Friday, 1 February 2013

Proposed change to Schedule 9 of the Equality Act

The Marriage (Same Sex Couples) Bill proposes to make a number of changes to the Equality Act 2010. One of them is in paragraph 41 of Schedule 7 of the Bill (page 52 in the paper version). As the Explanatory Notes say:

Paragraph 41 amends Schedule 9 paragraph 2 (religious requirements relating to sex,
marriage etc, sexual orientation) so that, where employment is for the purposes of an
organised religion, an occupational requirement may allow a restriction that a person
should not be married to someone of the same sex. This means, for example, that a church may require that a priest not be married to a person of the same sex.

The change alters Schedule 9 paragraph 2 in the following manner (added words are in bold face):

Religious requirements relating to sex, marriage etc., sexual orientation

2(1) A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to employment a requirement to which sub-paragraph (4) applies if A shows that—

(a) the employment is for the purposes of an organised religion,

(b) the application of the requirement engages the compliance or non-conflict principle, and

(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

(2) The provisions are—

(a) section 39(1)(a) or (c) or (2)(b) or (c);

(b) section 49(3)(a) or (c) or (6)(b) or (c);

(c) section 50(3)(a) or (c) or (6)(b) or (c);

(d) section 51(1).

(3) A person does not contravene section 53(1) or (2)(a) or (b) by applying in relation to a relevant qualification (within the meaning of that section) a requirement to which sub-paragraph (4) applies if the person shows that—

(a) the qualification is for the purposes of employment mentioned in sub-paragraph (1)(a), and

(b) the application of the requirement engages the compliance or non-conflict principle.

(4) This sub-paragraph applies to—

(a) a requirement to be of a particular sex;

(b) a requirement not to be a transsexual person;

(c) a requirement not to be married or a civil partner;

(ca) a requirement not to be married to a person of the same sex

(d) a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;

(e) a requirement relating to circumstances in which a marriage or civil partnership came to an end;

(f) a requirement related to sexual orientation.

(5) The application of a requirement engages the compliance principle if the requirement is applied so as to comply with the doctrines of the religion.

(6) The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

(7) A reference to employment includes a reference to an appointment to a personal or public office.

(8) In the case of a requirement within sub-paragraph (4)(a), sub-paragraph (1) has effect as if in paragraph (c) the words from “(or” to the end were omitted.

Posted by Simon Sarmiento on Friday, 1 February 2013 at 4:21pm GMT | TrackBack
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Categorised as: equality legislation
Comments

Always the Church that has exemption from Equal Opportunities Legislation instead of being in the van to support it.

God must weep!

Posted by: Jean Mayland on Friday, 1 February 2013 at 5:26pm GMT

What Jean Mayland said. She must.

But how obscene and cruel that the state could discriminate in law against ministers of religion. Do we count for nothing ?

Hard to see what a 'Church' could do to a minister who married, without losing all credibility with the public.

Posted by: Laurence Roberts on Friday, 1 February 2013 at 7:37pm GMT

But, whereas civil Equal Opportunities are for *everyone* (whether the Church, or Government, thinks that their beliefs are right or wrong), every religious group has the right to expect its ministers to conform to their beliefs. Thimples!

ps the RCs already sack priests who marry!

Posted by: RevDave on Friday, 1 February 2013 at 8:13pm GMT

RevDave,
there is a difference between not allowing any priest to marry and inventing two categories of priest, of which only one is allowed to marry.

Posted by: Erika Baker on Friday, 1 February 2013 at 8:47pm GMT

Dave not a flippant matter. Except for unaffected armchair critics.

However, I SHALL marry.

As I understand Protestantism it is about freedom of thought, belief and practice.

You refer to the Roman church which is totalitarian as we know, from so many instances of repression. Cf the Revd Brian Darcy SJ being pulled from radio 2 etc., for criticising the hierarchy for its (mis) handling of clerical child abuse; and now attempts to intimidate the Revd Tony Slattery for speaking according to his informed conscience.

