Marriage (Same Sex Couples)

Memorandum submitted by Professor Julian Rivers (MB 28)

Further to oral submissions made at the invitation of the Public Bill Committee on 12 February 2013 I wish to add the following.

Introduction

Having made a basic shift in the conception of marriage underlying the law of England and Wales, the Bill needs to do two things: it needs to implement the new conception of marriage in a non-discriminatory way, and it needs to protect the rights of those individuals and organisations who hold to the older, more traditional conception of marriage. Broadly speaking, this is what it does, but it is imperfectly drafted. Its two biggest weaknesses are its failure to think through the relationship of the new marriage law with civil partnership and the failure to provide complete protection for individuals and organisations maintaining the older view of marriage. Furthermore, a case can be made that the basic principles of the Bill would be better implemented by a more radical reform to the law of marriage and civil partnership.

Church of England/Church in Wales

The positions of the Church of England and Church in Wales are accommodated by the provisions of clause 1 ensuring that same-sex marriages cannot be solemnized according to the provisions of Part II Marriage Act 1949 (marriage by banns), [1] and by the subsidiary clauses ensuring that compatibility of English canon law with statute law, [2] and relieving clergy from any duty to marry otherwise qualified persons. [3] These latter two sub-clauses are wise as precautionary measures.

It is also possible to marry in a church or chapel under authority of a superintendant registrar’s certificate (s.17 MA 1949). S. 26(1)(e) has correctly been amended in clause 3 of the Bill to ensure that it refers to the marriage of a man and a woman. This was not noted in my oral submission on that point, which incorrectly assumed that the old drafting of s.26(1)(e) had survived.

According to clause 8, future changes to the legal position of the Church in Wales may be made by the Lord Chancellor under delegated powers. This is understandable for reasons set out in the Explanatory Memorandum, namely that while the Church of England enjoys legislative powers, the Church in Wales does not. However, it does amount to a power to modify substantially Part II MA 49 by delegated legislation. (Although this part of the Marriage Act refers to the Church of England, it also governs the marriage law of the Church in Wales.) Such a power to amend substantial primary legislation by delegated powers is undesirable in principle. Furthermore, although clause 8 requires the Lord Chancellor to have regard to the terms of the resolution of the Governing Body of the Church in Wales, those changes are likely also to affect the terms under which the Church of England might in future permit same-sex marriage. It would be better to remove clause 8 and require primary legislation if and when either Church wishes to solemnize same-sex marriages. This is in line with the terms of the ‘quadruple lock’ as originally announced.

We can be reasonably confident that the religious exception proposals are immune to challenge under the European Convention on Human Rights (e.g.) on grounds of discrimination within ambit of art. 8 or art. 12. There is no Convention right to get married by a specific process, and the exceptions are clearly in pursuit of collective art. 9 protection. [4] This would apply even in the case of the Church of England since the ECtHR has made it clear that established churches are not straightforwardly branches of the state and enjoy art. 9 rights of their own as potential victims. [5] A Convention-argument unpicking the exceptions is not unimaginable, but does not stand a realistic chance of success.

The default position: no religious same-sex marriages

The Bill is based on a default position that same-sex marriages may not be solemnized by religious ceremony. However, this default position is not completely carried through in two contexts.

The default position is not carried through into the conversion of civil partnerships under clause 9. Since civil partnerships can now be concluded on religious premises [6] it is possible for a religious organisation which is happy to celebrate civil partnerships but not same-sex marriages to be circumvented by a couple who celebrate a religious civil partnership (or as near as is allowed) and who then convert their civil partnership into a marriage. Under clause 9(7)(b) the conversion is deemed to be effective from the date of formation of the partnership. Thus, in law, they will be treated as having married on the religious premises. As a matter of principle there ought to be a narrowly-tailored exception preventing conversion of civil partnerships which were concluded on religious premises and where the religion concerned is not prepared to celebrate same-sex marriages.

A similar point applies to change of gender under clause 12 and schedule 5. An opposite-sex couple may marry by a religious ceremony according to a religion which does not recognise same-sex marriage. One party may undergo reassignment surgery and the other party consent to the continuance of the relationship as a marriage. According to new s.11A(2) the continuity of the marriage is not affected. Once again there should be an exception preventing the continuance of a marriage into a same-sex marriage, where the marriage was celebrated according to the rites of a religious organisation which does not recognise same-sex marriage. It should be dissolved as under current law and the couple required to enter into a civil partnership or a new same-sex marriage by civil ceremony if the integrity of the religious body’s conception of marriage is to be respected.

