Friday, 21 September 2012

Equal civil marriage: further developments

In late July, we reported that Prime Minister criticises Church on same-sex relationships, and that this had prompted Anglican Mainstream to write a response. Today, Anglican Mainstream has published the response it received from David Cameron and you can see the correspondence at The Prime Minister writes to Anglican Mainstream.

The government ministers responsible for equalities changed in the recent reshuffle, and the new Secretary of State with responsibility for this (replacing Teresa May) is Maria Miller. She recently wrote this article: The state shouldn’t stop people marrying unless there is a good reason. Being gay is not one of them and recorded this video for Out4Marriage.

Two earlier articles on the topic that appeared on Law and Religion UK in June are:

The Campaign for Marriage has published a summary of the legal opinion provided by Aidan O’Neill (PDF) on a variety of scenarios that could arise if the legislation is enacted. This is well worth reading.

Posted by Simon Sarmiento on Friday, 21 September 2012 at 6:27pm BST | TrackBack
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Categorised as: equality legislation
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re : Anglican Mainstream has published the response it received from David Cameron

In their 25th July 2012 letter to Cameron, "Mainstream" writes: "When we are baptised, we make a commitment ..." Well, they aren't as evangelical as they think; no true evangelical would think that an infant being christened was able to make any kind of commitment for him or herself, other than promise their parents that the next dirty nappy will be along soon :}

Anyway, it was predetermined they weren't going to be happy with any answer other than a doctrinal one, and predetermined that they knew they'd never get such a response. I suppose their letter to the PM was mostly just PR communications with their followers to show that they're doing something to keep their religious position out there on public record.

Posted by: Randal Oulton on Friday, 21 September 2012 at 8:29pm BST

As far as I am aware, in the Netherlands, Canada etc, churches are legally exempt from having to marry same-sex couples, so surely it should be possible to write such an exemption into UK law too, as faith groups are already exempt fom some equalities laws which apply in other settings? Even in the Church of England, an established church, blatant sexual discrimination goes on which would be unthinkable in secular settings, but it has not been compelled to stop. However, if this is really a source of anxiety, disestablishment might set church leaders' minds at rest.

Posted by: Savi Hensman on Friday, 21 September 2012 at 11:05pm BST

I puzzled over the statement that a UK Parliament statute could be challenged under another statute (a marriage equality law under the Equality Act).

This makes no sense.

Firstly, the current Equality Act already exempts religious bodies from equality legislation so the issue doesn't arise.

Secondly, the marriage law can amend the Equality Act in any case and will probably do so in any case to allow the Scottish Parliament to legislate on marriage equality.

I think both Acts of Parliament will be quite explicit on there being no application of equality law in the area of same sex marriage as is already the case but more explicit as pertaining to marriage. Problem solved.

Some of the other points are equally silly, but well worth a read for a good laugh.

Posted by: Craig Nelson on Saturday, 22 September 2012 at 1:50am BST

Savi & Craig, the C of E's response to the Consultation Marriage document outlines the C of E's legal concerns about this. I recommend that you have a read of it - should be easy to Google.

It's worth noting that matrimony law in the UK is set up quite differently to the continent, and particularly with regards to the C of E, so the lack of legal issues in other countries isn't a guide to what might happen in England & the rest of the UK.

Craig, if the UK were not subject to European equality law your points would have more weight, but there are particular concerns about what happens when (not if) the law gets challenged in Strasbourg.

There are signs that the politicians on both sides of the debate are starting to take those concerns seriously.

Posted by: Peter+ on Saturday, 22 September 2012 at 9:51am BST

Peter+ wrote It's worth noting that matrimony law in the UK is set up quite differently to the continent..

It is worth noting that matrimony law in England is set up quite differently to the rest of the UK...

Posted by: kennedy fraser on Saturday, 22 September 2012 at 3:42pm BST

"There are signs that the politicians on both sides of the debate are starting to take those concerns seriously."

