Marriage (Same Sex Couples)

Memorandum submitted by Alliance Defending Freedom (MB 138)

Summary

1. This submission makes three points regarding the religious liberty concerns associated with re-defining marriage. First, there is a threat to religious liberty in the United Kingdom before marriage has even been redefined, therefore any re-definition will certainly lead to a further loss of religious liberty. Secondly, if marriage is re-defined there will be new threats to religious liberty. Thirdly, the Government’s claim that religious organizations will be protected by the Marriage (Same Sex Couples) Bill is an empty promise.

I.) CURRENT THREATS TO RELIGIOUS LIBERTY

2. Any concerns for religious liberty caused by the redefinition of marriage are compounded when the context surrounding the Marriage (Same Sex Couples) Bill is considered. Those who have voiced support for marriage or upheld a traditional or religious view on sexual morality have been penalized in a number of different ways despite the legal definition of marriage currently being "the voluntary union for life of one man and one woman to the exclusion of all others." [1] Parliament does not legislate in a vacuum and if marriage is re-defined, the number of cases listed below would increase considerably.

Marriage defenders abused

3. In 2011 Christian hoteliers Peter and Hazelmary Bull received hate mail and abusive phone calls after refusing to let double bedded rooms to unmarried couples. The couple reported the information to the police to investigate. [2]

4. In 2012 Archbishop of York John Sentamu received a number of abusive and threatening emails of a racist nature after stating that marriage must remain between a man and a woman. [3]

5. In 2012 newlywed couple Rhys and Esther Curnow were bombarded with hate mail after submitting a petition in favour of marriage to 10 Downing Street. The couple received over 100 hate messages and were forced to contact the police. [4]

6. In 2013 it was David Burrowes MP revealed that he has received hate mail and death threats for supporting marriage in parliament. The MP also said that his children have faced bullying at school because of his stance. [5]

Speech muzzled

7. In 2002 Harry Hammond was convicted of a criminal offence for displaying a sign bearing the words "Jesus Gives Peace, Jesus is alive, Stop Immorality, Stop Lesbianism, Jesus is Lord" in his local city centre. [6]

8. In 2008 Anthony Rollins was arrested for preaching on the streets of Birmingham. He expressed his Christian belief that homosexual conduct is morally wrong and was called a homophobic bigot by a passerby who then phoned the police. Officers arrived and arrested him on the spot, charging him three hours later. [7]

9. In 2010 Dale McAlpine was arrested and lead away in a riot van for preaching in his local town square. McAlpine had told one officer that "the bible says homosexuality is a sin," although this had not formed part of his public preaching. [8]

10. In 2010 Shawn Holes was arrested and fined £1,000 for answering a question on homosexual behaviour from a member of the crowd as he preached on the streets of Glasgow. He responded by stating that all who commit sins without repenting "are going to a place called hell." [9]

11. In 2011 Mike Overd was charged with using threatening words or behaviour for street preaching in Taunton on a Bible passage concerning homosexual behaviour. [10]

Workers penalized and dismissed

12. In 2006 Andrew McClintock was forced to resign as a Justice of the Peace because his belief that adoption by same-sex couples was not in the best interest of the child was not accommodated by his employer. [11]

13. In 2007 Lillian Ladele was forced to leave her job as a civil registrar because her religious belief on marriage was not accommodated by her employer. [12]

14. In 2007 Gary McFarlane was dismissed for gross misconduct because, as a Christian marriage counsellor, he had a conscientious objection to providing same-sex couples with ‘Psycho-Sexual Therapy’. [13]

15. In 2007 Dr. Sheila Matthews was removed from her position on an adoption panel because she believed that placing children in a household with same-sex parents was not the best option available for the child. [14]

16. In 2007 Eunice and Owen Johns applied to act as short-term foster carers, having previously been approved as foster carers by Derbyshire County Council between 1992 and 1995. Their application was denied because of their Christian views on homosexual behaviour. [15] Other foster carers have also had difficulty fostering children because of their Christian beliefs on homosexuality.

