The Government has published its “next steps” policy paper on implementing equal civil partnership. In a guest post, Russell Sandberg looks at some of its implications. 

For a legal status which has existed for just fifteen years, the law concerning civil partnerships and religion has had a turbulent and somewhat confusing history. This blog post briefly recaps the story so far before looking at the Government Equalities Office’s ‘next steps’ policy paper on implementing opposite sex civil partnerships.

The story so far

Originally, civil partnerships lived up to their name and were civil in nature. Much of the Civil Partnership Act 2004 used the template of civil marriage and this was especially true in what it said about religion. Civil partnerships could not be religious. In the same way as a religious service could not be used during a civil marriage ceremony (Marriage Act 1949, s45A(4)),  a religious service could not be used ‘while the  civil partnership registrar is officiating at the signing’ and the place at which two people could register as civil partners could not be in ‘religious premises’ (Civil Partnership Act 2004, s2(5), originally in s6(1(b))). A distinction therefore existed between marriage, which could be civil or religious, and civil partnerships, which could only be civil.

However, the desire of some religious groups to conduct and register civil partnerships eventually led to amendments being tabled to what was to become section 202 of the Equality Act 2010. This amended section 6A of the Civil Partnership Act 2004, which together with the eventual resulting regulations (Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011), removed the ban on civil partnerships taking place on religious premises but stated that there was ‘no obligation on religious organisations to host civil partnerships if they did not wish to’.  Civil partnerships could now take place in religious premises. In the same way that opposite sex couples had a choice between a religious and civil marriage, same sex couples had a choice between a religious and ‘civil’ civil partnership.  Same sex couples could not enter into marriages and opposite sex couples could not enter into civil partnerships.

At around the same time, however, in September 2011, the Home Office announced a public consultation to consider how to make civil marriage available to same-sex couples. This was intended to mirror the original distinction made at the time of the Civil Partnership Act 2004.

The 2012 Consultation covered ‘civil marriage for same-sex couples only – not religious marriage or opposite-sex civil partnerships’. The idea being that this would give same sex couples a choice between civil partnerships and marriage but whereas civil partnerships could now be civil or religious, marriage for same sex couples could only be civil.

The Consultation included a question, however, which asked whether respondents agreed or disagreed with the Government’s proposal not to open up religious marriage to same-sex couples. The Government’s response to the consultation later that year revealed that the majority of the respondents who directly answered this question disagreed with the proposal and wanted religious marriage ceremonies to be available to same-sex couples.

The Government’s response was to accept the argument that religious organisations should be permitted to conduct such ceremonies if they wish to but to also provide a ‘quadruple lock’ providing four statutory guarantees which would protect those religious organisations which did not wish to marry same-sex couples:

• The first ‘lock’ explicitly stated that no religious organisation or individual minister could be compelled to marry same-sex couples or to permit this to happen on their premises.
• The second ‘lock’ made it unlawful for religious organisations or their ministers to marry same-sex couples unless they had expressly opted in to do so.
• The third ‘lock’ amended the Equality Act 2010 to state that no discrimination claims could be brought against religious organisations or individual members for refusing to marry a same-sex couple or allowing their premises to be used for this purpose.
• The fourth ‘lock’ would state that the legislation did not apply to the Church of England and the Church in Wales, meaning that it would continue to be illegal for those churches to marry same-sex couples.

This was an ‘everything but the kitchen sink’ approach designed to offer protection so that any religious organisation which did not wish to conduct same-sex marriages would not fall foul of domestic law.  These legal safeguards were needed, especially in relation to the Church of England and Church in Wales because it is commonly understood that there is a legal duty upon the clergy of these churches to solemnise marriages.

The Marriage (Same-Sex Couples) Act 2013 largely followed the conclusions reached in the Government’s Response to the consultation. All parts of the ‘quadruple lock’ were present but were dispersed throughout the legislation.  The Act made the marriage of same-sex couples lawful, creating an opt-in system for religious same-sex marriages which applied to all religious organisations other than the Church of England and Church in Wales. This opt-in was to be exercised by the religious organisation not the couple getting married.