Posted by: Laurence Roberts on Friday, 1 February 2013 at 11:42pm GMT

Now that the House of Bishops is positioning itself to make sure that Clergy are denied the opportunity of marriage to their Civil Partners, I begin to wonder how many years it will be before it tries once more to re-write history and appear to have been supportive of such a thing? Has the House of Bishops addressed the question of what to do if and when Clergy who have the freehold 'convert' their civil partnerships into civil marriages? I gather that in the eyes of the Law the marriage status will be retrospective. The Church of England will thus have had Clergy in same-sex marriage for a number of years. Since the House of Bishops has shown itself to be a great believer in 'legal fictions', how will it extricate itself from that one?
The simple solution to all three questions is that this alteration to the Equality Act, Schedule 9, should not happen. The House of Bishops should act transparently to have it removed.

Posted by: commentator on Saturday, 2 February 2013 at 8:35am GMT

I think I disagree and support this amendment and see it as part of the quadruple/quintuple lock the legislation envisages.

No matter what happens there will be married couples in the Church of England (of the same sex).

Posted by: Craig Nelson on Sunday, 3 February 2013 at 12:00am GMT

No-one can stop clergy and others from marrying - consider it done. A fait accompli.

Posted by: Laurence Roberts on Sunday, 3 February 2013 at 3:04pm GMT

"As I understand Protestantism it is about freedom of thought, belief and practice."

Laurence, no! Well, maybe.

A protestant Christian does not have unfettered freedom to think, believe and practice anything - without ceasing to be a protestant Christian and becoming merely a Protestant! So maybe you are right!

ps I think you might find that the House of Bishops will now have to insist that entering marriage with a same-sex partner would be behaviour unbecoming of a clerk in Holy Orders...

Posted by: RevDave on Sunday, 3 February 2013 at 5:44pm GMT

This is about as depressing a little para as could be. I do hope the House of Bishops stop and think what it is going to look like if they make it so that people who love each other and want to be committed to so doing for life, one or both of whom are clergy, are to be disciplined/prosecuted/inhibited/defrocked (strike out - as Molesworth would have said - that which do not apply) for getting married. That has to be the sickest kind of twisted logic.

They really are happier with clergy "living in sin". But I think Laurence R is right: there will be clergy who can legally marry same-sex partners and will because conscientiously it represents for them the epitome of a loving committed partnership.

Posted by: Jeremy Pemberton on Sunday, 3 February 2013 at 7:35pm GMT

This is no invention of two categories of priests.

The government has finally agreed with the Church of England that 'The Canons of the Church of England form part of the law of the land but cannot be contrary to general law.' (House of Commons Library Research Paper 13/08)

It is because of this, that the Equality Act 2010 must be amended to ensure that any application of Clergy Discipline Measure 2003 in accordance with those Canons cannot be construed as a contravention of the same act.

While not detailing what actually constitutes 'unbecoming or inappropriate conduct', such conduct is one of four grounds for alleging clergy misconduct that triggers the clergy discipline process. The Code of Practice states 'In particular the clergy should live their lives in a way that is consistent with the Code of Canons (principally C26, C27 and C28).'

Canon B30 is part of the Code of Canons. Unless Canon B30 is amended by a Measure that has the backing of General Synod, a complaint that a member of the clergy lives in a way that contravenes Canon B30 should be subject to church discipline. Whatever the threat of political fallout cited by others, that discipline can never be construed as a contravention the Equality Act 2010.

Posted by: David Shepherd on Sunday, 3 February 2013 at 10:51pm GMT

David,
I fully understand why the law has to be framed as it will be.
My point was that it would be utterly shameful if CoE internally created a second class of priests that is not allow to marry.
That said, I agree that it will probably happen. It will be a while yet before the churches become moral organisations.

Posted by: Erika Baker on Monday, 4 February 2013 at 7:33am GMT

On this one occasion (I'm not saying this will never be repeated but is likely to be rare) I agree with David Shepherd. The amendment is necessary to preserve religious liberty for organisations that do not wish to recognise same sex marriage.

Posted by: Craig Nelson on Monday, 4 February 2013 at 1:32pm GMT

Gay couples will muddle on creative and ordinary, godly and gay as before - making tea, remembering tio let the cat back in -

some caring for children, neighbours and others; some lesbians & gays of course going to school and college and facing All That; some of us drawing our pension- all very ordinary and yet lgbt are glorious too - to those with eyes to see is it ?
Or simply hearts that can open ....

