A Response to the Government Equalities Office Consultation -“Equal Civil Marriage”- from the Church of England
Summary
The Church of England cannot
support the proposal to enable ―all couples, regardless of their gender, to
have a civil marriage ceremony.
Such a move would alter the
intrinsic nature of marriage as the union of a man and a woman, as enshrined in
human institutions throughout history. Marriage benefits society in many ways,
not only by promoting mutuality and fidelity, but also by acknowledging an
underlying biological complementarity which, for many, includes the possibility
of procreation.
We have supported various legal
changes in recent years to remove unjustified discrimination and create greater
legal rights for same sex couples and we welcome that fact that previous legal
and material inequities between heterosexual and same-sex partnerships have now
been satisfactorily addressed. To
change the nature of marriage for everyone will be divisive and deliver no
obvious legal gains given the rights already conferred by civil partnerships.
We also believe that imposing for essentially ideological reasons a new meaning
on a term as familiar and fundamental as marriage would be deeply unwise.
The consultation paper wrongly
implies that there are two categories of marriage, ―civil‖ and ―religious‖.
This is to mistake the wedding ceremony for the institution of marriage. The
assertion that ―religious marriage‖ will be unaffected by the proposals is
therefore untrue, since fundamentally changing the state‘s understanding of
marriage means that the nature of marriages solemnized in churches and other
places of worship would also be changed.
To remove the concept of gender
from marriage while leaving it in place for civil partnerships is unlikely to
prove legally sustainable. It is unlikely to prove politically sustainable to
prevent same sex weddings in places of worship given that civil partnerships
can already be registered there where the relevant religious authority
consents. And there have to be serious doubts whether the proffered legal
protection for churches and faiths from discrimination claims would prove
durable. For each of these reasons we
believe, therefore, this consultation exercise to be flawed, conceptually and
legally.
Our arguments are set out in
greater detail below.
The Church‟s understanding of marriage
1. In
common with almost all other Churches, the Church of England holds, as a matter
of doctrine and derived from the teaching of Christ himself, that marriage in
general – and not just the marriage of Christians – is, in its nature, a
lifelong union of one man with one woman.
2. The Church of England's understanding of
marriage as a lifelong union between one man and one woman is derived from the
Scriptures and enshrined within its authorised liturgy. According to the Common
Worship marriage service (derived from the Book of Common Prayer of 1662):
"The Bible teaches us
that marriage is a gift of God in creation and a means of his grace, a holy
mystery in which man and woman become one flesh. It is God's purpose that as husband and wife give themselves to
each other in love throughout their lives, they shall be united in that love as
Christ is united with his Church.
Marriage is given that
husband and wife may comfort and help each other, living faithfully together in
need and in plenty, in sorrow and in joy.
It is given that with delight and tenderness they may know each other in
love and through the joy of their bodily union may strengthen the union of
their hearts and lives. It is given as
the foundation of family life in which children may be born and nurtured in
accordance with God's will, to his praise and glory.
In marriage husband and wife
belong to one another and they begin a new life together in the community. It is a way of life that all should honour
and it must not be undertaken carelessly, lightly or selfishly but reverently,
responsibly and after serious thought.”
(Paragraphs 2, 3 and 4 of the
Alternative Preface to the Marriage Service in Common Worship: Pastoral
Services, p. 136).
3. This
same understanding of marriage is reflected in the vows taken by husband and
wife:
"The Church of Christ
understands marriage to be, in the will of God, the union of a man and a woman,
for better, for worse, for richer for poorer, in sickness and in health,to love and to cherish, till
parted by death."
(Common Worship: Pastoral
Services, page 177)
The Church‟s position on
same-sex marriage
4. Question 1 of the
consultation asks: Do you agree or
disagree with enabling all couples, regardless of their gender, to have a civil
marriage ceremony? We disagree with this proposition for the following
reasons which are not only based on the tenets of the Christian faith (and, in
particular, the Church of England), but which are also drawn from our
commitment, as the established church in England, to the common good of all in
society.
