Neil Addison on Marriage and European Law
Really interesting opinion lining up with what the Church of England is saying.
What the Government assurance is ignoring is the fact that, in law, there is no difference between “Civil” as opposed to “Religious” marriage both are in law the same thing and merely take place in different premises. Therefore on the basis of the both the Schalk and Gas cases if the Government legalises same-sex marriage then it must legalise it on exactly the same basis as it legalises heterosexual marriage ie the Government will be obliged to permit same-sex marriage on religious premises on exactly the same basis as it permits heterosexual marriage on religious premises.
How this will affect the rights of Churches who are registered for marriage and in particular how it will affect the Church of England and its clergy who are Registrars of Marriage by virtue of their status as Priests of the Established Church is legally very arguable. Certainly a good legal case can be made that any place or person who is registered to perform marriage must be willing to perform same sex marriage on the same basis as they conduct heterosexual marriage since, in law, there will be no difference between the two.
It must also be remembered that in the case of Ladelle v Islington Council [2009] EWCA Civ 1357 the Court of Appeal held that Mrs Ladele’s view of Marriage “the orthodox Christian view that marriage is the union of one man and one woman for life” (para 7) “was not a core part of her religion” (para 52) and therefore if Churches are told that they have to be willing to perform same sex marriage ceremonies they will have little legal ground to resist.
The combined effect of the European Court decision and the Ladele decision seems to be clear. If same sex marriage is legalised in the UK then religious same sex marriage will have to be legalised also. Churches which perform heterosexual marriages will have to be willing to perform same sex marriages and they will have no legal grounds to resist since the (secular) Courts have determined that the “Orthodox Christian view of Marriage” is not a “Core” part of Christian belief.
In the comments there is an interesting clarification.
I’m not a lawyer so I might be wrong but I believe in Spain gay marriage is legal and the RC church has not been forced to perform them or stop performing all marriages. Is it likely a similar thing will happen in the UK?
A fair question. it depends a lot upon the structure and legislation applying to Marriage in Spain.
In many parts of Europe there is a clear legal distinction between Civil registered Marriage and Religious ceremonial Marriage but that legal distinction does not exist in the UK. In addition the UK is fairly unique in Europe in making the European Convention and European Court of Human Rights cases directly applicable in UK law.
Finally the decision by the Court of Appeal that belief in Marriage is not a “core” part of Christian belief is unique to the UK and is not based on European case law however that decision makes the legal position in Britain very different to that in other European countries who would probably accept that it is not the place of secular courts to make that sort of decision or that sort of distinction.
I would be interested if any other lawyers disagree.
Interesting stuff, and shows how incredibly dubious, un thought-through and ignorant the whole enterprise is. Â
I’m not a lawyer but an Anglican Clergyman who’d be unwilling to perform a gay ‘wedding’ .My first thoughts were how very difficult it would be to foist the legal authorisation for the C of E to perform gay weddings, assuming the C of E’s lack of co-operation at an institutional level as well as individual level. I was thinking of things like getting an approved Liturgy through General Synod, sabotaging the reading of Banns (is refusal to read Banns an offence, and if so who polices it and what might the penalty be?), and what about Canon B5, prohibiting services which contradict the Church’s doctrine? Those are just a few I can think of – given the statutory nature of much Canon law there may be dozens of similar complexities.
I was thinking that if somehow even if the C of E were given the authority my response would be to invoke Canon B5 “Sorry, but I’m not allowed to conduct services which contradict church doctrine” – which would at least send the problem upwards, and maybe set up an interesting clash at European level between homosexual rights and the rights of religious bodies to set their own doctrine.
I think that in practice, the political fall out for any government which attempted to require a religious organisation to perform same-sex weddings would be so huge that it just won’t happen.
There’s a simple solution to all of this. Withdraw registrar status from the clergy and require all marriages to be performed by a civil registrar. If a couple then wish to have an additional ceremony in church, they’d be free to do so.
This system works perfectly well in most other European countries so there’s no reason it couldn’t work in the UK.
Not sure the word ‘simple’ is the one I’d use. I think it would be a nightmare to try to do.
On one level I agree – there are many countries where civil and religious wedding ceremonies are distinct. But in the UK they are quite strongly hard-wired together, and the European ruling makes it even more so.Â
Trying to remove the legal right for religious bodies to conduct weddings looks like a political perfect storm to me – tampering with a million girls’ dreams of a ‘traditional church wedding’, equality law, European legislation, large amounts of UK legislation, sexual ethics, relationship between church and state, the need for hundreds of further registrars and new venues to conduct civil weddings…..
