Marriage (Same Sex Couples)

Same-sex marriage and employment

37. Liberty understands there has been some concern about the implications of the Bill for teachers. It has been claimed that teachers would be forced to promote gay marriage in the classroom or could be sacked for expressing their personal belief that marriage should be between a man and a woman. The Bill places no additional requirements on teachers, nor does it alter the way in which they are already required to deal with a whole range of sensitive issues, such as civil partnerships, divorce, adoption and abortion. Whilst teachers are expected to give an accurate account of the law as it stands, they will not be expected to endorse same-sex marriage. It would plainly be unacceptable for a teacher to express derogatory views about gay people or act in a way which discriminates against a gay student, but it is very clear that teachers are, and will continue to be, allowed to express personal beliefs as long as they do not convey prejudice.

38. Whilst public servants, including registrars, will continue to be expected to perform their core functions in a non-discriminatory way, the right to freedom of thought,  conscience and religion and the right to freedom of expression, as protected by the Human Rights Act will provide a substantial measure of support to employees simply expressing a view about same-sex marriage. Similarly employees are protected against discrimination on the grounds of religion or belief by the Equality Act 2010. The High Court in this country recently upheld the right to freedom of expression and freedom of religion of a man demoted by his employer, Trafford Housing Trust, for expressing his personal opposition to same-sex marriage on a social media site. [32]

Conclusion

39. Liberty is delighted to offer its support to a Bill which would do so much to advance equal treatment for same-sex couples in this country. We urge Parliamentarians across the political spectrum to support legislative reform which celebrates the valuable role played by marriage in the life of our society and the life of the individual. Respect for freedom of religion is a central feature of this Bill and we hope that those who had feared the prospect of legal challenges feel assured that they are thoroughly protected.

February 2013

ANNEX 1:

Equal marriage around the world

40. The pursuit of gay equality here in the UK is part of a global process of change. It is not only our own Prime Minister who has made such a strong principled commitment to same-sex marriage. In an interview with ABC News on 9 th May, President Obama ended months of speculation by confirming that he believed it was right that gay couples should be able to marry. [33] This development is further evidence that the tide has clearly and decisively turned in favour of equal marriage in many parts of the world. Disturbingly, elsewhere the clock is being put back on gay rights issues. In Uganda, for example, legislation is being considered to extend the criminalisation of homosexuality. Here and in countries from Sri Lanka to Saudi Arabia, Barbados to Belize gay people face unspeakable rights violations on a daily basis. Liberty believes that the UK, by eradicating the last vestiges of discrimination from our laws and institutions, sends a strong message to those states which prosecute and persecute gay people. The time has come for us to add our name to the list of democracies old and new committed to the equal treatment of loving and committed couples – gay or straight.

41. Many countries have followed a trajectory similar to ours over the past decade. Iceland, for example, legislated for ‘registered partnerships’ for same-sex couples in 1996, in 2008 provision was made for the Church of Iceland to bless registered partnerships. In June 2010 the Government passed a Bill to repeal the law around registered partnership and create the infrastructure for full marriage equality. This legislation made clear that whilst ministers were free to perform same-sex marriages if they so wished, there was no obligation for them to do so. [34] In Norway same-sex couples were given the right to marry, including in religious ceremonies, in 2009. [35] Couples had previously had the option of a entering a registered partnership since 1993 and, as per the present proposals, those who had already entered a civil partnership had the right to convert this to a marriage. Under the present structure in Norway, Registered Partnerships are no longer available, with all couples simply having the option to marry. In the Netherlands, too, gay couples first received the right to enter into a civil union in 1998 with same-sex marriage legalised in 2001. Whilst local Governments are – in general – obliged to conduct same-sex marriages, the Protestant Church in the Netherlands permits individual congregations to decide whether or not to bless same-sex marriages. [36] In Belgium a Bill legalising same-sex marriage came into force on 1 June 2003 – the Bill amended the first paragraph of Article 143 of the Belgian Civil Code to read: "Two persons of different sexes or of the same-sex may contract marriage" . [37] Since 2003, more than 17,000 gay couples have married in that country. [38] In Sweden a Bill making marriage a gender-neutral institution came into force in 2009. This legislation allows gay couples to marry in both civil and religious ceremonies and followed on from the introduction of registered partnerships in 1995. A 2009 poll conducted by Sveriges Television found that 68% of pastors in the Lutheran Church of Sweden said they would officiate at gay marriages in their Church. [39]