5. It
is well known that there is a continuing debate within the Church of England
about its declared view of sexually active homosexual relationships. It is
important to understand that our response to the question of
same-sex marriage does not prejudge the outcome of that continuing theological
and ethical debate. Our concern is for the way the meaning of marriage will
change for everyone, gay or straight, if the proposals are enacted. Because we believe
that the inherited understanding of marriage contributes a vast amount to the
common good, our defence of that understanding is motivated by a concern for
the good of all in society.
6. We
disagree with the proposition on the following grounds:
· the
intrinsic nature of marriage, as enshrined in human institutions since before
the advent of either church or state, is the union of a man and a woman.
· marriage
affords many benefits to society, which include mutuality, fidelity and
biological complementarity with the possibility of procreation.
· marriage is a
central and unique social institution, not to be confused with the particular
ceremony through which it is entered into.
These points are explained in
detail below. We deal first with the arguments concerning the nature of
marriage. In an Annex we outline the legal arguments relevant to the
consultation.
Marriage within a
flourishing society
7. Throughout
history, in the laws of the land and in the Church of England‘s Book of Common
Prayer on which the laws concerning marriage are grounded, marriage has been
understood to be, always and exclusively, between a woman and a man. This
understanding is deeply rooted in our social culture. While marriage has
evolved as an institution in many other ways this aspect has remained constant.
For the consultation document to talk of a ―ban‖ on same sex couples marrying
is a misuse of the language. There can be no ―ban on something which has
never, by definition, been possible.
8. Many,
within the churches and beyond, dispute the right of any government to redefine
an ages-old social institution in the way proposed. It is important to be clear
that insistence on the traditional understanding of marriage is not a case of
knee-jerk resistance to change but is based on a conviction that the
consequences of change will not be beneficial for society as a whole.
9. Despite
the continuing debate in the Church of England on some key ethical issues in
this area, the proposition that same-sex relationships can embody crucial
social virtues is not in dispute. To that extent, the Prime Minister‘s claim
that he supports same-sex marriage from conservative principles is readily
understandable. Same-sex relationships often embody genuine mutuality and
fidelity, two of the virtues which the Book of Common Prayer uses to commend
marriage. The Church of England seeks to see those virtues maximised in
society.
10. However,
the uniqueness of marriage – and a further aspect of its virtuous nature – is
that it embodies the underlying, objective, distinctiveness of men and women.
This distinctiveness and complementarity are seen most explicitly in the
biological union of man and woman which potentially brings to the relationship
the fruitfulness of procreation. And, even where, for reasons of age, biology or
simply choice, a marriage does not have
issue, the distinctiveness of male and female is part of what gives marriage
its unique social meaning.
11. Marriage
has from the beginning of history been the way in which societies have worked
out and handled issues of sexual difference. To remove from the definition of
marriage this essential complementarity is to lose any social institution in
which sexual difference is explicitly acknowledged.
12. To
argue that this is of no social value is to assert that men and women are
simply interchangeable individuals. It also undermines many of the arguments
which support the deeper involvement of women in all social institutions on the
grounds that a society cannot flourish without the specific and distinctive
contributions of each gender.
13. We believe that redefining marriage to include same-sex relationships
will entail a dilution in the meaning of marriage for everyone by excluding the
fundamental complementarity of men and women from the social and legal
definition of marriage.
14. This
might in itself seem a somewhat theoretical argument if such a redefinition
were necessary to remedy an injustice which could not be addressed in some
other way. Civil partnerships have, however, already provided a framework
within which same sex couples can exhibit the social virtues of fidelity and
mutuality.
15. In
addition it is not clear what additional new rights, opportunities or
responsibilities if any the introduction of same-sex marriage would achieve
given that the legal inequalities between heterosexual married couples and
same-sex partners have already been addressed through the introduction of civil
partnerships – which was supported by the majority of our bishops who voted on
the legislation in 2004 when it was before the House of Lords.
16. The
one justification for redefining marriage given to us by the Equalities
Minister was that it ―met an emotional need‖ among some within the LGBT
community. Without wishing to diminish the importance of emotional needs,
legislating to change the definition of a fundamental and historic social
institution for everybody in order to meet the emotional need of some members
of one part of the community, where no substantive inequality of rights will be
rectified, seems a doubtful use of the law. We also note that by no means all
LGBT people are in favour of redefining marriage in this way.
