Marriage (Same Sex Couples)

Memorandum submitted by The Equality and Human Rights Commission (MB 24)

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 is issuing this supplementary briefing to assist MPs at committee stage. It draws on a legal opinion obtained from Robin Allen QC, Cloisters, and Jason Coppel, 11 King’s Bench Walk. The full opinion is annexed to this briefing.

Questions and answers

At some point in the future, might the European Court of Human Rights rule that a church not wishing to conduct a gay wedding ceremony was in breach of equality or human rights legislation?

This is extremely unlikely. A joint opinion obtained by the Commission from Robin Allen QC and Jason Coppel states:

'It does not breach the rights of same sex couples to restrict their opportunities for a religious marriage ceremony to those organisations and individual office-holders who consent to such a ceremony. We consider it to be extremely unlikely that any different view would be taken by the courts, including the ECtHR when considering the provisions of the European Convention on Human Rights.'

This opinion goes on to set out the following reasons why a complaint would certainly fail in the courts, including in the ECtHR:

1. Article 14 (prohibition of discrimination) does not prohibit all differences in treatment of persons in comparable circumstances, but only such different treatment as is not objectively justified;

2. There is a clear and obvious justification for the limited difference of treatment by the Bill of same sex and opposite sex couples; this justification is rooted in the state’s obligation to protect the rights of religious organisations to freedom of thought, conscience and religion pursuant to Article 9 ECHR;

3. Though freedom to manifest thought, conscience and religion is not an absolute right, there are compelling and indeed overwhelming reasons why it would be a breach of the Article 9 rights of a religious organisation if it were to be compelled to conduct or permit a same sex marriage, contrary to its doctrinal beliefs; no person (or state) can compel a religious obligation to change its doctrinal beliefs [1] and it is not necessary [2] that such organisations should be compelled to change their practices of only conducting marriages in accordance with those beliefs where marriage between same sex couples will be readily obtainable in other ways;

4. It is thus plainly legitimate for the Government to frame the Bill so as to create (or perpetuate) a difference of treatment between same sex and different sex couples so as to avoid the position whereby a religious organisation was forced, contrary to its beliefs, to conduct or permit a same sex marriage ceremony.

Similarly, Lord Pannick, Baroness Kennedy and Lord Lester have said:

'It is simply inconceivable that the Court would require a faith group to conduct same-sex marriages in breach of its own doctrines.' [3]

Finally, despite the fact that many countries across Europe, including Spain, Portugal and Belgium, already have same-sex marriages, there have been no successful challenges in the European courts.

Does the possibility of a legal challenge in the European Court of Human Rights mean the bill is fundamentally flawed and should be dropped?

Any legislation may be subject to a legal challenge. However, in this instance, such a challenge would be extremely unlikely to succeed. As our legal advice from Robin Allen QC and Jason Coppel explains:

'No legislation could realistically prohibit or prevent that (a legal challenge). It is simply our view based on the application of very basic principles of human rights law and the relevant jurisprudence of the ECtHR that such applications would not succeed. Fear to the contrary are misplaced and can be properly set aside.'

Even if it is unlikely to succeed, how would religious bodies afford to defend themselves against such a case?

The European Court of Human Rights (ECtHR) hears applications that a contracting State has breached one or more of the human rights provisions set out in the European Convention on Human Rights and its protocols. Therefore, any case taken to the European Court of Human Rights would be against the UK government, not against the religious body concerned.

What would be the legal position for a minister in a church that ‘opts in’ to perform same sex marriages, but he or she does not want to conduct them?

The government's clear intention is that the bill will prevent churches from compelling their ministers to participate in same sex marriages. Specifically, clause 2, subsection 2 provides that a person may not be compelled to conduct, be present at, carry out or otherwise participate in a relevant marriage, or consent to one being conducted.  

However, our legal opinion suggests the bill in its present form could amount to the state acting unlawfully by interfering with the freedom of religious organisations (under article 9 of the European Convention on Human Rights) to enforce their religious doctrines within their particular organisation. Furthermore, in this particular situation, the bill does not clearly provide for the freedom of religious organisations to ensure its employees or officials act in accordance with its ethos under Article 4 of the European Union Framework Directive 2000/78.

