Thinking Anglicans

Challenges to the quadruple locks?

First of all, there appeared to have been questions raised in the Sikh community. The Telegraph carried a report Religion told to halt weddings over gay rights which included this:

Sikh temples have been advised to halt all civil marriage ceremonies on their premises to protect them from possible legal challenges for refusing to conduct same-sex weddings…

The warning comes in a letter to Sikh places of worship, known as gurdwaras, from Sikhs In England, a specialist advisory body. It urges them to consider deregistering as a venue for civil weddings — which would leave gurdwaras performing wedding rites with no legal force.

Couples would have to attend a separate ceremony in a register office or other venue recognised by their local council. Although the advice is not binding, it is understood that it is being taken seriously.

But Law & Religion UK reports in Sikh Council caution on ending civil marriage ceremonies that The Sikh Council UK (SCUK) – the largest representative body of Sikhs in the UK – has issued a Press Release which is supported by advice and guidance for Gurdwaras, and other material including a letter from Helen Grant, Minister for Women and Equalities, and an email from Melanie Field, Deputy Director, Equal Marriage Team.

All of this material is excellently summarised by David Pocklington.

Second, there have been widespread media reports of a legal challenge to be made by a couple in Essex, see the original news report Gay dads set to sue over church same-sex marriage opt-out.

However, there are no details of how they think they can do this. David Pocklington writes (scroll down):

We note that a same-sex couple Barrie and Tony Drewitt-Barlow have indicated that they are “planning a legal challenge against the Church of England’s refusal to conduct same-sex weddings”: presumably, an application for judicial review of the statutory ban on the Church of England conducting same-sex marriages that was included in the Marriage (Same Sex Couples) Act 2013 :see especially s 4(1). Barrie Drewitt-Barlow was reported as saying “‘I am a Christian – a practising Christian. My children have all been brought up as Christians and are part of the local parish church in Danbury”.

It is perhaps useful that such a challenge has come so close to the Royal Assent to the Act; and the courts will have an opportunity to give judicial consideration to the strength of the so-called “quadruple lock”. The Government’s willingness to put its money where its mouth is will be a good indication of whether the approach of Sikhs In England or of the Sikh Council UK is the more prudent.

A challenge was bound to happen, whatever the Government may have thought when the policy was first being formulated. The suspicion must be that if the case ends up in Strasbourg the ECtHR would regard the legislation as within the margin of appreciation of states parties; and the recent decision in Sindicatul Păstorul cel Bun v Romania [2013] ECHR 646 seems to suggest that the Court is reluctant to interfere in the internal affairs of religious organisations. But who knows? – With man it is impossible, but with Strasbourg all things are possible.

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Revd Laurence J.Roberts
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Revd Laurence J.Roberts

‘Let right be done.’ It is never too late for the C of E and Sikh bodies to begin to act ethically. Or am I wrong, and will the doing of right, when endlessly deferred create a wrong so unkind, in fact so cruel, that these followers of G-d, will find it hard to put right ? This a spiritual matter of profound import not only for lgbti, but for the spiritual and moral integrity of religions. As for the Sikh decision, it is scare-mongering of the worst kind. They are safe under the law of their adopted land. As… Read more »

Interested Observer
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Interested Observer

I have a hypothesis about legal action. Schools, in particular, will collapse into a heap if you mention that you’ve spoken to someone who once had a drink with a man whose wife did the accounts for a man who used to be a solicitor. By contrast, the HR director of my former employer used to rub his hands with glee at the threat of employment tribunals and mutter about how much he enjoyed taking things to appeal. My hypothesis is that if you’re a school, the vague threat of legal action means that you have to report the threat… Read more »

Concerned Anglican
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Concerned Anglican

As, thank God, the secular authorities are now driving compassionate and sensible reform regarding same-sex marriage, whilst the Church of England continues to give out negative messages only – I for one would welcome a serious challenge in the courts.

peterpi - Peter Gross
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peterpi - Peter Gross

There’s a couple of people in England who seem to be rather well known. And they wanted to get married. Name of Charles and Camilla, if I recall. The church they are members of bristled at the notion of performing the ceremony, but had no problems recognizing and blessing a civil ceremony. How about: The local registrar performs all civil weddings. If the couple also desires a religious ceremony, they go to the house of worship of their choice. If the proper religious authorities approve, fine and dandy. If the religious authorities disapprove, the couple can either respect the authorities’… Read more »