“Religious” and “Civil”
Marriage
17. The consultation document draws a distinction between “religious” and
“civil” marriage in a way which assumes that such a distinction is a matter of
fact. There is no such distinction in law.
This use of language is therefore disingenuous and tends to obscure the
fact that changing the law to embrace same-sex marriages, on the terms set out
in the consultation, would necessitate introducing such a distinction for the
first time – something which the consultation goes on to say (at paragraph 2.7)
that it does not intend to do.
18. In
law, there is one social institution called marriage, which can be entered into
through either a religious or a civil ceremony. To suggest that this involves
two kinds of marriage is to make the category error of mistaking the ceremony
for the institution itself. In the Annex to this response we set out
further legal analysis of the consultation is in fact proposing and the legal
consequences that that would have.
Major unresolved questions
19. We
note that in paragraphs 2.14—2.16, the consultation document leaves the complex
question of defining adultery, non-consummation etc. to be determined by case
law. The stated objective of having identical reasons for ending both a
same-sex and a heterosexual marriage is problematic and does not seem to be
achievable given that the existing definitions of adultery and non-consummation
cannot be applied to the case of a same-sex marriage. The proposed reliance on
case law to sort out these points is unsatisfactory. More fundamentally the
analysis fails to take account of the fact that consummation has always been an
integral part of the common understanding of marriage between church and state,
with annulment possible where consummation does not occur.
20. Questions
6 and 8 refer to the proposal to retain the category of civil partnerships
solely for same-sex couples, following the introduction of same-sex marriage.
No rationale is given. In the absence
of a clear rationale it is unlikely that the provisions of a bill that gave
effect to this aspect of the proposal would survive the Parliamentary
legislative process.
21. Even
if they did, it must be very doubtful whether they could withstand a human
rights law challenge. Whereas the
European Court of Human Rights has upheld the right of states to retain
marriage as the union between a man and a woman it seems extremely doubtful
that it would uphold the right of a state to retain gender inequality in civil
partnerships once the state had legislated for ‗equal marriage‘. We say more about this in the Annex to this
paper and should be interested to see the Government‘s legal analysis of this
issue.
22. Given
that Parliament has already legislated to enable civil partnerships to be
registered in religious premises where the relevant religious authority has so
agreed (paras. 24 and 25), some rationale is needed for the current proposal to
preclude same-sex marriages from being solemnised in religious premises on
exactly the same terms. This appears to be a consequence of the fallacious
assumption that ―religious‖ and ―civil‖ marriages are distinct. We do not
believe that the current proposal would in fact prove tenable.
23. These
confusions have arisen because the proposals are, in fact, of much deeper
social significance than has been acknowledged. By attempting to chart a line
of least resistance the Government has ended up with recommendations which,
whatever view is taken of the underlying principles, are lacking in coherence.
24. The
Church of England‘s unique place in the current marriage law of England means
that the proposals will potentially have a very significant impact on our
ability to serve the people of the nation as we have always done.
The Consultation Exercise
25. The
terms of the consultation exercise have been unsatisfactory in that, in at
least three instances, the consultation document prejudges the outcome:
The document expresses the issues in prejudicial terms which pre-empt
the principles on which it purports to consult. For example, (para. 1.1, cp. para. 2.1) ―the
consultation is about how the ban can be lifted on same sex couples having a
marriage through a civil ceremony‖. The
language of a ―ban‖ has been promoted by certain pressure groups and it is
disappointing to see the GEO adopt this polemical language uncritically. To
speak of a ―ban‖ implies an act of human will to prevent same sex couples
marrying and therefore excludes the alternative view that heterosexual marriage
is an ages-old social institution which, by definition, can only be entered
into by a man and a woman. Serious and widely-held views are therefore rejected
in advance by the way the ―problem‖ is defined.
By asserting the existence of a non-existent concept, the consultation
wrongly assumes that changes that would be required by the proposal are already
matters of fact. Para. 1.7 (et seq.)
introduces the concept of ―religious marriage as if it were an established
fact. From the earliest discussions with Ministers on this subject we have
pointed out that there is no distinction in law between ―religious and ―civil marriage.