Protection for conscientious objection

The word ‘compelled’ in clauses 2(1) and 2(2) is narrow. It naturally refers to a duty to act coupled with a sanction for failure to do so. But individuals and organisations which have not opted-in might easily be subject to detriment outside the narrow confines of the provision of same-sex marriage. For example, a minister of religion may have a role as a chaplain in a public institution, and a religious organisation might hire premises from a public body, or might offer public services in partnership with a public body. Such public (or, for that matter, private) bodies might take decisions detrimental to the interests of the religious individual or organisation on account of their views of same-sex marriage. For example, if a prison chaplaincy were terminated on grounds of the individual minister’s opposition to same-sex marriage, it would be hard to describe him or her as being ‘compelled’. This form of detriment is particularly likely in the context of a public employer or landlord, on account of the public sector equality duty, which could be read in such a way as to require public bodies to promote the new view of marriage. [7] It should also be noted that domestic courts have been unwilling to read conscientious objection clauses more broadly than the language naturally suggests. [8] European Convention law relating to conscientious objection is sparse, but has recently been expanded by the recognition of a clear right of exemption of pacifist ministers of religion from military service. [9] It is possible that failure to provide full protection for dissenting ministers of religion and religious organisations may not be Convention-compliant. The word ‘compulsion’ needs to be expanded: ‘a person shall not be compelled, or subject to any detriment on account of a refusal, to …’

Clause 2(4)(b) creates a rule compelling all registrars to be prepared to act in relation to same-sex marriages. Although the recent decision in Ladele recognises the interest of the state in compelling participation by its officials in civil partnership ceremonies, it is possible that the case-law on the accommodation of religious employees and office-holders may continue to develop. A test of reasonable accommodation would in any case be preferable, even if not (yet?) required by the Convention.

In clause 2(5) the Bill ensures that refusal to carry out or be involved in same-sex marriages does not constitute unlawful discrimination in the provision of services contrary to the Equality Act 2010. This exception is also too narrowly tailored. It only covers non-discrimination in the provision of services directly related to the solemnization of a same-sex marriage. It does not cover marriage-related services such as preparation, counselling or ‘marriage courses’. For the purposes of equality law, services covered by non-discrimination requirements include those provided free of charge. There is an exception under s.28 Equality Act 2010 for services to married people or those in a civil partnership, but there is no exception for services offered to a sub-category within the new category of marriage defined by reference to a protected characteristic. Religious organizations should be able to decide for themselves whether or not to offer such services to same-sex couples without threat of hostile litigation. The drafting of new s. 25A (1) should add a fourth element (d) ‘does not offer marriage-related services’ with some definitional clause explaining what such services include.

The relationship with civil partnership

The Bill creates an illogicality in providing for an opt-in regime for marriage but not for civil partnerships. The reason this is illogical is that religious denominations are more likely to approve of civil partnerships for same-sex couples than they are marriage. So the Bill creates a legal regime which does not quite allow for civil partnerships by religious ceremony, [10] but does allow it for same-sex marriage. In spite of the margin of appreciation granted to states in this area, this runs a serious risk of being Convention non-compliant. The ECHR contains no right for religious organisations to conduct marriages or civil partnerships with civil legal effect, but where the state chooses to make this possible, it must do so on a non-discriminatory basis. [11] Given the close relationship between civil partnership and marriage established by the Bill, it is discriminatory on grounds of religion to allow a religious organisation which wishes to solemnize same-sex marriages to do so, but to prevent a religious organisation which only wants to form civil partnerships from doing so. There is no objective or rational justification for the difference of treatment here.

The failure to think through the relationship with civil partnership is most exposed in clause 12 and schedule 5. Where one party changes gender, a marriage may subsist but a civil partnership must be dissolved or converted into a marriage. The power to convert the civil partnership to a marriage and the unusual possibility that both civil partners change sex simultaneously hardly mitigate the clear discrimination on grounds of sex and sexual orientation here. This, perhaps more than any other area, is where the Bill risks being Convention-non-compliant.

Once one takes seriously the requirements of non-discrimination in this field, the options would appear to be limited to (a) a single legal regime for all couples; (b) a dual regime, one for same-sex couples only, the other for other-sex couples only, with the two regimes closely related, albeit not identical; [12] (c) a triple regime, being a combination of (a) and (b). The UK cannot maintain a regime for same-sex couples only alongside an institution for both.

Wider religious liberty concerns

The Bill completely fails to address the impact of the changes on religious liberty and conscience protection, most obviously in schools but also in other contexts of public-private interaction such as fostering, adoption and social care.