This is an extremely complex area and the Commission will also be discussing its advice with government to ensure the legislation is as clear and unambiguous as possible.

What will be the legal position for registrars who object to officiating over same sex marriages?

Clause 2 subsection 4 says that clause 2 (no compulsion to solemnise) does not concern the conduct of a marriage registrar, superintendent registrar or the Registrar General.

So registrars who are employed to deliver a public function may be required to solemnise same sex marriages. This is similar to requirements that have been placed on some registrars since the Civil Partnerships Act 2004, meaning many have been required to perform civil partnerships as part of their duties.

Might teachers be sacked or disciplined if they express personal objections to same sex marriage?

The Commission sees no reason why teachers and 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.

Our legal advice from Robin Allen QC and Jason Coppel states:

'...the Bill as currently drafted, with its protections against compulsion to conduct or consent to same sex marriage, it remains an entirely lawful and legitimate philosophical/religious view that marriage should be restricted to opposite sex couples. It is expressly provided that religious organisations and their office-holders may continue to hold that view and cannot be subject to legal liability for so doing.'

Where a school includes marriage as part of the curriculum, a teacher will be expected to accurately convey to his students the state of the law on same sex marriage.

As our legal opinion states:

'However, a teacher will certainly be expected to comply with the requirement of his employer that he accurately conveys to his students the state of the law on same sex marriage. Such a requirement could not reasonably be said to conflict with any religious beliefs. Moreover, the imposition of such an occupational qualification would be wholly consistent with Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.'

So teachers will be required to give an accurate representation of the law and they will be free to give their opinion of the law. But, as with any other issue, teachers should not seek to coerce and harass others to adopt a particular view.

Our legal opinion states:

'Similarly, a teacher could be disciplined for conveying his belief against same sex marriage in such a way as to attempt to indoctrinate his students. The classroom is not the place for the proselytisation of particular religious doctrine – assuming of course that the school was not a religious organisation holding these beliefs so that such conduct was within the school’s own ethos. Exactly the same position would currently pertain to a teacher in a non-faith school who, for example, actively promoted views against abortion. '

In relation to faith schools, giving a view that opposes the law but aligns with the religious doctrine of the school would also be permissible. Our legal opinion states:

'In a faith school, which would be content for teachers to promote views against same sex marriage, and indeed may encourage them to do so, it is difficult to envisage any legal difficulties arising from such conduct. The religious view against same sex marriage is, after all, a lawful view, and, in general, faith schools are entitled to promote to their students the tenets of their faith.'

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: www.equalityhumanrights.com      

THE MARRIAGE (SAME SEX COUPLES) BILL

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JOINT ADVICE

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Instructions

1. We are instructed to advise the Equality and Human Rights Commission ("EHRC") on the human rights implications of the Marriage (Same Sex Couples) Bill ("the Bill") [4] , which had its second reading in the House of Commons on 5 February 2013.

2. If passed as an Act of Parliament in its current form, the Bill would extend the concept of marriage in domestic civil law so that it included same sex as well as opposite sex couples. [5] The Government’s original position, expressed in Equal Civil Marriage: a consultation, published by the Government Equality Office in March 2012 ("the consultation paper"), was that the marriage of a same sex couple should be capable of being contracted solely in a civil ceremony. A marriage of a same sex couple was not to take place by a religious ceremony, or by a civil ceremony on religious premises, even where the religious organisation in question was willing to conduct such a ceremony.

3. However, as a result of representations made by the EHRC amongst others, the text of the Bill adopts a different position, and will, in summary, save in certain specific defined circumstances, permit a same sex marriage having civil law validity to take place by a religious ceremony or in a religious setting, where both the consent of the religious organisation in question, and any office-holder of that organisation conducting the ceremony, have been obtained. The Bill contains protections to prevent any religious organisation and any individual religious office-holder from being compelled to consent to, or to conduct, the marriage of a same sex couple (clause 2).