Contentious
views, on which the consultation should be seeking respondents‟ opinions, are
asserted as undisputed facts. For
example (para. 1.9i) ―The Government recognises that the commitment made
between a man and a man, or a woman and a woman in a civil partnership is as
significant as the commitment between a man and a woman in a civil marriage.
However, if one of the significant elements of the commitment that a man and a
woman generally make to each other in marriage is to be open to bringing
children into the world as a fruit of their loving commitment, then the
commitment of same-sex couples (whatever its virtues) cannot be acknowledged as
identical. But this viewpoint is effectively excluded by the wording of the
consultation document.
26. On
15 March 2012 (just as the consultation was being launched) 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.‖ Given that the first
question on the consultation document is, “Do you agree or disagree with
enabling all couples, regardless of gender, to have a civil marriage ceremony”,
the Minister‟s comments imply that the question is redundant. This is not the right way for addressing a
subject of this significance.
Annex
Marriage law: the position
of the Church of England
1. The
Church of England has a unique position in relation to the solemnization of
marriages in English law. There are therefore particular issues of concern
about the impact of the Government‘s proposals on the Church, notwithstanding
statements in the consultation paper that religious marriage‘ would be
unaffected by the proposals.
2. England
is divided geographically into ecclesiastical parishes so that everyone who
lives in England resides in a parish.1 At common
law, parishioners – that is all those who are resident in a parish whether they
are members of the Church of England or not – have certain legal rights in
relation to the parish church and the ministry of the parochial clergy. Those rights include the right to marry in
the parish church and to have the marriage solemnized by the minister of the
parish.
1 This is subject to certain
exceptions that are not material for present purposes: e.g. certain Royal
residences, cathedral precincts and some other places are extra-parochial.
2 The exercise of this right is
subject to statutory provisions which allow individual clergy to decline to
solemnize marriages where a party is divorced and has a living former spouse,
or is of the acquired gender under the Gender Recognition Act 2004, or where
the parties are within certain degrees of kindred and affinity within which it
is now lawful for persons to marry.
3 Sections 6(4) and 72, Marriage
Act 1949.
4 Section 1, Church of England Marriage
Measure 2008.
3. Anyone
who is resident in England has a legal right to marry in his or her parish
church irrespective of his or her religious affiliation and the minister of the
parish (the rector, vicar or priest in charge) is under a legal duty to conduct
the marriage.2 The existence
of this right is recognised by the Marriage Act 1949 (which governs the
procedure for all marriages in England and Wales).
4. Additional
rights have been created by statute. A
person also has a legal right to marry in a parish church which is his or her
usual place of worship, which means having his or her name entered on the
church electoral roll of the parish in question.3
A person also has a legal right to marry in the parish church of a
parish with which he or she has a ‗qualifying connection‘.4
5. Qualifying
connections‘ include having been baptized or confirmed in the parish, having
previously lived in the parish for at least six months, having a parent who has
lived in the parish for at least six months or having a parent or grand parent
who was married in the parish.
6. Owing
to the position of the Church of England as the established church in England,
all of its clergy are automatically legally authorised to solemnize marriages
and they are therefore subject to certain legal duties and responsibilities in
relation to marriage simply by virtue of being ordained ministers of the
Church. By contrast, ministers of other
denominations and religions are able to solemnize marriages only if they are
individually appointed as ‗authorised persons‘, and civil registrars are
specifically appointed by the local authority as registrars of marriages.
7. The
Church of England is also responsible for the legal preliminaries to marriages
that take place in its churches. The
parochial clergy are under a legal duty to publish banns of marriage and have
other responsibilities in connection with that. And various ecclesiastical authorities have legal functions in
connection with the granting of marriage licences (i.e. common licences‘
granted by ecclesiastical judges, and the Archbishop of Canterbury‘s special
licence‘).
8. Again,
this means that the Church of England is in a distinctive position compared
with other denominations and religious bodies.
Marriages that take place in their registered buildings are solemnized
following civil preliminaries which are the responsibility of the local
authority.
9. Around
a quarter of marriages solemnized in England are solemnized by the clergy of
the Church of England in accordance with the various common law and statutory
rights mentioned above.
