Marriage (Same Sex Couples)

Memorandum submitted by Dr Davina Cooper, Dr Nicola Barker and Dr Eleanor Wilkinson (MB 54)

Marriage (Same Sex Couples) Bill 2013

RESPONSE (25 January 2013) 

AUTHORS:

Dr Nicola Barker is a Senior Lecturer in Law, University of Kent, teaching family law and public law, including the European Convention on Human Rights. She is the author of a number of peer-reviewed articles about same-sex marriage and civil partnerships, and a book, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (Palgrave, 2012.

Dr Davina Cooper is a Professor of Law & Political Theory, University of Kent; from 2004 to 2009, she was the Director of the AHRC Research Centre for Law, Gender & Sexuality. Her five books include Challenging Diversity: Rethinking Equality and the Value of Difference (CUP, 2004). She has also recently written on legal disputes over conscientious objection (with Didi Herman), see ‘Up against the property logic of equality law: Conservative Christian accommodation claims and gay rights’, Feminist Legal Studies [March 2013, forthcoming]

Dr Eleanor Wilkinson is a British Academy Postdoctoral Fellow at the University of Leeds. She is currently researching the changing nature of intimate relationships in contemporary Britain, with a particular interest in family law and family policy.  

A. SUMMARY

This submission focuses on three aspects of the current debate:

1] The proposed amendment (14 February 2013) that would allow registrars who are ‘conscientious objectors’ to withdraw from performing same-sex marriages. We argue here that different registrars’ preferences should be managed through informal means, where possible, within the organisations in questions. Legally instituting a right of exemption contravenes the spirit of the Equality Act 2010 and enshrines the acceptability of anti-gay prejudice within secular institutions. If conscientious objection is to be permitted, and we would recommend it should not be, it should be permitted for all those who wish to refrain from participating in specific marriage ceremonies, whether between same-sex or different-sex couples.

2] Access to civil partnerships. We argue that different-sex (ie, heterosexual) couples should be granted the right to civil partnership. We also argue that care needs to be taken not to create further inequality on the basis of marital status.

3] The likely effectiveness of the so-called ‘quadruple lock’ to prevent religious bodies, particularly the Church of England (other religious bodies have a ‘triple lock’), from being compelled to perform same-sex marriage ceremonies if challenged before the European Court of Human Rights. We argue that there is no convincing case that any legal challenge to a religious body’s refusal to perform same-sex marriages would be successful. The European Court of Human Rights has repeatedly protected religious bodies from state interference under Article 9.

B. ‘ CONSCIENTIOUS OBJECTION ’ AMENDMENT

1. We appreciate some officials hold strong views against being required to conduct same-sex marriage ceremonies (or even to officiate more administratively). However, while we would encourage public authorities informally , as part of their role as good employers, to create arrangements which allow registrars some degree of flexibility - recognising that some registrars may prefer to do a large number of same-sex civil partnerships while others would prefer to do none at all - we strongly argue against introducing a ‘conscientious objection’ exemption in relation to (and solely in relation to) same-sex marriage. Our reasons are as follows:

2. Legal: The current requirement that registrars perform civil partnerships (C Ps) under the Civil Partnership Act 2004 does not statutorily recognise conscientious objections. The question of whether an individual registrar, who refuse s to perform C Ps when their employer requires them to do so, suffer s direct or indirect discrimination was tested in Ladele v. LB Islington . [1] There, both the Employment Appeal Tribunal and Court of Appeal rejected the applicant’s claim for legal accommodation, finding that the Council was within its rights to adopt a practice of requiring all registrars to participate in order to pursue its own lawful policy commitment to promoting diversity and equality.

3. Practical: In some areas, mandating the right to conscientious objection may create practical scheduling difficulties where a number of registrars wish to withdraw. This places pressure on public bodies to manage the withdrawal of registrars from conducting (certain kinds of) marriage , while ensuring at the same time that work-loads are manageable and equal, and that same-sex marriage applicants are not disadvantaged or delayed by attempts to find registrars for their marriage ceremonies.

4. Symbolic: Providing a limited and special exception for conscientious objection in the case only of same-sex marriages undermines the state’s explicit legal commitment to same-sex relationships as being of equal validity to heterosexual ones.

