Marriage (Same Sex Couples)

Memorandum submitted by Erich Hou (MB 16)

A Proposed Legislation with Commendable Aim but Problematic Measures (Erich Hou [1] )


The Coalition government’s plan to legalise same sex marriage before 2015 and to protect the religious freedom of those who are against the plan is commendable. However, the proposed Marriage (Same Sex Couples) Bill failed to strike a balance between the two. By giving same sex couples the right to marry and to conduct civil partnerships whilst restricting different sex couples to marriage only, the Bill does not only overcompensate the same sex couples, it also creates a new ‘separate and unequal’ system against the majority of the different sex couples. The only solution to achieve equality is to open up civil partnership to the different sex couples.

Secondly, although the ‘quadruple lock’ mechanism may protect the conscientious objectors, it inevitably infringe the religious freedom of those individuals within the Church of England (CoE) and Church in Wales (CiW) who wish to marry same sex couples and the same sex couples who wish to be married by them. Unlike other faiths, the CoE and CiW clergy have a common law duty to marry all parishioners and they also bear a statutory public sector equality duty to treat people alike regardless of their race, sex, sexual orientation or religious beliefs. This public sector equality duty comes from the principle and agent relationship between the State and the CoE and CiW clergy.

Based on the ‘separation of State and Church’ principle, the author suggested that the entanglement of the State and Church in the form of ‘quadruple lock’ and the lack of different sex couples civil partnership may not be able to pass the scrutiny of the proportionality (reasonableness) test of the domestic, European and international courts.

1. Introduction

The aim of the Coalition government to allow same sex couples to enter into the institution of marriage contains a legitimate and commendable aim, namely, to address the marital and familial inequality between the families composed of the same sex and different sex couples respectively. Despite the legitimate aim being commendable, the Marriage (Same Sex Couples) Bill contains two major fundamental inequalities according to the Human Rights Act 1998 and the Equality Act 2010.

Although Article 12 of the European Convention on Human Rights (‘ECHR’) does not compel states to provide same sex couples with the right to marry per se, states bear a positive obligation to protect same sex couples from discrimination on the ground of sexual orientation and it extends to ensuring that same sex relationships are treated like different sex relationships under Article 14 (equality). [2] This stance is consistent according to the jurisprudence of the United Nations Human Rights Committee (‘UNHRC’) and the Court of Justice of the European Union (‘CJEU’). [3] The European Court of Human Rights (‘ECtHR’) normally allows States a wide margin of appreciation on the matters of family and marriage. [4] However this margin is discretionary under the Chamber and Grand Chamber judges of the ECtHR on a case-by-case basis and the ECtHR is not strictly bound by its own precedents. [5] This margin of appreciation therefore cannot be guaranteed by any member state’s unilateral legislative measures.

Following this rule of law, it is possible that the proposed Bill may not pass the scrutiny of reasonableness (or proportionality) in the UK Supreme Court, [6] let alone the European or international courts.

2. The Lack of Civil Partnerships for Different Sex Couples Created A More Than Necessary ‘Separate and Unequal’ Regime Against Different Sex Couples

During the Parliamentary debate on 5th February 2013, MP Michael McCann suggested that the lack of access for different sex couples to enter into civil partnerships would create a new discrimination against the different sex couples. [7] Activist Peter Tatchell commented that ‘this will mean that for the first time in British law gay couples will have legal privileges over heterosexual couples.’ [8] Being in a civil partnership himself, MP Mike Freer stated that ‘I am not asking for special treatment. I am simply asking for equal treatment.’ [9] Legally speaking, the lack of different sex civil partnership will render the provision of same sex marriage ‘more than necessary’. [10] It is disproportionate and unreasonable on the detriment of the majority of the different sex couples.

