Marriage (Same Sex Couples)

Memorandum submitted by Care (MB 33)

CARE is a well-established mainstream Christian charity providing resources and helping to bring Christian insight and experience to matters of public policy and practical caring initiatives.

CARE is represented in the UK Parliaments and Assemblies, at the EU in Brussels and the UN in Geneva and New York.

We are very concerned about the implications of the redefinition of marriage as proposed by the Marriage (Same Sex Couples) Bill in relation to both its impact on marriage and civil liberties. We outline our concerns below for the consideration of the Committee.

Undermining the core values of marriage and the notion of equality

1. If same sex relationships are to be brought within the framework of marriage then they must meet the definition of marriage. Otherwise, they must be categorised as a different kind of relationship.

Two of the key aspects of marriage are:

i. The centrality of commitment and faithfulness such that marriage requires exclusivity and fidelity.  This is manifest in adultery – the ultimate breaking of faithfulness – being counted as grounds for divorce.  In this way adultery is deemed incompatible with marriage, and faithfulness and commitment are guaranteed by marriage.

ii. The centrality of sexual union such that its absence provides grounds for declaring a marriage void.  The potential for a marriage to be consummated is integral to marriage, the absence thereof being grounds for a marriage to be nullified.

It is deeply disturbing that, under the terms of the Bill, same sex couples are not required to fulfil these criteria and yet are deemed married even as different sex couples are required to meet them. Three serious difficulties follow.

2. First, given that the proposal is that same sex relationships should not have to meet the definition of marriage it makes no sense to suggest that they should be categorised as marriage. They are different and should be categorised differently. Indeed , in failing to draw same sex relationships into the same substantive framework as marriage , the Bill very eloquently make s the case for civil partnerships which provide a legal framework for recognising same sex relationships but without the key marriage characteristics i.e. faithfulness , such that adultery is a ground for divorce , and consummation, such that non-consummation is ground s for a marriage being declared void.

3. Quite simply, i f two things are the same and are treated differently then that is discrimination . However, i f two things are different and they are treated differently then that is not discrimination. Therefore, under the current legal framework of marriage and civil partnerships , which recognis es two different kinds of relationship , there can be no discrimination .

4. Second, the logical corollary of the above is that if two things that are in fact different are treated the same then an effective discrimination and inequality is created . That is precisely what is accomplished by this Bill, namely unequal marriage with one set of obligations between two expressions of ‘marriage ’.

5. Third, and most importantly the provision of this logical incoherence and inequality actually erodes the nature of marriage. I nfidelity constitutes the ultimate breaking of faithfulness and commitment and is therefore wholly incompatible with the identity of marriage , such that it is seen as grounds for divorce. The Bill, in its present form, provides that only heterosexual adultery counts as ground s for divorce. According to the terms of the Bill, someone who is sexually unfaithful to their same-sex spouse with another person of the same sex has not committed adultery. Legal experts have said that if adultery is dropped as ground s for divorce in marriage between people of the same gender that , in time, adultery will in practice be removed as ground s for divorce – with all that this means for faithfulness and commitment – for all married couples. [1] Thus the Bill places this strongest and most vital expression of faithfuln ess and commitment in marriage at risk.

6. The redefinition of marriage for same sex couples would thus have the effect of changing the definition of marriage for everyone the tens of thousands who may enter same sex marriage and the 24 million different sex couples already married. This would be a quite extraordinary and unsettling legacy for a Prime Minister who has spoken so much about his desire to support commitment and to challenge the broken Britain phenomenon by strengthening family life which has, at its heart, marriage.

7. In our view, the Governments proposals in this area and their potential implications flagrantly undermine the values of faithfulness and exclusivity in marriage. Sexual fidelity has long been a major demand of the marriage bond. The deep commitment of one spouse to another must be promoted in order for marriage as an institution to strengthen and flourish. Indeed, in 2010 the Prime Minister said that the Government should recognise the importance of commitment in marriage. [2] However, these particular proposals undermine such commitment.