The proposals would change
the legal definition of marriage in all cases
10. The
main body of the response points out that there is no distinction in law
between religious‘ and civil‘ marriage (paragraphs 17 and 18) and that the
Government‘s proposals would involve ―a dilution in the meaning of marriage for
everyone‖ (paragraph 13). Here we
provide a more detailed legal analysis of those issues.
11. There
are a number of different legal procedural routes by which a marriage may be
entered into. A marriage may be
solemnized according to the rites of the Church of England, the form according
to which such a marriage is solemnized being contained in the Book of Common
Prayer or in other, legally authorised, alterative forms of service.
12. Alternatively,
a marriage may be solemnized in a registered building of another religious
denomination or in a register office or on ‗approved premises‘ such as a
hotel. In all of those cases the
marriage may be solemnized without using any statutorily prescribed form or
ceremony provided that a certain statutory form of words is used at some point
in the proceedings. The same forms of
words are used to contract a marriage irrespective of whether it takes place in
a register office, a hotel or a non-Church of England religious building.5
5 Sections 44, 45 or 46B,
Marriage Act 1949.
13. Further
alternatives are that a marriage may be solemnized in a synagogue according to
Jewish usages or solemnized according to the usages of the Society of Friends
(‗Quakers‘).
14. Irrespective of the particular form or ceremony according to which a
marriage is solemnized, the legal institution into which the parties enter is
the same: the single legal
institution of marriage. That this is
so is reflected by other legal provisions concerning marriage. The law concerning capacity to marry and
impediments to marriage does not differ according to the form by which a
marriage is solemnized (see e.g. sections 1 and 2 of the Marriage Act 1949). Leaving aside purely procedural defects
which necessarily vary according to the form used, the grounds on which a
marriage is void or voidable are the same irrespective of the form by which it
was solemnized (see sections 11 and 12 of the Matrimonial Causes Act 1973).
15. The
consultation paper fails to acknowledge the essential point that in English law
there has, down the centuries, been a single institution of marriage. That
institution has not varied according to the form or ceremony by which a
marriage has been solemnized. The solution proposed to deal with the concerns
of the Church and other religious bodies about redefining marriage – i.e. that
persons of the same sex should be able to enter into a marriage using civil
forms but not religious forms – completely fails, therefore, to address those
concerns.
16. Moreover, what is said at paragraph 2.4 – ―There is,
however, no legal definition of religious and civil marriage. Marriage is
defined according to where it can take place, rather than being either
specifically religious or civil‖ – is wrong.
The only kind of marriage which English law recognises is one which is
essentially the voluntary union for life of one man with one woman to the
exclusion of all others.6 That is the
definition of what marriage is. The
question of where a marriage is solemnized, or the form or ceremony used, is
immaterial to the definition of marriage.
6 Nachimson v Nachimson [1930] P 217, CA; Hyde v Hyde and
Woodmansee (1866) LR 1 P & D 130; Re Bethell, Bethell v Hildyard
(1888) 38 ChD 220; Sowa v Sowa [1961] P 70, [1961] 1 All ER 687, CA.
7 Once a couple have got married either through religious or civil
means, they will then be treated for legal purposes as being married. We are
not proposing to create two separate legal regimes for civil and religious
marriages. We are proposing that the law is clear that marriages conducted
through a civil ceremony would be open to all couples and marriages conducted
through a religious ceremony and on religious premises can only be between a
man and a woman.
17. It
follows that the consultation paper is misleading when it presents the
Government‘s proposals as not affecting ―religious marriage‖. What it is in
fact proposing is a redefinition of the legal institution of marriage
generally. This emerges from what is
said in paragraph 2.7.7 It is
unfortunate that the consultation paper obscures that intention by
concentrating on purely procedural matters rather than addressing matters of
substance.
18. The effect of the proposals would be that everyone who wished to marry
– irrespective of the form or ceremony by which their marriage was solemnized –
would be required to enter into the same new, statutory institution of
„marriage‟. That institution would be
one which was defined as the voluntary union for life of any two persons. English law
would, as a result, cease to provide or recognise an institution that
represented the traditional understanding of marriage as the voluntary union
for life of one man with one woman.