By giving same sex couples the alternative options of both marriage and civil partnership whilst restricting different sex couples to marriage only is not only separate but also unequal for those different sex couples who wish to conduct civil partnerships instead of marriages. This issue, if not addressed by the Public Bill Committee, will almost certainly appear in the form of ‘wrecking amendment’ in the third reading and the House of Lords debate, according to the history of the Civil Partnership Act 2004. [11]

There are two main options to cure this new legal inequality, either opening up civil partnerships for different sex couples, or abolishing civil partnerships for same sex couples. Since abolishing civil partnerships will take away the detrimental reliance and existing rights and status of the 100,000 or so registered civil partners and some of them may not want to ‘upgrade’ their civil partnerships to marriages, opening up civil partnership for different sex couples is the only logical solution.

3. The Quadruple Locks Infringe Individual Religious Freedom

The second inequality comes from the infringement of religious freedom of the individuals within the Church of England and Church in Wales who wish to marry same sex couples and the same sex couples who wish to be married by them.

Marriage has different social-legal, cultural, economic and religious meanings in different times. [12] For example in the 1866 case of Hyde v Hyde, the legal definition of marriage used to be a union between a man and a woman ‘for life’ under Christendom. [13] This Hyde definition was supported by the Anglican churches in the past and it still coincides with the current definition of the governing body of the Roman Catholic Church. The common law definition of marriage in Hyde was upheld by the British court in Wilkinson v Kitzinger, [14] but abandoned by the Canadian courts in Halpern v Canada and Hincks v Gallardo. [15] As time changes, the ‘for life’ requirement in Hyde is no longer essential today within the Church of England and Church in Wales which tolerate divorce. [16]

One of the hallmarks of a civilised society is the respect of individual religious and nonreligious beliefs and they form part of the humanity. [17] The historical persecution of Roman Catholic Christians in the UK taught us that it is not the business of the courts and governments to intervene in matters of religion. [18] The separation of Church and State principle is not only a legal principle, it is also a hard learned lesson from the persecution of religious minorities.

Justice Munby stated in Singh v Entry Clearance Officer that,

‘Although historically this country is part of the Christian west, and although it has an established church which is Christian, we sit as secular judges serving a multi-cultural community of many faiths in which all of us can now take pride (…) So the starting point of the law is a tolerant indulgence to cultural and religious diversity and an essentially agnostic view of religious beliefs. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another.’ [19]

Because the judiciary interprets the law, the same principle of ‘separation of Church and State’ is not limited to the judiciary only and it applies to the whole government including the legislative and administrative branches. This separation of Church and State is crucial on the debate of same sex marriage. According to the public consultation and parliamentary debate, there are conflicting religious views within faiths. The governing bodies of the Roman Catholic Church, the Church of England and the Muslim Council of Britain all consider that marriage is ‘between a man and a woman’. [20] However, the Quakers, liberal Jews, Unitarians, and some individuals from the Church of England and the Church in Wales believe that marriage is a union between two individuals regardless of their sex or gender. [21] The government therefore must exercise its balancing judgement in deciding on the matter and the separation of Church and State principle forms the pinnacle of the balancing scales. Even the Bible stated that ‘render therefore unto Caesar the things which are Caesar’s, and unto God the things that are God’s.’ (Matthew 22:21)

Fundamentally it is the government’s duty to recognise familial and martial relationships. The ECHR, CJEU and UN HRC jurisprudence suggested that states enjoy a wide margin of appreciation in deciding how to legally recognise marital and familial relationships as long as same sex and different sex couples are treated equally. [22] It is also within the state’s executive power to delegate part of its duty to any non-state third party. [23] However, like race and sex, cases concerning sexual orientation are ‘intensely scrutinised.’ [24] On the issue of same sex marriage, the premise is that the State’s public sector equality duty must be maintained. [25]

