The Government has responded to its consultation on same-sex marriage in England and Wales.
In a Commons statement this afternoon, 11 December, Culture Secretary Maria Miller confirmed that under the Government’s proposals religious organisations that wish to do so will be allowed to conduct same-sex marriages but, equally, that those which do not want to marry same-sex couples will not be obliged to do so:
“We must be fair to same-sex couples and the state should not ban them from such a great institution. Equally, however, we must be fair to people of faith, and the religious protections I will set out will ensure that fairness is at the heart of our proposals. Churches have a right to fight for and articulate their beliefs and to be under no compulsion to conduct same-sex marriages. As the Prime Minister said, we are 100% clear that if any church, synagogue or mosque does not want to conduct a gay marriage it will not—absolutely must not—be forced to hold it.”
Religious marriage and the “quadruple lock”
In order to make sure that no religious organisation is forced to conduct a same-sex marriage against its will there will be what the Government has described as a “quadruple lock” – which will be on the face of the primary legislation – as follows:
- no religious organisation or individual minister will be compelled to marry same-sex couples (or to permit that to happen on their premises);
- it will be unlawful for religious organisations or their ministers to marry same-sex couples unless the organisation’s governing body has expressly opted in to doing so (and that would mean the religious organisation itself opting in, the presiding minister having consented and the premises in which the marriage is to be conducted having been registered);
- the Equality Act 2010 will be amended to ensure that no discrimination claim can be brought against a religious organisation or an individual minister for refusing to marry a same-sex couple or allowing their premises to be used for that purpose; and
- the primary legislation will state explicitly that it will be illegal for both the Church of England and the Church in Wales to marry same-sex couples or to opt in to doing so.
As to the last of these, the canon law of the two Churches – which forbids the marriage of same-sex couples – will continue to apply. That, says the Government statement, means that it will require a change both in secular law and in canon law before the Church of England or the Church in Wales will be able to opt in to conducting same-sex marriages.
The Secretary of State told the Commons that the Government’s legal advisers had confirmed that
“… with appropriate legislative drafting, the chance of a successful legal challenge through domestic or European courts is negligible. I have therefore asked the Government’s lawyers to ensure that that is the case”.
The Government’s announcement also included a commitment to providing a process under which civil partnerships – of which there are now some 50,000 – may be converted into civil marriages and to amending the law so that an individual can legally change his or her gender while remaining married (under the current law a subsisting marriage has to be dissolved before a full gender recognition certificate can be issued to one of the parties).
Maria Miller told the Commons that in her view the chance of a successful legal challenge to the proposals was “negligible”.
In the subsequent exchanges Labour MP Chris Bryant (Rhondda), who is an Anglican priest, said that the Government should not debar the Church of England from conducting same-sex marriages because the Church might change its mind – to which Maria Miller replied that if the Church were to change its mind it could seek amending legislation. (Which, it must be pointed out, would be rather easier for the Church of England than for the Church in Wales – in order to change its internal law on marriage the C in W had to persuade Parliament to pass the Marriage (Wales) Act 2010 while the C of E simply did so by Measure.)
The Secretary of State’s comment that with proper drafting “the chance of a successful legal challenge through domestic or European courts is negligible” may or may not turn out to be correct in practice. Unfortunately, no Government reveals the legal advice that it has been given so we shall never know on what that claim is based. Moreover, her assertion that
“[t]here is clear protection under Article 9 of the European Convention on Human Rights and clarity in case law that the European Court of Human Rights considers same-sex marriage to be a matter for each individual member state”
is not totally beyond challenge. Certainly, the ECtHR has conceded a very wide margin of appreciation to states parties on the question as to whether or not they are obliged to have any kind of formal legal recognition of same-sex relationships: see Schalk and Kopf v Austria 30141/04  ECHR 218 (16 February 2010). But the issue before the Court in the case of a challenge, for example, to the blanket ban on clergy of the C of E conducting same-sex marriages or to the refusal of a Church to allow one of its ministers to do so would be this: whether, having conceded the principle of same-sex religious marriage as an institution, the Government could then permit individual religious organisations to refuse to perform such marriages or, perhaps more pointedly, whether an individual cleric could be prevented by his superiors from doing so. In the latter case, what about that person’s Article 9 rights?
My suspicion is that all this may turn out to be considerably more complicated than the Government envisages. The veteran Lib Dem MP Sir Alan Beith (Berwick-upon-Tweed) made an interesting point when he asked how the legal protections that the Minister described would apply in those denominations in which authority resides not in a central organisation or with the clergy but with the local congregation. The Secretary of State replied that “those issues would be for local congregations and local representatives of religious institutions to deal with” but, in a sense, that is no answer at all. Churches such as the Congregationalists and the Baptists whose ecclesiology is firmly rooted in the principle that “The Church” subsists in the local gathered congregation might find themselves in the unenviable position of having a majority of local congregations that would not dream of conducting a same-sex marriage and a few who very much wanted to do so. So what then? And what authority does “the presiding minister” have anyway? He or she is often regarded in some denominations as simply one elder among many. (For a Baptist view on this point see Steve Holmes on Legal and ecclesiological issues concerning same-sex marriage.)
Postscript: opposite-sex civil partnerships
Buried away at the end of the Government’s response is the following statement on civil partnerships for heterosexuals:
“7.9 Opposite sex couples currently have access to marriage, either via a civil or religious ceremony, which is both legally and socially recognised. We understand that not all opposite sex couples wish to marry, but that decision is theirs to make and they have the option to do so if they wish. Through the responses received to this consultation, it has not been made clear what detriment opposite sex couples suffer by not having access to civil partnerships.
7.10 This consultation was not aimed at being a wider process of reform of marriage and civil partnership legislation and therefore we do not consider that it is necessary to open up civil partnerships to opposite sex couples in order to enable same-sex couples to get married”.
The point that this completely misses is that not all heterosexual couples wish to marry but many unmarried heterosexual couples would still like to have some other formal legal recognition of their relationship for purposes such as pension-rights and inheritance: some of the reasons why gay couples pressed for civil partnerships in the first place. What the Government seems to be saying, in short, is “We didn’t ask that question and we aren’t taking any notice of those who’ve raised it: so kindly go away”. Wonder how that will play in Strasbourg – where it will almost certainly end up?
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Some press and political commentary on the government proposal has been made on the premise that extra safeguards have been put in place for the Church of England which give legal protection above and beyond that for other denominations and faiths. Others have questioned why it would be “illegal” for the Church perform same sex marriages but not for other denominations and faiths.
To clarify these misunderstanding, the Church has issued an explanatory note which outlines the nature of its relationship with Parliament on these matters relating to Canon Law, and the necessity for such provisions to be included within the proposed legislation.
Essentially, doctrinal issues such as the Church’s position on same-sex marriage fall within the Canon Law of the Church and are not the domain of Parliament. However, as part of the public law of the land they cannot be in conflict with statute law, and consequently the proposed legislation for same-sex marriage makes it clear that it does not apply to marriage according to the rites of the Church of England.
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