Monday, 18 June 2012

other legal views of the CofE response to government

See text of response, and some initial press coverage here. Subsequent coverage here, and then here.

Several articles disagreeing with the legal views expressed in the CofE document:

Adam Wagner Will the European Court force churches to perform gay marriages?

Paul Johnson Church of England’s argument against gay marriage is without foundation

…The CoE’s argument regarding canon law is without any foundation. Canon law, under the Government’s proposals, will be left untouched. The CoE could even, should it wish to, strengthen the heterosexual exclusivity of its canon law on marriage through the introduction of new Measures prohibiting same-sex marriage on its religious premises in the future; the proposed statutory legislation on same-sex civil marriage would provide no bar to it doing this. Like others, I believe that this would be regarded as acceptable by the European Court of Human Rights under Article 9 of the European Convention on Human Rights.

In light of this, the focus on canon law in the CoE’s response to the consultation must be seen as a cynical strategy designed to stall this important development in civil marriage law. It is a tactic that attempts to obscure and mystify the relationship between canon and statutory law in order to convince of the CoE’s legal authority in marriage. Yet neither canon law nor the CoE has any legal influence in respect of civil marriage which remains regulated solely by common and statutory law.

Whilst the CoE’s response to the Government’s consultation demonstrates its trenchant ideological opposition to the social evolution of marriage, its reliance on canon law reveals how threadbare its arguments have become. In place of robust and rational argument, the CoE have resorted to incoherent and flawed legal claims which, once subjected to scrutiny, fail to provide any justification for preventing gay men and lesbians in loving, permanent and life-long relationships from contracting civil marriage.

Karen Monaghan Leading QC contradicts equal marriage critics - proposals will not force Church to marry gay couples

“…the protection afforded by Article 9 to religious organisations is strong…I consider that requiring a faith group or a member of its clergy to conduct same-sex marriages contrary to its doctrine or the religious convictions of its members would violate Article 9. Any challenge brought on human rights grounds seeking to establish a same-sex couple’s right to marry in church would inevitably fail for that reason. In balancing the rights of a same-sex couple and a religious organisation’s rights under Article 9 (in particular, in relation to a matter such as marriage, so closely touching upon a religious organisation’s beliefs) the courts would be bound to give priority to the religious organisation’s Article 9 rights.”

And Liberty director Shami Chakrabarti said:

The debate around same-sex marriage becomes hysterical when people don’t understand relevant law and principle. As this country’s national Human Rights organisation, we have a long tradition both of promoting equal treatment and defending the rights of those whose opinions we do not share.

We are not religious experts - but frankly- neither are the Bishops human rights lawyers. The Church of England should have greater confidence in the strength of freedom of conscience protection under Article 9. As our leading QC’s opinion clearly demonstrates, provision for gay marriage in the UK could never result in religious denominations opposed to it being ordered to conduct such ceremonies.”

Posted by Simon Sarmiento on Monday, 18 June 2012 at 12:57pm BST | TrackBack
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Categorised as: Church of England | equality legislation
Comments

Back in the late 60's when I was earning my undergraduate degree, I elected to take a course in Christian ethics and was quite taken with Niebuhr's "Moral Man and Immoral Society" as a compelling critique of the failure of governmental and economic systems to act in moral ways. I never thought at the time that his condemnation would also have to be directed at the "institutional" church. It matters not whether we are talking about the civil marriage response or the women bishops amendments. They are decisions to made to hold or appease power, a fact betrayed by a defense from tradition rather than rational argument.

Posted by: David BIeler on Monday, 18 June 2012 at 3:50pm BST

There is also the Law Society's response to the Government's proposal, which led one commentator to remark "Considered clinically, as a matter of law the House of Bishops document seems to be tendentious scaremongering, for a non-legal purpose". http://www.lawsociety.org.uk/secure/file/198558/d:/teamsite-deployed/documents/templatedata/Internet%20Documents/Government%20proposals/Documents/ls-response-equal-civil-marriage-consultation.pdf

Posted by: Lapinbizarre/Roger Mortimer on Monday, 18 June 2012 at 4:51pm BST

"contrary to its doctrine or the religious convictions of its members..."
It's that last bit that rather begs the question in any event. I'd hate the thought of a challenge that assumed I agreed with the official C of E statement.

Posted by: Marika on Monday, 18 June 2012 at 5:16pm BST

One might question why the Christian Church would ever have cause to question the efforts of the State to bring about justice and equality of opportunity for ALL of its citizens.

The scare-mongering tactics of the Bishops' reaction to the prospect of Gay Marriage seems to prejudice any attempt by other religious groups to carry out their enabling ministry to Same-Sex couples who want to place their loving monogamous relationships before God. This 'dog-in-the-manger' tactic does not win friends for the Church among the 'un-churched' either.

Posted by: Father Ron Smith on Tuesday, 19 June 2012 at 12:02pm BST

Shami Chakrabarti: 'The Church of England should have greater confidence in the strength of freedom of conscience protection under Article 9.'

Well, that wouldn't be the same article 9 that Ladele (a registrar who refused to carry out civil partnerships) and McFarlane (a relationship counsellor who opted out of working with gay couples) were expected to rely upon, would it?

Solemnising a marriage should indeed be considered a 'manifestation of religion', but, should she prove wrong, I'd love for Karen Monaghan, QC to be willing to 'eat crow' and pay for the financial impact of any reliance by the CofE on her published counsel. If she's not just giving professional credibility to informal advice, one might tell her: 'put your money where your mouth is'.

Posted by: David Shepherd on Tuesday, 19 June 2012 at 2:14pm BST

Ladele is completely different as that case is one of an employee of the secular state as opposed to a church proving ceremonies according to or contrary to their doctrine.

The freedom of religious belief tends to the absolute whereas the 'manifestation' of religious belief is not and has to be balanced with the rights of others.

The two instances are very different.

Posted by: Craig Nelson on Wednesday, 20 June 2012 at 9:18am BST

The parish priest has a statutory duty established by an Act of Parliament to solemnise the marriages of all legally eligible partners of any faith or affiliation, who want a church wedding and who are resident or have a qualifying connection.

The solemnisation is not a religious belief, but aspects of the ceremony are a manifestation of that belief.

If we agree that Article 9 has to be balanced with the rights of others, why shouldn't the Article 12 and Article 8 rights be considered also? In which case, as I indicated, the learned QC's reassurance of Article 9 exemption is unreliable.

Posted by: David Shepherd on Wednesday, 20 June 2012 at 11:16am BST
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