Marriage (Same Sex Couples) Bill

Memorandum submitted by Lord Pannick QC (MB 01)

Note to the Public Bill Committee

1 There is no basis for the concerns expressed by some MPs during the Second Reading Debate in the House of Commons last week [1] that there may be good legal cause why this man and this man (or this woman and this woman) should not be joined together in matrimony.

2 The Bill provides that same sex couples may marry in England and Wales. They may do this by way of a civil ceremony. Or they may marry according to religious rites and on religious premises but only where a religious organisation chooses to opt in to that process. The Church of England and the Church in Wales are the subject of special provisions (see paragraph 5 below).

3 The legal position is clear beyond doubt. The Bill states, in unambiguous terms, that no religious organisation or representative is required to marry a same sex couple; it contains an opt-in mechanism by which a marriage of a same sex couple cannot be carried out on religious premises or with a religious ceremony without the express consent of the governing body of that religion; and it amends the Equality Act 2010 to exclude discrimination claims against religious organisations or their employees who decline to conduct, or be involved in, a religious marriage of a same sex couple.

4 For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea for the Children of Israel to cross from Egypt. The Court unanimously decided in Schalk and Kopf v Austria [2] in 2010 that there is no right to same sex marriage under the European Convention on Human Rights. It is in the realms of legal fantasy to suggest that the Court would impose an obligation on a religious body to conduct such a ceremony, especially when civil marriage will be available in this country for a same sex couple and when Article 9 of the Convention protects religious beliefs and practices.

5 Concern has been expressed that the European Court may challenge the special position of the Church of England and the Church in Wales, which cannot opt-in to same sex marriage, like other religious bodies. But the special treatment of those Churches is plainly justified. It arises from the common law duty of the clergy to marry a parishioner in their parish church. If the Church of England wishes to solemnise marriages of same sex couples, it may put a Measure before Parliament to change the law relating to it. The Church in Wales (being disestablished) cannot take such a step and so the Bill contains a power for the Lord Chancellor, by order, to amend the law if the Governing Body of the Church in Wales so requests.

6 The suggestion that parents, teachers and foster carers may be subjected to detriments because of their views on same sex marriage are unfounded. The law contains protection for religious beliefs and practices, and for freedom of expression, and in any event the Bill does not adversely affect the content of the law in such contexts.

7 It is true that the Bill will not protect marriage registrars who have religious objections to conducting same sex civil marriages. In 2009, the Court of Appeal dismissed the claim of a registrar, Ms Lillian Ladele, that she was entitled, on religious grounds, to refuse to be involved in conducting civil partnership ceremonies. [3] Last month, the European Court gave judgment dismissing Ms Ladele's claim under the European Convention. [4] If you are employed as a marriage registrar performing public functions, you cannot refuse to perform a part of those functions because you disagree with the law of the land as to who may get married. That was the basis of the judgments of the Court of Appeal and the European Court of Human Rights.

8 For the reasons set out above, the arguments of those who oppose the Bill are not assisted by legal concerns.

February 2013

[1]      Hansard , House of Commons, 5 February 2013, columns 125-248.

[2]      (2011) 53 EHRR 683.

[3]      Islington LBC v Ladele [2009] ICR 387.

[4]      Eweida and others v United Kingdom (15 January 2013).

Prepared 13th February 2013