Will churches really be sued for not allowing civil partnerships?
24 February 2011
On 17 February the Home Secretary announced that the government was moving ahead with changes to the Civil Partnership Act 2004 which would allow the registration of civil partnerships to take place in religious premises.
While welcomed by many, some have voiced concerns that permission will inevitably become coercion. They fear that religious organisations may face legal action if they refuse to facilitate civil partnership ceremonies, a claim the Government denies. But will they?
When the Civil Partnership Act came into force in December 2005, it marked the first time that gay relationships were given significant legal recognition in the United Kingdom. Hailed as a significant step forward for gay rights, the legislation established an institution under which civil partners enjoyed virtually the same social security and pension benefits, the same tenancy and visiting rights, and the same tax exemptions as married couples. It remains the case today that, in many ways, a civil partnership is identical to a marriage.
They are, however, not the same. As a concession to the strong feeling of some religious groups that civil partnerships would distort and undermine the concept and institution of marriage as a holy union between a man and woman, the Act ensured that the registration of civil partnerships was to remain secular in content and location. This is evident in section 2(5), which provides that “[n]o religious service is to be used while the civil partnership registrar is officiating at the signing of a civil partnership document”. In addition, under section 6(1)(b) of the Act, the place at which two people may register as civil partners “must not be in religious premises”, which is defined in section 6(2) as premises which “are used solely or mainly for religious purposes, or have been so used and have not subsequently been used solely or mainly for other purposes”.
In order for civil partnership registrations to occur on religious premises, section 6(1)(b) requires repeal. Interestingly, but slightly obfuscated by much of the commentary following the Home Secretary’s announcement, there already exists a legislative provision to achieve just that. Section 202 of the Equality Act 2010 provides for the repeal of section 6(1)(b) of the Civil Partnership Act, and consequent amendments relating to the making of new regulations in respect of premises at which registrations may occur. In this sense, this new development is old news; it has been on the statute books for some time, and the announcement of the Home Secretary merely marks the beginning of a consultative process that will (probably) culminate with that section being brought into force.
Following on from that, it is almost inevitable that the prohibition on religious elements at civil partnership registration ceremonies will be lifted. Section 6(3A) of the Civil Partnership Act requires that a civil partnership may only be registered in a register office or other approved premises, and at present paragraph 11 of Schedule 2 to the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 makes it a condition for approval that registration proceedings “shall not be religious in nature”, meaning that they must not involve extracts from marriage services of religious texts, be led by a religious leader, involve religious ceremonies, or include hymns or other forms of worship. It is likely that this is also destined for repeal.
These changes recognise that many who enter into a civil partnership view it as a commitment with spiritual significance, as opposed to a purely secular agreement. And by granting to gay people the right to reflect that belief by having a religious ceremony conducted in a willing place of worship, a further measure of equality is achieved. The Home Secretary’s announcement has thus been welcomed by gay rights campaigners, and some religious communities: Quakers, Liberal Judaism and the General Assembly of Unitarian and Free Christian Churches have already signaled their intention to facilitate same-sex partnerships.
On the other side of the debate, a joint statement released by Reform, the Christian Institute, Christian Concern, Affinity, and the Fellowship of Independent Evangelical Churches stated that the changes would bring the Government “into conflict with thousands of Evangelical churches and the Church of England and the Roman Catholic Church”. The Telegraph also suggested that:
…the new move could open up a legal minefield with same-sex couples possibly taking anti-discrimination action against religious groups if they were barred from getting married in the place of worship of their choice.
The spectre of discrimination claims, which has also been cited by Conservative MP Edward Leigh, has been rejected by the Government. In announcing the commencement of the consultative process, the Home Secretary acknowledged the concern, but emphasised that:
Religious organisations – institutions – will do exactly what they wish.
On reading the provisions of the Equality Act 2010, the Home Secretary looks to be right. Section 202(4) provides for the insertion of a new section 6A(3A) into the Civil Partnership Act, which will state:
For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.
