Gavin Ward of WardBlawg has kindly contributed the following guest post
The question of whether same-sex couples should be allowed to get married has been debated extensively, and sometimes heatedly, across the country. With opinions so divided, the news that the Government has now published draft legislation to open marriage up to same-sex couples will be greeted with joy in some quarters and dismay in others.
Ever since the Government raised the prospect of introducing same-sex marriage, it has consulted extensively with stakeholders over its proposals.
It launched a formal consultation exercise in March 2012 which ran for 13 weeks and received over 228,000 responses. According to the Government, this is the largest-ever number of responses received to one of its consultations. The majority of responses were in favour of the introduction of same-sex marriage but there were also some very vocal opponents.
The Marriage (Same Sex Couples) Bill
In summary, the provisions of the Marriage (Same Sex Couples) Bill introduced into Parliament on 24 January will:
- enable same-sex couples to marry in civil ceremonies;
- ensure those religious organisations that wish to do so can opt in to conduct marriage ceremonies for same-sex couples; and
- protect those religious organisations that do not wish to marry same-sex couples from successful legal challenge.
Protection for religious organisations
One of the concerns raised over the idea of same-sex marriage was that religious organisations might be penalised for refusing to carry out such a ceremony because it goes against their beliefs.
The Government has reiterated that carrying out same-sex marriages will be entirely voluntary, and no religious organisation, or individual minister, will be required to do so. It highlights the fact that the right to freedom of religion is guaranteed through Article 9 of the European Convention on Human Rights, and has now been reinforced by a “quadruple lock” built into the Bill.
The “quadruple lock”
In order to ensure freedom of religion, the Bill:
- only permits a religious marriage ceremony of a same-sex couple if:
- the governing body of the religious organisation has opted in;
- the minister concerned is willing; and
- where the ceremony takes place in a place of worship, that place of worship has been registered as one where same-sex marriage can take place.
- specifically states that no religious organisation can be compelled to opt in to marry same-sex couples or to permit such marriages to happen on their premises;
- specifically states that no religious organisation or minister can be compelled to conduct same-sex marriage ceremonies;
- removes the threat of a discrimination action under the Equality Act 2010 if a church or minister refuses to marry a same-sex couple.; and
- makes sure that common law legal duties and canon law are in step with the Bill.
The Scottish position
England and Wales are not the only countries in the United Kingdom to introduce legislation enabling same-sex marriage. The Scottish Government launched a consultation on a draft Bill introducing the right to same-sex marriage in December 2012. It has, according to reports, been backed by all the main parties in the Scottish Parliament.
With the debate over whether same-sex couples should be allowed to get married continuing to rage across the UK, the new draft legislation introduced by the Government is a welcome step forward. The law should reflect, and indeed enforce, the values of society – it is clear that with the number of responses to the consultation that there are strong views from various parts of the community on this issue.
In any event, it should be noted that the right to freedom of religion, guaranteed through Article 9 of the European Convention on Human Rights, will persist through these upcoming legal developments, particularly given its “quadruple lock” reinforcement that has been built into the Bill.
Gavin is a a lawyer in Scotland and consultant to GE Law’s family lawyers.