This all meant that opposite sex couples had the choice of religious or civil marriages while same sex couples had the choice of religious or civil marriages and religious or ‘civil’ civil partnerships.  Now opposite sex couples were at a disadvantage: they had no option of entering into a civil partnership, religious or otherwise.

Although a 2014 Consultation concluded that there was no consensus about the future of civil partnerships including whether they ought to be extended to opposite sex couples, a 2018 Command Paper called for additional information about the ongoing demand for same sex civil partnerships and for extending civil partnerships to opposite sex couples. One complication here was that civil partnerships could not be abolished given that same sex marriage is not legalised in Northern Ireland and so repeal of the Civil Partnership Act 2004 would mean Northern Irish same sex couples would have no means of formalising their relationships.

In the end, the catalyst for change was the Supreme Court’s decision in R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32 that the prohibition of opposite sex civil partnership was incompatible with the ECHR. Consequentially the Government supported a Private Members Bill, which became the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, and required the Secretary of State to make regulations extending civil partnerships to opposite-sex couples by no later than 31 December 2019.

This brings us to the current ‘next steps’ policy paper on how the Government will implement opposite sex civil partnerships.  While there is much of interest in the document, including the headline-grabbing idea of allowing married couples to convert their marriages into civil partnerships, this blog post will focus on chapter three of the paper that focuses on ‘Religious Protections’. (Those interested in other aspects of the paper may wish to check out Dr Andy Hayward’s useful thread on the Paper on Twitter).

The Next Steps for Religious Protections

Chapter three sets out the Government’s position is that they intend ‘to provide protections to ensure that faith or religious organisations are not compelled to act in a way that would be in contravention of their beliefs’ (para 34).

Curiously, it begins by setting out the ‘quadruple lock’ that applies in relation to same sex marriage (para 36), presenting this as a statement of principles. The paper states that ‘following discussions with a number of faith groups’, the Government intends to ‘provide similar protections for civil partnerships. This will allow religious groups to choose whether to host civil partnerships only for same-sex couples, only for opposite-sex couples, for both, or not to host civil partnerships at all’ (para 37).

These provisions need to be ‘similar’ rather than identical to those provided in the Marriage (Same-Sex Couples) Act 2013 because, as paragraph 38 states, ‘there are significant differences in the ways in which religious groups can be involved in marriages and civil partnerships, so the protections will not be exactly the same’. Indeed, it is noticeable that not all parts of the ‘quadruple lock’ were applied when religious same sex civil partnerships were introduced. This raises the question of why the ‘Next Steps’ paper draws an analogy with the provisions for same sex marriage rather than same sex civil partnerships.

The Paper’s discussion of the difference between the ways in which religious groups can be involved in marriages and civil partnerships is problematic. The assertion that ‘religious organisations can themselves solemnise and register marriages without the presence of a marriage registrar, and specific statutory provision is made for marriages according to the rites of the Church of England, as well as Jewish and Quaker marriages’ (para 38) is not quite right. The Marriage Act 1949 differentiates between marriages solemnised according to the rites of the Church of England / Church in Wales (dealt with in Part II of the Act) and marriages otherwise solemnised (dealt with in Part III).  This second category includes opposite sex marriages ‘according to the usages of the Society of Friends’ and a ‘marriage between a man and a woman professing the Jewish religion according to the usages of the Jews’ (section 26). It also includes opposite sex marriages in a place of worship registered as a place of worship under the Places of Worship Registration Act 1855 and section 41 of the Marriage Act 1949.  However, such places of worship need not only be registered but also if there is no registrar present then an authorised person needs to be appointed under section 43. The text of paragraph 38 is therefore slightly misleading for focusing on the organisation rather than the building, given that requirement that the place be registered for religious worship is also narrower than the talk of a religious organisation. It is also slightly ambiguous in stating that religious organisations ‘can themselves solemnise and register marriages’ without noting the statutory requirements. This is especially problematic since those statutory requirements are often thought to be in part the reason why a number of Islamic marriages are not lawfully registered. Indeed, lack of clarity on this issue has clouded the debate as to how to mitigate unregistered religious marriages.