4. The key specific exceptions to this new possibility concern the Church of England, and to a lesser extent, the Church in Wales. They derive from the particular status and obligations of these two churches which in turn reflect the long religious history of this country. The Church of England as the established church of England (but not Wales) has certain common law obligations and the Church of Wales (though disestablished in other ways) also retains certain obligations.

5. In order to place those organisations (ie the Churches of England and of Wales) on the same footing as other religious organisations and thus ensure likewise that they are not compelled to conduct same sex marriage ceremonies, the Government decided in drafting this Bill that these exceptions are necessary

6. The key problem in drafting the Bill may be summarised in this way by reference to the Church of England -

(1) There is a common law obligation on a Church of England parish priest (incumbent) to marry a different sex couple one of whom resides in the parish (or otherwise meets the specific requirements); [6]

(2) The doctrine of the Church of England remains that marriage is the union of opposite sex couples;

(3) Parliament has to all intents and purposes ceded to the General Assembly of the Church of England the power to make laws for the Church of England which have doctrinal consequences;

(4) Government does not wish (and probably could not) make laws which have doctrinal effect for the Church of England contrary to the views and intentions of the General Assembly. [7]

7. That is why, for example, clause 1(4) of the Bill disapplies, in the case of same sex couples, the common law obligation on the Church of England to marry any couple in the parish who wished to be married. It is also why, according to the Government, it has been thought necessary to draft the Bill in such a way as to afford different treatment to the Church of England and the Church in Wales, with regard to the process by which those organisations may opt-in to same sex marriage.

8. There are two issues in particular that have given rise to particular concern amongst those considering the Bill that we propose to address –

(1) Whether the provisions of the Bill that aim to prevent religious organisations and individual office-holders from being compelled to conduct, or to permit, same sex marriage ceremonies, are compatible with the human rights of same sex couples and will therefore survive challenge in the domestic courts and/or in the European Court of Human Rights ("ECtHR");

(2) Whether the enactment into law of same sex marriage would be likely to lead to the disciplining, including dismissal, of any teacher who refused to convey a view of marriage which extended to same sex couples, or of a registrar who refused to conduct a same sex marriage ceremony.

9. Our view, in summary, on these issues is as follows:

(1) It does not breach the rights of same sex couples to restrict their opportunities for a religious marriage ceremony to those organisations and individual office-holders who consent to such a ceremony. We consider it to be extremely unlikely that any different view would be taken by the courts, including the ECtHR when considering the provisions of the European Convention on Human Rights ("ECHR");

(2) The enactment into law of same sex marriage will not change the longstanding position in employment law, that teachers can be required to teach a curriculum accurately whether or not they agree with its contents. It has always been the case that in certain circumstances employees (including teachers and registrars) can be disciplined for actively promoting a particular viewpoint without the permission of, or contrary to the wishes or instructions of, their employer. Thus, if the Bill were to be enacted, a registrar could be disciplined for refusing to conduct a same sex marriage and a teacher could be disciplined for refusing to teach any relevant part of the curriculum that concerned the law on marriage. In neither case would there be a contravention of the person’s human rights. [8]

10. We set out the reasons for these views in more detail below. We should make clear that in formulating this Joint Advice we have considered an Advice of Aidan O’Neill QC on some issues raised by the legalisation of same sex marriage ("the O’Neill Advice") and the response of the Department of Culture Media and Sport ("DCMS") to the O’Neill Advice.

Protections for religious organisations

11. The Convention rights relevant to the present context are:

- The right to marry under Article 12 ECHR.

- The right to freedom of thought, conscience and religion under Article 9 ECHR.

- The right to freedom of expression under Article 10.

- The prohibition of discrimination by Article 14 ECHR.

12. It is for states to determine exactly what marriage entails within a particular state; the ECtHR has recently confirmed that the right to marry in Article 12 ECHR does not require Contracting States to provide for access to marriage by same sex couples: Schalk and Kopf v Austria (2011) 53 EHRR 20, [57]. It remains a matter for national regulation by the Contracting States whether to allow same sex marriage: [61]. Therefore, the outcome of the case was that Article 12 did not require Austria to grant a same sex couple access to marriage: [63]. However, if (as the Bill generally proposes) the definition of marriage under English and Welsh law is redefined by legislation so as to include same sex couples in our view the ECtHR would consider that within England and Wales a same sex couple could rely upon the right to marriage in Article 12.