42. It is not only Northern Europe that is embracing marriage equality, in Spain - a predominantly Catholic country - both civil and religious marriages have been open to gay couples since 2005. [40] In Portugal same-sex marriage became legal on 5 th June 2010. [41] France is in the process of passing its own Bill to legalise same-sex marriage. On 12 th Febraury 2013, legislative reforms received strong support in France’s National Assembly and are expected to be approved by the French Senate in the coming months. [42] Further, a number of predominantly Catholic South American countries have, to some extent, embraced equal marriage in recent years. In Argentina laws legalising same-sex marriage came into force in July 2010 – married same-sex couples now have all the rights and responsibilities of marriage, including the right to adopt children. [43] Same-sex civil unions have been available in Mexico City since March 2007, these same-sex unions known as ‘Civil Pacts of Solidarity’ had been legalised in Coahuila earlier that year in January 2007. In December 2009, the Legislative Assembly legalised gay marriage in Mexico City. [44] The law became effective in March 2010 and the country’s Supreme Court upheld the constitutionality of the law in a judgement handed down on 5 th August 2010 – the Court later ruled that same-sex marriages conducted in Mexico City are valid throughout the country. [45]

43. Gay marriages are conducted in nine US states and in November last year, same-sex marriage was approved by popular vote in Maine, Maryland and Washington. [46] In Minnesota a proposal that would have defined marriage solely as a heterosexual union was defeated at the ballot box. In Canada same-sex marriage was legalised in July 2005, prior to this, Courts in 8 out of 10 Canadian provinces had ruled that restricting marriages to opposite-sex couples constituted discrimination on the grounds of sexual orientation and ran counter to the protections enshrined in the Canadian Charter of Rights and Freedoms. [47]

44. Perhaps unsurprisingly, South Africa was amongst the first nations to embrace same-sex marriage, with gay couples able to marry in the country since November 2006. As a nation which understands - all too well - the injustice of exclusion on the basis of innate characteristics, unequal marriage was rife for reform. The decision to legislate for same-sex marriage came after a challenge to the constitutionality of denying gay couples the right to marry. [48] Faith groups and representatives of religious organisations have the option of hosting same-sex marriages, but are not obliged to do so.

45. Liberty is delighted that, like South Africa and a significant number of others, our Government is forging ahead with plans to make marriage an inclusive institution. The Government can take heart from statistics which demonstrate that, in those countries where same-sex couples may marry, support for equal marriage has remained high or increased. In Norway polls indicate that 66% of the population support same-sex marriage, up 5% from 2003. [49] In Spain recent surveys place support at 60%, whilst a 2008 survey revealed support from 71% of Swedes. [50] In the US, a pole released by CNN in June last year showed majority support amongst Americans for same-sex marriage. [51]

46. Similarly, polling carried out in Scotland at the end of last year revealed that more than 60% of the population believed that gay people should be allowed to get married, compared to only 19% who disagreed. [52] In December, the Scottish Government became the first part of the United Kingdom to publish draft legislation to allow same-sex marriage.

47. A report recently published by Stonewall including polling of a representative sample of over 2,000 people in Britain, reveals that 71% of the population support the Government’s commitment ‘ to extend the legal form and name of civil marriage to same-sex couples’ . [53] Just 25% of those polled were opposed or strongly opposed to the Government’s consultation proposals.

ANNEX 2: Legal Opinion of Karon Monaghan QC

IN THE MATTER OF:

THE GOVERNMENT’S CONSULTATION ON

"EQUAL CIVIL MARRIAGE"

_________

OPINION

_________

Introduction

1. I have been asked by Liberty to provide an opinion on a number of matters arising out of, and related to, the Government’s consultation on the lifting of the ban on same –sex marriage; "Eq ual Civil Marriage: A Consultation" (March 2012) Government Equalities Office. [54]

2. In essence Liberty seek advice as to whether provision could be made so as to allow faith groups willing to do so to conduct legally binding same-sex couples marriages (in the same way as they are currently able to do in the case of opposite-sex marriages under Part III, Marriage Act 1949) without exposing faith groups that do not wish to conduct same-sex marriages to a realistic risk of successful legal challenge on equality or other grounds.

3. In particular, I am asked to consider the following questions:

a. Were Parliament to enact provisions that would allow religious bodies willing to do so to conduct legally binding marriages in the same way that they can currently conduct marriages under Part III, Marriage Act 1949, would the decision of a body opposed to same-sex marriage not to do so, or the refusal of an individual minister not to conduct such a ceremony, be challengeable under the Equality Act 2010, under another anti-discrimination provision or on human rights grounds?

b. If so, would a provision similar to section 6A(3A) Civil Partnership Act 2004 be sufficient to protect a religious body and/or individual members of the clergy from such legal challenges?

c. Are there any additional safeguards that could be built into the legislation to forestall such a risk?

d. Would provisions similar to those in the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 be adequate to prevent a maverick clergy member conducting a same-sex marriage that might arguably be legally binding?

e. Again, are there any additional safeguards that could be built into the legislation to mitigate the risk?

f. Would the Article 9 rights of religious bodies that do not wish to conduct same-sex marriages on doctrinal grounds reinforce any safeguards built into the legislation?