Paragraph 38 goes on to state that in comparison with marriage, ‘although civil partnership ceremonies may take place on religious premises, they can only be registered by a civil partnership registrar and remain essentially secular in nature’. The use of the term ‘secular’ here is somewhat confusing: it suggests that what makes a marriage religious is not where it takes place, but the personnel involved in registration. The dichotomy in a civil partnership between the religious ceremony and the legal registration does not apply so neatly in relation to marriage. This underlies the difference between the two.

The difference between the two is that civil partnerships, unlike marriages, have never been the preserve of religions rather than of the State. No religious groups are considered to have a legal duty to solemnise civil partnerships. They are simply seeking to provide a ceremony prior to a State-defined rite of passage. This is not true of all religious marriages.

The crucial paragraph is paragraph 39, which outlines four ways in which the Government intends to change the law to:

“1. Ensure that no religious organisation or individual minister can be compelled to host or participate in civil partnerships (whether between a same-sex or an opposite-sex couple), to seek approval of their premises for the registration of civil partnerships, or to provide religious consent to the approval of premises.

2. Enable religious organisations to seek approval of their premises for the registration of either same-sex, or opposite-sex civil partnerships, or both. As now, the governing body of the relevant religious organisation will need to provide consent before religious premises can be approved as a place at which civil partnership ceremonies can be held. Where religious premises are already approved for civil partnership ceremonies, these existing approvals will be applicable to same-sex civil partnership only, and a religious organisation will need to seek a further approval from the registration authority if it wishes to host civil partnerships between opposite-sex couples.

3. Ensure religious organisations or individual ministers do not find themselves in breach of the Equality Act 2010 if they refuse to attend, or participate in, civil partnerships on religious premises, because the civil partnership is between a same-sex couple or an opposite-sex couple.

4. Where employment is for the purposes of an organised religion and the requirement is necessary to avoid conflict with the religion, we will amend the Equality Act 2010 to enable employers to impose occupational requirements that a person must not be in a civil partnership with either a person of the same sex or the opposite sex.”

The earlier reference in the ‘Next Steps’ paper to the ‘quadruple lock’ shows how influential that has been. Again we see an ‘everything but the kitchen sink’ approach. Interestingly this is at odds with the much more straightforward provisions made to the Civil Partnership Act 2004 when religious same sex civil partnerships were introduced.

The first two proposed changes are in line with Section 6A of the Civil Partnership Act 2004 which enables ‘religious premises’ (defined as premises that are or have been used solely or mainly for religious purposes and have not subsequently been used for other purposes) to be registered as approved premises for civil partnerships but states that there is no ‘obligation on religious organisations to host civil partnerships if they do not wish to do so’.  It is confusing, however, that different registration regimes and terminology applies for civil partnerships as opposed to marriage. There is a clear need to harmonise and modernise the law relating to registration. It is the other two proposed changes that are of most interest, however.

The third proposed change follows sections 2(5) and (6) of the Marriage (Same-Sex Couples) Act 2013 which added section 110(5A) and Part 6A to Schedule 3 of the Equality Act 2010. These provisions state that there is no breach of the Equality Act by not conducting, participating in or consenting to a same sex marriage. Although similar provisions are made in relation to civil partnerships in Scotland, no provisions were made when religious same sex civil partnerships were introduced in England and Wales. It is odd, therefore, that such provisions are thought to be needed now that opposite sex civil partnership are being introduced.  These provisions suggest that a religious organisation’s role in relation to civil partnership is now all of a sudden being seen as being analogous to their role in marriages. It may be justifiably asked why this is suddenly being thought to be the case and also it can be questioned whether this is correct.