So don't worry about too much about ecclesiastical niceties which mean and count for nothing in the big scheme of things (Cf Sermon on Mount /Plain); there's really no need for you to worry.

Posted by: Laurence Roberts on Monday, 4 February 2013 at 3:27pm GMT

So the HoB will not extend sacramental marriage to those clergy who are civilly married to same-sex partners. They will maintain a 'theological truth' and a 'legal fiction'. We become more Roman every day. - But the established church will deny citizens access to their legal rights. And you can rest assured the actions will be brought under the CDM by the Church Society and others. The Church of England will be exposed to general ridicule from the vast majority of English men & women. Her mission & ministry will be weakened further as more & more reasoning intelligent people refuse to submit to such practices. She will be 'purer' by each passing day as Reform et al would say.

Posted by: Commentator on Monday, 4 February 2013 at 3:46pm GMT

Sir Ian McKellen has spoken out against 'religious and homophobic prejudice' in the Chancellor's Lecture, at Ulster University. On the occasion of his being awarded an honorary doctorate by the University.

Life is 'getting worse for some gays', he says.

I would have to disagree with Craig Nelson and others, it is not 'religous liberty' which is risk, it is not Churches that need 'protection', but many vulnerable lgbt people, young and old, in the UK and Northern Ireland; - and indeed around the world.

I regret that the Churches may never be forgiven for what they have done and are continuing to do with impugnity.

Marriage equality is acoming in, and all who wish to will marry - whether employed by 'the Church of England', or not. The Churches are left looking more and more cruel, bullying, spiteful and again collaboraters with oppression and repression. be it the Roman Church, the Cof E or the Russian Orthodox Church. Alas.

http://www.pinknews.co.uk/2013/02/04/ian-mckellen-gay-rights-are-advancing-but-life-is-worse-than-ever-for-some-gay-people/

Posted by: Laurence Roberts on Monday, 4 February 2013 at 4:11pm GMT

Morally I think that there are big problems in the churches' way of proceding and I have (and will always do so) but I actually believe in liberty as a good in itself. I do believe in discrimination law that is general in nature (i.e. with limited and carefully crafted exemptions); however religious organisms have a measure of autonomy from the State (even though the State, in this debate at least, has right on its side and the religious organisms left defending disreputable prejudices from the past) and for that reason I believe it should be lawful for churches to discriminate against gay people even though I think it's a very wrong thing that they do - their consciences should not be coerced by the State.

This is also guaranteed under article 9 of the ECHR.

One can support legislation and at the same time seek exemptions from it without inconsistency.

Posted by: Craig Nelson on Monday, 4 February 2013 at 8:18pm GMT

Craig
"One can support legislation and at the same time seek exemptions from it without inconsistency."

Indeed, one can.
But one can also support legislation and the freedom of religion while at the same time deplore those churches that make use of that freedom for immoral purposes.

Posted by: Erika Baker on Tuesday, 5 February 2013 at 7:39am GMT

Because I was doing a few radio interviews last night and this morning I asked the CinW information office if there were any reason to suspect the CofE were going to outlaw gay marriage. They said that nothing of this sort had been mentioned in joint discussions.

I rang two Welsh bishops about the Welsh Church position and if there had been contact from England, and one said that while in practice bishops could ordain or licence just who they wanted, both agreed there had been no discussion yet alone agreement on outlawing gay married clergy and confirmed that there had been nothing in contacts with the CofE to suggest they were going that way.

My own view is that it will be impossible for the CofE to discipline clergy for entering marriage when the official teaching is, they have not.

Posted by: Martin Reynolds on Tuesday, 5 February 2013 at 8:25am GMT

Martin,
thank you for that.
I suppose the rumours really come about because there will be no more pretence that marriages are the same as celibate friendships and it will be quite impossible for the church to insist that their same sex married priests must remain celibate.

That, however, requires a huge policy shift and I don't think we've seen any move towards an official recognition of the truth of committed same sex relationships.

I am quite prepared to believe there have not yet been any discussions about this!

Posted by: Erika Baker on Tuesday, 5 February 2013 at 11:54am GMT
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