4. Additionally, and in the light of comments made by the Church of England in its response to the Consultation [55] , I am asked to advise whether, if the Government maintains its present position so as to allow same-sex partners only to marry in a civil ceremony, there are realistic prospects of a successful challenge (whether brought in the domestic courts under the Human Rights Act 1998 or in the European Court of Human Rights under the European Convention on Human Rights) which might result in religious organisations, in particular the Church of England, being required to conduct same-sex marriages in church?

5. In summary, I advise that:

a. A refusal by a minister or a body opposed to same-sex marriage to conduct same - sex marriages would not violate the Equality Act 2010 so long as they could demonstrate that to do so would be in conflict with the strongly held convictions of a significant number of the religion’s followers. Further, it is very unlikely that a refusal to conduct a same-sex marriage in such circumstances would unjustifiably violate the Convention rights of any other person, in particular those of a same-sex couple seeking to marry.

b. For the avoidance of doubt, provision could be made in any legislation (permitting same-sex marriage) analogous to that seen in s6A(3A), Civil Partnership Act 2004.

c. Again for the absolute avoidance of any doubt, the Equality Act 2010 could be amended so as to add a clause to Schedule 23 (paragraph 2(14)) making it clear that nothing in the Equality Act 2010 "should be taken to require a religious organisation or minister to solemnise a same-sex marriage if they do not wish to do" or similar.

d. Provisions similar to those in the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 would be adequate to prevent a maverick clergy member conducting a legally sanctioned same-sex marriage.

e. No further safeguards are required to address the "maverick clergyman" other than those described above (requiring or dispensing with consent in each case at the behest of the governing authority) and those that are ordinarily and already found in this context.

f. The Article 9 protection afforded religious organisations is strong. This too would provide real safeguards to a religious organisation that did not wish to conduct same-sex marriages on doctrinal grounds.

The Consultation

6. The Government Equalities Office’s consultation "Equal Civil Marriage" considers the best way to remove the current ban on same-sex civil marriages, but does not propose to make any changes to the way in which religious organisations solemnise marriages. Under the Government’s plans, civil partnerships will continue to be available to same-sex couples but in addition to, rather than instead of, the option to marry in a civil ceremony. Those couples who have already entered a civil partnership will have the opportunity to convert their civil partnership into a marriage. Transgender people will no longer be forced to dissolve their marriage if they legally change their gender. The Government has committed itself to ensuring that the legal rights and privileges which attach to marriage will be identical in the case of gay and straight couples. If these proposals are implemented, civil marriages – absent any religious elements – will be available to gay and straight couples, civil partnerships will be restricted to same-sex couples and religious marriages will be restricted to opposite-sex couples.

7. The Government has indicated in its consultation paper that:

We are proposing that the law is clear that marriages conducted through a civil ceremony would be open to all couples and marriages conducted through a religious ceremony and on religious premises can only be between a man and a woman.

As we are only seeking to lift the ban on same-sex couples getting married through a civil ceremony, we would ensure that any subsequent legislation on equal civil marriage is clear that marriages conducted according to religious rites and on religious premises could not be between a same-sex couple. This would mean that no religious organisation, premises, or leader would face a successful legal challenge for failing to perform a marriage for a same-sex couple, whether or not the religious organisation, premises or leader involved performs marriages for opposite-sex couples. Any changes to the legislation as a result of this consultation will not, legally, enable same-sex couples to have a marriage through a religious ceremony and on religious premises (paras 2.7 and 2.10).

8. It is proposed that the prohibition on same-sex marriages through a religious ceremony and on religious premises will be a general one. This means that those religious organisations that would choose to conduct same-sex marriages through religious ceremonies and on religious premises will be prohibited from so doing.

Marriage

9. The law on marriage is regulated by the common law and statute. For the purposes of this Opinion, the main statutory provisions are found in the Marriage Act 1949 and the Matrimonial Causes Act 1973, both of which would require amendment if the Government’s proposals are to be given effect.

