Marriage (Same Sex Couples)

Memorandum submitted by David Shepherd (MB 88)

Summary:

1. Clause 2 of the Same-Sex Marriage Bill is declared by the EHRC to contradict the Article 9 rights of religious organisations. It will have to be amended to prevent interference with the freedom of religious organisations.

2. A Stated Aim of the Bill: ‘to protect religious organisations and *individuals* from being forced to conduct same sex marriages’

3. An amendment to Clause 2 (as suggested during EHRC testimony before the Public Bill Committee) will leave conscientiously objecting ministers who belong to ‘opt-in’ religions exposed to coercive religious sanctions for non-compliance, thereby defeating one Stated Aim of the Bill.

4. A Stated Aim of the Bill would be compromised.

1. One stated aim of the bill is through: 'provisions intended to protect religious organisations and *individuals* from being forced to conduct same sex marriages. The proposals have proved highly controversial with interested parties expressing strong opinions both for and against same sex marriage'.

2. John Wadham of the EHRC appeared before the Public Bill Committee on 14th February and explained a part of their submission that he authored, to wit: 'However, our legal opinion suggests the bill in its present form could amount to the state acting unlawfully by interfering with the freedom of religious organisations...to enforce their religious doctrines within their particular organisation.'

3. In response to question 343, in which the conscientious objection to solemnising same-sex marriage by members of a church or religion was compared to the Ladele v. Islington case, he stated, 'I do not think that those are parallel circumstances. A registrar’s responsibility, as a public official, is to deliver a service to the wider public. As for a member of a Church or a religion, the responsibility of that person is to follow the doctrine of the Church or religious organisation. Those are two different things. We are saying that it is for the religious organisation to be allowed to police those circumstances. That is not on a parallel with the Ladele point.'

4. Instead of Clause 2(2): 'may not be compelled...to conduct a relevant marriage', he tentatively suggested, 'A person may not be compelled by a couple wishing to get married'

5. The proposed Equality Act amendment is clearly an effort to ameliorate the impact of the government's bill on both corporate and individual religious freedom, yet John Wadham expressed the requirement, on account of the Article 9 rights of religious organisations, to abandon the clause 2 protection of individual conscientiously objecting ministers belonging to 'opt-in' religions.

6. There are instances of statutory conscience clauses that pre-date the European Convention on Human Rights.

7. S.8(2) of the Matrimonial Causes Act 1965 provides a partial solution (the famous 'conscience clause') to the disparity between Canon Law and Civil Law in respect of re-marrying divorcees in church.

8. S.5A of the Marriage Act 1949 confers similar protection on clergy (like Canon Thompson in Banister v Thompson) who object to solemnising marriages which would formerly have been void by reason of prohibited degrees. S.5B extends the protection to clergy who 'reasonably believe' that one of the parties to the marriage has had a sex change under the Gender Recognition Act 2004. (Quoted from Marriage and Divorce by Philip Jones -http://ecclesiasticallaw.wordpress.com/2012/05/01/marriage-and-divorce/ )

9. The EHRC is right to question this clause as it relates to proposed, rather than existing legislation.

10. The Right Hon. Maria Miller in her response to correspondence from the Catholic Bishops Conference stated: 'Clause 2 of the Bill protects anyone who takes part in the solemnisation of a religious marriage'. (http://thetablet.co.uk/images/letter%20from%20Maria%20Miller%20to%20Archbishop%20Smith-%201.2.13.pdf )

11. Again, she explained, 'we are completely confident that the Convention does not require the UK to force religious organisations to conduct marriages for same-sex couples if that is against their religious doctrines'. This focuses on the organisation, rather than the individual: it's (to reverse the adage) 'not seeing the trees for the wood'. Hence, she says in furtherance of Article 9 rights: 'any interference in the rights of a same-sex couple would be justified'.

12. If, as the EHRC submits, Clause 2 must be amended in line with the European Convention on Human Rights to do no more than protect clergy and authorised persons from the legal compulsion of the couple alone, it is because the EHRC believes that there is no prospect of successfully protecting individual ministers from the compulsion of the religious organisation that opts in to same-sex marriage.

13. Professor Ian Leigh of Durham University wrote in Balancing Religious Autonomy and Other Human Rights under the European Convention - Oxford Journal of Law and Religion ( http://ojlr.oxfordjournals.org/content/early/2012/01/24/ojlr.rwr015.full ): 'It might be thought that domestic courts are free to grant additional constitutional protection against non-governmental bodies where Strasbourg would not do so but even this raises potential difficulties. Religious organizations have Convention rights of their own and to tip the balance too far in favour of the individual at the domestic level could leave the state open to challenge by the organization at the Strasbourg level.'

14. Last year, the United Reformed Church and the Church of England participated in a Service of Reconciliation, Healing of Memories and Mutual Commitment at Westminster Abbey. The service marked the 350th anniversary of the Great Ejectment of 2,000 nonconforming ministers following the 1662 Act of Uniformity.

15. In spite of this affirmation of individual religious freedom, there is a serious prospect that legislating for same-sex marriage 'opt-in' for religious organisations will likely lead to incursions on the religious freedom of individual ministers who dissent from conducting same-sex marriages: those for whom Strasbourg offers no remedy.

16. If the choice is (a) to restrict the religious freedom of churches by the proposed Clause 2, it interferes with Article 9 rights of those denominations.

17. If the choice is (b) to alter the amendment to prevent no-one else but the couple alone from compelling a minister, the exposure of conscientiously objecting ministers to the religious sanctions of opt-in religions defeats the purported aim of the bill: 'provisions intended to protect religious organisations and individuals from being forced to conduct same sex marriages'.

18. In accordance with a stated aim of the bill, no-one wants this government-initiated legislation to precipitate another Great Ejectment of conscientious objectors. Yet neither alternative can meet the stated aim for religious organisations and individuals like.

March 2013

Prepared 6th March 2013