Scottish EHRC Proposes Same-Sex Marriage

The Scottish EHRC has issued a paper arguing in favour of marriage equality in Scotland. The full document was produced after a symposium chaired by Cambium Advocacy, a campaign consultancy. It is Cambium Advocacy who wrote the paper, not the Scottish EHRC, but it would be fair to say that the Scottish EHRC shares its conclusions since it has published and promoted it.

The press release from the Scottish EHRC says the following.

The Equality and Human Rights Commission Scotland today launched a new report calling for access to equal marriage for same sex couples in Scotland.  The report is a result of a symposium recently held by the Commission to investigate perceived barriers to equal marriage and suggest ways forward for legislators.

Scotland currently has a segregated family law system in which marriage is available only to mixed-sex couples, and civil partnership only to same-sex couples.

In England and Wales, the UK Government has announced public consultations on proposals to hold civil partnerships on religious premises and to open up civil marriage to same-sex couples and civil partnership to mixed-sex couples.  However, because marriage and civil partnership are devolved issues, these proposals apply to England and Wales only.

The report calls upon the Scottish Government to consider these disparities and to take steps to bring about equal access to marriage in Scotland.  The evidence and research contained within the report aims to inform their deliberations.

Current legislation in Scotland discriminates against same-sex couples and transgender people and this, as the report outlines, has significant detrimental impacts :

• Same-sex couples cannot involve their faith in the process for formalising their relationships.
• Transgender people are required to divorce if they wish to gain full gender recognition, as the law does not allow same-sex marriage or a mixed-sex civil partnership.
• Evidence suggests that civil partnerships are seen as having less value and status than marriage.
• Same sex couples do not have the same choices as mixed sex couples

It’s very clear from reports about the symposium’s make-up that the paper was only ever going to point in one direction. After all, as the press release highlights, public opinion in Scotland is broadly in favour of such a move. There are still some problems though that the paper doesn’t address, and these problems highlight the issues that the UK Parliament will have to grapple with when considering similar moves for England and Wales. Although the paper is very good on explaining how discrepancies between English and Scottish law might be handled (i.e. if Scotland permits same-sex marriage and England doesn’t), a number of fundmental questions are not engaged with.

Specifically, there is a cursory discussion of the nature of what marriage is. There is no tackling of the issue of what the State currently understands marriage to entail (including the way that parents’ legal relationships to children change upon marriage) and whether that would change if marriage was extended to same-sex marriage. There is no engagement with the way that liturgical rites of marriage interact with the State’s understanding of marriage and how that would be impacted by a change in the law. For example, the marriage rites of several denominations contain a clear reference to marriage being the union of, and only of, a man and a woman. Would a change in the law make such a public statement illegal? How would religous organisations be impacted in the requirement, under law, to recognise a same-sex couple as married?

What do you think?