It would be a brave politician who would try and change that – and that’s even before considering the Judeo-Christian principle that marriage is God’s creation ordinance and so it’s wholly appropriate that the legal and religious aspects of a wedding should be brought together for those who wish it.
Well, Eaglet2, the Archbishop of Wales seems to think the church not only “would not be able to ignore the new legislation on civil marriage proposed by the Government, despite the fact that the legislation would not allow gay couples to marry in church”  and  “I cannot see how we as a church, will be able to ignore the legality of the status of such partnerships and we ought not to want to do so”.
http://www.walesonline.co.uk/news/wales-news/2012/04/18/archbishop-of-wales-says-gay-marriage-deserves-the-welcome-of-the-church-91466-30786073/#ixzz1sOeow0aj
I don’t think anyone’s suggesting that a civil gay marriage will be illegal – evidently it wouldn’t be.
However what the above article clearly shows is that a few years after the law passes in the UK European equality law will seek to force the church to marry gay people.
My key point is that there are myriad ways – institutional and local - in which the church (assuming it opposes it) can oppose/ sabotage this. Just one example – in England a church wedding has to be by the ‘authorised rite of the Church of England’ – but what if the C of E refuse to Authorise a rite for gay marriage?
The gay marriage bill is being ‘sold’ to the public as a little tweak – maybe like fixing a light bulb – but it’s in fact going to need a massive rewiring job.
You think that’s the next battle? It hasn’t happened in the other countries where equal marriage applies – but then I suppose they do have separation of Church & State as is suggested by Neil Addison’s response to the comment above. If the C of E started trying sabotage the marriage-in-church part of any legalisation of equal marriage, as you suggest, wouldn’t the conclusion be for demands outside the Church not only for it to give up the status of priests-as-registrars for the state but quickly to bring about the next logical step and get itself disestablished? Â After all it was done in Wales and I’m not sure how much legislation it took to change the light-bulbs there. What gospel advantages (apart from the obvious purely material ones of post-Constantine Christendom) are there for the Church to remain established? When Cardinal Hume was asked if he might take a seat in the Lords, not only did he point out that Vatican would not allow it, but he said that it would interfere with rather promote his freedom to preach the gospel.Â
I think what this conversation demonstrates is that regardless of which side you are on the debate as to whether we should have Gender Neutral Marriage, we almost all accept that it will have a huge impact on the relationship between Church and State.
I’ve come round to seeing that. Surprising if the Government didn’t take some advice from experts like Addison before launching on the announcement and consultation, but perhaps Eaglet2 is right and they didn’t. What do you think?
All the evidence is that they rushed it. Reading the consultation the line is almost “We know there might be some really sticky legal issues, but we’ll tackle those as they come up”. That’s a very poor way to make law.
Yes indeed, Peter. In response to Tom’s point, I don’t think that disestablishment would solve the problem in any case – marriages can be legally solemnised in non-conformist churches and indeed any number of other places of worship, and of course many of those would be unwilling to do gay wedding services either, so this goes far beyond the C of E.
Yes I agree but not all of these is averse to solemnising gay marriages – indeed, the Quakers and Liberal and Reform Jews want to do it. Your observation about possible non-Conformists’ objections doesn’t really add any greater difficulty to the solution offered by Steven’s original point.
I think my point is that it’s not just a dispute between the C of E and the Government – and ‘non-conformists’ in this scenario includes the Roman Catholic church as well as smaller Protestant denominations, so it’s a pretty significant array of objectors.Â
Steven’s solution is ‘simple’ in one sense, but as I mentioned in practical, cultural and political terms I think it would be really difficult to achieve.
Thousands of people choose to get married according to the Rites of the Church of England and Roman Catholic church. I think it’s unreasonable for these people to be told that in future, such marriages will no longer be deemed to be valid.
My puzzlement in this whole idea that there is no distinction between civil and church marriage is why it is then that the Archbishop of Canturbury could refuse to marry Charles and Camilla yet they could have a perfectly legal marriage down the road at Windsor Registrar office? Until the Church began to allow remarriage of divorcees in Church, voted for by the General Synod a margin of 308 to110 in favour of the move in November 2002, divorcees could still get THE SAME legal marriage done in a registrar office. Peter has been saying this all along, I know, but it seems in its Anglican muddle almost as Byzantine in its own way as the complicated rules the Catholic Church has about what is Holy Matrimony, who is eligible and where it can be conducted.