There have been some well run and very well attended consultation events here in Wales and I got the impression from the middle rank officials and at least one senior politician that there has been a very deep and sincere concern from the off about how people from the religions might react.

As to the legal matters. I raised several of the issues that concerned me at the preliminary session and this was said in reply:

"We are not going to introduce gay marriage by tinkering with previous legislation. We intend to produce a new Marriage Act."

Neither do I think that THIS has sunk in at Church House etc ......

Posted by: Martin Reynolds on Saturday, 22 September 2012 at 4:54pm BST

Peter, I am aware of the official C of E response, and recognise that it might indeed be argued, if and when same-sex marriage is legally recognised, that it would be unwarranted interference in religious freedom to prohibit faith communities from celebrating such marraiges if they so wish. However, this would not mean that faith communities will be compelled to celebrate these.

Since laws have successfully been worded to permit discrimination within faith-related settings in the UK, and exemption from having to celebrate same-sex marriage by faith groups in countries where this is legally recognised, I cannot see why it should not be possible in future to write exemptions into laws enabling same-sex couples to marry in some part of the UK.

Posted by: Savi Hensman on Saturday, 22 September 2012 at 11:14pm BST

England and WALES, please kennedy.

Posted by: Martin Reynolds on Sunday, 23 September 2012 at 9:14am BST

England and WALES, please kennedy.

My apologies, I understood that religious marriage provisions in England were derived from the CofE and so I thought that Wales perhaps had different arrangements.

Posted by: Kennedy on Sunday, 23 September 2012 at 3:37pm BST

Peter +:

1) The fears expressed by the C of E's official response (along lines of "the courts will force unwilling vicars to conduct gay marriages") are NOT well-founded. For an explanation which I sent to the Govt Equalities Office along with Scot Peterson, Diarmaid MacCulloch, Judith Maltby and others, see here: http://politicsinspires.org/2012/06/same-sex-civil-marriage-and-the-established-religious-lobby-providing-the-government-with-good-information/ and here https://dl.dropbox.com/u/68797147/Response%20to%20CofE%20%2818-06-2012%29.pdf.

2) Scottish marriage law has never been the same as English. In the view of many (including, I think, Aidan O'Neill) it is more logical. Under Scots marriage law it will be relatively easy to do what the Scottish Government's bill proposes: namely open equal marriage to those religions that want to do it, while guaranteeing the protection of those religions, and individual ministers, who do not.

Posted by: Iain McLean on Monday, 24 September 2012 at 9:32am BST

Iain:
From your link: 'Civil marriages performed under the Marriage Act, 1949 cannot include religious elements, including prayers, readings from religious texts or religious songs.' This language confounds the ceremony with the institution of marriage.

The church has fought to main the ceremonial distinctions, but legally a marriage by civil ceremony entails the same rights and liberties as marriage by religious ceremony. It's this false dichotomy with which the CofE takes issue.

British citizenship is analogous. By birth and immediate descent, it is automatically granted. In contrast, by naturalisation, citizenship is granted on application and remains at the discretion of the Home Secretary. As with marriage, the means of entry may differ, but the institution is one and the same.

In our modern liberal democracy, country of origin 'serve(s) as a basis for policy distinctions in the absence of a functional rationale'. If the complementarity argument is sexist, do you consider any form of citizenship to be, at the very least, indirectly discriminatory? Is there what you call a functional rationale behind country of origin as a citizenship criterion?

Posted by: David Shepherd on Monday, 24 September 2012 at 5:55pm BST

David Shepherd is right to point out the distinction, seemingly misunderstood or ignored by the Government in its 'Equal Civil Marriage' consultation paper, between the institution of marriage and the ceremony (wedding) by which two people become married. As Anglican Mainstream point out, David Cameron repeats the false distinction between civil and religious marriage in his recent reply to Dr Giddings in which he wrote: "... the Government recognizes the special position of religious marriages in our society and the consultation proposes that no changes are made to how religious organizations define and solemnize religious marriage."