8. Under the terms of the Bill non-consummation will only be a ground for annulling a marriage between two people of the opposite sex, not a marriage between two people of the same sex. A key feature of the understanding of marriage since time immemorial has been the necessity of sexual union for the validity of a marriage. The Government has failed to recognise this under the terms of the Bill. If sexual union is removed as a key feature of the understanding of marriage, as the Government seem to be proposing, then the richness and depth of the meaning of marriage is reduced. Marriage becomes little more than a bond of companionship and attachment. If sexual union is not perceived as a vital part of a marriage then it is unclear what in the future will prevent siblings or good friends from entering into a marriage .

9. By not applying the rules of adultery and non-consummation to marriages between people of the same gender the Government has also failed to introduce proper equality. This inequality is manifest in a number of other ways in the Bill. Under the terms of the Bill couples of the same sex should be able to convert their civil partnership to a marriage without any new ceremony. This therefore leads us to question the fundamental difference between the already existing legal relationship of a civil partnership and the new institution of marriage between two people of the same sex. If marriage between two people of the same gender is supposed to be an entirely new legal relationship, as it is for couples of the opposite gender, then surely there should be a very definite ending of one legal relationship (the civil partnership) and a very defini te start of another (marriage).

10. The way in which the Government have undermined core values of marriage and failed to create equality between marriages between people of the opposite sex and marriages between people of the same sex is strikingly evident. The Government have failed to show that marriage between people of the same sex is as valid as, and equal to, marriage between two people of the opposite sex. We are deeply concerned that this will have very damaging effects on the institution of marriage in the years to come.

11. In addition, the clear failure to make marriage between two people of the same gender the same as marriage between two people of the opposite gender highlights the fact that relationships between heterosexual couples and relationships between homosexual couples are categorically different and should be treated that way. Trying to make all relationships the very same introduces inconsistencies and incoherence as the Government’s proposals show.

12. In light of some of these comments it is perhaps no surprise to see that marriage rates in the Netherlands and Spain have dropped since same-sex marriage was introduced in those countries. [3]

Lack of protection for employees and teachers

13. The B ill does not protect employees from section 149 of the Equality Act. Section 149 requires public authorities , which include local authorities, to have ‘due regard’ to the need to ‘remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic.’ Sexual orientation is a protected characteristic under section 149 (7). Public authority employees who disagree with the definition of marriage propo sed in the Bill are likely to face difficulties if they speak out against , or feel unable to promote, the new definition of marriage.

14. We would strongly recommend introducing a principle of Reasonable Accommodation into the Equality Act 2010, ensuring that there is freedom of conscience for employees who disagree with the Government’s new definition of marriage. People should be able to express their views on the subject of same sex unions without fear of being punished or be ing dismissed from their jobs.

15. There have already been cases of people losing employment because of their views on marriage. In 2011 Adrian Smith, a housing manager at Trafford Housing Trust which is not even a public au thority subject to section 149 – was demoted and ha d his salary slashed by 40 per cent after he said on his personal facebook page that marriages between people of the same sex in church was ‘an equality too far.’ That this should happen before same-sex marriage is even legalised is deeply troubling. Further, Mr Smith was only awarded £100 compensation despite the considerable distress and financial loss caused. [4] There is no useful precedent set by this case for the people for whom there is principal concern, namely those working for public authorities.

16. We do not believe that the Bill, in its current form, affords teachers who refuse to endorse the new definition of marriage sufficient legal protection and adequate freedom of thought, conscience and religion. Indeed, i t is clear that a considerable number of teachers are concerned about the Government’s proposals and the impact they could have in schools. A recent poll conducted by ComRes shows that more than 40,000 teachers say they will probably refuse to teach about ‘the importance of’ same-sex marriage. Furthermore, 56 per cent of teachers believe any colleague who takes such a stance risks damaging their career. [5]