19. This
represents a fundamental change. The fact that under what is proposed only
opposite-sex couples would be able to have a marriage solemnized according to
religious forms and ceremonies does not alter that analysis. The legal institution into which an opposite
sex-couple who married according to religious forms and ceremonies entered
would be the same legal institution into which a same-sex couple would enter
according to civil forms and ceremonies.
20. The
established institution of marriage, as currently defined and recognised in
English law, would in effect, have been abolished and replaced by a new
statutory concept which the Church – and many outside the Church – would
struggle to recognise as amounting to marriage at all. A man and a woman who wished to enter into
the traditional institution of marriage would no longer have the opportunity to
do so. Only the new, statutory
institution, which defined a marriage‘ as the voluntary union of any two
persons, would be available.
21. Saying,
therefore, as the consultation paper does, that no changes are proposed to
marriage according to the rites of the Church of England overlooks the fact
that the institution of marriage would have been redefined generally for the
purposes of English law. At the very least that raises new and as yet
unexplored questions about the implications for the current duties which
English law imposes on clergy of the Established Church.
22. A
general redefinition of marriage would also have implications for the
legislative provisions that are concerned with the Church‘s teaching on
marriage.
23. The
Church or England‘s teaching on marriage is embodied in law. Canon B 30 states:
― The Church of England affirms, according to our Lord’s teaching, that
marriage is in its nature a union, permanent and lifelong, for better for
worse, till death them do part, of one man with one woman, to the exclusion of
all others on either side….‖.8
8 Revised Canons Ecclesiastical,
Canon B 30, paragraph 1.
9 Sections 2 and 3, Submission
of the Clergy Act 1533; section 1(3), Synodical Government Measure 1969.
10 Application No. 30141/04.
11 See paragraph 61 of the judgment: ―Regard being had to art 9 of the
charter, therefore, the court would no longer consider that the right to marry
enshrined in art 12 must in all circumstances be limited to marriage between
two persons of the opposite sex.
Consequently, it cannot be said that art 12 is inapplicable to the
applicants‘ complaint. However, as matters stand, the question whether or not
to allow same-sex marriage is left to regulation by the national law of the
contracting state.‖
24. The
Canons of the Church of England are part of the law of England. The Queen‘s licence and the Royal Assent are
required before a canon may be made and promulged. Canons are additionally subject to statutory provisions which
provide that they do not have effect if they are contrary to the customs, laws
or statutes of the realm.9
25. Were
legislation to be enacted by Parliament that changed the definition of marriage
for the purposes of the law of England, the status and effect of the canonical
provisions that set out the Church‘s doctrine of marriage as being between one
man and one woman would be called into question. In this way too the consultation overlooks the implications of
what is proposed for the position of the established Church.
Scope for challenges to what
is proposed under the ECHR
26. If
the proposal to redefine marriage were to be implemented, it must be very
doubtful whether limiting same-sex couples to non-religious forms and
ceremonies could withstand a challenge under the European Convention on Human
Rights.
27. Until
recently, the European Court of Human Rights (ECtHR) had consistently held that
the right to marry provided for in article 12 of the European Convention on
Human Rights and Fundamental Freedoms (ECHR) meant the marriage of a man and
woman only and did not cover same-sex unions of any kind. But in 2010 the ECtHR, in deciding the case
of Schalk v Austria10 took a different line. The applicants in that case, a same-sex couple, raised complaints
under a number of articles of the ECHR following the refusal by the Austrian
authorities of their application to marry.
28. The
ECtHR had regard to article 9 of the Charter of Fundamental Rights of the
European Union which recognised ―the right to marry‖ (rather than that ―men and
women of marriageable age have the right to marry and to found a family‖ as per
article 12 ECHR). It also had regard to
the commentary to the EU Charter which said that article 9 of the Charter was
―broader in scope than the corresponding articles of other international
instruments‖ by omitting an explicit reference to ―men and women‖, although
there was no requirement that domestic laws should facilitate same-sex
marriages.