13. We recognise that same sex couples who did not like the exceptions in the specific enactments proposed in the new Bill might seek to challenge those exceptions by reference to Article 12. However we are firmly of the view that a challenge to the new law under Article 12 alone would fail; this is because the Bill confers the right for same sex couples to marry and the restrictions, which the Bill proposes should be imposed, on the exercise of that right, are essentially very limited and do not, in any sense, render the right to enter into a same sex marriage an illusory or ineffective right. It is clear beyond doubt that if the Bill were passed same sex marriages will be capable of being conducted by civil ceremonies in thousands of venues up and down the country, and indeed will also be capable of being conducted in at least certain religious settings.

14. We also recognise that a same sex couple who, because of these exceptions was unable to marry by a religious ceremony of their choice, might wish to contend that they were the victims of discrimination falling within the ambit of the right to marry in Article 12, and contravening Article 14.

15. Their argument might be that it was not open to them to have a religious ceremony in circumstances where such a ceremony would be open to an opposite sex couple. This argument would no doubt be based on the well-established principle that even though the ECHR does not require the conferral of a particular right, if a Contracting State decides to confer such a right, it must do so in terms that do not give rise to unlawful discrimination contrary to Article 14. [9] It is indeed the law under the ECHR that while it is entirely open to the UK to prohibit access to marriage by same sex couples (as is currently the position), once it decides to permit access to marriage by same sex couples, it must do so on a basis that does not discriminate against same sex couples contrary to Article 14.

16. In that context, same sex couples could seek to draw a comparison with opposite sex couples for the purposes of seeking to complain of discrimination on grounds of sexual orientation contrary to Article 14. Thus, the ECtHR held in Schalk and Kopf that a same sex couple wishing to marry could not be prevented from relying on Article 14 by virtue of not being in an analogous, or relevantly similar, position as compared with an opposite-sex couple: [99].

17. We do not think that the success of such a claim would depend upon whether the religious organisation or office holder refusing consent was in some sense an emanation of the state. The complaint would be that by permitting religious organisations to opt-out of, or decline to opt-in to, same sex marriage, the state had legislated in such a way as to discriminate against same sex couples.

18. However, whilst we recognise that a complaint could be made pursuant to Article 12 read with Article 14, we advise that such a complaint would in our view certainly fail in the courts, including in the ECtHR for the following reasons -

(1) Firstly it has to be recalled that Article 14 does not prohibit all differences in treatment of persons in comparable circumstances, but only such different treatment as is not objectively justified;

(2) As to that, there is in our view a clear and obvious justification for the limited difference of treatment by the Bill of same sex and opposite sex couples; this justification is rooted in the state’s obligation to protect the rights of religious organisations to freedom of thought, conscience and religion pursuant to Article 9 ECHR;

(3) Though freedom to manifest thought, conscience and religion is not an absolute right, there are compelling and indeed overwhelming reasons why it would be a breach of the Article 9 rights of a religious organisation if it were to be compelled to conduct or permit a same sex marriage, contrary to its doctrinal beliefs; no person (or state) can compel a religious obligation to change its doctrinal beliefs [10] and it is not necessary [11] that such organisations should be compelled to change their practices of only conducting marriages in accordance with those beliefs where marriage between same sex couples will be readily obtainable in other ways;

(4) It is thus plainly legitimate for the Government to frame the Bill so as to create (or perpetuate) a difference of treatment between same sex and different sex couples so as to avoid the position whereby a religious organisation was forced, contrary to its beliefs, to conduct or permit a same sex marriage ceremony.

