Marriage (Same Sex Couples) Bill

Memorandum submitted by The Equality and Human Rights Commission (MB 02)

The Commission’s analysis

The Equality and Human Rights Commission has analysed the Marriage (Same Sex Couples) Bill 2012/13 in light of the requirements of the Equality Act 2010 and the Human Rights Act 1998. This analysis concludes that the change would be in accordance with provisions within the legislation and would further the rights of individuals to equality before the law, in so far as it will:

· enable same sex couples to marry in civil ceremonies;

· ensure those religious organisations that wish to do so can opt in to conduct marriage ceremonies for same sex couples;

· provide protection under equality law for ministers of religion who do not wish to marry same sex couples ;

· enable civil partners to convert their partnership to a marriage; and 

· enable married individuals wishing to change their legal gender to do so without having to end their marriage.

The Commission will be issuing a further, more detailed analysis of the bill to MPs at committee stage. Please note, this bill will apply in England and Wales only.

Clause 1: "Extension of marriage to same sex couples"

Equality Act 2010

The Equality Act 2010 says unlawful discrimination occurs when a person is treated less favourably than another because of a protected characteristic, such as their sexual orientation [1] . There are specified exceptions to that rule, however, including differential treatment which has been permitted by another statutory provision [2] . The Commission has concluded that the proposed change would be in line with the overall intentions of the Act.

Human Rights Act

The Human Rights Act refers to four Articles in the European Convention on Human Rights which are of particular relevance to clauses that will extend marriage to same sex couples:

- Article 8 states that everyone has the right to respect for his of her private and family life, home and correspondence [3] ;

- Article 9 guarantees freedom of religion or belief [4] ;

- Article 12 guarantees the right to marry to men and women of marriageable age, subject to the laws of that country [5] ; and

- Article 14 states there should be no discrimination in the application of any rights with the Act on grounds including sexual orientation [6] .

The European Court of Human Rights first considered the issue of same sex marriage in the case of Schalk v Kopf [7] . The court noted that there had been major social changes in the institution of marriage since the adoption of the Convention. The Court referred to Article 9 of the Charter of Fundamental Rights of the European Union, which deliberately omitted the reference to ‘men and women’ and simply provides that the ‘right to marry and to found a family shall be guaranteed’. The commentary to the Charter confirms that ‘Article 9 is meant to be broader in scope than the corresponding articles in other human rights instruments’. However, the court observed that Article 9 ‘leaves the decision whether or not to allow same sex marriage to the States’ [8] .

Schalk and Kopf developed the court’s case law in three important respects.

i. First, the rights contained in Article 12 of the European Convention on Human Rights are now clearly not restricted to opposite sex couples ‘in all circumstances’ [9] .

ii. Second, the court now recognises that same sex couples can establish family life [10] .

iii. Third, the court found that there was, however, ‘no European consensus regarding same sex marriage’ at that point.  Referring to Article 9 of the Charter, the court said that ‘it may be argued that there is no obstacle to recognize same sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages  [11] .

The court also decided that in light of ‘a rapid evolution of social attitudes towards same sex couples’ and the fact that ‘a considerable number of Member States have afforded legal recognition to same sex couples’, it was artificial to maintain the view that same sex couples cannot enjoy 'family life' for the purposes of Article 8.’ However, the court clearly ruled that Article 8, taken in conjunction with Article 14, does not require Contracting States to grant same sex couples legal recognition conferring the same status as marriage in each and every respect.

In light of the above, the Commission would conclude that the government’s proposal to permit same sex marriage is in accord with the court’s interpretation of human rights legislation, that is, same sex marriage is permitted, but not required.

The Commission previously examined the government's former proposal not to legislate to allow religious organisations to solemnise religious marriages for same sex couples [12] . Here, our analysis [13] found that, once the law had changed, if a religious organisation which wanted to solemnise same sex marriages and a same sex couple who wanted to marry challenge the provisions on the grounds that this domestic legal bar amounted to an infringement of their right to manifest their religion, such a claim is more likely to succeed.

Clauses 2 to 5: "Religious protection"

Clauses 2 to 5 permit those religious bodies wishing to conduct same sex marriage to 'opt in' and marry those wishing to have such a marriage. The legislation will leave marriage according to the rites of the Church of England unchanged, and if ever the Church of England wished to make changes to its doctrine and practice of marriage it would require legislation by the Church's General Synod.