A senior source in the Department for Education has already expressed serious concern about the threats to the religious liberty of Christian teachers. Regarding what will happen to Christian teachers who feel unable to teach about and promote the new definition of marriage he said there ‘is an inherent uncertainty about such matters’ and that the final decision on such questions might ultimately be taken by the European Court of Human Rights. [6]

17. In recent years, we have seen – on several occasions – homosexual rights trump religious rights in the European Court. Lillian Ladele, a registrar from Islington, was forced out of her job because she felt unable, for faith reasons, to officiate at civil partnership ceremonies. She requested that other colleagues without a faith objection c ould manage the same cases. However, the employer was not willing to accommodate her. In January 2013 the European Court found that Miss Ladele’s human rights had not been violated. [7]

18. Section 403 of the Education Act 1996 requires teachers to teach about the ‘ nature of marriage and its importance for family life and the bringing up of children.’ If marriage is redefined it seems that the new definition of marriage, and its importance for family life and the bringing up of children , will have to be taught about. There are already storybooks in British primary schools such as ‘King and King’ and ‘Tango Makes Three’ that explicitly promote same sex unions. Some schools have endorsed the idea of LGBT History Month. It is unclear what will happen to teachers who, b ecause of religious convictions or deeply held beliefs about the nature of marriage, do not feel able to endorse the new law or to use such materials. John Bowers QC in his legal opinion says that section 403 (1A) provides ‘a legitimate basis for schools or LEAs which wish to promote a particular vision of equality to require all teachers to teach materials wh ich endorse same sex marriage.’

19. Mr Bowers advises that unless the Education Act is amended there would be a duty on teachers to positively portray the new notion of marriage and its importance for family life. [8] We endorse this view and consequently urge the committee to ensure that there is reasonable accommodation for teachers who do not wish to promote the new definition of marriage. If this were not to happen we envisage a situation where many teachers will be reprimanded or even lose their job because of their position on same sex unions. It is important to note that having a belief in "traditional marriage" is not covered in employment law under the protected characteristic of religion and belief. As such the position for teachers who do not wish to promote the new definition of marri age is currently most unstable.

20. The Bill says nothing about the situation for religious schools. It would appear that if marriage is redefined such schools would be compelled to teach a definition of marriage that is contrary to their own understanding of marriage. We would advise an amendment that provides, very clearly, that education in the area of relationships and family life should be able to reflect the ethos of the school and its understandings of relationships and family life.

21. There is also concern for parents and pupils who do not agree with the new definition of marriage. There is nothing in the Bill that ensures that parents would have the right to withdraw their children from lessons that teach, and possibly promote, the new definition of marriage.

Lack of protection for religious organis ations and individuals

22. We also believe that there are very real dangers for religious liberty. Aidan O’Neil QC, in his legal opinion, says that the protections afforded to the Church of England are unsustainable because the Church has a legal obligation to marry a couple where at least one of the partners lives in the parish. Although the Marriage (Same Sex Couples) Bill amends the Equality Act 2010 to exclude discrimination claims against religious organisations or their employees who decline to conduct, or be involved in, a religious marriage of a same sex couple it cannot ensure these protections will guard against complaints against them to the European Court. There is every danger that the European Court will find the provisions in the Bill incompatible with the European Convention under Article 8 (the right to respect one’s privacy and family life) read with Article 14 ( prohibition of discrimination).

23. There are also concerns for non-Anglican or Roman Catholic churches who wish to continue to marry different sex couples but do not wish to marry couples of the same sex. [9] Many of these churches rely on the approval of local authorities to officiate weddings as the church premises belong to the local authority. A local authority, under the duty imposed by section 149, could refuse a church permission to conduct weddings on their premises on the grounds that the church does not wish to conduct marriages between people of the same sex.

24. In addition, there are many churches throughout England and Wales that hire facilities belonging to a local authority. It is quite foreseeable that a local authority could refuse a church contracts, grants or facilities based on the church’s decision not to endorse the new definition of marriage.

