Wednesday, 20 February 2013

EHRC analysis of Marriage (Same Sex Couples) Bill

Updated Wednesday afternoon

From the EHRC website:

The Equality and Human Rights Commission has analysed the Marriage (Same Sex Couples) Bill 2012/13 in light of the requirements of the Equality Act 2010 and the Human Rights Act 1998. This analysis concludes that the Bill, which will apply in England and Wales, would be in accordance with provisions within the legislation and would further the rights of individuals to equality before the law, in so far as it will:

  • enable same sex couples to marry in civil ceremonies;
  • ensure those religious organisations that wish to do so can opt in to conduct marriage ceremonies for same sex couples;
  • provide protection under equality law for ministers of religion who do not wish to marry same sex couples;
  • enable civil partners to convert their partnership to a marriage; and
  • enable married individuals wishing to change their legal gender to do so without having to end their marriage.

The briefing is available here as a .doc file.

Or see the version filed with the Public Bill Committee.


The following additional memorandum from the EHRC has been published by the Public Bill Committee: Memorandum submitted by The Equality and Human Rights Commission (MB 24)

…The Commission is issuing this supplementary briefing to assist MPs at committee stage. It draws on a legal opinion obtained from Robin Allen QC, Cloisters, and Jason Coppel, 11 King’s Bench Walk. The full opinion is annexed to this briefing…

Posted by Simon Sarmiento on Wednesday, 20 February 2013 at 12:04am GMT | TrackBack
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Categorised as: equality legislation

Interestingly, John Wadham of the EHRC appeared before the Public Bill Committee on 14th February explained the part of the submission that he authored: 'However, our legal opinion suggests the bill in its present form could amount to the state acting unlawfully by interfering with the freedom of religious enforce their religious doctrines within their particular organisation.”'

In response to question (Q 343) comparing the conscientious objection to perform the same-sex marriage of members of a church or religion with Ladele, he stated, 'I do not think that those are parallel circumstances. A registrar’s responsibility, as a public official, is to deliver a service to the wider public. As for a member of a Church or a religion, the responsibility of that person is to follow the doctrine of the Church or religious organisation. Those are two different things. We are saying that it is for the religious organisation to be allowed to police those circumstances. That is not on a parallel with the Ladele point.'

So, instead of Clause 2(2): 'may not be conduct a relevant marriage', he tentatively suggested, 'A person may not be compelled by a couple wishing to get married'

I am averse to encroachments by the State on religious freedom, but the idea that 'it is the responsibility of that person is to follow the doctrine of the Church or religious organisation' means that he accepts the potential for theological opinion on same-sex marriage to become dogma.

Considering this potential, the proposed bill amendments to the Equality Act ensure that any minister of an opt-in church has the freedom to opt-out of officiating without penalty. Since he is not a public official, the conscientious objector who personally refuses to conduct same-sex weddings should be protected from compulsion (and expulsion on this basis) by law.

Posted by: David Shepherd on Friday, 22 February 2013 at 10:12am GMT

"... means that he accepts the potential for theological opinion on same-sex marriage to become dogma."

Well, there's 'dogma' and 'Dogma', David, but it doesn't mean that every member of a Church has to believe it - as witness the Roman Dogma about Contraception. Obviously, it has no significance for many R.C. couples.

Posted by: Father Ron Smith on Friday, 22 February 2013 at 11:50pm GMT


The issue is whether a church opt-in to the State-initiated re-definition of marriage should incur a penalty for those members of the clergy who refuse to prticipate. The proposed Equality Act amendment is clearly an effort to ameliorate the impact of the government's bill on the church officials, yet the EHRC wants the protection for conscientious objectors to be abandoned.

In contrast, S.8(2) of the Matrimonial Causes Act 1965 provides a partial solution (the famous 'conscience clause') to the disparity between Canon Law and Civil Law in respect of re-marrying divorcees in church.

S.5A of the Marriage Act 1949 confers similar protection on clergy (like Canon Thompson in Banister v Thompson) who object to solemnising marriages which would formerly have been void by reason of prohibited degrees. S.5B extends the protection to clergy who 'reasonably believe' that one of the parties to the marriage has had a sex change under the Gender Recognition Act 2004. The EHRC memorandum diverges from the settled legal approach to these issues.

Whereas officiating at wedding ceremony is a visible role of a public functionary in the church, your example of contraception relates to the private choices of RC laity.

Apples and oranges.

Posted by: David Shepherd on Saturday, 23 February 2013 at 9:48am GMT
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