Unlike other faiths, clergy of the Church of England and the Church in Wales are under a common law duty to marry all parishioners according to the Parliament Research Paper. [26] The fact is, the Clandestine Marriage Act of 1753 (‘the Hardwicke Act’) made it obligatory for all marriages to take place within the Anglican system except for Quakers and Jews. [27] Before the Marriage Act 1836, the Anglican clergy enjoyed the monopoly of officiating marriages. [28] Just like a post 1836 civil registrar of birth, marriage, civil partnership, divorce, and death, the clergy’s job is to confer legal powers on behalf of the state upon a same sex or different sex couple to create, by certain specified procedures and subject to certain conditions, structures of rights and duties within the framework of the law. [29]

A civil servant or state agent is different from a private individual. Thoreau called them ‘machines’. [30] They are the faces and arms of the state and they represent the law. They bear the same fiduciary public sector equality duty as the state. Like states, the actions and inactions of these agents should be neutral, egalitarian and non-discriminatory. Just like a registrar with Roman Catholic faith is required to register divorce or a magistrate cannot discriminate against same sex couples on the matter of adoption, [31] there is little space for personal belief in exercising the state power. This public sector equality duty does not prevent civil servants and state agents to exercise their freedom of religion when they are off-duty. They also retain the freedom to decide whether to remain in the state machine.

The Church of England and the Church in Wales are composed of individuals but churches are not individuals. In the matter of conferring legal powers on behalf of the state upon a couple, the individual clergy also act on behalf of the state. They are state agents in the broad sense. If the state’s public sector equality duty cannot be maintained through the individual clergy horizontally, the state bears the ultimate and vicarious responsibility in this principle (State) and agent (clergy) relationship. This responsibility, if negated by way of any legislative locks or immunity, is subject to the highest form of scrutiny.

The reality is, not all individuals share the same view even within the same faith. The aim of the proposed ‘quadruple locks’ to prevent the Church from being sued not only violates the ‘separation of Church and State’ principle, it also inevitably infringes the individual freedom of religion of those who disagreed with the governing bodies of the Church. The ‘more than necessary’ quadruple locks indicate the entanglement between Church and State and they are not the least restrictive means. It will almost certainly attract scrutiny of any court, may it be domestic, European or international. Most likely, the legal challenge will even originate within the Church as it was in the case of Halpern v Canada. [32]

4. Conclusion: The Aim Should Be Equal Marriage, Not Same Sex Marriage

The government’s aim to push for same sex marriage and to protect religious freedom is commendable. However, the proposed measure will inevitably violate the fundamental principle of equality. It will overcompensate same sex couples without reasonable justification. By protecting the Church through the ‘quadruple locks’, it will entangle the Church and the State even further. This entanglement will violate the individual freedom of religions of those who disagree with the governing bodies of the Church on the issue of same sex marriage. These are the concerns that the Public Committee should be aware of.

February 2013

[1] Erich Hou is currently a postgraduate researcher in Cardiff Law School on the subject of equal marriage. He is also a qualified solicitor in England and Wales and New York (USA). He has been in a registered civil partnership since 2008.

[2] Karner v Austria, [2003] ECHR 40016/98. Schalk & Kopf v Austria , (2010) 53 EHRR 20.

[3] Young v Australia , UN HRC Communication No.941/2000, [2003]. Tadao Maruko v Versorgungsanstalt der deutschen Bühnen , [2008] ECJ C-267/06.

[4] Jean-Paul Costa, ‘On the legitimacy of the European Court of Human Rights’ judgments’, (2011) 7(2) E.C.L.Review , 173. Costa is a former ECtHR judge.

[5] Goodwin v UK , (2002) 35 EHRR 18.

[6] Elloy de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and Others Respondents [1998] 3 W.L.R. 675, [1999] 1 A.C. 69. R (Daly) v Secretary of State for the Home Department , [2 001] UKHL 26, para 27.

[7] Hansard , House of Commons Debate, 5 Feb 2013: Column 179-181.

[8] Catherine Fairbairn and others, ‘Marriage (Same Sex Couples) Bill, Bill No 126 of 2012-13 Research Paper 13/08 31 January 2013’, 56.

[9] Hansard , House of Commons Debate, 5 Feb 2013: Column 179.