10. Section 11, Matrimonial Causes Act 1973 provides that a marriage will be void "if the parties are not respectively male and female" or (amongst other things) "at the time of the marriage either party was already lawfully married [or a civil partner]" (section 11(b) and (c)). [56]

11. Otherwise marriage is generally sanctioned according to where it can take place, and subject to certain formalities, rather than being specifically designated either a religious or civil marriage. Marriage, as set out under the Marriage Act 1949 can presently be effected in the following ways:

a. A marriage according to the rites of the Church of England or Church in Wales (Part II, Marriage Act 1949).

b. A marriage according to the usages of the Society of Friends (the Quakers) (s26(1)(c) and s47, Part III, Marriage Act 1949).

c. A marriage according to the usages of the Jewish religion (s26(1)(d), Part III, Marriage Act 1949).

d. A marriage in a registered building, namely one certified by law as a place of religious worship, [57] in the presence of an authorised person or registrar (this will be a marriage conducted through a religious ceremony and on registered religious premises. This is generally conducted by a minister of faith and overseen and registered by an authorised person that has been appointed by the Registrar General as being able to oversee the solemnisation of marriage) (s26(1)(a), s41 and s43, Part III, Marriage Act 1949).

e. A marriage in a register office conducted by a superintendent registrar and registered by a registrar. This ceremony cannot contain any religious elements (s26(1)(b) and s45(2), Marriage Act 1949).

f. A marriage on approved premises (e.g. a hotel) conducted by a superintendent registrar and registered by a registrar. This ceremony also cannot contain any religious elements (s26(1)(bb) and s46B(4), Marriage Act 1949) . [58]

12. The Government’s proposals are such that same-sex marriages in a register office and on approved premises, in either case conducted by a superintendent registrar and registered by a registrar, will become lawful. In both cases, the ceremony may not contain any religious elements. This will be so whether or not any particular faith group would otherwise be willing to solemnise a same-sex marriage.

13. By s5B, Marriage Act 1949:

(1)     A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act 2004 .

(2)     A clerk in Holy Orders of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is the minister if the clerk reasonably believes that the person's gender has become the acquired gender under that Act.

14. This is so notwithstanding that s9(1), Gender Recognition Act 2004 provides that once a full gender recognition certificate is issued to a person, the person's gender becomes "for all purposes the acquired gender". This provision may appear in obvious conflict with s5B, Marriage Act 1949. However, by s9(3), Gender Recognition Act 2004 , s9(1) is subject to provision made by any other enactment or any subordinate legislation. In this way s5B, Marriage Act 1949 takes priority. As I address below, there is no reason why analogous provision could not be made in the case of same sex marriages.

15. A number of religious organisations which are permitted under the Marriage Act 1949 to solemnise marriages discriminate on religious grounds. As my instructions indicate, religious organisations which restrict access to marriage on grounds of religion include:

a. Orthodox Jews: mixed marriages are prohibited by Deuteronomy 7, 3-4 as interpreted in the Talmud.

b. Roman Catholic Church: Under Canon 1125 of the Code of Canon Law the local ordinary can grant permission for a marriage between a Roman Catholic and a non-Catholic but only on certain conditions. Further, Canon 1065 § 1 generally requires Catholics who have not been confirmed to be confirmed before they marry.

c. Quakers: Section 47 Marriage Act 1949 only allows non-Quakers to be married according to Quaker usage if they are authorised under or in pursuance of a general rule of the Society of Friends. A certificate to that effect signed by a registering officer of the Society must be produced to the superintendent registrar. Chapter 16 of "Quaker faith and practice" requires non-Quakers who wish to be married (or indeed civilly partnered) in a meeting house to obtain the support in writing of two adult Friends for each non-Quaker partner. The supporting Friends must satisfy themselves that the applicants are "in unity with our testimony as to the nature of marriage, and [have] experience of our meetings for worship" (paragraph 16.19.)

16. This discrimination is not unlawful under the Equality Act 2010 because of explicit exceptions made, as is addressed below.

17. Further, some religious organisations restrict marriages so as to exclude those who have been divorced, including:

a. The Roman Catholic Church: Canon 1141 provides that a marriage that is ratified and consummated cannot be dissolved by any human power or by any cause other than death. Canon 1085 § 1 makes clear that a person who has entered into a marriage that has not been consummated cannot marry, while Canon 1085 § 2 provides that where a marriage was invalid or dissolved for any other reason a further marriage cannot be entered into until the nullity or the dissolution of the previous one has been established lawfully.

b. The Church of England: While the Church of England has lifted its absolute bar on divorcees getting married in church, the decision is left to the individual clergy member subject to guidance from the House of Bishops (Canons of the Church of England B 30 and the accompanying "Advice to clergy concerning marriage and the divorced".)

18. The religious prohibitions on the marrying of those who have been divorced will not be unlawful under the Equality Act 2010 since there is no protection provided for couples seeking to marry in such circumstances. The (very limited) protection against discrimination connected to marriage and civil partnership under the Equality Act 2010 applies only to those who are presently married or civilly partnered (s8, Equality Act 2010), not those who have been. In any event such protection as there is against marriage and civil partnership discrimination does not extend to any of the activities caught by the Equality Act 2010 that might involve marriage. [59]

Civil Partnerships

19. The Civil Partnership Act 2004 as originally enacted prohibited the celebration of a civil partnership on religious premises (s6(1)(b), (2)). Several faith groups (including the Unitarians, Society of Friends (Quakers) and Liberal Jews objected to this prohibition. During the passage of the Equality Act 2010 Lord Ali moved an amendment to remove the prohibition. This was passed and became section 202 of the Equality Act 2010. This section, which came into force on 5 th December 2011, removes from the Civil Partnership Act 2004 the subsections containing the prohibition on the conducting of civil partnerships on religious premises (s6(1)(b) and (2)) and inserts provisions into s6A ((2A)-(2C) and (3A) – (3C)) allowing for religious premises to be approved for the celebration of civil partnerships. It also inserts a new subsection 6A(3A), which provides that:

"For the avoidance of doubt nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so."