29. The
ECtHR held, in the light of that provision of the EU Charter, that it would no
longer consider that the right to marry enshrined in article 12 of the ECHR
―must in all circumstances be limited to marriage between persons of the
opposite sex‖. Article 12 could not,
therefore, be said to be inapplicable to the applicants‘ complaint. Nevertheless ―the question whether or not to
allow same-sex marriage‖ was left open to regulation by domestic law.11
30. Schalk represents a
substantial shift in the jurisprudence of the ECtHR on the right to marry and
same-sex unions. The position of the
Court now appears to be that while it remains open to a member state not to
make provision for same-sex marriage, where provision is made for same-sex
marriage article 12 is applicable whether the parties are of the opposite sex
or of the same sex.
31. The
Court further held that same-sex couples were in a ―relevantly similar
situation‖ to opposite-sex couples for the purposes of article 14 of the ECHR
(enjoyment of rights to be secured without discrimination on grounds of
personal characteristics), again departing from an earlier line of decisions.
32. A
number of points arise from this recent development in the jurisprudence of the
ECtHR (to which our domestic courts are required to have regard):
· It
remains the case that member states of the Council of Europe are not obliged to
make legal provision for same-sex marriage.
· If
a member state chooses to make provision in its domestic law for same-sex
marriage, then so far as the ECHR is concerned same-sex marriage is protected
by the Convention in the same way that opposite-sex marriage is protected: the
right to marry contained in article 12 is applicable to both categories so far
as that state is concerned.
· Same-sex
couples are in an analogous position to opposite-sex couples so far as the
anti-discrimination provisions of article 14 of the ECHR are concerned.
Applying those principles to
the current proposals leads to the following conclusions:
The
Government does not need to legislate in order to meet its convention
obligations. The United Kingdom is
already compliant, civil-partnerships conferring equivalent legal rights on
same-sex couples as marriage does on opposite-sex couples.
If
the Government chooses to introduce legislation providing for same-sex marriage
– and Parliament passes it – article 12 of the ECHR (the right to marry) would
be capable of applying both to opposite-sex and to same-sex couples.
If
opposite-sex couples were able to enter into the (newly-defined) legal institution
of marriage in accordance with either religious or civil forms and ceremonies
but same-sex couples were able to enter into that institution only in
accordance with civil forms and ceremonies that, of itself, would be unlikely
to amount to a breach of article 12 because such an arrangement would not
deprive same-sex couples of the substance of the right to marry.
But there
would be a serious prospect of a successful challenge to that arrangement under
article 14 taken in conjunction with article 12, on the basis that same-sex
couples were being discriminated against in relation to matter that was within
the ambit of article 12.
33. It
is well established that the non-discrimination provisions of article 14 are
applicable where the subject matter of the discrimination is within the ambit
of one of the other articles of the Convention. If marriage in England and Wales were redefined to include unions
between persons of the same-sex then such unions would, following Schalk,
come within the ambit of article 12.
That being so, it would be open to a same-sex couple to bring a claim
(initially in the domestic courts – probably for a declaration of
incompatibility – and ultimately in the ECtHR) that they had been treated
differently from opposite sex couples in
that, unlike the latter, they were unable to have their marriage solemnized
following religious forms and ceremonies.
34. Given
what the ECtHR has said in Schalk, and given that under what is proposed
English law would treat same-sex marriages as the same thing as opposite-sex
marriages, the same-sex couple would be in an analogous position to a same-sex
couple for the purposes of article 14.
A court could not say – as the ECtHR has said on occasions in the past –
that the difference in treatment was explicable by the complainants being in a
materially different position from the comparators.
35. That
being so, the difference in treatment could be upheld only if it could be
justified: that is that it was judged to be a proportionate means of pursuing a
legitimate aim.
36. Providing
that same-sex marriages may not be solemnized in accordance with religious
forms and ceremonies would probably be held to be pursuing a legitimate aim in
that the intention would be to respect the right to freedom of religion:
religious bodies should not be required to solemnize marriages contrary to
their religious beliefs. But it is very
doubtful that a legislative provision which limited same-sex couples to non-religious
marriage ceremonies would be held (either by our domestic courts or by ECtHR)
to amount to a proportionate means of pursuing that aim.
37. There
are religious bodies which have said that they are ready and willing to
solemnize same-sex marriages. That
being so, a legislative provision which prevented same-sex marriages being
solemnized according to any religious forms and ceremonies would be likely to
be held to go further than was necessary to meet the legitimate aim of not
requiring religious bodies who were opposed to doing so to solemnize same-sex
marriages. Moreover, because sexual
orientation is one of the suspect categories‘ which require very weighty
reasons to justify a difference in treatment the Government would bear a very
heavy burden in seeking to show that the means was proportionate to the
legitimate aim pursued.
