Allowing religious gay marriages will avoid human rights challenges

7 December 2012 by

gay_marriage_cake_300The Prime Minister has announced his support for gay marriage in religious institutions. Having already said, memorably, that “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative”, he has now gone a step further and argued that gay couples should be able to marry on religious premises. But, he also made clear, “if there is any church or any synagogue or any mosque that doesn’t want to have a gay marriage it will not, absolutely must not, be forced to hold it“.

The announcement is important in the context of a legal debate which has been taking place since the Government signalled that marriage law reform was on its agenda: namely, whether religious institutions would be forced, as a result of equalities and human rights legislation, to carry out gay marriage ceremonies whether or not they wanted to. In June, when the Government was consulting over the “equal civil marriage” plans, Church of England sounded the alarm 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

What is really interesting about the Prime Minister’s announcement is that the Government is now going beyond  its original proposals as set out in the June consultation. At that point, the Government was careful to state that the proposals related only to civil (that is, non-religious) marriage and, indeed said:

We are clear that no changes will be made to how religious organisations define and solemnize religious marriages and we are clear that we will retain civil partnerships for same-sex couples.

Why the sudden change? My suspicion is that the Government may rightly be concerned that the Church of England and other conservative (on this issue) religious organisations may have got it right: that if equal marriage were to be enacted without provision for marriage on religious premises, that law would be seriously vulnerable to challenge under Equalities legislation or at the European Court of Human Rights.

In my post on the Church of England’s concerns, I concluded that they may well have a point. I said the Church’s reasoning was “forceful and interesting“. To put it shortly, the European Court of Human Rights in the 2010 case of Schalk and Kopf v. Austria declined to force states to legalise gay marriages. However, it has also observed in the same case:

61. Regard being had to Article 9 of the Charter [of Fundamental Rights] [“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.

That strongly suggests that once states do allow equal marriage, gay couples will be protected in exactly the same way as heterosexual couples in terms of marriage rights. Which in turn means that the European Court of Human Rights might be more willing to intervene once a state has legalised gay marriages and therefore brought homosexuals and heterosexuals under the same umbrella of equalities protections.

Looking at it from the perspective of a secular court, which cannot privilege one religious view over another, there are plenty of religious institutions which would be happy to host a gay wedding and presumably plenty of gay couples who would like to have a religious ceremony. It would be odd and somewhat arbitrary to prevent that happening simply because of the disapproval of other religious denominations.

Civil partnerships, a half-way house which although not an official “marriage” has provided equivalent legal rights to some gay couples, are already legal in the United Kingdom. Originally, these 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 Matthew Flinn on this blog doubted that prospect, arguing that

In the round, the concerns of religious institutions that the changes will, in themselves, require them to facilitate civil partnerships are probably unfounded.

In my view, the very similar reasoning applies to religious gay marriages. If equal marriage is to be instituted without allowing for marriages on religious premises, there would be a real risk that the law would have to be changed anyway following a successful legal challenge either here or at the European Court of Human Rights. The Government, or at least the Prime Minister, appears to have now realised that there is no point delaying the inevitable (or at least probable).

What about those religious institutions which for reasons of principle would not allow gay marriages on their premises? It is very doubtful indeed that they would be forced by law to do so. Why would a court force a church, synagogue or mosque to do something which was against a fundamental tenet of their religion?

Clearly, there are some areas where religious principle and discrimination law can conflict – see, for example, the Jewish Free School case. But if gay couples were permitted to marry in other religious premises, it seems fanciful that any court, here or in Strasbourg, would force the issue any further than that. There are likely still to be legal challenges, but in my view they are highly unlikely to succeed.

Just because you have a right to marry under Article 12 of the European Convention on Human Rights  doesn’t mean that you have a right to marry wherever you like. Article 12 is not absolute and must be balanced against the religious rights of others protected under Article 9.