19. Although arguments that a difference of treatment on grounds of sexual orientation is justified are generally scrutinised by the courts (including the ECtHR) with considerable care, we are confident that the protections for religious organisations within the Bill will survive that scrutiny. The domestic courts would afford a very wide discretionary area of judgment, and the ECtHR a very wide margin of appreciation, when considering a challenge to the provisions of a law enacted in the terms of the Bill.

20. We advise that this will be so because of the controversy surrounding this issue, the need to strike a balance between competing and incommensurable rights and the fact that the new law in the UK will be considerably more liberal than that in most other Contracting States in the Council of Europe.

21. Against that background, a justification advanced on the basis that religious organisations ought not to be compelled, contrary to their beliefs, to conduct or permit same sex marriage ceremonies, is in our view certain to be accepted, both by the domestic courts and by the ECtHR.

22. It follows that, in our view, the basic approach of the Bill is compatible with the Convention rights of same sex couples.

23. We add that, in our view, the Bill is compatible with the rights of religious organisations and office-holders, who could not realistically complain about a state of affairs whereby they were permitted, but not compelled, to conduct or consent to a same sex marriage.

24. These views do not mean that there would not be an attempt either by a same sex couple or a religious organisation to challenge the provisions of the Bill if enacted, here or in the ECtHR. No legislation could realistically prohibit or prevent that. It is simply our view based on the application of very basic principles of human rights law and the relevant jurisprudence of the ECtHR that such applications would not succeed. Fear to the contrary are misplaced and can be properly set aside.

Employment law implications

25. The second principal issue, on which debate surrounding the Bill has focused, concerns the position of public sector employees, in particular teachers and registrars, who have a conscientious objection to the marriage of same sex couples. These concerns are quite understandable given that this Bill proposes to make changes to a concept of such long standing and given that the idea of marriage as the union of one man and one woman is a matter of doctrinal importance to a range of different mainstream religious organisations. The Bill obviously raises issues about the legal relationship between religious conscience and work practice and obligations.

26. This is not a new problem. It perhaps first became of importance since the Second World War with the relaxation of the laws on Sunday trading and the concomitant that workers would be more frequently expected to work or to work longer on Sundays. This particularly affected some Christian workers. It has been an issue for Muslims who have wished to attend Friday prayers or for Jews who wished to cease work at dusk on Fridays. There are many examples of a similar kind.

27. The role of the law is to respect difference between peoples, whilst striking a balance between the beliefs of an employee and the reasonable needs of an employer. In some positions, a person’s religious beliefs may be of the first importance to the job. [12] In others the job is of such importance that the workplace rules are wholly indifferent to major aspects of religious practice. [13] There is of course a range of circumstances in between and it is the role of new statutory provisions, which seek to regulate this territory, to do so in an appropriate and proportionate way.

28. Certain scenarios have been discussed in the O’Neill Advice and it has been suggested that if the Bill is enacted employees will face discipline, including dismissal, for continuing to hold and to express conscientious objections to same sex marriage. We shall consider the general nature of these objections, not from the point of view of marriage per se but – because these are essentially objections between religious and civil practice - from the point of view of the right to exercise religious difference at work.

29. Thus we make two preliminary points. First, the employment issues potentially raised by the Bill are by no means new. There are any number of issues on which the law has moved ahead of the religious beliefs held by certain organisations and individuals, including for example the legalisation of homosexuality, the introduction of civil partnerships and the availability of abortion. Conflict between the requirements of employers and the beliefs held by their employees is, accordingly, a longstanding phenomenon and has been accommodated by English law in a manner which, in almost all cases, has conformed with the ECHR (as confirmed by the recent ruling of the ECtHR in Eweida and others v United Kingdom (appl. 48420/10, judgment of 15 January 2013)). There is nothing intrinsically different about the issues raised by same sex marriage.

30. The second preliminary point is that under the Bill as currently drafted, with its protections against compulsion to conduct or consent to same sex marriage, it remains an entirely lawful and legitimate philosophical/religious view that marriage should be restricted to opposite sex couples. It is expressly provided that religious organisations and their office-holders may continue to hold that view and cannot be subject to legal liability for so doing. The Bill affirms and does not undermine the idea that marriage is both a civil and a religious social construct. The Bill does not interfere but rather respects the diversity of opinion about marriage as a social construct while making a decisive change about marriage as a civil construct. Parliaments have the right and often the duty to revisit civil social constructs and this Parliament is well within its democratic right to do so in relation to marriage.