Craig Nelson
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Craig Nelson

I merely observe that article 9 combined with the heightened analysis of arts 10 and 11 (both essential to the effective freedom of religion) is usually there to defend religious bodies from states. Here the state is trying to protect religions and the courts are (potentially) threatening it – which is a topsy turvy world. Also topsy turvy is that I think both the quadruple lock and the Campaign for Marriage types have themselves brought this state of affairs about. The quadruple lock itself is a curious device – clever, but perhaps too clever by half. A simple opt in… Read more »

Stuart, Devon
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Stuart, Devon

The Drewitt-Barlow challenge is deeply regrettable. Were it to be successful it would make it far more difficult to pass progressive legislation in future and increase the pressure for the UK to leave the European human rights structures. Of course, it won’t be successful, but even bringing a case will give the opponents of the legislation a field day. This is a close parallel to the Christian Legal Centre: bringing a case not in the expectation of winning but to stir things up and gain some publicity on the way. I look forward to the CofE celebrating same-sex marriages and… Read more »

Simon Dawson
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Simon Dawson

Stuart, you said “I look forward to the CofE celebrating same-sex marriages and expect to see that within my lifetime. But the way to achieve this is by convincing people and working to get it agreed, not by trying to subvert the democratic process.” May I respectfully disagree. About 15 years ago the UK armed forces also had an anti-gay policy. Same-sex sexual acts for members of the armed forces were against the law. People suspected of being gay were often arrested, subject to intrusive questioning about their sexual activities, and sacked from their jobs. The support group for gay… Read more »

Cynthia
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Cynthia

“But the way to achieve this is by convincing people and working to get it agreed, not by trying to subvert the democratic process.” I partially agree with you. More honestly, I want to agree with you. The problem is that time is running out for some couples to achieve their human rights. I don’t know the details of the fiscal impact of inequality on LGBT couples in the UK. In the US, I will be a lot more fiscally secure when my partner and I have full, federal, legal marriage. I am hoping that my diocese will do the… Read more »

Stuart, Devon
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Stuart, Devon

Simon, You neglect to mention that the government had also changed to one (led by Tony Blair) in favour of ending that discrimination. The two situations are fundamentally different in another way, however. Discrimination against LGBT people in the military was a historic remnant. The intent of the Drewitt-Barlow challenge is to overturn a freshly minted Act of Parliament before it has even taken force. I wish the quadruple lock was not there, but the fact remained that legislators were encouraged to vote for the bill on the basis of the text that stood before them, with great play being… Read more »

Stuart, Devon
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Stuart, Devon

Cynthia,

All best wishes for you and your partner to have access to full legal marriage as soon as possible.

In the UK, civil partnership already provided the financial benefits of marriage – the CofE, for example, changed its pension scheme following legal advice to extend spousal rights to surviving partners of clergy.

To be clear: that doesn’t make it any less important that the church moves to celebrate same sex marriage, but the financial implications are not those that you face in the US.

Simon Dawson
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Simon Dawson

Stuart, you said “Simon, You neglect to mention that the government had also changed to one (led by Tony Blair) in favour of ending that discrimination.” Please don’t rewrite history. Just as bishops now claim to have supported Civil Partnerships when in fact they opposed them every step of the way, the Blair Government actually opposed gay equality in the Armed Forces, an opposition it now forgets as it finds it embarrassing. And if discrimination against LGBT people in the Armed Forces is a “historic remnant”, then why is discrimination against LGBT people in the Church not a historic remnant?… Read more »

Craig Nelson
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Craig Nelson

I do agree with Stuart about something very improper in our culture and society in legally challenging a new law (especially considering it expands rights considerably and is very much pushed and sponsored by the LGBT community). This doesn’t make much sense in any culture or country but in a representative parliamentary democracy it is deeply troubling. Personally I find it very unpleasant to be on the same side as C4M and Christian Concern, but they are clearly in the right on this, sadly and regrettably. I dislike the groups heartily but, as I say, if they are right they… Read more »

Savi Hensman
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Savi Hensman

I look forward to the day when the C of E will choose to marry same-sex couples. But people who would like to see the courts override religious freedom, controlling even faith groups’ worship, should consider the wider consequences. I do not want the civil authorities to have power over all aspects of belief and community practice.

Craig Nelson
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Craig Nelson

I think that using the courts here does subvert the democratic process because in the case of the military service case there was a contravention of the right to a private life – so found the courts. The new law that is being assailed creates equality and removes discrimination – no-one can say their human rights are being curtailed or restricted by the United Kingdom, unless the CofE is seen as a mere instrument of secular power (the CofE is a clearly self governing denomination, even though a State church). Nonetheless there is no discrimination in the new law as… Read more »

Robert Ian Williams
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Robert Ian Williams

How soon the oppressed become the oppressor.

Savi Hensman
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Savi Hensman

If a case does get to Strasbourg, I think the chance of the C of E being forced to marry same-sex couples is not much greater than of Nick Clegg joining the Labour Party in the next year.

