Should gay marriage be legalised?

15 March 2012 by

The Government has begun its consultation on whether the ban on marriage between people of the same sex should be removed. As suggested by the consultation’s title – Equal civil marriage consultation – the Government is only proposing to remove the ban on civil gay marriage.

The consultation document makes clear that it is “limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnised“. In other words, religious institutions will not be forced to allow same-sex marriages on their premises. And moreover, perhaps in order to dodge some of the controversy which has erupted in recent weeks, there are no plans to allow same-sex marriage to take place on religious premises at all. So even religious denominations which support same-sex marriage in principle will not be allowed to conduct the ceremonies on religious premises.

What this will mean in practice remains to be seen. Since December 2011 the ban on civil partnerships taking place on religious premises has been lifted, so in principle there would be nothing to stop a couple conducting the official “marriage” part of their ceremony a few meters away from religious premises and then going in for the “civil” part. This is a slightly bizarre effect but the proposals are clearly an imperfect compromise in a very controversial area.

My expectation is that, as was the case with civil partnerships, once the proposals are implemented and the sky does not fall in, the ban on marriages taking place on religious premises will be lifted in due course just as the equivalent ban for civil partnerships was lifted too.

So far, campaigners have been unsuccessful in forcing the issue through human rights law. Article 12 of the European Convention on Human Rights provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

However, the European Court of Human Rights ruled in November 2010 that it would not force states to allow same-sex couples to marry. This was hardly a surprise; the Council of Europe includes strongly Catholic states such as Italy which would not have countenanced Strasbourg telling them to legalise gay marriage (the court caused enough controversy be nearly banning Christian crosses in Italian schools) and therefore this issue has been left within the ambit of the court’s “margin of appreciation” doctrine.

The UK’s consultation closes on 14 June 2012 and reposes can be sent via this fancy online form. For the full background see my lat post on the topic, Gay marriage on the way…but not quite yet.

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1 comment;

  1. Waldron-fan says:

    Openly settled compromise is one thing, dishonest fudge is another.
    This is mainly an exercise in re-branding – civil partnerships are already the same in legal terms as civil marriages in all the significant respects. But although they will be redundant, the consultation paper says civil partnerships should be kept. No direct reason is given, but it seems to be purely so that they can continue to be celebrated on religious premises – so same-sex couples can choose a register office marriage or a religious-venue civil partnership, while religious organisations are not forced to accept either.
    But there is the problem – no reason is given as to why the same compromise cannot be reached on civil marriage as was reached on civil partnerships – allow, but not force, religious premises to host them – or even allow-without-forcing religious ceremonies to count as marriages for same-sex couples.
    Instead para 1.7 of the consultation implies that religious gay marriage needs to be banned in order to ensure it cannot be required – undermining the argument previously used to allow civil partnerships to be hosted on religious premises in the first place. If ECtHR & ECJ are not going to discover a right to gay marriage, then Parliament must be able to expressly provide that religions can discriminate against same-sex couples over marriage or over hosting civil partnerships. Instead, for all the government’s bluster over protecting the UK Parliament against European encroachment, we have the government suggesting that religions that would like to conduct gay marriages must be prohibited from doing so in order to protect (from a phantom European menace) those religions who want to continue refusing to conduct them.
    All that that does is give ammunition to, and stoke up, the religious critics who claim any movement away from the current position risks sliding into (or even already amounts to) forcing religions to accept gay marriage. So as an attempt at compromise it would seem singularly inept – but it even looks odd as an attempt to shed the “nasty party” image.

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