Friday, 30 November 2012

Will Religious Organisations Be Forced To Perform Same-Sex Marriages? No.

Below I address several similar questions regarding whether churches and other religious organisations will be forced to carry out same-sex marriages against their conscience.

Will the ECHR force religious bodies to conduct same-sex marriages?

During the recent Government consultation on introducing civil equal marriage the Church of England and the campaigning group Liberty gave responses. Given one was against and one was for, I thought it'd be interesting to look at what the legal opinions they relied upon in their decision actually said about the ECHR. Let us start with the Church of England, whose response and legal opinion can be found in full here.

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. Page 10
I feel this paragraph is the cause of a great deal of confusion. It is clarified in depth on the link above. The Church has quite a problem, and I very much share their concerns, with the Government proposing to create two-tiers of marriage in separating the legal concept of religious and civil marriages. Their concern shown above relates to this problem and what they are suggesting is that IF the Government only legislates on civil marriage equality they will leave that law open to challenge (the success of the challenge remains questionable).

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.
No, they don't provide much evidence for the "serious prospect of a successful challenge" but I think their legal reasoning is pretty good here. Clearly the Government should pursue full equal marriage (religious and civil) rather than focus on civil marriage alone. I hope their legal opinion has influenced the Government into expanding its proposals accordingly.

But these are NOT arguments stating churches will be forced to perform equal marriage. The Church then moves on to arguing over if the Government allows religious marriage how this might affect them but that is more an issue of domestic legislation and I'll look at it in its own section below.

So the Church of England's legal opinion seems to be that the ECHR may well not be amenable to denying same-sex couples, and the religious organisations that support them, religious equal marriage. But nowhere do they suggest the ECHR might force religious organisations opposed to equal marriage to perform same-sex marriages.

Liberty, fairly predictably, offer a robust defence of the proposals here. Karon Monaghan QC summarises her opinion here:

In my view, therefore, any requirement upon a church or religious organisation to conduct same-sex marriages, contrary to the religious convictions of its members’, would violate their Article 9 rights (and those of any person compelled to take part, for example a minister).  
Merely permitting the solemnisation of same-sex marriages on religious premises, as with opposite–sex marriages, would not, of course, intrude upon the Article 9 rights of any religious organisation.
Ergo, the European Convention on Human Rights should protect the rights of those who oppose equal marriage rather than force them to do things against their will.

The ECHR covers many countries that offer marriage equality and some of those have established churches. I've done lengthy searches through sources in both English and in the native tongues of the countries concerned, but have yet to find one case of the ECHR becoming involved with this question once equal marriage has been legislated for by a national Government. 

Will domestic laws force churches to carry out equal marriage?

It is extremely difficult to argue one way or another on this as the relevant legislation has not even been proposed yet. However some have raised this as a concern as well. My main argument would be that any domestic law can be amended by the new marriage equality bill so as long as this is dealt with properly there should be nothing for opponents to worry about.

Karon Monaghan QC, on behalf of Liberty, looked at this in some detail.
In particular, I am asked to consider the following questions:  
a. Were Parliament to enact provisions that would allow religious bodies willing to do so to conduct legally binding marriages in the same way that they can currently conduct marriages under Part III, Marriage Act 1949, would the decision of a body opposed to same-sex marriage not to do so, or the refusal of an individual minister not to conduct such a ceremony, be challengeable under the Equality Act 2010, under another antidiscrimination provision or on human rights grounds?  
b. If so, would a provision similar to section 6A(3A) Civil Partnership Act 2004 be sufficient to protect a religious body and/or individual members of the clergy from such legal challenges?  
c. Are there any additional safeguards that could be built into the legislation to forestall such a risk?  
d. Would provisions similar to those in the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 be adequate to prevent a maverick clergy member conducting a same-sex marriage that might arguably be legally binding?  
e. Again, are there any additional safeguards that could be built into the legislation to mitigate the risk?  
f. Would the Article 9 rights of religious bodies that do not wish to conduct same-sex marriages on doctrinal grounds reinforce any safeguards built into the legislation?
She then summarises her responses here:
a. A refusal by a minister or a body opposed to same-sex marriage to conduct same - sex marriages would not violate the Equality Act 2010 so long as they could demonstrate that to do so would be in conflict with the strongly held convictions of a significant number of the religion’s followers. Further, it is very unlikely that a refusal to conduct a same-sex marriage in such circumstances would unjustifiably violate the Convention rights of any other person, in particular those of a same-sex couple seeking to marry. 
b. For the avoidance of doubt, provision could be made in any legislation (permitting same-sex marriage) analogous to that seen in s6A(3A), Civil Partnership Act 2004. 
c. Again for the absolute avoidance of any doubt, the Equality Act 2010 could be amended so as to add a clause to Schedule 23 (paragraph 2(14)) making it clear that nothing in the Equality Act 2010 “should be taken to require a religious organisation or minister to solemnise a same-sex marriage if they do not wish to do” or similar. 
d. Provisions similar to those in the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 would be adequate to prevent a maverick clergy member conducting a legally sanctioned same-sex marriage. 
e. No further safeguards are required to address the “maverick clergyman” other than those described above (requiring or dispensing with consent in each case at the behest of the governing authority) and those that are ordinarily and already found in this context. 
f. The Article 9 protection afforded religious organisations is strong. This too would provide real safeguards to a religious organisation that did not wish to conduct same-sex marriages on doctrinal grounds.
The Church of England looks at this area too, being that it is important to them due to the complex legislation covering our established church and its duties.

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.  
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 reexamined. 
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.
The Church of England's considered response to this then is that it'll be a difficult process in ensuring their rights are protected but possible. 

Doesn't the Church of England have a legal responsibility to marry any eligible couple in their own parish?

Much has been made of this responsibility by those opposed to equal marriage and the Church of England's legal opinion mentions it too.

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).
I have a question regarding this however. If they have a legal right, how can the Church of England legally turn away divorcees (at the discretion of the minister involved)? I feel the situation is a little more complex than is being presented and that the pertinent laws covering the Church of England in this regard can be amended if necessary.

Feel free to fire back examples that show I'm wrong. I've written this post mainly out of a sense of frustration with opponents failing to provide proof for their claims. I decided to seek out the evidence myself and, after so doing, feel a lot more confident that they are wrong. However, I will be very happy to hear considered opposition to what I've presented here!

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Richard Gadsden said...

The concern I know a lot of the Church of England has is that priests in liberal parishes, with the full approval of their congregation (ie, not mavericks) will conduct same-sex marriages.

If a liberal Catholic did that, he'd be excommunicated. But the CofE doesn't have those same disciplinary powers, especially if the diocesian bishop backed the priest up.

They want the Church to have to decide in Synod to approve it, so the homophobes can use their 1/3 minority in the Laity to prevent it ever passing.

Jae Kay said...

I agree it is a concern but Karon Monaghan does deal with that in her question and answers above d) and e). It would be the same with religious civil partnerships now. Church of England doesn't support them after all.