The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns that “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”
The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.
Let’s consider the argument. The Church puts a number of propositions. First,
It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.
Absolutely correct. Article 12 of the European Convention on Human Rights provides that “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, in 2010, the European Court of Human Rights ruled in the case of Schalk and Kopf v. Austria 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. Given that it specifically refers to “men and women”, the court was unpersuaded that Article 12 could be read as including a union between two people of the same sex. It observed:
Although, as it noted in Christine Goodwin [a case against the UK relating to transsexual rights], the institution of marriage has undergone major social changes since the adoption of the Convention, the Court notes that there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage
The Church’s second proposition is this:
If a member state chooses to make provision in its domestic law for same-sex marriage, then so far as the ECHR is concerned same-sex marriage is protected by the Convention in the same way that opposite-sex marriage is protected: the right to marry contained in article 12 is applicable to both categories so far as that state is concerned.
Here, reference is made to an interesting comment in Schalk which as I suggested at the time clearly left the door ajar for future claims under the Charter of Fundamental Rights, which sets out in a single text the range of rights available to European Citizens and which became binding in December 2009. The Charter deliberately dropped the reference to men and women. The court concluded:
61. Regard being had to Article 9 of the Charter [“The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”], therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State.
It is important to remember that in its own commentary, which explicitly referred to by the Court at paragraph 25 of Schalk, the Charter of Fundamental Rights carefully qualified the right by stating that there is “no explicit requirement that domestic laws should facilitate such marriages”.
The Church’s third proposition is this:
Same-sex couples are in an analogous position to opposite-sex couples so far as the anti- discrimination provisions of article 14 of the ECHR are concerned.
This again comes from Schalk, at paragraph 99:
same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship
Taking these developments together – and I agree that they are developments, particularly in light of the Charter – the Church concludes:
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.
Is the Church right?
The Church’s reasoning is forceful and interesting. I expert it was written by a lawyer with relevant experience, perhaps James Dingemans QC (just a guess). It should be taken seriously.
One issue I have with the response is that the warning in the introduction: “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 ” This does not really match up with “serious prospect of a successful challenge” at paragraph 32 or indeed the “good prospect of success” at 38.
I would put the prospects of success at no more (but also no less) than “reasonable”. It may be that once a state decides to implement gay marriage, the court will be less cautious in ruling on how exactly the rules are implemented. But, a claimant would still face very significant hurdles. It is clear from Schalk is that the European Court of Human Rights is still a long way from seeking to dictate how states should or should not legislate for gay marriage.
Whilst the Church is correct to highlight that Schalk was about a state where there was no gay marriage at all, even with the innovation of Article 9 of the Charter and the involvement of Article 14 (anti-discrimination), the Court is still likely to give individual states a wide margin of appreciation as to how it legislates for gay marriage, particularly in the highly sensitive religious context. An analogy might be drawn with prisoner voting, an issue which is also highly controversial, where the court has recently re-emphasised that whilst indiscriminate bans are not allowed, states have a very wide range or possibilities as to how they let prisoners vote.
The small print
One final point. Reading the small print, the Church is not arguing that if a legal challenge was successful then all religious institutions would be forced to conduct gay marriages. That really would be fanciful. Rather, it would be open for them to do so. The Church fears that this would require “a considerable amount of further legislative provision” in order to “protect the position of the Church of England and other religious bodies”.
They may be right on this, but this is hardly a reason to ditch the plans, if all that the Church is really concerned about is the potential (and still unlikely) need for new legislation at some distant point in the future – and it would be some way in the future before a claimant manages to take their case to Strasbourg and win.
Indeed, this is actually similar to what happened in respect of civil partnerships. Originally, they were not allowed to happen on religious premises, but since December 2011 that ban has been lifted. At the time religious authorities expressed concerns that they would be forced to conduct civil ceremonies, but this blog doubted that prospect.
As I have suggested before, my expectation is that, as was the case with civil partnerships, once the equal marriage 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 too. Given the melodrama which surrounded the introduction of civil partnerships, and the non-catastrophe which followed, I tend to agree with this excellent New Yorker editorial:
One day, not long from now, it will be hard to remember what worried people so much about gay and lesbian couples committing themselves to marriage.
So the Church may be right about a potential human rights challenge to the changes as proposed in the Equal Marriage Consultation. But it has inflated the chances of the challenge succeeding. More importantly, even if such a challenge was successful, it is inconceivable that a court would force any religious institution to perform a gay marriage; the most that it would do is rule that religious organisations should be given the choice. This is hardly earth shattering. The Church’s concerns may be real but they should not be a bar to the proposals becoming a reality.
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