20. On the same day as these amendments took effect the Government amended the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 SI 2005/3168 (by SI 2011/2661) (the Regulations). Regulation 3A now allows the proprietor or trustee of religious premises to apply for approval of religious premises as a place at which two people may register as civil partners. Mirroring section 6A(3A), regulation 2B makes clear that nothing in the regulations can be taken as requiring the proprietor or trustee to do so. The application must be accompanied by consent as required by regulation 2D. Regulation 2D(2) with Schedule A1 identifies who must consent to the use of specified religious premises so that, for example, the General Synod must consent to the use of a church or chapel of the Church of England. For religious premises that are not of a description listed in Schedule A1, regulation 2D(3) provides that consent must be given by the "governing authority" of the religious organisation for whose purposes the religious premises are used. Regulation 2D(4) allows the governing authority of a religious body to decide that its consent is not necessary. [60]

21. These provisions are clearly aimed at preventing a maverick cleric or congregation acting in conflict with the wishes of their religious body’s hierarchy.

22. The provisions are permissive (so do not compel any faith group to effect civil partnerships) and ensure that any decision to allow civil partnerships to be conducted on religious premises is in accordance with the religious tenets of the organisation as decreed by its hierarchy.

Equality Act 2010

23. A refusal either at institutional level or by a minister individually to marry a same-sex couple would amount to direct discrimination (s13, Equality Act 2010) because of sexual orientation (a protected characteristic; s12, Equality Act 2010). As such, but for certain exemptions, it will be unlawful under s29, Equality Act 2010. Section 29, Equality Act 2010 makes it unlawful to discriminate in the provision of services (s29(1), Equality Act 2010) and in the exercising of public functions (s29(6), Equality Act 2010).

24. Case law holds that the conduct of a civil marriage amounts to the provision of a service or the exercise of a public function for the purposes of equality law ( Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357; [2010] ICR 532, then under the Equality Act (Sexual Orientation) Regulations 2007 SI 2007/ 1263 ).

25. A Church or other religious organisation will not be a core public authority ( Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37; [2004] 1 AC 546). It is possible, however, that the solemnisation of a marriage, even by a religious organisation, would be regarded as a public function and therefore fall within the scope of s29, Equality Act 2010 (and s6, Human Rights Act 1998) (see, In re All Saints’. Sanderstead [2012] Fam 51 Southwark Consistory Court and Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank , in particular, para 16, Lord Nicholls, para 86, Lord Hobhouse and para 170, Lord Rodger).

26. However, and in any event, if not a public function, the solemnisation of marriage will most likely be regarded as constituting a service for the purposes of s29(1), Equality Act 2010 [61] and accordingly discrimination in the provision of it will be prima facie unlawful.

27. The Equality Act 2010 anticipates that certain acts done by religious organisations consistent with the religious ethos of the organisations and the beliefs of their members will fall within the Equality Act 2010. In consequence, the Equality Act 2010 creates wide exemptions so that, in general, the statutory torts created by it do not apply, or do not apply in respect of certain otherwise protected characteristics, where the acts done are closely linked to faith, including religious practice, worship or devotion.

28. As is material to this Opinion, these exemptions include an exemption applicable to certain acts done by "organisations relating to religion or belief , " so far as relating to sexual orientation (Schedule 23, para 2, Equality Act 2010).

29. The organisations to which this exemption applies are organisations "the purpose of which" is to practice a religion or belief; to advance a religion or belief; to teach the practice or principles of a religion or belief; to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief or to foster or maintain good relations between persons of different religions or beliefs (Schedule 23, para 2(1), EA 2010 [62] ). The exemption will cover, then, all the main churches and faith groups.

30. The exemption permits such an organisation to restrict membership of the organisation; participation in activities undertaken by the organisation or on its behalf or under its auspices; and to restrict the provision of goods, facilities or services in the course of activities undertaken by the organisation, or on its behalf or under its auspices (Schedule 23, para 2(3), EA 2010).