But in law there is, and can be, only one legal 'definition' of marriage, as the House of Lords made clear in a judgment 100 years ago (R v Dibdin [1912] AC 533, quoted in my letter published in The Times on 15 March 2012): "They are in law lawful spouses, whether married in church or registrar's office, and must in law be so regarded." Or, as Lord Justice Fletcher Moulton said in the same case in the Court of Appeal: "The contract of marriage is a contract whereby a man and a woman accept the relationship of man and wife, the one to the other, and the status and obligations which flow therefrom. The procedure by which the contract can legally be made may vary widely, but the result is in all cases the same. To the law there is only one contract of marriage."

It is the Government's continued failure to appreciate this point which so concerns many Christians who, if the law is changed to permit 'civil' marriage as the Government proposes, fear a legal challenge by those who would seek, on equality grounds, to compel churches to conduct religious same-sex marriage services, a challenge that would undoubtedly be taken to the ECtHR whatever any new Marriage Act might say.

It is also an indication of the shallowness of the Government's case that it fails to mention the Dibdin judgment in its consultation paper, stating (wrongly) in para 2.4 that "Marriage is defined according to where it can take place."

Posted by: David Lamming on Monday, 24 September 2012 at 11:35pm BST

David L

Even now, C of E clergy are not compelled to marry all who can be lawfully married. To quote the C of E website, 'The Church of England agreed in 2002 that divorced people could remarry in church under certain circumstances. However, because the Church views marriage to be lifelong, there is no automatic right to do so and it is left to the discretion of the Priest.' Indeed even the heir to the throne did not have a church wedding in 2005.

Carefully worded laws can, and do, provide all manner of exemptions from ordinary equality legislation. I think the C of E will in time allow willing clergy to marry same-sex couples, but as a result of the strength of the theological case and pressure from its own members not legal compulsion.

Posted by: Savi Hensman on Tuesday, 25 September 2012 at 10:57am BST

I found this item, posted on the Fulcrum web-site, most interesting. For the writer, a west London Rector and 'Deliverance ministry' officer in his part of the London diocese, to be in favour of the Blessing of monogamous Same-Sex Partnerships, must surely be an important indicator of his pro-gay convictions.

He is, however, not in favour of Same-Sex Marriage - on the grounds that he discusses in this link:

http://www.fulcrum-anglican.org.uk/?741

Whatever one thinks of the writer's arguments, he is distinctly in favour of Blessing Same-Sex Partnerships - something which the church ought to have considered, ahead of the move for S/S Marriage.

This is a great affirmation of the fact that S/S relationships are not 'of the devil', otherwise might not Fr. Matthew have been inclined to test his 'deliverance' ministry?

I applaud this priest for his honesty - about a matter that has seemingly be-devilled the church in its quest for ritual purity - when everyone knows that we are ALL sinners, in need of God's love and redemption.

Posted by: Father Ron Smith on Tuesday, 25 September 2012 at 11:53am BST

While it is true that there is no legal difference, under English law, between a civil and a religious marriage, there is a distinct religious difference, and churches are free, for their own purposes, not to recognized as married those whom the state recognizes as married. For example, the Roman Catholic church can refuse the sacraments to a divorced person with a living spouse who undertakes a civil marriage. (Some Anglicans used to hold this position -- and some perhaps still do.)

This may seem like a distinction without a difference, but it does indicate that the churches have a degree of authority over their own members, in relation to the ministry of the church. So it isn't only the ceremony that differs, but the "marriage" as an estate that differs -- when the religious body chooses to enforce that difference, which I take it it is free to do.

Posted by: Tobias Haller on Tuesday, 25 September 2012 at 3:16pm BST

Savi:
The CofE exemption regarding re-marriage of divorcees does not infringe upon the rights protected under the Equality Act, whereas any sexual orientation exemption would. Divorced status is not a protected characteristic under UK law.

Ron:
I read your link to the Fulcrum article. 'God is love and those who live in love live in God, and He in them' (1 John 4:16) is quoted by the author as the basis for endorsing a mutual loyal homosexual relationship. The author goes as far as to indicate that the love mentioned here is sacrificial agape.