5. Working environment: Legally allowing registrars to refuse to perform same-sex marriages is likely to have a detrimental effect on many civil registry working environments. It will give fuel and legitimacy to those who wish to advance claims amongst fellow registrars (as well as in other workplaces) that gay relationships are sinful or wrong. ( T he court judgment in Ladele suggests disquiet and unhappiness among council employees proved a significant factor in the impetus for the disciplinary action taken against Ms Ladele by Islington council.)

6. Local autonomy: Allowing explicit and public withdrawal by registrars simply because they believe gay marriage to be wrong requires public bodies (regardless of their own policies) to accommodate a position which treats gay marriage as unacceptable . This restricts the scope of public authorities, such as local councils, to promote policies for which they have a local electoral mandate. In Ladele , the Court of Appeal stated that while registrars with the outlook of Ms Ladele would find compliance harder than other registrars, the council ’s position was a proportionate means of furthering a legitimate aim. This aim was not simply to have sufficient registrars to perform Civil Partnerships but to send out a message that public recognition of gay relationships was an appropriate principle for a council committed to equality and diversity. Islington Council’s position was affirmed by the European Court of Human Rights (2013) .

7. Inequality: The amendment makes a symbolic statement that refusing to provide gay people alone with an equal marriage service is acceptable. There may be a range of registrars who for different reasons (some deeply felt) would wish not to participate in the marriage of particular couples. This amendment accommodates certain wishes but not others; as such it sits in tension with the symmetrical character of the Equality Act 2010. If conscientious objection is to be permitted it should be permitted for all those who wish to refrain from participating in certain marriage ceremonies.

8. The s ecular public sphere: The amendment relates specifically to marriages performed in a secular context, since marriages in religious contexts already are extensively dealt with . Within the context of secular public action, not everything identified by proponents as the manifestation of their religious belief can be accepted as valid . Other interests and rights are also relevant. It is arguable that if registrars do not wish to conform to the provisions governing secular marriage, they should work in a more explicitly religious context governed by religious norms.

9. The notion of ‘ conscientious objection ’ i n this context. Does it apply to all beliefs or only religious ones? Given the Equality Act 2010 , the ECHR and recent case-law, there is no good legal reason for restricting ‘ conscientious objection ’ to religious (as opposed to other philosophical) beliefs. This is likely to generate considerable uncertainty and litigation regarding the kinds of beliefs, and the ‘depth of belief’, required to legitimately ground ‘conscientious objection’ to same-sex marriage.

C. EXTENDING CIVIL PARTNERSHIPS TO DIFFERENT-SEX COUPLES

1. We are concerned that the government has dismissed the fact that the majority of people would like to see Civil Partnership opened up to different-sex couples (as demonstrated by the findings of the Equal Civil Marriage consultation). We argue that different-sex couples should be granted the right to civil partnership, the reasons for which are as follows:

2. If the government is committed to promoting stable relationships then it makes no sense to deny people the right to civil partnership.

3. Denial may be in breach of the European Convention on Human Rights. In 2011 four different-sex couples filed a claim with the European Court of Human Rights after they were all denied the right to a civil partnership (Ferguson and Others v United Kingdom 2011). They argued that a refusal to allow different-sex couples to register a civil partnership constituted discrimination violating Article 14 (discrimination) of the European Convention of Human Rights, combined with Article 8 (respect for family life) and Article 12 (the right to marry). In Schalk & Kopf v. Austria (2010), difference in treatment on the basis of sexual orientation was said to "require particularly serious reasons by way of justification". We argue that the government has no justification for continuing to preserve civil partnership for only same-sex couples, and that there is no serious justification for legal segregation on the basis of sexual orientation.

4. The government claims that there is no material or legal advantage for opening up civil partnership to different-sex couples, and therefore that this move is unnecessary. However, there are a number of material disadvantages for different-sex couples who do not wish to marry but would like to form a civil partnership- they are left with no legal recognition of their partnership. Furthermore, whilst there is no material advantage for allowing same-sex couples the right to marry, the government recognizes that this is largely a symbolic gesture that sends out a wider message to society about the equal worth of lesbian and gay relationships. Yet, same-sex and different-sex relationships will only be perceived as equal if there is complete equality between both marriage and civil partnership. Continuing to preserve ‘civil partnership’ for same-sex couples continues to mark civil partnership as in some way different and ‘inferior’.

5. Removing the bar to civil partnership for different-sex couples would enable those in a civil partnership, when one of the couple legally changes their gender, to remain in a civil partnership, should they wish to do so. Currently the only option being proposed is to transfer the civil partnership into marriage which not all trans couples would want.

