences.
In a measured piece in The Times on 21 June (no link provided, website behind paywall) David Pannick sets out to demolish the thesis that legislation for same-sex civil marriage
“… would be vulnerable to attack on discrimination grounds, reinforced by the right to religious freedom, if it were to deny a religious body the power to conduct a civil marriage ceremony on religious premises if it, and the happy same-sex couple, wished to do so”.
He suggests that lying behind the Government’s restriction of its proposals for same-sex marriages to civil ceremonies only is the fear that if it were to allow religious bodies to conduct same-sex marriages on religious premises there would be a risk that the courts might turn permission into compulsion – a fear which he regards as misconceived.
Citing Schalk and Kopf v Austria 30141/04  ECHR 1996, Pannick points out that in cases engaging Article 9 ECHR, the European Court of Human Rights
“… has repeatedly stated that religious freedom is ‘one of the foundations of a democratic society’ and a ‘precious asset’ for believers and non-believers. The courts impose civil and criminal standards on religious bodies in many contexts … But it is clear beyond argument that no human rights court would compel religious authorities to conduct a marriage service for two men or two women, in breach of its own religious doctrines. All the more so where the State has provided for civil marriages for same-sex couples. Whether to allow a religious dimension is a matter for the religious authorities”.
That said, however, he agrees with the Church of England’s contention that if same-sex marriage is introduced it will be difficult for the Government to maintain its opposition to heterosexual civil partnership. He suggests that an opposite-sex couple who wished to enter into a civil partnership rather than a marriage, perhaps for reasons of conscience, might well have a good discrimination claim – and we know that there is at least one couple, Tom Freeman and Katherine Doyle, who have expressed both their wish to enter a civil partnership and their intention of taking the matter to Strasbourg if necessary.
“‘If same-sex marriage is legalised then it is inevitable that legal polygamy will be requested. After all, if heterosexuality is no longer to be part of the legal definition of marriage, why should monogamy continue? After all, if the individuals concerned are ‘in love’ and voluntarily want to enter a multi-partner relationship, what business is it of the state to prevent them registering their relationship? Indeed, surely it is discriminatory to prevent it. On what logical, non-judgmental basis should a bisexual person be denied the right to have both a husband and a wife if the proposed partners are willing to consent to being part of such a polyamorous relationship?”
Comment: The answer to Neil Addison’s question – strictly on a logical, non-judgmental basis – is very probably, “none”. But the courts do not operate on a “non-judgmental basis”: being judgmental is precisely what judges (and, for that matter, politicians) are in business for.
One might equally ask, “On what logical, non-judgmental basis should a fourteen-year-old boy and a fourteen-year-old girl who love each other and who wish to establish a permanent relationship be denied the right to marry?” – and I dare say (comparative family law not being my starter for ten) that in some jurisdictions they would be able to do so. The reason why they are not permitted to do so in Great Britain is that since the enactment of the Age of Marriage Act 1929 a marriage contracted by a person under the age of sixteen has been regarded as void and contrary to public policy (similar provision was made by the Age of Marriage Act (Northern Ireland) 1951). Consider: is it remotely conceivable that Strasbourg might in the foreseeable future set aside that rule on grounds of interference with the rights of parties under Article 12 ECHR?
The thrust of the judgment in Schalk and Kopf was that on the question of same-sex marriage, “[i]n the absence of consensus, the State enjoyed a particularly wide margin of appreciation” (para 46). Moreover, “… a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy” (para 97). Presumably that margin of appreciation would apply to Addison’s example of a bisexual person denied the right to establish a matrimonial troika. Moreover, if the Grand Chamber judgment in Lautsi is any guide – given that it reversed the perfectly reasonable conclusions of the Second Section: see Lautsi & Ors v Italy 30814/06  ECHR 2412 – the margin of appreciation in moral and religious matters seems to be growing wider rather than more restrictive.
The Government’s proposals on same-sex marriage are not without flaw: most obviously in that they appear to regard “civil marriage” and “religious marriage” as qualitatively different whereas, in reality, they are simply different means of achieving the identical end: marriage. But I very much doubt that their long-term effects would be as Lapidomedia suggests.