There is some slight residual risk in relation to the Church of England, which occupies a different legal position to other legal institutions (see the end of Matthew’s post), but I expect that could properly be dealt with by a careful piece of legislation. That legislation may, however, require further consultation given that the one which has taken place only related to civil marriage.

So, although the Prime Minister’s announcement may seem to make the Government’s position more radical, if gay marriage is to become a reality, this is probably the most sensible way to go about it.

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  1. Rosemary Cantwell says:

    17 December 2012
    Dear Mr Wagner,
    I refer to Mr Barnes’ question, “Why should polygamous marriages now be prohibited?”
    Mr Barnes makes a very pertinent point.
    Some people are bisexual, and could they be not allowed to have marriage with more than one person, one of each gender?
    And then there are people who are transgender, what about them?
    Some people are born with different chromosomes and are neither male nor female.
    What happens to their rights?
    We hear about “gay” and “heterosexual” but this actually is besides the point, as in certain societies it is quite permissible for a man to have several wives, and in other societies perfectly permissible for a woman to have several husbands.
    It is not about “gay” or “heterosexual” at all, but about biology and genetics and ultimately free choice.
    What precisely is “marriage”?
    What precisely is “civil partnership”?
    Where are the rights of people who are neither one sex nor another, who may or may not be “gay” or “heterosexual”?
    This is a very important debate because we are now a small world community at the touch of a button.
    I would be most grateful to have your answers and those of others.
    Thank you so much.
    Rosemary Cantwell

  2. David Barnes says:

    Why should polygamus marriages now be prohibited?

  3. Rosemary Cantwell says:

    9 December 2012
    Dear Mr Wagner
    The jury seems to be “out” in this case, and I fear that there may be civil disruption whatever happens.
    It seemed to me that many people liked the idea of “civil partnership” but in which case if there is to be marriage between people of the same sex, then should there not also be equal rights for heterosexual couples who do not want to be married but would actually like to have a “civil partnership” but which is not possible at present?
    I would value your views and those of other people.
    Thank you very much for bringing this vital topic to our attention.
    With best wishes,
    Rosemary Cantwell

  4. What puzzles me is how the government think they can legally justify excluding heterosexual couples from civil partnerships, assuming that these continue for same sex couples after marriage is reformed. On what grounds could that ban survive a challenge on human rights or non-discrimination basis? Has there been any legal discussion of the implications of that? I haven’t seen any.

  5. The Engineer says:

    Won’t the ceremony simply be meaningless, an empty gesture? It seems to be the end of marriage as we have known it.

  6. Paul de Mello says:

    When has Article 12 ever been balanced by Article 9? Provide some case law please. The Council of Europe allows prosecutions of clergy that hold weddings before civil registrations (Germany, France, Neatherlands), even if the religious ceremonies are not recognised by the state?

  7. S.J. Schneider says:

    One dreams, too late, of drastic distinctions that would have obviated, or limited, some current mess. Had “marriage” long long ago been ring-fenced as an entirely religious event, unrelated to state concerns, whereas a ‘contracted union’ (a choice of several model contract models?) legally defined partnerships between two intimates, we might have come out with a more tidy situation now that same-sex unions are explicitly upon us. Does this thought point to bomblets (or bombs) that will later go bang as tussles and rulings incrementally complicate the landscape? Will the ultimate solution tend more to subtracting from religious institutions powers that ‘should have’ been kept strictly civil (“do your ceremonial gig however you like but nowadays it has no legal effect on this couple”)? Or, as the PM’s promise of non-compulsion suggests, will the trend be to split religious communities into sub-communities per willingness to perform same-sex ‘marriage’? In the second scenario, I for one glimpse a heap of trouble on the way at least for Muslim and Jewish communities. Divorce, remarriage & inheritance.

  8. “That strongly suggests that once states do allow equal marriage, gay couples will be protected in exactly the same way as heterosexual couples in terms of marriage rights.” Oh no!

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