38. It
is not possible to predict with certainty the outcome of proceedings that
sought to challenge such a provision – either in our domestic courts or in
Strasbourg. But if Parliament proceeded
to legislate for same-sex marriage, it would not be long before the proposed
restriction of same-sex marriage to civil forms and ceremonies came under legal
challenge; and such legal challenge would have a good prospect of success.
39. It
is doubtful therefore that the line taken in the consultation paper – that
same-sex marriages would not be able to be solemnized according to any
religious forms and ceremonies – would survive legal challenge.
40. The
result is that the assurances the Government seeks to give at paragraphs 2.10
and 2.11 of the consultation paper cannot prudently be relied on. Paragraph 2.10 states that because
legislation would make it ―clear that marriages conducted according to
religious rites on religious premises could not be between a same-sex couple‖
the result would be ―that no religious organisation … would face a successful
legal challenged for failing to perform a marriage for a same-sex couple …‖.
41. And
paragraph 2.11 states that because ―it would not be legally possible for a
Church of England minister to marry a same-sex couple on religious premises
through a religious ceremony the result would be that ―there would therefore
be no duty on Church of England ministers to marry same-sex couples. Their duty would remain unchanged and relate
only to opposite-sex couples within the relevant parish. As a result, no Church of England minister
should face a successful legal challenge for refusing to conduct a same-sex
religious marriage.
42. These
assurances are all based on the position being as proposed in the consultation
paper: i.e. the limitation of same-sex couples to non-religious forms and
ceremonies. If, however, that position
were not upheld – either because it was held to be unlawful by the courts or as
a result of changes to the applicable legislation during its passage through
Parliament or by way of subsequent amendment – the basis for those assurances
would fall away.
43. In
that scenario a considerable amount of further legislative provision would be
required in order to protect the position of the Church of England and other
religious bodies. In particular the
whole range of rights and duties that exist in relation to marriage and the
Church of England would have to be re-examined.
44. Even
if a mutually acceptable legislative solution could be found by way of limiting
such rights and duties, it cannot be assumed that any such solution would
itself withstand subsequent challenge, whether in our domestic courts or in
Strasbourg. The ultimate outcome for
both Church and State would be quite uncertain.
Civil partnerships
45. It
is very doubtful whether the proposed continued limitation of civil
partnerships to same-sex couples would withstand legal challenge, were the main
proposal concerning the redefinition of marriage to be implemented.
46. Article
14 of the ECHR could also have implications for the Government‘s proposal that
civil partnerships should remain available for same-sex couples but not
opposite-sex couples. Civil
partnerships are within the ambit of article 8 of the Convention (right to
family and private life). An
opposite-sex couple who wished to enter a civil partnership (and not to marry)
could bring a complaint under article 14 taken in conjunction with article 8 on
the grounds that they were treated differently from a same-sex couple who
wished to enter a civil partnership (and did not wish to marry).
47. As
the law currently stands, the Government would probably be able to justify the
difference in treatment on the basis that civil partnerships for same-sex
couples only were a social measure designed to confer legal benefits on
same-sex couples that they would not otherwise be able to acquire and that they
therefore amounted to a proportionate means of pursuing a legitimate aim.
48. But
if the law were changed so that same-sex couples were able to marry, the
legitimate aim of providing civil partnerships for same-sex couples only would
cease to exist. Or at least it would
change very substantially, such that, even if the limitation of civil
partnerships to same-sex couples pursued a legitimate aim of providing a legal
status for same-sex couples who did not wish to marry, the exclusion of
opposite-sex couples from civil partnerships would not seem to be
proportionate.
49. This
is because some opposite-sex couples might equally not wish to marry but
nevertheless wish to acquire a legal status in respect of their
relationship. There would be no obvious
justification that a court would accept for such a difference in treatment.
50. There
is therefore a real question as to whether the line taken in the consultation
paper that civil partnerships would remain limited to same-sex couples would
withstand legal challenge.
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