31. Further, an exemption applies in relation to ministers [63] in the case of such organisations, so far as relating to sexual orientation. The exemption applies in cases where participation in activities carried on in the performance of the minister’s functions in connection with or in respect of the organisation is restricted for reasons of sexual orientation. It also applies where the provision of goods, facilities or services in the course of activities carried on in the performance of the minister’s functions in connection with or in respect of the organisation, is restricted, again for reasons of sexual orientation (Schedule 23, para 2(5), EA 2010).

32. These exemptions are subject to a number of limitations.

33. Firstly, where the organisation falls within the scope of the exemption because its purpose is to foster or maintain good relations between persons of different religions or beliefs, the exemptions insofar as they relate to sexual orientation, do not apply (Schedule 23, para 2(11), EA 2010). In essence, therefore, the exemption applies only to those organisations the key purpose of which is to protect and promote the core aspects of the practice of a religion or belief. [64]

34. Secondly, and in relation to sexual orientation, "a restriction" for the purposes of the exemption is permitted only if it is imposed because it is necessary to comply with the doctrine of the organisation or to avoid conflict with strongly held convictions (Schedule 23, para 2(7), EA 2010). "Strongly held convictions" , for these purposes are, in the case of a religion, the strongly held religious convictions of a significant number of the religion’s followers. In the case of belief, strongly held convictions are those relating to the belief of a significant number of the belief’s followers (Schedule 23, para 2(9), EA 2010).

35. Accordingly, a refusal by a religious organisation or a minister to effect or solemnise a same-sex marriage would not be unlawful under the Equality Act 2010, if that refusal were necessary to comply with the doctrine of the organisation or to avoid conflict with the strongly held convictions of a significant number of the religions followers. It is not necessary that all followers share the conviction (in this case, the opposition to same-sex marriage), only that a significant number do. This would invariably protect any church or religious organisation against a complaint of sexual orientation discrimination.

36. This exemption also applies so as to exempt discrimination connected to religion and belief. However, in the case of religion or belief the exemption is subject to a (less rigorous) limitation so that a restriction will fall within the scope of the exemption where it is imposed because of the purpose of the organisation or to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief. [65] This means discrimination based on religion and belief in the conducting of marriages by churches and other religious organisation (for example, by requiring both partners to be of the same religion as each other and reflecting that of the organisation concerned) will be lawful.

37. Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357; [2010] ICR 532 is of no relevance to this issue since it did not concern the functions of a religious organisation but instead a public authority and public official.

Article 9

38. The Article 9 right to freedom of religion includes the "freedom, either alone or in community with others and in public or private, to manifest … religion or belief, in worship, teaching, practice and observance." It provides protection for both individuals and churches and other religious organisations. Accordingly any intrusion, by a State compulsion to engage in a practice contrary to the beliefs of its members - for example to conduct same-sex marriage in the case of some faiths – would prima facie violate that organisation’s (and its members’) Article 9 rights.

39. Whilst any such violation might be justified under Article 9(2) (in the case of the manifestation of any belief by, for example, the refusal to conduct same-sex marriages), this requires that any interference be "prescribed by law and .. 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." Assuming that a requirement to conduct same-sex marriages met the threshold of prescribed by law, then it might be argued that it is necessary to protect the rights and freedoms of others (same-sex couples seeking to marry).

40. However, it is extremely difficult to see how interfering with the religious freedom of churches by requiring them to celebrate marriages that they not only consider to be doctrinally impermissible but also not in fact to be marriages could be justified as proportionate having regard to the importance of the rights under Article 9 and the case law from the ECtHR. As the case law makes clear, "[t]he autonomous exercise of religious communities is indispensable for pluralism in a democratic society" (see, The Supreme Holy Council of the Muslim Community v Bulgaria (2005) 41 EHRR 3, para 93-96) . Case law under Article 9 positively anticipates that accommodations might be required to facilitate "conscientious objection" (see, for example, Thlimmenos v Greece (2000) 9 BHRC 1). The Court has not been sympathetic to "conscientious objections" in the context of employment, as is well known, but principally on the basis that one is not required to accept or remain in particular employment. This is plainly not relevant in the context of the practices of a religious organisation.

41. As I have already indicated, Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357; [2010] ICR 532 is of little assistance here since that case concerned a civil registrar employed to conduct civil marriages. Her role, even if she did not see it this way herself, was entirely secular. The position is wholly different in the case of a religious marriage solemnised in a church or other religious building by a minister or similar. A religious body or minister conducting a marriage is, at least in the eyes of some Christian churches, celebrating a sacrament. Although weddings in church may by virtue of the arrangements under the Marriage Act 1949 create legally binding marriages, the celebrants are also conducting "acts of worship or devotion forming part of the practice of a religion or belief" ( Pichon & Sajous v France Decision 2/10/2001) which will fall within the protection of Article 9.

42. In my view, therefore, any requirement upon a church or religious organisation to conduct same-sex marriages, contrary to the religious convictions of its members’, would violate their Article 9 rights (and those of any person compelled to take part, for example a minister).