The fourth change involves paragraph 2 of Schedule 9 to the Equality Act 2004 which creates an exception to laws forbidding discrimination on grounds of sex, marriage and sexual orientation where the employment is for the purposes of an organised religion and various requirements are met.  The Marriage (Same-Sex Couples) Act 2013 added paragraph 2(4)(ca) which said that this exception applies to ’a requirement not to be married to a person of the same sex’. However, paragraph 2(4)(c) already states that the exception applies to ‘a requirement not to be married or a civil partner’. It is therefore unclear whether paragraph 2(4)(ca) was required other than perhaps because of different definitions of marriage required a statement that marriage here included same sex marriage. Moreover, it is suspect whether any further modification is needed: a statement that civil partnership includes opposite sex civil partnership would not be necessary given that this will become the legal definition of the civil partnership. Perhaps it may be useful for those religious groups who wish to conduct same sex civil partnerships only but the text of paragraph 2 as it stands should cover this.

The third and fourth proposed changes therefore smack of overkill, especially since the role of religious groups in civil partnerships is different from that in relation to marriage. Indeed, paragraph 40 of the ‘Next Steps’ paper states that ‘as there is no Canon law of the Church of England or Church in Wales that would be affected by the civil partnership changes, there is no need for any protections relating to that law’. This misses the point a little. It is not a question of there not being any religious law on the matter or indeed any religious law which is part of the law of the land on the matter.  The issue is that it is not a commonly recognised legal right to have civil partnerships solemnised in these two churches (as it is for marriages). On the surface, this creates the seemingly odd situation where there is a legal prohibition of the solemnisation of same sex marriage in these two Anglican churches but no such prohibition on civil partnerships. However, this anomaly is explained by the assumed legal duty upon these churches to solemnise marriages. This does mean that the Anglican churches may find themselves lobbied to conduct civil partnerships.

This all means that the protections proposed will afford religious organisations similar protection for conducting civil partnerships as they have for religious marriage, except in the case of the Anglican churches which will have no special treatment in relation to civil partnerships. The intention is clearly for these provisions to apply to opposite and same sex civil partnerships. That means that the religious protections concerning same sex civil partnerships will increase. Yet, no suggestion is made, let alone no evidence given, to suggest that the current protections in the Civil Partnership Act 2004 are inadequate. Rather, the cause of the change seems to be a lack of clarity about the different roles that religious groups play in relation to civil partnerships rather than marriage. This means that a familiar but an overly cautious ‘everything but the kitchen sink’ approach is yet again being taken.

The ‘Religious Protections’ chapter concludes by recognising the judgment in Ladele v London Borough of Islington [2009] EWCA (Civ) 1357 stating that ‘these protections will not apply to civil partnership registrars. They perform a secular function’ (para 41). It further clarifies that ‘a handful of religious ministers are also designated as civil partnership registrars, and when they are performing this secular function they will not be able to refuse on faith or belief grounds’. This perpetuates a distinction between a religious ceremony and a civil legal act of registration. It may well be time to refashion outmoded marriage laws in order to insist upon such a neat distinction there.

Indeed, although there is nothing fundamentally unsound in the ‘Religious Protections’ section, it does include a number of confusions and inconsistencies that will be perpetuated if these next steps are taken. There seems to be a lack of clarity as to the role that religious groups have in civil partnerships rather than marriage. This has meant that the same sex marriage provisions are now being replicated rather than the same sex civil partnership provisions without any explanation or justification.  Harmonisation of the laws on adult relationships is badly needed. The current law on marriage distinguishes between different religions and indeed gives special treatment to places of religious worship. Calls for humanist ceremonies to be legally recognised and concerns about unregistered Islamic marriages show that the current law is not fit for purpose. As Sharon Thompson and I argue, there is a pressing need for comprehensive reform of adult relationships, particularly the formalities required and cohabitation rights. As I have noted elsewhere, the recent announcement of a review of the Law Commission into weddings law is welcome but the varied and various piecemeal reforms underscore the need for a comprehensive harmonisation and reform programme.

I am grateful to Dr Sharon Thompson for her comments on an earlier draft of this post.

Russell Sandberg

Cite this article as: Russell Sandberg, “Religion and Civil Partnerships: The Next Steps in a Turbulent Saga” in Law & Religion UK, 16 July 2019, https://www.lawandreligionuk.com/2019/07/16/religion-and-civil-partnerships-the-next-steps-in-a-turbulent-saga/.