What undergirds this love, of course, is the first and great commandment (Matt. 22:38). Love for God has first claim on us before all human loyalties and earthly covenants. In Abraham's case, his covenant of natural parental care was overruled: 'Then God said, "Take your son, your only son, Isaac, whom you love, and go to the region of Moriah. Sacrifice him there as a burnt offering on one of the mountains I will tell you about."' (Gen 22:2).

Although, as with Abraham, divine intervention may spare us the loved one's immediate demise, love for God must take precedence to the extent of surrendering even a mutual and loyal relationship in conformity to God's revealed will. This is clearly one of the hardest sayings, but nevertheless true.

Under 'Pro Argument for Blessing of Partnership: from Covenant', the writer considers the sacrifice of such a mutual, loyal human covenant to God's will as 'not only cruel but a near-pharisaic denial of the overflowing of divine love into present reality'.

1) I would question whether God's will is always consonant with mutual, loyal human covenants.
2) I would especially challenge the logic of an argument that could be extended to suggest that Abraham's sacrifice of a mutual, loyal human relationship to God's revealed will was anything *less* than 'an overflowing of divine love into present reality.'

Posted by: David Shepherd on Tuesday, 25 September 2012 at 3:51pm BST

It really does seem as if this is more complicated than it needs to be. Here in the States there's only one sort of marriage, but the couple may choose who officiates - clergyman, judge, or whatever. A priest acts as an officer of the State when presiding over a wedding, and cannot act without the State-issued marriage license. No member of the clergy, as far as I know, is required to marry a given couple.

Actually, I suppose that whether or not there's only one sort if marriage, either here or in the UK, depends on your viewpoint. In the eyes of the State any couple married with the proper license and procedure is married, but that doesn't hold for how that marriage is regarded by a religious body. A legal marriage is not necessarily a valid sacramental marriage.

Posted by: Bill Dilworth on Thursday, 27 September 2012 at 7:55pm BST

While perusing the web recently I came across this link:

http://www.churchofengland.org/our-views/marriage,-family-and-sexuality-issues/same-sex-marriage.aspx

containing the paragraph of Rowan Williams' speech to the WCC with an oblique reference to same sex marriage.

I had been meaning to read it again so was glad to come across it. Curious to state it appears to me to be an argument in favour of same sex marriage. If, after all, Rowan Williams is calling for 'strategic patience' then surely after one has been patient for long enough (as well, presumably, strategic enough) one gets there in the end (it's a long journey that says you NEVER arrive at your destination - I think I'd want a refund of my ticket, though I admit I've had train journeys where I thought I'd never arrive).

To provide my own summary/commentary:

Negative laws (protecting minorities from discrimination) can precede popular majorities but for a major change in institutions (for example marriage) such sweeping change cannot be introduced until majority opinion is in favour after a process of a gradual evolution of attitudes has taken place which provides the framework for such decisions to be taken.

I would add that if marginalisation and stigma still persist that the law does still have a role in aiming at equitable solutions but that one needs to be strategic and patient in doing so.

This is a not very controversial Burkean idea of gradual, evolutionary social change and kind of seems very reasonable to me and is shared by many prominent proponents of marriage equality such as Andrew Sullivan and Jonathan Rauch (in the US) and, in general, I tend to agree to this way of looking at things.

I don't find anything in that to be controversial. It has more application in a country such as the US where it's a useful counsel (strategic patience meaning State by state rather than federal, legislature rather than by judiciary). In a parliamentary system (such as England/Wales and Scotland) we are already in the slow lane of political action.

The upshot of this seems to be that Rowan is only 'opposed' to same sex marriage in the most carefully drawn and nuanced manner posible. At least in this piece quoted here - and this is the bit they quote on the C of E website as being Rowan indicating his reasoning on the matter.

Posted by: Craig Nelson on Monday, 1 October 2012 at 1:18am BST
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