Saturday, 9 February 2013

Government responds to earlier legal opinion on same-sex marriage

Earlier in the year, opponents of the government’s plans to introduce same-sex marriage published selective extracts of a legal opinion written by Aidan O’Neill QC. The summary of this document can be found here. The full opinion has not been published as far as I know.

The government has now published two documents (PDF) which rebut these extracts:

The full text of the first document is reproduced below the fold.


During the drafting and introduction of the Marriage (Same Sex Couples) Bill, there have been several issues raised by opponents to the Bill which seek to suggest that the legislation is open to legal challenge.

These concerns predominantly centre around the notion that there is insufficient protection for religious organisations and individuals who hold the religious or philosophical belief that marriage should only be between a man and a woman and who therefore oppose same-sex marriage. We have considered these concerns very carefully and are confident that they are misplaced. Our response to them is set out below.

A fuller explanation of the protections in place (PDF 346kb) is also available. This is the Government’s detailed position on the scenarios devised by the Coalition for Marriage for Aidan O’Neill QC to advise on.

Public sector chaplains
Aidan O’Neill QC says that public sector chaplains could be sacked if they express the belief that marriage should be between a man and a woman.

This is incorrect. The view that marriage should be between a man and a woman is mainstream and entirely lawful. People already express views about a whole range of issues – such as that civil partnerships are contrary to religious teaching, that people should not have children outside marriage, etc. Same-sex marriage will not be treated any differently.

While expressing views – either at work or outside work – which are at odds with an employer’s policy can affect employment in some circumstances, expressing a lawful view about marriage would not affect the chaplain’s ability to carry out his work or the reputation of his employer, so dismissing him would be unlawful. The chaplain in this scenario has a number of protections. These include the Equality Act 2010, which protects employees from direct and indirect discrimination because of religion or belief, and also unfair dismissal. Clause 2 of the Bill ensures that a chaplain can legally refuse to conduct a same-sex marriage ceremony. Further, as a minister of religion, a chaplain has a justifiable expectation that he will be allowed to act in accordance with his beliefs. The public sector equality duty would not justify a wrong or oppressive decision by an employer.

Aidan O’Neill QC says that teachers could be sacked for opposing same-sex marriage, or for failing to endorse same-sex marriage in the classroom.

Teachers will continue to have the clear right to express their own beliefs, or those of their faith - such as that marriage should be between a man and a woman - as long as it is done in a professional way. Schools will not acquire a power to dismiss teachers who refuse to teach views about same-sex marriage which are against their conscience.
As with any area of the curriculum, teachers will of course be expected to teach the factual position that under the law, marriage can be between opposite-sex couples and same-sex couples. There are many areas within teaching, particularly within faith schools, where subjects such as sex and relationship education and issues such as divorce are taught with sensitivity. The guidance governing these issues is the same guidance that will govern how same-sex marriage in the classroom will be approached. No teacher can be compelled to promote or endorse views which go against their beliefs.

Aidan O’Neill QC says that parents who believe that marriage should be between a man and a woman would not be able to withdraw their children from lessons which endorse same-sex marriage.

Teaching should be professional, sensitive, not involve political indoctrination and be respectful of sincerely-held beliefs. On this basis, there is no reason why pupils should not be taught factual information about marriage for same-sex couples.

All parents have the right to withdraw their children from any or all parts of sex education, with the exception of the National Curriculum for Science, which covers teaching about the technical biology of reproduction. Objections by parents to a curriculum can occur for all sorts of reasons, and objections relating to same-sex marriage will be dealt with no differently.

Foster carers
Aidan O’Neill QC says that local authorities could refuse applications to become foster parents from couples who believe that marriage should be between a man and a woman.

Views on marriage of same-sex couples would not justify a refusal to allow individuals to act as foster carers, as such views in themselves would not impact on how a foster carer cares for a child. People have the right to express their religious beliefs and should not be discriminated against for doing so. Local authorities are under a duty to place each child in the most appropriate placement available, and to safeguard and promote the child’s welfare. Irrelevant considerations of religious or cultural background should not prevent children being placed with loving and stable families.

Marriage registrars
Aidan O’Neill QC says that a marriage registrar who believes that marriage should be between a man and a woman would be forced out of her job.