[10] R (Daly) v Secretary of State for the Home Department , [2 001] UKHL 26, para 27.

[11] Hansard , House of Lords Debate, 24 June 2004: Column 1409. Also see Lorraine Conway and Catherine Fairbairn, ‘The Civil Par t nership Bill [HL]: background and debate’, House of Commons Research Paper 04/64, 7 September 2004, 43.

[12] Stephanie Coontz, Marriage, a History - How Love Conquered Marriage , (Penguin, 2006).

[13] Hyde v Hyde and Woodmansee (1866), L.R. 1 P.&D. 130 .

[14] Wilkinson v Kitzinger , [2006] EWHC 2022 (Fam).

[15] Halpern v Canada (Attorney General), 65 OR (3d) 161. 10 June 2003. Hincks v Gallardo , 2013 CanLII 248 (ON SC). (Docket No. FS-11-367046, 7 January 2013.

[16] Mary Poovey, ‘Covered But Not Bound: Caroline Norton and the 1857 Matrimonial Causes Act’, (1988) 14(3) Feminist Studies 467.

[17] R (Williamson) v Secretary of State for Education & Employment , [2005] UKHL 15, para 15.

[18] R (Johns) v Derby City Council, [2011] EWHC 375 (Admin), para 42; R(E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15, [2010] 2 AC 728, para 157; R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p Wachmann [1992] 1 WLR 1036, 1042-1043; R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, 932.

[19] Singh v Entry Clearance Officer New Delhi , [2004] EWCA Civ 1075, para 67.

[20] Catherine Fairbairn, Oliver Hawkins, Nerys Roberts, Doug Pyper and Djuna Thurley, ‘Marriage (Same Sex Couples) Bill, Bill No 126 of 2012-13 Research Paper 13/08 31 January 2013’, 40. < > Accessed on 6 February 2013. Also see statement from the Second Church Estates Commissioner Sir Tony Baldry. Hansard , House of Commons Debate, 5 Feb 2013: Column 143.

[21] Ibid . Also see statements from MP David Lammy, Hansard , House of Commons Debate, 5 Feb 2013: Column 192 & 193.

[22] See Karner , Schalk & Kopf , Young and Maruko .

[23] Catholic Care (Diocese of Leeds) v The Charity Commission for England and Wales , [2010] EWHC 520 (Ch).

[24] Mendoza v Ghaidan , [2004] UKHL 30. Also see R (Carson and Reynolds) v Secretary of State for Work and Pensions [2005] UKHL 37.

[25] §149(2) of Equality Act 2010, c.15. Also see §6 of Human Rights Act 1998, c.42.

[26] Catherine Fairbairn and others, ‘Marriage (Same Sex Couples) Bill, Bill No 126 of 2012-13 Research Paper 13/08 31 January 2013’, 6 & 46.

[27] Peter Coleman, Christian Attitudes to Marriage , (SCM Press, 2004) 205.

[28] Ibid , 207.

[29] Islington London Bor o ugh Council v Ladele , [2009] EWCA Civ 1357. Eweida and others v UK , (2013) App Nos. 48420/10, 59842/10, 51671/10 and 36516/10. Also see H.L.A. Hart, The Concept of Law , (2 nd Ed., OUP, O xford and London, 1961, 1997), 27 & 28.

[30] Henry David Thoreau, ‘On The Duty of Civil Disobedience’, in Thoreau, Walden and Civil Disobedience , (Harper and Row, New York, 1965) 253.

[31] McClintock v Department of Constitutional Affairs , [2008] IRLR 29.

[32] Halpern v Canada (Atto rney General), 65 OR (3d) 161. 10 June 2003. The applicants include the Metropolitan Community Church of Toronto, the Interfaith Coalition on Marriage and Family, the Canadian Coalition of Liberal Rabbis for Same-Sex Marriage, Canadian Human Rights Commission, NGOs and same sex couples.

Prepared 15th February 2013