Father Ron Smith
Guest

I suppose the fact that a Same-Sex couple might challenge the right of the Church to abstain from solemnising Same-Sex Marriage should not be too surprising. The point at issue here being; the ethic of the Church’s choice to withhold the sacrament from people of the same gender. However, in order to prevent paranoia by the Church of England, its right to say no to Same-Sex Marriage has been guaranteed by the legislation. It remains to be seen whether that guarantee is water-tight in law. The challenge was bound to come at some time or another. What could be a… Read more »

JCF
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JCF

I agree w Savi.

[But RIW, I assume you’re speaking of the UK legalization of the RCC? ;-/]

Simon Sarmiento
Guest

Here’s an article by somebody who is in favour of the challenge
http://www.dyfedwynroberts.org.uk/index/same-sex-marriage-in-church

Martin Reynolds
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Martin Reynolds

I am not surprised at the illiberal comments that appear here on this blog. The legislation is essentially flawed. I am both forbidden from doing marriages for those who have a perfect right to expect this, while similarly excluded from the ability to consecrate our lives in our own Church. It is heinous and despicable and all fair minded people should be supporting and applauding any challenge. There is more than a reasonable hope that a Welsh couple might also challenge the law. There are those in the Church in Wales who now believe their pursuit of separate consideration within… Read more »

Stuart, Devon
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Stuart, Devon

Martin, to be clear, do I take it that you’re defining as “illiberal” being in favour of the church celebrating same sex marriages, but wishing that to be achieved through the democratic processes of parliament and synod rather than the courts – have I got that right?

Craig Nelson
Guest
Craig Nelson

To flip what Martin says around a little, if the Church in Wales is obliged to apply for the freedom to marry same sex couples then there is effectively no choice and they are obliged to carry out such marriages even though the letter and spirit of the law say the opposite. Churches do indeed do iniquitous things but it’s surely not for the Courts to rectify that. People can either persuade their fellow religionists or exercise their freedom to leave the denomination. But the idea behind the legislation is that the denomination had to opt in. The time to… Read more »

Feria
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Feria

Craig: ‘Even if Strasbourg finds we are contravening the ECHR it still comes back to Parliament to make changes to the law in question.’ In this case, not necessarily. Take a look at sections 17(2) and 17(3) of the Act. They mean that the Secretary of State can abolish part or all of the quadruple lock [*] without a further Act of Parliament. (Although he would have to obtain a resolution in each House of Parliament confirming his action.) I don’t normally approve of Henry VIII clauses, but I must confess to feeling a certain grim satisfaction about this one.… Read more »

Simon Sarmiento
Guest

I don’t think that’s a correct interpretation of Clause 17, Feria. Clause 17 deals only with “Transitional and consequential provision”.

Craig Nelson
Guest
Craig Nelson

The Human Rights Act gives the power to change legislation by order where it is incompatible with the Convention. However it is still Parliament ‘s decision ultimately.

It’s rather moot because I haven’t seen anywhere anyone claiming the legislation does breach the Convention.

Jeremy
Guest
Jeremy

I do agree with Stuart about something very improper in our culture and society in legally challenging a new law (especially considering it expands rights considerably and is very much pushed and sponsored by the LGBT community). This doesn’t make much sense in any culture or country but in a representative parliamentary democracy it is deeply troubling.”

Why is this so troubling?

New laws often fall short of just principles.

Read de Tocqueville on the tyranny of the majority.

Craig Nelson
Guest
Craig Nelson

I hardly think Tocqueville apposite in this case. The same sex marriage law is done by the majority, while churches not wishing to enter into such unions are minorities that according to Tocqueville would require protection. Tocqueville and J.S. Mill both highlight the problem of a tyrannical majority. A majority that enforced its views on unwilling churches would be acting tyrannically and it is for that reason we have the protections of the ECHR (e.g. art 9). Anyway what I find troubling is the idea that the elected Parliament (and the one half non-elected one) can be overruled by a… Read more »

robert Ian williams
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robert Ian williams

The Governing Body of the Church in Wales is quite an elderly body, and I can’t see it going out of the way to opt out of this governmment legislation.

Father Ron Smith
Guest

“The Governing Body of the Church in Wales is quite an elderly body” – Robert Ian Williams –

And so is the governing body of the Roman Catholic Church at the Vatican; but what does that have to say about church governance?

Ah Well! Point taken!

Craig Nelson
Guest
Craig Nelson

On the other hand the House of Lords are fairly aged but they came through for us. I do have a lot of hope vested in Wales, especially after their evidence at the Commons committee stage.