This should be the end of the matter, although the precise wording of the section might beg the question: although “this Act” i.e. the Civil Partnership Act, will not place an obligation on religious organisations to host civil partnerships, what about other pieces of legislation? Might the Equality Act 2010, or the Human Rights Act 1998 impose the type of obligation which the amended Civil Partnership Act will specifically disavow?
Section 29 of the Equality Act makes it illegal to discriminate on grounds of sexual orientation in relation to the provision of services. An interesting question may arise from the fact that, at this point, marriage and civil partnerships remain separate institutions. On that basis it is arguable that marriage ceremonies and civil partnership registrations are different services, so that if a church simply refused to offer the specific service of civil partnership registration at all, they could not be said to be discriminating in the provision of that service. Such a refusal would undoubtedly have a discriminatory appearance, but this would ultimately trace back to the separate regimes provided by statutory law.
Even if it did amount to a form of discrimination, paragraph 2 of Schedule 23 of the Equality Act provides a sexual orientation discrimination exemption for “organisations relating to religion or belief” in terms of membership, participation in their activities, the provision of goods, facilities and services, and the use or disposal of premises they own or control. This means that churches, synagogues, mosques and other religious organisations could refuse to facilitate civil partnerships, provided that it is “necessary to comply with the doctrine of the organisation”, or if it is imposed to avoid conflict with the “strongly held convictions” of a significant number of the religion’s followers. Thus the Equality Act is unlikely to facilitate legal action against religious organisations which refuse to conduct civil partnership registrations on their premises.
It is also clear that Article 12 of the European Convention on Human Rights, which provides that “men and women of marriageable age have the right to marry”, could not mandate the registration of civil partnerships in religious premises. The simple reason for this is that, as noted above, a civil partnership is not a marriage. Article 12 is therefore relevant to a very different question: whether gay people should be allowed to get married. In that respect, as was explained in a previous post, the in the recent case of Schalk and Kopf v Austria, the European Court of Human Rights decided that at this point in time, Article 12 does not require States to allow same-sex marriage.
It is possible to imagine other arguments that could be advanced under the Human Rights Act. For example, it might be argued that in so far as a church has the capacity to register a civil partnership, it is a public authority for the purposes of section 6, and that in refusing to facilitate a civil partnership it is infringing the right to respect for the family and private life of the intending civil partners (under Article 8), or their right to manifest their religious beliefs by engaging in a religious ceremony.
Of course, such an argument would be weakened by the fact that gay couples would be free to go elsewhere – to a willing church – in order to have a religious ceremony performed. Perhaps more significantly, requiring an actual church, as opposed to some other body with a religious affiliation, to act contrary against its own doctrine would engage Article 9 rights to freedom of belief in the most acute way.
Arguments might also be advanced on the basis of Article 14, but the prospects of a successful discrimination claim succeeding under the Human Rights Act when specific discrimination exemptions are provided in the Equality Act 2010, look highly speculative.
Probably no need to worry
In the round, the concerns of religious institutions that the changes will, in themselves, require them to facilitate civil partnerships are probably unfounded. Although this is certainly not the only question posed by the changes; there are other dilemmas which may arise pursuant to the operation of ecclesiastical law. For example, the Church of England, which has made clear it will forbid its churches to be used to facilitate civil partnerships, may face difficulties in preventing rectors who have freehold title to parish property for using their premises for that purpose, and there may be issues in disciplining a clergyman who invites a civil registrar onto his premises to conduct a civil partnership ceremony.
All of these complex matters, and a good deal more, are likely to be covered in the consultation process. This will take time, and although recent years have seen rapid advances in gay rights, the Government does not appear in the mood to rush this particular development. The Home Secretary has said that the consultations are not working to any deadline, and would be allowed to take “whatever time it takes”. In the meantime, it is possible that some religious institutions are really more worried about the ever closer prospect of full marriage equality for homosexuals than about the risk of being sued.
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