D. QUADRUPLE LOCK

1. There is no legal basis to fears expressed by some organisations that the European Court of Human Rights would compel religious bodies to celebrate same-sex marriages. We present four reasons why religious bodies do not need to be concerned.

2. First, the case law does not provide any precedent to suggest that the ECHR would seek to interfere with the internal policies and decision-making of a religious body, in fact the opposite is the case. Where states have attempted to interfere, the Strasbourg Court has repeatedly ruled that the state must remain neutral in relation to the internal workings of religious bodies (see Hasan v. Bulgaria (2002) 34 E.H.R.R. 55 ; Obst v. Germany (Application No. 425/03); Fernández Martínez v. Spain (Application no. 56030/07); Siebenhaar v. Germany (Application No. 18136/02)). The way that the Marriage (Same Sex Couples) Bill is framed, providing an opt-in for those who want to perform same-sex marriages, whilst not requiring any religious body to do so, upholds this principle of state neutrality.

3. Second, Article 9 protects religious freedom. In a case where a same-sex couple wanted to claim that a religious body was in violation of their rights to marry and not be discriminated against, the Court would look at whether the UK legislation properly balances those rights against the religious body’s right to freedom of religion. In cases where such a balancing exercise is required, the Court gives a wide margin of appreciation to the national legislature. The Court also gives a wide margin of appreciation to national legislatures in situations where there is a lack of a consensus among the 47 signatories to the European Convention on Human Rights. This means that a provision would need to be wholly disproportionate for the Court to interfere.

4. Third, the provisions in the Marriage (Same Sex Couples) Bill are proportionate. Some concern has been expressed about the impact of the Court’s decision in Schalk and Kopf v. Austria. The judgment in Schalk has no direct application to the religion issue because it does not deal with the question of whether, should same-sex marriage be legal, it would be discriminatory for religious bodies to refuse to perform them. [2] However, the court did emphasise that ‘differences based on sexual orientation require particularly serious reasons by way of justification’. This has been taken by some right-wing commentators to mean that if the UK did introduce same-sex marriage, it cannot be treated any differently than heterosexual marriage, including by religious bodies. This is not an accurate interpretation: the phrase ‘require particularly serious reasons’ does not prohibit all differences but rather requires that any differences must be justified by good reasons. Given that the Convention also protects religious freedom, preventing a religious body from being compelled to perform same-sex marriages against their faith is likely to constitute a good reason. As noted above, there would be a wide margin of appreciation on the issue of balancing the Convention rights of one group against those of a different group. The Marriage (Same Sex Couples) Bill strikes a proportionate balance.

5. Fourth, the possibility of religious bodies being required to defend nuisance claims with little chance of success before the Strasbourg Court is minimal because there are stringent admissibility criteria. Of all applications against the UK since 1959, 97% were struck out as inadmissible. Of the remaining 3%, only 61% resulted in a judgment against the UK (source: Council of Europe Statistics 1959-2010: Statistics on Judgments by State, pp.14 and 21). Any application made before the Strasbourg Court would be taken against the UK, not against any individual religious body, so it would be for the UK government to defend the Marriage (Same Sex Couples) Bill.

6. The Human Rights Act 1998, section 2 requires the UK courts to have regard to the jurisprudence of the ECHR. Therefore, should a claim be made in the UK courts against a religious body, the UK courts would have regard to the above case law emphasizing state neutrality, and the wide margin of appreciation in this area.

E. CONCLUSION

1. Although we are largely supportive of these moves towards equality, we are still concerned about a number of significant inequalities that remain. In conclusion we would like to echo the concerns raised by Liberty regarding the unequal treatment of same-sex couples in certain pension schemes. If the government truly wants to create a society in which lesbian and gay relationships are valued then this issue cannot be ignored.

2. We also want to stress that great care needs to be taken in subsequent policy not to marginalize those in society who are not part of a married couple. Whilst the government may wish to uphold marriage as a ‘gold standard’ we want to stress that this is something that many may object to for reasons of belief, or which may prove impractical or impossible for some.

3. Care needs to be taken that we do not create further inequality on the basis of marital status, and although not within the scope of this legislation, the government needs to also seriously consider the rights of cohabiting couples and other inter-dependent relationships, and to consider developing a more pluralistic approach to relationship recognition that would be able to incorporate the diversity of people’s intimate lives in contemporary Britain.

February 2013