A deep uncertainty about the consequences of the Bill

25. The first country to legalise marriage between people of the same sex was the Netherlands in 2001. Only ten other countries have legalised marriages between people of the same sex. Consequently, there is little evidenc e to draw upon regarding the implications of redefining marriage.

26. The proposals laid down by the Government were not in any of the mai n parties election manifestos. T he Conservative party’ s Contract for Equalities spoke only of considering same sex marriage and was published just 3 days before the 2010 election, a long time after postal voting had begun. It is fair to say then that t he public have not properly had the opportunit y to have their voices heard on this matter. No poll has clearly shown that the majority of the public actually want this change. Indeed, a number of polls indicate that the majority of the public are against the plans. [10] A poll conducted in January 2013 showed that almost six out of ten peers believe that the Government should stop its plans to redefine marriage until there is greater certainty that this is something that the public want. [11]

27. In the midst of this deep uncertainty about the implication s of the Bill and a lack of clear demand from t he public at large we urge the C ommittee to spend more time considering the p roposals laid down in the Bill and the implications they could have for religious groups and indeed society at large. Regardless of the rights or wrongs of the substance of the Bill it is indisputable that redefining marriage is a hugely significant move and will chang e the landscape of family life. The C ommittee must be entirely convinced the change it will bring will be a positive one for all groups in society and that people who do not agree with the new definition – whether they are public sector employees, teachers, parents or religious ministers – are properly protected.

Summary

28. We recommend, at the top of the Bill, a clear and positive clause that will provide sufficient protection for those people who do not agree wit h same sex unions . We understand that the vast majority of people supporting the newly proposed definition of marriage do not, in any way, want to do away with the freedom for people to disagree with the new ly proposed definition of marriage . However, we have seen in recent years cases of intolerance towards those who do not endorse same sex unions. W e need to ensure that this does not spill over to a more widespread intolerance. Furthermore, al though we trust that the C ommittee and Parliament as a whole want to safeguard those p eople who disagree with the newly proposed definition of marriage, we are very aware that a Bill that does not properly protect those people could have very harmful consequences.

29. The Government’s plans fail to bring marriage between people of the same sex on to the same level as marriage between people of the opposite sex. As we have outlined the plans in the Bill create inconsistency, incoherence and inequality. The Government have said that marriage is grounded in ‘the principles of long-term commitment and responsibility’ and defined it as ‘two people who love each other making a formal commitment to each other.’ [12] If this is all the Government perceive marriage between two people of the same sex to be then it is unclear why civil partnerships are not sufficient.

February 2013


[1] http://www.telegraph.co.uk/news/politics/9827596/Gay-marriage-bill-opens-door-to-abolition-of-adultery.html

[2] http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100602/debtext/100602-0003.htm

[3] See http://www.marriagedebate.com/pdf/iMAPP.May2011-rev.pdf and An Introductory Course in MATLAB, published by Universidad Carlos 11 De Madrid, September 2010, Alba, M. Franco-Pereira

[4] http://www.dailymail.co.uk/news/article-2234252/Vindicated--ruined-In-historic-victory-Christian-demoted-work-writing-Facebook-opposed-gay-marriage-church-tells-battle-come-terrible-price.html

[5] http://www.comres.co.uk/polls/Teacher_Poll_Results_WEIGHTED_1_Feb_2013.pdf

[6] http://www.telegraph.co.uk/news/politics/9825341/Government-powerless-to-protect-teachers-from-sack-over-gay-marriage.html

[7] http://www.bbc.co.uk/news/uk-19467554

[8] John Bowers QC The Marriage (Same Sex Couples Bill) Advi c e

[9] Aidan O’Neil QC legal opinion

[10] YouGov/ Sunday Times Survey Results, 8-9 March 2012, page 7

[11] http://www.politics.co.uk/news/2013/01/08/lords-roadblock-ahead-for-gay-marriage

[12] HM Government, Equal Marriage: The Government’s Response, December 2012 Ministerial Foreword

Prepared 27th February 2013