There is a balance to be struck between the rights of same-sex couples and the rights of those who believe marriage should be between a man and a woman. Under the Bill, marriage registrars will be responsible for marriages of same-sex as well as opposite-sex couples. Public officials should offer their services to all, without discrimination based on the sexual orientation of customers.

Hire of public facilities
Aidan O’Neill QC says that local authorities could refuse to let churches who believe that marriage should be between a man and a woman use publicly-owned buildings.

This is not true and would be against the law. A policy of only hiring out facilities to those who have religious or philosophical views with which the local authority agrees would be indirectly discriminatory against many religious people and organisations. The public sector equality duty would not justify such an otherwise wrong or oppressive decision.

Non-Anglican weddings
The Coalition for Marriage says that non-Anglican churches which refuse to conduct same-sex marriage ceremonies could end up in a case before the European Court of Human Rights.

The European Convention on Human Rights does not impose an obligation on States to grant same-sex couples the right to marry, and Aidan O’Neill QC’s opinion tentatively accepts that such a case would not succeed.

The Convention protects the religious freedom of individuals and religious organisations and their members, and the Bill addresses this by allowing religious organisations to “opt in” to conducting same-sex marriages and protecting those organisations which do not wish to do so. Any requirement on a religious organisation or individual minister to marry same-sex couples contrary to their doctrines would infringe their right to religious freedom.

Aidan O’Neill QC says that non-Anglican churches could be refused registration of their buildings to conduct weddings because of their opposition to same-sex marriage.

This is incorrect. Under the Marriage Act 1949, there is no discretion for the Registrar General in this matter. As long as the proprietor or trustee of the building provides an application which meets the statutory criteria, the Registrar General must register the building for the solemnization of marriages. Although the Registrar General is subject to the public sector equality duty, that would not override her statutory functions where no discretion is given.

Church of England
Aidan O’Neill QC says that a ban on the Church of England conducting same-sex marriages could breach the European Convention on Human Rights.

The Bill provides equivalent protection for all religious organisations. Because of the unique legal position of the Church of England, the Bill contains specific measures to provide this protection for it. Unlike other religious organisations in this country, Church of England and Church in Wales clergy have a specific legal duty to marry parishioners; the Bill makes clear that this duty is not extended to same-sex couples. It also ensures that Anglican Canon law does not conflict with civil law and can continue to state that marriage is between one man and one woman. Like other religious organisations, the Church of England will be able to decide for itself whether to allow the marriage of same-sex couples according to its rites. There is therefore no reason to think that this protection would not be upheld by the European Court of Human Rights.

Government Equalities Office
1 February 2013

Posted by Simon Sarmiento on Saturday, 9 February 2013 at 5:33pm GMT | TrackBack
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Categorised as: equality legislation

A very good response from the government team. the efforts of the nay-sayers, to aid and abet the fear of the Churches that they might have to celebrate marriage between two persons of the same gender, 'who love one another and want to celebrate that love for the rest of their lives', has been pitiful.

While the Church continues to deny the possibility of God's involvement in loving same-sex relationships; it is incumbent on those within the Churches - who believe in that possibility - to affirm and encourage them.

Same-Sex Marriage is not a threat to Heterosexual Marriage. rather, it could prove an encouragement to others - that life-long commitment can prove to be an enrichment, and not a diminishing, of the love between two people, that could issue in only good for both Church and Society - wherein other people's children can be nurtured and loved.

Posted by: Father Ron Smith on Saturday, 9 February 2013 at 11:18pm GMT

Rather a smoke screen as interpretation of law is laid down by the Courts. I am not sure that this government can be trusted. When Civil Partnerships were introduced it was said to give the same rights as marriage - what has happened to change that?

Posted by: Joseph Golightly on Sunday, 10 February 2013 at 10:54am GMT

The response claims regarding the Hospital Chaplain scenario: 'This concerns conduct outside employment and whether it should affect employment – which is possible depending on the circumstances. However, the minister’s views are entirely lawful (and indeed would be a completely mainstream view) and it would not be a permissible application of the equality duty to say that a religious person holding such lawful religious beliefs should not be a chaplain in the public sector.'

I'm sorry, but, as Adrian Smith found out, there is a long road of an employment tribunal and hate mail before an employer's permissible actions of demotion and salary reduction are judged to be unfair. Mr. Smith's Facebook comments made in his own time were lawful. He just spent a long time trying to prove it, without the possibility of being reinstated.