43. Merely permitting the solemnisation of same-sex marriages on religious premises, as with opposite–sex marriages, would not, of course, intrude upon the Article 9 rights of any religious organisation.

44. Presently, domestic law does not require any church or other religious organisation to approve same-sex relationships and less so to legally sanction them. The provision made in the Civil Partnership Act 2004 and accompanying regulations, as mentioned above, is entirely permissive as is made expressly clear and nothing in the Equality Act 2010 requires otherwise. The same model could readily be adopted in the case of same-sex marriage.

EU law

45. For completeness the European Commission has promulgated a proposal for a new Equal Treatment Directive ("proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation" COM (2008) 426 Final). This is intended to extend the protection against discrimination connected to, inter alia , religion and belief and sexual orientation outside the employment and occupational spheres.

46. However, even if enacted, the Directive will not compel the UK to introduce laws interfering with the rights of a church or other religious organisations in respect of their core activities, including the solemnising of marriage. This is because the proposed Directive by its Article 3(4) will provide that the Directive is "without prejudice to national legislation …. concerning the status and activities of churches and other organisations based on religion or belief".

Articles 9 and 14

47. So far, this Opinion has addressed the rights (and protections) afforded churches and other religious organisations. However, certain of the Convention rights confer equality rights on same-sex couples.

48. The right to marry under Article 12 does not (yet) guarantee the right to marriage for same-sex partners: Schalk & Kopf v Austria (App. No.30141/04, judgment of 3 rd June 2010, para 61). In Schalk the ECtHR held open the possibility that it might extend its interpretation of Article 12 to include same-sex marriage, but presently the issue of whether to allow such marriages falls within states’ margin of appreciation. As such, Article 12 of the Convention does not impose an obligation to grant same-sex couples the right to marry (para 63).

49. However, were the UK, as appears likely, to permit same-sex marriage in some circumstances, then it is difficult to see why such marriages would not fall within the ambit of Article 12 so as to engage Article 14. Whilst a civil partnership would in all probability not be regarded as sufficiently analogous to a marriage to trigger the application of Article 14 given the case law as it stands ( Gas & Dubois v France (App. No.25951, judgment of 15 th March 2012)), the same could not be said of a same-sex marriage as compared to an opposite-sex marriage.

50. A refusal by a church or other religious organisation to marry a same-sex couple (assuming the same were made lawful), if a public function, might violate Article 14, read with Article 12 (and indeed Article 8, as affecting "family life" [66] ), absent justification. In the circumstances, such a refusal would be contrary to s6, Human Rights Act 1998.

51. In determining whether any such discrimination by a religious organisation was justified, it would be necessary for a court to determine (a) whether the discriminatory treatment pursues a legitimate aim; and then, (b) whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realized (see, for example, Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, [2004] 3 WLR 113; A v Secretary of State for the Home Department [2005] 2 AC 68, para 54).

52. The Article 9 rights of the church or religious organisation concerned would be highly material in determining justification under Article 14. Article 9 is given particular weight under the Convention and this is reflected in the Human Rights Act 1998 (s13). The exemptions in the Equality Act 2010 reflect the respect for religious freedom ordinarily accorded at common law in this jurisdiction and under the Convention.

53. In my view, a refusal by a church or other religious organisation, to conduct a same-sex marriage, so as to comply with the tenets of its religion or the strongly held and faith based convictions of its members, will invariably be regarded by any court as justified.

54. Indeed a requirement that a church or other religious organisation conduct same-sex marriages, contrary to their faith, would very likely be regarded as discriminatory under Article 14 read with Article 9 as against it since "the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different." [67] Treating churches and religious organisations that have doctrinal objections to same-sex marriage in the same way as those that do not, is to fail to make a distinction between the two which will result in a discriminatory outcome.

Questions for consideration

55. In light of the advice above, I now address the specific questions posed by my instructions.

Were Parliament to enact provisions that would allow religious bodies willing to do so to conduct legally binding marriages, would a refusal of a body or minister opposed to same-sex marriage, be challengeable under the Equality Act 2010, under another anti-discrimination provision or on human rights grounds?

56. For the reasons I have given above, a refusal by a minister or a body opposed to same-sex marriage to conduct such marriages would not violate the Equality Act 2010 so long as they can demonstrate that to do so would be in conflict with the strongly held convictions of a significant number of the religions followers. In the case of those churches and other organisations that would object to the conducting of same-sex marriage, clearly that sets a low threshold.

57. Further, for reasons given above, I consider it very unlikely indeed that a refusal to conduct a same – sex marriage in such circumstances would unjustifiably violate the Convention rights of any other person, in particular those of a same-sex couple seeking to marry.

