Monday, 17 December 2012

Same-sex marriage in Scotland

Frank Cranmer has analysed the draft Marriage and Civil Partnership (Scotland) Bill. Read all about it at Same-sex marriage in Scotland – the draft Marriage and Civil Partnership (Scotland) Bill.

Two extracts from his article which may be of particular interest to English or Welsh readers:

The [consultation] document begins with a list of “proposed protections” at para 1.06 (which is not on all fours with the recent English proposals):

  • religious bodies that wish to solemnise same-sex marriage or register civil partnerships will have to opt in to do so;
  • there will be no obligation on religious bodies and celebrants to opt in to solemnise same-sex marriage and register civil partnerships;
  • religious celebrants will only be able to solemnise same-sex marriages or register civil partnerships if their organisation has decided to opt in;
  • if a religious body decides to opt in, there will be no obligation on individual celebrants to solemnise same-sex marriages or to register civil partnerships.

And there is this:

In addition, it has concluded that an amendment to the Equality Act 2010 is required – which would need to be made by the United Kingdom Parliament rather than by the Scottish Parliament. A draft of the proposed amendment to the 2010 Act is at Annex N.

Possibly with Ladele in mind, the Government has decided that the legislation should not include a conscientious opt-out for civil registrars.

Posted by Simon Sarmiento on Monday, 17 December 2012 at 9:43am GMT | TrackBack
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Categorised as: equality legislation

Devolution is great. It enables the Scots and English to learn from one another's mistakes. Am browsing the Scottish Govt document now. As well as the differences noted by Frank Cranmer, the following is notable:

3.15 The Government will not ban people who are against same sex
marriage from fostering children. The existing guidance
on who can apply
to be a foster parent states that: “As well as diverse family structures, valuing
diversity also relates to welcoming applications from families from different
ethnic, religious or cultural backgrounds”.
3.16 The Government will consider if amendments to the guidance are
needed to make it clear that Christians and people of other faiths can apply to
become foster parents and that a would-be fosterer should not be rejected
just because of his or her views on same-sex marriage.

Therefore, Scotland will not get tangled in the issues in the Johns v. Derby City Council case.

Posted by: Iain McLean on Monday, 17 December 2012 at 4:54pm GMT

Simon, please clarify for those of us across the Pond: what does the phrase "not on all fours" connote?

ED: It's legal jargon, not specifically British.

Posted by: Marshall Scott on Monday, 17 December 2012 at 7:32pm GMT

I thought being 'on all fours' was games we play with our children - being wild creatures and so on.

Posted by: Laurence Roberts on Tuesday, 18 December 2012 at 10:56am GMT


Good point, but without a statutory provision, Scottish local authorities may yet become embroiled in future conscientious objection tribunal cases, unless the outcome of Ladele's case closes that door for good.

Admittedly, the consultation explains that there were no such cases after the introduction of civil partnerships, but there are some registrars who may view changes to marriage with greater concern, considering that however the ceremony performed, they affect an institution with a far more enduring shared social significance and meaning than CPs.

Perhaps, they're bullish about the government's odds in respect of Ladele's pending case at the ECHR.

Posted by: David Shepherd on Tuesday, 18 December 2012 at 6:14pm GMT

The phrase "not on all fours" is fairly commonly used in the American legal world. It is often used where a previous reported decision has legal or factual differences from the current matter so that the previous reported decision does not necessarily govern the current matter. Apparently, the phrase comes from the Latin maxim, "Nullum simile est idem nisi quatuor pedibus currit," which means, "No similar thing is the same unless it runs on all four feet."

Posted by: dr.primrose on Wednesday, 19 December 2012 at 12:15am GMT

The Freedom of Speech provision in Frank's post says that there will be legislative guidelines about abusive speech or behaviour. Are we worried that a Fred Phelps of Westboro Baptist Church will descend from the Wee Free congregations in the Highlands and Islands to picket ceremonies in Edinburgh?

Posted by: Scot Peterson on Wednesday, 19 December 2012 at 8:23am GMT

Thanks to all for the definition.

Posted by: Marshall Scott on Thursday, 20 December 2012 at 3:19am GMT
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