31. Against that background, we would analyse the principal implications of the Bill for teachers and other public sector employees as follows:

(1) It is extremely unlikely that anyone could lawfully be disciplined or dismissed for holding or expressing, outside the workplace, the belief - specifically provided for in legislation - that marriage should be restricted to opposite sex couples. It is only in the rarest of situations that a constraint on freedom of expression outside the workplace on an issue such as this could be invoked. [14] We consider that the law prohibiting unfair dismissal and discrimination on grounds of religious belief could successfully be invoked by any employee subject to discipline for these reasons unless the way in which the employee had expressed themselves was such as to raise difficulties beyond the fact that he held such views. An example would be if the employee expressed his views in an abusive or violent way.

(2) However, a teacher will certainly be expected to comply with the requirement of his employer that he accurately conveys to his students the state of the law on same sex marriage. Such a requirement could not reasonably be said to conflict with any religious beliefs. Moreover, the imposition of such an occupational qualification would be wholly consistent with Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. [15]

(3) Similarly, a teacher could be disciplined for conveying his belief against same sex marriage in such a way as to attempt to indoctrinate his students. The classroom is not the place for the proselytisation of particular religious doctrine – assuming of course that the school was not a religious organisation holding these beliefs so that such conduct was within the school’s own ethos. Exactly the same position would currently pertain to a teacher in a non-faith school who, for example, actively promoted views against abortion.

(4) In a faith school, which would be content for teachers to promote views against same sex marriage, and indeed may encourage them to do so, it is difficult to envisage any legal difficulties arising from such conduct. The religious view against same sex marriage is, after all, a lawful view, and, in general, faith schools are entitled to promote to their students the tenets of their faith.

(5) So far as registrars are concerned, the Bill does not contain any protection for registrars who do not wish to conduct a civil marriage of a same sex couple, on the grounds of their religious beliefs. It follows that a registrar could be disciplined for refusing to comply with a requirement of his employer to conduct a same sex marriage ceremony. We agree with the Government’s position that, in these circumstances, any interference with the religious freedom of a registrar (which is, at best, limited) would be justified by the objective of ensuring that state-provided marriage facilities are open to all without discrimination. That position is consistent with the judgment of the Court of Appeal in Ladele v Islington LBC [2010] 1 W.L.R. 955 [2010] P.T.S.R. 982; [2010] I.C.R. 532, as recently upheld by the ECtHR in Eweida and others. [16]

The relationship between religious organisations and their office-holders

32. The Bill also has implications for the relationship between religious organisations and their office-holders (which phrase we use to refer to those who have power or responsibility to conduct religious marriages and marriages recognised by civil law).

33. Clause 2 makes it clear that both the relevant organisation and the individual office-holder must consent to what is necessary for a same sex marriage to be conducted. The intended extent of this protection for such religious office-holders is clear. The relevant passage of the Explanatory Memorandum to the Bill states [17] –

29. Clause 2 protects individuals and religious organisations who do not wish to conduct or participate in a religious marriage ceremony on the ground that it is a marriage of a same sex couple. 30. Subsection (1) states that individuals and religious organisations may not be compelled to carry out an "opt-in activity", which is defined in subsection (3) to mean the various types of activity relating to the decision of a religious organisation to opt in to solemnizing marriage for same sex couples. Subsection (3) also states that they can carry out an "opt-out activity", defined to mean an activity which reverses or modifies the effect of an opt-in activity. 31. Subsection (2) makes clear that individuals (for example, members of the clergy, and individuals authorised under the Marriage Act to be present at the solemnization of marriages on religious premises) may not be compelled to carry out, attend or take part in a religious marriage ceremony of a same sex couple. It also makes clear that individuals (for example, members of a religious organisation’s governing authority) and religious organisations may not be compelled to consent to religious marriage ceremonies of same sex couples being conducted. In each case this must be where the individuals or religious organisations do not wish to carry out the specified conduct because it concerns the marriage of a same sex couple.