To say that person will not be 'compelled' cannot prevent an employer from demoting and passing over staff who contradict policy outside of work, all in the safe knowledge that the employee would have to resort to lengthy litigation in order to avoid being compelled.

Posted by: David Shepherd on Sunday, 10 February 2013 at 12:48pm GMT

One major change has been Equal Marriage becoming increasingly available elsewhere in the world. Marriage is recognised in these countries, and CU is not, leading to same-sex partnerships being recognised only here, when they need to be recognised in other countries as well.

Posted by: Rosemary Hannah on Sunday, 10 February 2013 at 2:15pm GMT

What 'has happened' Joseph is that we want equality, and we will have it.

If you want a civil partnership go ahead.

I find Aidan O'Neill underwhelming both in person and in print. His manufactured problems and objections just don't cut it.

In fact, it is embarrassing.

Posted by: Laurence Roberts on Sunday, 10 February 2013 at 2:43pm GMT

More huffing and puffing - and good heavens they think they may be able to erm, delay it !

John Gummer talking sense :

However, Lord Deben, who as John Gummer served as a Tory minister and the party’s chairman, attacked the “inconsistency” of those Conservatives who voted against the Bill in the Commons. He plans to vote in favour when the legislation reaches the Lords.

“If you believe in fidelity and permanence it seems an odd thing not to encourage people to celebrate that,” Lord Gummer said.

“Science has taught us that some people have this attraction and don’t have heterosexual attraction. This is now universally agreed and so it is the right thing to do for society to acknowledge that.”

He added: “I find it very difficult to listen to the inconsistency of people who themselves have been several times married now standing up in the House of Commons and defending the sanctity of marriage.”

Lord Deben also criticised free-market Tories who held libertarian views “on all other matters”, but made an exception on gay marriage.

“That doesn’t seem very logical to me,” he said. “This is a libertarian issue.”

Posted by: Laurence Roberts on Sunday, 10 February 2013 at 2:56pm GMT

As Simon says in the post, it is a great shame the whole opinion has not been published. I picked up a copy of the whole thing left lying about at one of the meetings organised to galvanise opposition to equal marriage amongst religious leaders. The tone and feel of the opinion is far more balanced than the summary implies, this barrister was given a range of questions and hypothetical situations and paid to give his opinion.
I would be glad to read an opinion from Aidan on the Bill as drafted. Does it, in his view, answer the problems the government claims?

Posted by: Martin Reynolds on Monday, 11 February 2013 at 3:59pm GMT

It is also to be deplored that the Government has declined to publish the opinion of the Attorney-General on whether the 'quadruple locks' in the Marriage (Same Sex Couples) Bill would survive a challenge in the ECtHR, Margaret Miller claiming to MPs in December that this was 'privileged information.' However, as I pointed out in my letter in the Church Times on 21/28 December 2012, the privilege is that of the client—in this case the Government—not the lawyer, so that, if Mrs Miller wished, she could publish the advice. The fact that she has declined to do so will only add to the concern of those who consider that the legislation will not (and cannot) give adequate protection in law to those who do not accept the legitimacy of same-sex marriage.

The Government has published the legal advice it has received on the consequences of a 'yes' vote for Scottish independence "to ensure there is as much clarity as possible so that the people of Scotland have the best information available" (news report in The Times, 11 February 2013, page 12). It should do the same in respect of its own legislation for same-sex marriage.

Posted by: David Lamming on Tuesday, 12 February 2013 at 9:27pm GMT

I must say I am against the publishing of legal advice to the government unless there are specific reasons. In this case I think there are a number of legal opinions all saying the same thing.

You can and should trust the government. The Scottish matter is quite a different matter - it is still rare to publish.

Posted by: Craig Nelson on Wednesday, 13 February 2013 at 12:43am GMT

Ex Catholics do NOT outnumber current Catholics in the US but are a substantial number (about 10% of the population--If they were a denomination they would be bigger than Methodists, Baptists, Lutherans and Presbyterians.). The Catholic church in the US is about 24% of population and the only reason it's not shrinking like all other denominations, is immigration.

1 in 3 cradle Catholics will leave, and increasingly those who stay are disengaged from the Church. For every new Catholic who joins, three will leave.

Rates of Baptism, First Communion and Confirmation are also dropping, showing a continuing loss of engagement and identification with The Church at the level of the family.


Posted by: it on Friday, 15 February 2013 at 11:43pm GMT
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