The Commission has examined the prospects of a legal challenge to this position. The Human Rights Act includes a guarantee of freedom of religion or belief [14] :

‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’

This is a qualified right, meaning the state can interfere with it in the circumstances specified. To do so, the state needs to show that the interference meets the legitimate aims set out in the justification test outlined above and that their action is proportionate.

On the basis of this, the Commission's analysis suggests that, should the law be amended as proposed by the government, a legal challenge by a couple who wanted to be married by a religious organisation which did not wish to solemnise same sex marriages is very likely to fail, as in this instance the religious body would argue that it was contrary to their religious doctrine. The bill will not mean that religious organisations or ministers will be forced to conduct same sex marriages, and organisations and individual ministers will not find themselves forced by litigation to conduct same sex marriages.

Similarly, we see no reason why employees of all kinds will not remain free to express their views about same-sex marriage. Employees should not be sanctioned for disagreeing with the new law, and it would be unlawful for an employer to discipline or sack an employee for this. This is the case for all employees, whether in the public or private sector, including teachers and chaplains. The bill will not require anyone to promote views about same-sex marriage which they do not support.

There is sufficient protection for individuals who hold the religious or philosophical belief that marriage should only be between a man and a woman. Specifically, the Equality Act 2010 protects employees from direct and indirect discrimination, and also unfair dismissal, because of religion or belief.

In summary, the Commission's analysis suggests the bill appropriately accommodates the right to freedom of religion of those religious organisations which want to conduct same sex marriage. It also respects the views of religious organisations and individuals that do not wish to conduct single sex marriage ceremonies.

About the Equality and Human Rights Commission

The Equality and Human Rights Commission is a statutory body, established under the Equality Act 2006. It is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.

The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and encourages compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.

The Commission has analysed the Marriage (Same Sex Couples) Bill in furtherance of a number of its statutory and non-statutory duties.


The Commission has a statutory duty under the Equality Act 2006 [1] to encourage and support the development of a society in which: p eople's ability to achieve their potential is not limited by prejudice or discrimination, there is respect for and protection of each individual's human rights, there is respect for the dignity and worth of each individual, each individual has an equal opportunity to participate in society, and there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.

The Commission is responsible for monitoring the effectiveness of the equality and human rights enactments and advising on the effectiveness of enactments, as well as the likely effect of a proposed change of law [2] .

As a UN accredited National Human Rights Institution, the Commission is required to ‘promote and ensure the harmonisation of national legislation, regulations and practices with the international human rights instruments to which the State is a party’. [3] This includes the European Convention on Human Rights, incorporated in the Human Rights Act 1998.

Finally, the Commission has a dual responsibility to promote equality for same sex couples and ensuring freedom of religion and belief.

       Find out more about the Commission’s work at:      

February 2013

[1] Equality Act 2010, Clause 13: direct discrimination, read with clause 12: sexual orientation.

[2] S191 and Schedule 22 Equality Act 2010

[3] Human Rights Act 1998, Schedule 1, Article 8: right to respect for your private life, your family life, your home and your correspondence.

[4] Human Rights Act 1998, Schedule 1, Article 9: freedom of thought, conscience and religion .

[5] Human Rights Act 1998, Schedule 1, Article 12 : right to marry.

[6] Human Rights Act 1998, Schedule 1, Article 14: prohibition of discrimination.

[7] [2010] ECHR 995

[8] Paragraph 60 ibid

[9] See paragraph 61 ibid

[10] See paragraph 94 ibid

[11] See paragraph 60 ibid and paragraph 105.

[12] ' Equal civil marriage consultation ', Home Office 2012

[13] 'Position paper on Equal Civil Marriage', EHRC 2012

[14] Human Rights Act 1998, Schedule 1, Article 9: freedom of thought, conscience and religion

[1] Equality Act 2006, section 3.

[2] Equality Act 2006, section 11.

[3] Principles relating to the Status of National Institutions (The Paris Principles) , Adopted by General Assembly resolution 48/134 of 20 December 1993 .

Prepared 13th February 2013