Traditional marriage advocates could be prosecuted in Scotland, legal experts warn

Despite all government insistence to the contrary, those who publicly object to gay “marriage” in Scotland could be facing lawsuits or even prosecutions, a group of legal experts has warned.

The Faculty of Advocates has cautioned the Scottish government that their plans to redefine marriage will result in serious threats to freedom of expression.

Combined with the 2010 Equality Act, the draft law will create “conflict” between those who in conscience disagree with the concept of same-sex “marriage” and “public authorities,” who will be “required to promote same-sex marriage,” the Faculty said in their submission on the bill’s public consultation.

Freedom of speech to object to redefining marriage would be offered only to religious ministers under the bill, but the Faculty of Advocates have pointed out that this is a right that belongs to all citizens.

Citing the case of Lillian Ladele, who recently lost her last appeal to the European Court of Human Rights, they said civil marriage registrars “are likely to be required to conduct same sex marriages.”

There are many others who may claim that there is a conflict between their right to freedom of thought, conscience, and religion under Article 9 of the European Convention on Human Rights and what will be expected of them as a result of the present Bill. “They will include persons such as chaplains working in the public sector, teachers and foster parents, all of whom would be subject to the imperative of public sector equality duties.”

The Faculty of Advocates is not a Christian or partisan group, but an independent body of legal advocates authorized to plead in any cause before any of the courts of Scotland and to help train lawyers. The Marriage and Civil Partnership (Scotland) Bill proposes to create “same-sex marriage” and religious civil partnership ceremonies.

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The Faculty declined to comment on the concept of homosexual “marriage” itself, saying the “policy underpinning the proposed Bill is not a matter upon which the Faculty of Advocates expresses any view, as policy is a matter for the Scottish Parliament.” They only commented on the legal “practicability” of the proposal, adding that the government had apparently failed to consider such fundamental legal issues in its Equality Impact Assessment.

They noted that in allowing for “religious” civil partnership ceremonies, “as for same sex marriages, if there are ‘opt-in’ provisions, that religious and belief bodies will find themselves compelled to carry out registration ceremonies, or fall foul of discrimination provisions within the European Convention on Human Rights.”

Other effects could include conflicts with funding charitable organisations run by religious groups: “Would a local authority be able to rent out premises to a religious group that held beliefs in conflict with equality duties? Could local authorities continue to use church premises for their functions? Would it continue to be possible to afford charitable status to bodies that did not uphold the new equality duties that will be recognised in terms of the Bill?”

The submission also warned that given the influence of Westminster and the European Union, the Scottish government’s guidelines on the bill could be changed, which could mean possible future prosecutions for those who refuse to participate in or endorse “gay marriage.”

“There can be no guarantee that the provisions designed to implement this policy will not in the future be held to be discriminatory and to contravene Article 13 of the European Convention of Human Rights,” it states.

Janys Scott QC told the government they could not provide a “cast-iron guarantee” of protection.

“Marriage has not to date required a definition, because there has been a historical consensus about its meaning. The form of marriage to which the Bill refers differs from that historical consensus,” Scott said. “The Bill contemplates a much more complex society than has historically been the case. The choice of status will be single, cohabiting, in civil partnership, or married.”

While the government has said the bill respects the “rights of religious bodies and celebrants” to refuse to participate, as with most other “gay marriage” bills, there is no protection offered “to persons in other occupations who may face a conflict between their beliefs and the changed nature of marriage implicit in the Bill.”