17. In 2011 Adrian Smith, a housing manager in Manchester, was demoted and had his salary reduced by 40% because he stated his views on marriage on his personal Facebook page. [16]

18. In 2011 former SNP leader Gordon Wilson was voted off the board of Dundee's Citizens Advice Bureau because he supported the legal definition of marriage. Wilson is chairman of a Dundee-based Christian group that is calling for a referendum on same-sex marriage. [17]

19. In 2012 bus driver Arthur McGeorge was threatened with disciplinary action after distributing a petition supporting the legal definition of marriage during his work break. [18]

20. In 2012 Christina Summers was expelled as a Green Party Councillor after she voted against a motion supporting same-sex marriage. [19]

Service-providers sued, closed and had funding removed

21. In 2008 a Christian care home had a £13,000 per year grant removed for refusing to promote homosexual behaviour to its elderly residents. After more than a year of internal appeals – amounting to £21,000 in legal fees – and after the case was made public, the council eventually backed down but did not offer to pay any of the legal fees. [20]

22. In 2008 the Earl of Devon, a devout Christian, refused to allow a same-sex couple to hold a civil partnership ceremony at his family home at Powderham Castle. [21] The local Council then revoked his licence for hosting civil ceremonies, meaning that marriages could no longer take place at the castle either. The lost revenue equated to around £200,000 per year and as a result, the Earl had to sell off family items to make up the deficit. [22]

23. In 2008 Catholic adoption agencies that refused to place children with homosexual couples were forced to close down or remove their religious ethos. [23] This was despite Catholic adoption agencies being widely recognised as being among the best in the country.

24. In 2009 guesthouse owners Peter and Hazelmary Bull were sued £3,600 for refusing to offer double-bedded accommodation to unmarried couples. [24] Their guesthouse now faces closure. Other Christian guesthouses have also been successfully sued. [25]

Access to services denied

25. In 2012 several organizations attempted to host a conference on the legal definition of marriage at the Law Society in London. The Law Society cancelled the booking, claiming that the conference breached its diversity policy. The conference was then due to take place at the Queen Elizabeth II Conference Centre, but the Government-run venue also cancelled the booking citing similar reasons. [26]

II.) NEW THREATS TO RELIGIOUS LIBERTY

26. As well as a substantial increase in the types of cases listed above, any redefinition of marriage would also bring new threats to religious liberty.

27. The Bill does not include any protections for individuals who may have a conscientious objection to supporting, condoning, facilitating or promoting same-sex marriage. Therefore, private sector employees could be dismissed for not supporting their employer’s policies on same-sex marriage and those who currently provide marriage-related services, such as wedding photographers, could be sued for not providing their services to same-sex marriage ceremonies.

28. Public sector employees are particularly at risk under the Government’s proposals. [27] In January 2013 Education Minister, Michael Gove, admitted that the Government would be powerless to prevent schools dismissing teachers who did not promote same-sex marriage in the classroom. [28] Recently 40,000 teachers were identified as facing the sack if the Government Bill becomes law. [29] Military chaplains have also been identified by former Defence Minister, Sir Gerald Howarth, as being vulnerable under any changes to the law, [30] as well as chaplains in other contexts such as hospitals and prisons.

29. Moreover, the European Court of Human Rights has recently made it clear that it will not protect individuals who are dismissed because of a conscientious objection to same-sex relationships. [31] Therefore, if the Government does not provide statutory protections for individual conscience, the examples listed above and the jurisprudence of the British and European courts make it clear that a redefinition of marriage will lead to many professional and competent employees being dismissed because of their sincere beliefs on marriage.

III.) THE GOVERNMENT’S EMPTY PROMISE

30. Although the Bill makes no attempt to protect the thousands of individuals whose jobs and businesses will become threatened as a result of any marriage redefinition, there is at least an attempt to protect religious communities that do not wish to conduct same-sex marriages. However, any Government promises that faith communities will be protected by the Bill cannot be relied upon.

The lack of authority over ECtHR decisions

31. The Government’s inability to control or resist decisions made by the European Court of Human Rights (ECtHR) has been well documented in recent years regarding the issue of deportation.

32. On 17 January 2012 the ECtHR handed down its judgment in Othman (Abu Qatada) v the United Kingdom. [32] In a unanimous ruling the Court overturned the decision of the House of Lords, [33] which had unanimously held that Abu Qatada could be deported to Jordan. In November 2012 Prime Minister David Cameron remarked:

I am completely fed up with the fact this man is still at large in our country, he has no right to be there, we believe he’s a threat to our country. We have moved heaven and earth to try and comply with every single dot and comma of every single convention to get him out of this country. It is extremely frustrating and I share the British people’s frustration with the situation we find ourselves in. [34]

33. Other Government Ministers have also spoken of their frustration and helplessness at the hands of the ECtHR. Home Secretary, Theresa May, told parliament that, "It is also deeply unsatisfactory that the European Court of Human Rights continues to move the goalposts for governments trying to deport dangerous foreign nationals." [35]

The ECtHR’s evolutive approach to the Convention

34. The reason that Theresa May claims that the ECtHR has changed its position is because the Court is at liberty to do so. Unlike the UK and other common law countries, the ECtHR does not operate a strict system of precedent but instead takes an "evolutive approach" to the meaning of the European Convention on Human Rights. As Jean-Paul Costa, former President of the Court, recently put it, the Court has "taken the view that the text should be interpreted, and applied, by adapting it to the changes that have taken place over time – to changes in society, in morals, in mentalities, in laws." [36]

35. At the heart of the evolutive approach is "European consensus" – a principle that allows the Court to apply evolutive principles when the responding state’s actions are considered to be out of step with other European states.