34. This raises the possibility that an individual office-holder could refuse to conduct a same sex marriage even though his religious organisation had ruled that doctrine did not preclude same sex marriage, and that its office-holders should conduct such marriages. The nature of the protection that such a person enjoys is not spelled out in this clause. Plainly, it is intended to prevent a same sex couple from seeking a court order that such a person should conduct their marriage contrary to their religious beliefs. This is evident from clause 2(5) which inserts a new exception to section 29 of the Equality Act 2010 as paragraph 25A of Schedule 6 to that Act. Section 29 gives rights to individuals not to suffer discrimination by those who provide services and so without this amendment to the Equality Act 2010 it might have been thought that, notwithstanding clause 2, same sex couples could invoke section 29 against religious organisations or office–holders.

35. However on the present drafting of clause 2 of the Bill, the prohibition on compulsion of a religious office-holder could be read so as to include compulsion of the office–holder by his religious organisation as well as by a same sex couple. Though it must also be added that (contrary to the position in relation to a couple as explained in the previous paragraph) how such an office–holder is supposed to be able to defend his or her proposed rights, as now expressed in clause 2, against his employing religious organisation or the organisation of which he is a member, [18] is not made clear.

36. In fact, we consider that this omission is probably intentional since we do not think that the draftsman could have intended to preclude by clause 2 a religious organisation from taking disciplinary action against an office-holder who refused, contrary to the doctrine and instruction of such an organisation, to conduct a same sex marriage.

37. Such a prohibition would amount to a novel interference in the freedoms of religious organisations which would be difficult to justify under Article 9 ECHR and also, in all probability, conflict with Article 4 of the Framework Directive which, broadly, permits churches and other organisations with a religious ethos to require their employees to act in accordance with that ethos. [19]

38. There is, in our view, much to be said for clarifying the drafting of clause 2 so that it is made clear that it does not unduly restrict the freedom of religious organisations to enforce doctrine and instruction amongst their office-holders and employees, particularly where they are responsible for consistent adherence to the organisations doctrine. [20]

Aidan O’Neill QC’s Scenarios

39. Finally, in drafting this section of our Joint Advice, we have given careful consideration to the DCMS publications which address the O’Neill Advice, in particular the document entitled "Analysis of Aidan O’Neill QC Scenarios". We consider that the views expressed by DCMS are correct and would not wish to record any significant disagreement with what it has said.

Conclusions

40. In summary, therefore, we have concluded:

(1) It does not breach the rights of same sex couples to restrict their opportunities for a religious marriage ceremony to those organisations and individual office-holders who consent to such a ceremony. It is extremely unlikely that any different view would be taken by the courts, including the ECtHR.

(2) The enactment into law of same sex marriage will not change the longstanding position in employment law, that teachers can be required to teach a curriculum accurately whether or not they agree with its contents. It has always been the case that in certain circumstances employees (including teachers and registrars) can be disciplined for actively promoting a particular viewpoint without the permission of, or contrary to the wishes or instructions of, their employer. Thus, if the Bill were to be enacted, a registrar could be disciplined for refusing to conduct a same sex marriage and a teacher could be disciplined for refusing to teach any relevant part of the curriculum that concerned the law on marriage. In neither case would there be a contravention of the person’s human rights. [21]

41. Overall, from the point of view of the maintenance of a culture of human rights and of respecting diversity and imposing the least constraint necessary in a democratic society, we commend the draftsmen of this Bill for their care and thoughtfulness. It is clear that it represents a very careful consideration of the protections which need to be afforded and the Government’s intention to make a step change in the concept of a civil marriage. That is not to say it cannot be improved but the drafting reflects an obvious intention to exercise great care in drawing the dividing lines between religious freedom, freedom of expression and a desired progress towards a more inclusive concept of marriage as a civil status.

42. If we can be of any further assistance, our Instructing Solicitor should not hesitate to contact us.

 February 2013