The Marriage (Same Sex Couples) Bill is back before Parliament today for its Report Stage. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.
This is all very complicated, both legally and politically, as you might expect for such a significant social change. I thought it would be useful to discuss five of the key issues in the current debate – what follows is not comprehensive and I would of course welcome comments.
1. Marriage equality was not in the Conservative Party Manifesto
Partial myth. This is a regular complaint of Tory Party activists (e.g. Conservative Grassroots complaint last week that “Same-sex marriage was not in our manifesto“). Technically, they are right – there was no mention of equal marriage in the 2010 Manifesto document. However, it was mentioned in the Conservative Party’s Contract for Equalities, published at the same time, which promised
We will also consider the case for changing the law to allow civil partnerships to be called and classified as marriage.
So while it is right to say that marriage equality was not an explicit promise the 2010 Manifesto, it was clearly on the Conservative agenda so should not come as a surprise to any Tory supporter who bothered to read up on what the party was going to do in power.
2. The European Court of Human Rights will force vicars to conduct gay marriage
Almost certainly a myth. This has been a concern of religious leaders from the start. It has always been incredibly speculative – see my post from last year. I agree with Karon Monagham QC’s opinion which can be found annexed to Liberty’s consultation response; as she says at page 40:
51. a refusal by a church or other religious organisation, to conduct a same- sex marriage, so as to comply with the tenets of its religion or the strongly held and faith based convictions of its members, will invariably be regarded by any court as justified.
Given the range of views across Europe as well as the extreme sensitivity of this issue to some religious believers, the European Court of Human Rights is unlikely to find that any priest, Rabbi, Imam or other religious leader breached human rights law by refusing to conduct a gay marriage.
3. The “quadruple lock” protecting religious communities will not survive a European Court of Human Rights challenge
Unclear. It is important to separate the issue of religious observers being forced by the Strasbourg court to conduct gay marriages (see above) with the question of whether the current proposals for a “quadruple lock” protecting religious denominations from having to do so is sustainable. As said above, I think that the protection for religious organisations which refuse to ‘opt in’ is probably fine in terms of a human rights challenge. The problem, however, is the exception made for the Church of England
The European Court of Human Rights has made clear in recent case law (see my summary) that it will not force states to legalise gay marriage, but also that once gay marriage is legalised, it would treat gay marriages as “analogous” to opposite-sex marriages for the purposes of anti-discrimination rules. The effect of this would be that the Court may be willing to step if the rules which regulate same-sex marriage are themselves discriminatory.
The Government was right to allow religious communities to ‘opt in’ to same-sex marriage in its draft bill, an idea which wasn’t actually proposed at the consultation stage. If it had simply banned religious communities from solemnising gay marriages, as was the case initially with civil partnerships, this would have been very vulnerable to a European Court challenge. In reality, the so-called ‘quadruple lock’ is part of a (sensible) enabling mechanism for religious communities.
But here’s the problem. The Government slightly fudged the issue by preventing the Church of England from opting in. The justification was that as the established church, the CoE was in a unique position, as it is obliged to conduct ‘marriages’ however defined, and would need further protection. Another issue is the complex interaction between Cannon and domestic law. That may all be right, but the position remains that the Church of England as religious denomination will be prevented, by law, to opt in to the system should it wish to, uniquely amongst religious denominations. This may amount to discrimination, but my instinct is that the European Court of Human Rights would accept the UK Government’s position that this is really about the unique legal position of the CoE rather than any discrimination within the meaning of the ECHR.
4. Teachers will be forced to promote gay marriage
Probably a reality. Section 403 of the Education Act 1996 provides that the Secretary of State must issue guidance ensuring that when children are given sex education, “they learn the nature of marriage and its importance for family life and the bringing up of children“. Since “marriage” is going to be redefined for the purposes of all legislation (see Para 1 of Schedule 3 to the Draft Bill), that includes s.403.
So, the Secretary of State will be under a legal duty to ensure that children learn about the importance of marriage – including same-sex marriage – for family life and the bringing up of children. And when teaching sex education, teachers will have to emphasise it too. Teachers who are sacked for ‘conscientiously objecting’ may find the courts disagree with their view, as they did in the recent case of Eweida and Others v UK (see paras 105-106).
In light of this, one of the current amendments to the Bill seeks to withdraw the obligation to promote marriage. But the issue is a bit more complex than that. Under the Equality Act, teachers must teach in a way which is not discriminatory or harassing. Teachers who are anti-gay marriage, even if for religious reasons, will have to be sensitive in the way they teach about the topic so as not to offend students.
But, and this a big but, this is nothing new. Being sensitive to the feelings and beliefs of pupils, even if they are different to the views of the teachers, is central to being a good teacher, as it always has been. Teachers who want to use classrooms to as a bully pulpit against gay marriage should probably consider doing so in a different setting.
5. Preventing opposite-sex civil partnerships is discriminatory
Probably a reality, but only once the bill in its current form becomes law. Civil partnerships are currently only available for same-sex couples. Legalising gay marriage without legalising opposite sex civil partnerships would therefore arguably leave opposite-sex couples in a worse position than same-sex couples.
This, it seems to me, is probably at risk of a court challenge. The disparity is accident of legislative history. For that reason, it seems pretty obvious that civil partnerships will eventually be allowed for opposite sex couples. But the current Government will not want to include that as part of this bill as it would arguably water down the institution of marriage by giving opposite sex couples an alternative, albeit one which looks very similar to a marriage in terms of the legal rights generated for civil partners.
So the question of whether civil partnerships are allowed for opposite sex couples now rather than later is really one of politics rather than principle. But it will need to happen at some point.
On myths and reality
Contrary to the naysayers, the Government has done a pretty good job so far in plotting a path through the key issues surrounding this bill, most significantly by introducing the “opt-in” for religious communities after almost everyone said that it must do so to prevent a court challenge. There are plenty of other difficulties surrounding the Marriage (Same Sex Couples) Bill, but that should surprise no one. As alluring as it is to pretend there is an easy way to bring in such a major legal and social change, as Peter Tatchell does in the Guardian, the reality is that legalising equal marriage is a complex business. That complexity should not discourage the Government from sticking to its guns.
Adam Wagner is a barrister at 1 Crown Office Row specialising in human rights and medical law. He is the founding editor of the UK Human Rights Blog and tweets as @adamwagner1
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