36. Such an approach was first developed in the 1970s. In Tyrer v. United Kingdom [37] the Court held that "the Convention is a living instrument which… must be interpreted in the light of present-day conditions."

37. A few months after Tyrer, the Court invoked European consensus to help decide Marckx v. Belgium. [38] In Marckx, an unwed mother challenged a Belgian law that denied automatic recognition of maternal affiliation of illegitimate children as violating Articles 8 and 14 of the Convention. In deciding in favour of the claimant, the Court admitted that discrimination between legitimate and illegitimate family was "permissible and normal" at the time of the Convention’s drafting, but citing Tyrer, wrote:

The Court cannot but be struck by the fact that the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant international instruments, towards full juridical recognition of the maxim ‘mater semper certa est.’ [39]

38. In support of its claim of evolving consensus, the Court cited two treaties, both of which had been ratified by only four members of the Council of Europe. [40] The Court attempted to buttress this weak evidence by arguing that "both the relevant Conventions are in force and there is no reason to attribute the currently small number [of parties] to a refusal to admit equality between ‘illegitimate’ and ‘legitimate’ children." [41] The mere existence of the treaties "denotes that there is a clear measure of common ground in this area." [42] Hence, the concept of European consensus does not even require consensus.

Same-sex marriage and the ECtHR

39. With regard to the issue of redefining marriage, the ECtHR has stated that there is no right to same-sex marriage under the Convention. [43] Notably, its decision was based in part on the fact that there is currently no European consensus on the issue. [44]

40. The Government therefore believes that because there is no right to same-sex marriage under the Convention, faith communities will not be penalized for refusing to conduct same-sex marriage ceremonies.

41. However, if the UK opens the door to same-sex marriage, there is a real danger that the ECtHR could find violations of the Convention even though there is no Convention right to same-sex marriage. By way of comparison, the Court has held that there is no right to abortion under the Convention. However, once states allow abortion in certain circumstances, the Court has been at liberty to find violations of the Convention based on procedural grounds. Thus, in Tysiąc v Poland [45] the Court held that although abortion was not a right, the mechanisms in place to obtain a legal abortion in Poland were in violation of the Convention.

42. Therefore, given the ECtHR’s fluid approach to the Convention and the Government’s lack of power over the Court’s decisions, if the door is opened to same-sex marriage in the UK, the protections currently being offered to faith communities could become worthless if challenged at a later date in Strasbourg.

March 2013

Paul Coleman is Solicitor of the Senior Courts of England and Wales and Legal Counsel for Alliance Defending Freedom. ADF is a well-established international human rights organization that advocates for religious freedom around the world. ADF is fully accredited with all of the major international organizations, including: The Fundamental Rights Agency of the European Union; the European Parliament and European Commission; the Organisation for Security and Cooperation in Europe and the United Nations (ECOSOC). ADF has been involved in over 20 cases at the European Court of Human Rights and has on numerous occasions provided expert opinions and key-note addresses to different European Parliamentary Committees and Inter-groups, as well as national parliaments.


[1] Hyde v Hyde and Woodmansee [1866] LR 1 P & D 130.

[2] The Daily Mail , 21 January 2011. Available at <http://www.dailymail.co.uk/news/article-1348207/Christian-hotel-owners-Peter-Hazelmary-Bull-penalised-turning-away-gays.html>.

[3] BBC News , 6 February 2012. Available at <http://www.bbc.co.uk/news/uk-england-york-north-yorkshire-16908955>.

[4] The Daily Telegraph , 22 June 2012. Available at <http://www.telegraph.co.uk/news/politics/9349353/Gay-marriage-newlywed-couple-bombarded-with-internet-hate-mail.html>.

[5] The Daily Telegraph , 3 February 2013. Av ailable at <http://www.telegraph.co.uk/news/religion/9845185/Tory-MP-gets-death-threats-over-gay-marriage-opposition.html>.

[6] The Guardian, 18 January 2012. Available at <http://www.guardian.co.uk/commentisfree/libertycentral/2012/jan/18/crime-insult-public-order-act>.

[7] The Daily Mail , 10 December 2010. Available at <http://www.dailymail.co.uk/news/article-1337292/Payout-anti-gay-preacher-Anthony-Rollins-Landmark-ruling-free-speech-battle.html>.