In schools, there are already two sets of rules, one relating to religious worship and education, the other to sex education. Change to the underlying basic view of marriage touches both. The rights of parents to secure education for their children in conformity with their religious and philosophical convictions under art. 2 First Protocol ECHR are affected, as are the rights of teachers. As regards teachers, a parallel may be drawn with the comprehensive protection found in s.59 School Standards and Framework Act 1998; a provision which dates back to 1944. [13]

That is the sort of thoroughness of protection which is required with reference instead to divergent views on the nature of marriage. But the whole area needs more careful thought and legislative clarification.

A more radical proposal

The rushed nature of this Bill means that the Government has failed to consider whether the time is not right for a much more radical change to the structure of our marriage law. Many European states have uniform civil ceremonies and treat any religious ceremony as entirely extra-legal. This was the result of earlier conflicts between religious and secular views of marriage, conflicts to which the UK was largely immune, but which have now emerged with a vengeance. The logic of the underlying premises of the Bill points to a more radical reform: (1) to create a single legal framework for all couples substantially based on civil partnership, perhaps with a new name such as ‘civil union’; (2) to deem all existing marriages and civil partnerships to continue as civil unions in law; (3) to permit individuals to celebrate their civil union in any way they see appropriate. One attractive model is to adopt a celebrant-based system as proposed in the then Government’s 2002 White Paper and which has regrettably been ignored since. [14]

The advantages of such an approach would be to remove some of the doubts about whether religious liberty interests are adequately protected, to take the heat out of the battle over the ‘marriage’ label, and to avoid the inconsistencies the Government has fallen into over the relationship between same-sex marriage and civil partnership. In the current climate of debate, these would be considerable gains.

February 2013


[1] Clause 1(2). In spite of its wording, this part also applies to the Church in Wales.

[2] Clause 1(3).

[3] Clause 1(4).

[4] The judgment in Ladele v UK (15 January 2013) recognises that religiously-based views of marriage benefit from prima facie protection under art. 9 ECHR.

[5] Holy Monasteries v. Greece (1995) 20 EHRR 1; Hautaniemi v Sweden (1996) 85 DR 94.

[6] Civil Partnership Act 2004, s. 6A; Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011/2661.

[7] Equality Act 2010, s. 149.

[8] See R v Salford AHA ex parte Janaway [1989] AC 537; Doogan v Greater Glasgow and Clyde Health Board [2012] SLT 1041.

[9] Bayatyan v Armenia (2012) 54 EHRR 15. See also the earlier case of Thlimmenos v Greece (2001) 31 EHRR 15.

[10] Under Civil Partnership Act 2004, s. 2(5), no religious service is to be used while the registrar is officiating at the signing of the document. The precise limits are set out in the Marriages and Civil Partnerships (Approved Premises) Regulations 2005/3168, Sched. 2A para. 15. The key difference with secular ceremonies is that the introduction, any interval and conclusion to the proceedings on religious premises may be religious: see, by implication, Sched. 2 para. 11(4).

[11] The nearest case in point is Spetz v Sweden no. 20402/92 (1994). The basic structure (no positive right to offer the service, but a right of non-discrimination when the state collaborates) can also be found in other areas of potential state-religion overlap such as education. See Verein Gemeinsam Lernen v Austria no. 23419/92 (1995). For a full account of the rights of religious organisations under European human rights and domestic law, see Julian Rivers, The Law of Organized Religions (Oxford: OUP, 2010).

[12] This remains an option for at least as long as the ECtHR continues to treat other-sex marriage under art. 12 and same-sex partnerships under art. 8. Both may eventually fall to be treated under art. 12. See Schalk & Kopf v Austria (2011) 53 EHRR 20, para. 61.

[13] See s. 59 (2) : No person shall be disqualified by reason of his religious opinions, or of his attending or omitting to attend religious worship—

[13] (a) from being a teacher at the school, or

[13] (b) from being employed or engaged for the purposes of the school otherwise than as a teacher.

[13] (3) No teacher at the school shall be required to give religious education.

[13] (4) No teacher at the school shall receive any less remuneration or be deprived of, or disqualified for, any promotion or other advantage—

[13] (a) by reason of the fact that he does or does not give religious education, or

[13] (b) by reason of his religious opinions or of his attending or omitting to attend religious worship.

[13]

[14] See Civil Registration: vital change , Cm 5355 (Jan 2002), paras. 3.16-3.21.

Prepared 27th February 2013