I think in the end Stephen’s solution is the only sensible way to cut the Gordion knot and divest clergy of the duty to act as registrars. (It might even be the beginning of a move to disestablishment.)
Thanks for posting this interesting commentary by Neil Addison, Peter. It confirms what I have always maintained – that the Ladele case infringes a whole series of British liberties that have been dearly won over the centuries.
The court ruling on Ladele that her belief that homosexuality was a sin “was not a core part of her religion†is one of the worst aspects of her case. A court has no competence to rule on religious, or indeed any belief, and in a free society it should rigorously refrain from doing so. It can only rule on how the expression of that belief through action affects others. Free societies only intefere, thankfully, with the action of people and not their beliefs and this should always be the case.
There has been no legal restriction on religious belief since Catholic Emancipation in 1829 (see http://en.wikipedia.org/wiki/Catholic_Emancipation). The Ladele judgement gets the courts back into the area of determining what is acceptable and unacceptable religious belief, an area which is very firmly not their business!
Philip, don’t you think Ladele made the fundamental mistake of trying to link her religious disapproval of homosexuality with her job of registering the legal partnershipis not about giving approval or with licensing sex but simply performing an administrative function. After all no one asked her to approve of the remarriage of divorcees – if she were a Catholic she certainly should not but  still she could not as a registrar refuse to marry a previously divorced couple. So what’s the difference? She was not being asked to “bless” or to “marry” the parties but simply to make sure the legal requirements have been properly met. This is not very different from what a solicitor is asked to do; he may not approve of the beneficiaries to a will that he has to draw up. He may hate cats and consider that they should not be kept at all because they kill song birds not only one’s own garden but the neighbours’ as well, but that doesn’t mean he can refuse to draw up the will of someone leaves all her money to the cats’ home – even if he does think it is immoral.
And to add just another complication to the muddle the Government needs to think through, what is the status of partners to a same sex ‘marriage’ that has been dissolved. Are they ‘divorced’ in the eyes of the law/church?
Contributors here have, for the most part, focused on church impact, from loss of registrar status to disestablishment. One oft-missed aspect of the proposed legislation is its effect in undermining the rights of parents over their biological children.
Parental rights over offspring (e.g. custody, education, religion, healthcare decisions) is predicated upon the legal status accorded to biological union and its normative outcomes within marriage. If the biological basis of marriage is overruled, the rights over offspring that accrue to biological partners can also be overruled.
It might be considered scaremongering, except we have already seen a US court decide that the gestation mother trumps the genetic mother.
If a non-biological union is accorded the same status as biological union, judges must also hold it to be discriminatory to prioritize biological rights.
Rather than a biological parent giving up rights via adoption, or losing them through negligent actions, parental rights will be redistributed by litigation without regard to biological rights and on the basis of greater perceived parental competence.
The legal status of clergy as Registrars is quite separate from the issue of disestablishment.
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It’s quite true that in a lot of countries, clergy are not Registrars. However, they are in England and Wales, Scotland, Eire, the United States, and South Africa. In the last two countries, there is no established church, and the legalisation of same-sex marriage has not resulted in successful litigation to require clergy to perform same-sex marriages. However, neither of the last two countries is under the juristiction of the ECHR.
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As Neil Addison says, the judgement in Gas v Dubois is in French, and so I can’t read it. If the ruling is as Addison states, then it is arguable (but IMO far from certain) that a law which either prohibits Anglican, Quaker, and Catholic clergy from registering same sex marriages, or permits them to refuse to do so, would be held to be in breach of the Convention (Article 14, prohibiting unfair discrimination).Â
I don’t think that clergy of other denominations who may carry out marriage services, but who are not Registrars, would be in breach of the Convention if they refused to conduct a same -sex marriage service, as they are not carrying out functions on behalf of the government.
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As against that, I think that the Church of England and Roman Catholic church would have strong arguments under freedom of religion (Article 9), freedom of expression (Article 10) and freedom of Association (Article 11) to argue that their clergy should not be required to perform same-sex weddings. At the same time, I theink the Quakers would have a strong claim under Article 9 to be allowed to perform same-sex weddings, if the government introduces them.
On the issue of whether Anglican and Catholic clergy should be Registrars, I’d say for sure. About 70,000 people a year choose to get married according to the Rites of the Church of England and the Roman Catholic church. To tell these people that in future such marriages will no longer be considered valid seems hugely unfair to me.