[8] The Daily Telegraph , 2 May 2010. Available at < http://www.telegraph.co.uk/news/religion/7668448/Christian-preacher-arrested-for-saying-homosexuality-is-a-sin.html>.

[9] Mail Online, 30 March 2010. Available at <http://www.dailymail.co.uk/news/article-1262310/Gay-rights-campaigner-condemns-1-000-fine-preacher-said-homosexuality-sin.html>.

[10] BBC News , 10 February 2012. Available at <http://www.bbc.co.uk/news/uk-england-somerset-16984133>.

[11] McClintock v. Department of Constitutional Affairs UKEAT/0223/07/CEA, 31 October 2007.

[12] Ladele v London Borough of Islington [2009] EWCA Civ 1357.

[13] McFarlane v Relate Avon Limited [2010] EWCA Civ 880.

[14] Matthews v. Northamptonshire County Council , ET (Case No. 1901629/2009), 26 November 2010.

[15] R (Johns) v. Derby City Council [2011] EWHC 375 (Admin).

[16] The Daily Mail , 23 October 2011. Available at <http://www.dailymail.co.uk/news/article-2052319/Adrian-Smith-demoted-backing-gay-marriage-criticising-new-law-Facebook.html>.

[17] BBC News , 28 October 2011. Available at <http://www.bbc.co.uk/news/uk-scotland-tayside-central-15494577>.

[18] Christian Concern, 14 March 2012. Available at <http://www.christianconcern.com/our-concerns/social/bus-driver-faces-disciplinary-action-over-marriage-petition>.

[19] The Huffington Post , 11 September 2012. Available at <http://www.huffingtonpost.co.uk/2012/09/11/green-party-expels-brighton-christina-summers-gay-marriage_n_1873791.html>.

[20] ‘Care home suffers under ‘equality’ laws: How traditional Christian beliefs cost an elderly care home a £13,000 grant,’ The Christian Institute, May 2009.

[21] The Daily Mail , 20 May 2008. Available at <http://www.dailymail.co.uk/news/article-1023037/Earl-banned-holding-weddings-600-year-old-castle-refusing-allow-gay-marriage.html>.

[22] The Daily Telegraph , 2 July 2009. Available at <http://www.telegraph.co.uk/news/uknews/theroyalfamily/5711424/Earl-of-Devon-sells-family-silver-after-civil-partnership-ban.html>.

[23] S ee ‘Adoption agencies shut under ‘equality’ laws’, The Christian Institute, April 2009.

[24] Bull and Bull v. Hall and Preddy and Hall [2012] EWCA Civ 83.

[25] Black and Morgan v Wilkinson , Claim, no. 0UD02282, 18 October 2012.

[26] The Daily Telegraph , 11 May 2012. Available at <http://www.telegraph.co.uk/news/uknews/law-and-order/9260335/Storm-as-Law-Society-bans-conference-debating-gay-marriage.html>.

[27] According to Section 149, Equality Act 2010, the Public Sector Equality Duty requires public authorities to have “due regard” to the need to eliminate discrimination when exercising their function as well as “advancing equality of opportunity”.

[28] The Daily Mail , 25 January 2013. Available at <http://www.dailymail.co.uk/news/article-2268056/Registrars-sued-defy-gay-marriage-law-teachers-hospital-chaplains-facing-claims.html>.

[29] The Christian Institute , 4 February 2013. Available at <http://www.christian.org.uk/news/over-40000-teachers-face-sack-over-gay-marriage/>.

[30] The Daily Telegraph , 13 November 2012. Available at <http://www.telegraph.co.uk/news/religion/9673488/Military-chaplains-could-be-sacked-for-opposing-gay-marriage-says-former-minister.html>.

[31] Eweida and ors v United Kingdom (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10), 15 January 2013.

[32] Application no. 8139/09.

[33] RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110.

[34] BBC News , 13 November 2012. Available at <http://www.bbc.co.uk/news/uk-20315479>.

[35] The Guardian , 12 November 2012. Available at <http://www.guardian.co.uk/politics/blog/2012/nov/12/starbucks-tax-avoidance-controversy-live-blog>.

[36] Jean-Paul Costa, “What are the limits to the evolutive interpretation of the Convention?”, Dialogues between Judges (European Court of Human Rights, Strasbourg. 2011), p. 5.

[37] Tyrer v. United Kingdom , Application no. 5856/72, 1978.

[38] Marckx v. Belgium , Application no. 6833/74, 1979.

[39] Id. at para. 41.

[40] Id.

[41] Id.

[42] Id.

[43] Schalk and Kopf v Austria , Application no, 30141/04, 24 June 2010.

[44] Paragraph 58: “Although ... 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.”

[45] (Application no. 5410/03) 20 March 2007 .

Prepared 13th March 2013