If so, would a provision similar to section 6A(3A) Civil Partnership Act 2004 be sufficient to protect a religious body and/or individual members of the clergy from such legal challenges?

58. As I have indicated, in my view a religious organisation would not be open to challenge if it refused to conduct same-sex marriage because of an objection to such marriages where that objection is founded in religious faith or doctrine.

59. However, provision could be made in any legislation (permitting same-sex marriage) analogous to that seen in s6A(3A), Civil Partnership Act 2004 so as to make clear that "nothing in this Act places an obligation on religious organisations to solemnise [same-sex marriages] if they do not wish to do so."

Are there any additional safeguards that could be built into the legislation to forestall such a risk?

60. Even absent a provision similar to s6A(3A) Civil Partnership Act 2004, for reasons given above there is still no room for challenge under the Equality Act 2010.

61. It is difficult, therefore, to see why any further protective measures would be required or could be justified.

62. However, for the absolute avoidance of any doubt, the Equality Act 2010 might be amended so as to add a clause to Schedule 23 (paragraph 2(14)) making it clear that nothing in the Equality Act 2010 "should be taken to require a religious organisation or minister to solemnise a same-sex marriage if they do not wish to do" [68] or "Nothing in this Act [the Equality Act 2010] places an obligation on religious bodies to conduct same-sex marriages if they do not wish to do so."

63. This would appear to me to be unnecessary but would put to rest any doubt at all.

Would provisions similar to those in the regulations be adequate to prevent a maverick clergy member conducting a same-sex marriage that might arguably be legally binding?

64. As explored above, the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 SI 2005/3168 (as amended by SI 2011/2661) require that any application by a proprietor or trustee of religious premises for approval of religious premises as a place at which two people may register as civil partners, must be accompanied by consent from the body specified in the regulations (Schedule A1). This prevents "maverick clergy" from seeking approval of premises contrary to the position decreed by the organisations’ hierarchy.

65. There is nothing so far to suggest that the model has proved anything other than adequate. It is difficult to see why the position would be any different in relation to same-sex marriage. Requiring consent from the governing body identified in the regulations ensures against any maverick clergyman seeking approval contrary to the orthodox doctrine of the religious organisation concerned.

66. For this reason, I consider that provisions similar to those in the regulations would be adequate to prevent a maverick clergy member conducting a legally sanctioned same-sex marriage.

Again, are there any additional safeguards that could be built into the legislation to mitigate the risk?

67. In my view, no further safeguards are required to address the "maverick clergyman" other than those described above (requiring or dispensing with consent, in each case at the behest of the governing authority) and those that are ordinarily and already found in this context, as below.

68. My instructions suggest that provision could be made in any legislation such that same-sex marriages conducted in religious premises which have not been registered for that purpose (with the necessary consent) would be invalid.

69. Assuming any new legislation follows the model of the Marriage Act 1949 (or amends it to include provision for same-sex marriage), such provision will inevitably be included. Sections 25 and 49, Marriage Act 1949 treat as void any marriage which has been conducted in a way which does not comply with the Act. This includes circumstances pertaining to the location of the marriage (being otherwise than as specified in the relevant certificates). Similar provision is made in respect of civil partnerships (s49, Civil Partnership). No doubt the equivalent provision could be and would be made in the case of same-sex marriages.

Would the Article 9 rights of religious bodies that do not wish to conduct same-sex marriages on doctrinal grounds reinforce any safeguards built into the legislation?

70. The Article 9 protection afforded religious organisations is strong, as discussed above. This too would provide real safeguards to a religious organisation that did not wish to conduct same-sex marriages on doctrinal grounds, as I have addressed above.

If the Government maintains its present position so as to allow same-sex partners only to marry in a civil ceremony, are there realistic prospects of a successful challenge (whether brought in the domestic courts under the Human Rights Act 1998 or in the European Court of Human Rights under the European Convention on Human Rights) which might result in religious organisations, in particular the Church of England, being required to conduct same-sex marriages in church?

71. Again, I stress that the protection afforded by Article 9 to religious organisations is strong. For the reasons set out above, particularly at paragraphs 37 to 41, I consider that requiring a faith group or a member of its clergy to conduct same-sex marriages contrary to its doctrine or the religious convictions of its members would violate Article 9. Any challenge brought on human rights grounds seeking to establish a same-sex couple’s right to marry in church would inevitably fail for that reason. In balancing the rights of a same-sex couple and a religious organisation’s rights under Article 9 (in particular, in relation to a matter such as marriage, so closely touching upon a religious organisation’s beliefs) the courts would be bound to give priority to the religious organisation’s Article 9 rights.

72. I hope this is of assistance to those instructing me and if I can be of any further help, they should not hesitate in contacting me.

KARON MONAGHAN QC ( 12 June 2012 )