Tuesday, 6 August 2013

Challenges to the quadruple locks?

First of all, there appeared to have been questions raised in the Sikh community. The Telegraph carried a report Religion told to halt weddings over gay rights which included this:

Sikh temples have been advised to halt all civil marriage ceremonies on their premises to protect them from possible legal challenges for refusing to conduct same-sex weddings…

The warning comes in a letter to Sikh places of worship, known as gurdwaras, from Sikhs In England, a specialist advisory body. It urges them to consider deregistering as a venue for civil weddings — which would leave gurdwaras performing wedding rites with no legal force.

Couples would have to attend a separate ceremony in a register office or other venue recognised by their local council. Although the advice is not binding, it is understood that it is being taken seriously.

But Law & Religion UK reports in Sikh Council caution on ending civil marriage ceremonies that The Sikh Council UK (SCUK) – the largest representative body of Sikhs in the UK – has issued a Press Release which is supported by advice and guidance for Gurdwaras, and other material including a letter from Helen Grant, Minister for Women and Equalities, and an email from Melanie Field, Deputy Director, Equal Marriage Team.

All of this material is excellently summarised by David Pocklington.

Second, there have been widespread media reports of a legal challenge to be made by a couple in Essex, see the original news report Gay dads set to sue over church same-sex marriage opt-out.

However, there are no details of how they think they can do this. David Pocklington writes (scroll down):

We note that a same-sex couple Barrie and Tony Drewitt-Barlow have indicated that they are “planning a legal challenge against the Church of England’s refusal to conduct same-sex weddings”: presumably, an application for judicial review of the statutory ban on the Church of England conducting same-sex marriages that was included in the Marriage (Same Sex Couples) Act 2013 :see especially s 4(1). Barrie Drewitt-Barlow was reported as saying “‘I am a Christian – a practising Christian. My children have all been brought up as Christians and are part of the local parish church in Danbury”.

It is perhaps useful that such a challenge has come so close to the Royal Assent to the Act; and the courts will have an opportunity to give judicial consideration to the strength of the so-called “quadruple lock”. The Government’s willingness to put its money where its mouth is will be a good indication of whether the approach of Sikhs In England or of the Sikh Council UK is the more prudent.

A challenge was bound to happen, whatever the Government may have thought when the policy was first being formulated. The suspicion must be that if the case ends up in Strasbourg the ECtHR would regard the legislation as within the margin of appreciation of states parties; and the recent decision in Sindicatul Păstorul cel Bun v Romania [2013] ECHR 646 seems to suggest that the Court is reluctant to interfere in the internal affairs of religious organisations. But who knows? – With man it is impossible, but with Strasbourg all things are possible.

Posted by Simon Sarmiento on Tuesday, 6 August 2013 at 9:38am BST | TrackBack
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Categorised as: Church of England | equality legislation
Comments

'Let right be done.'

It is never too late for the C of E and Sikh bodies to begin to act ethically. Or am I wrong, and will the doing of right, when endlessly deferred create a wrong so unkind, in fact so cruel, that these followers of G-d, will find it hard to put right ?

This a spiritual matter of profound import not only for lgbti, but for the spiritual and moral integrity of religions.

As for the Sikh decision, it is scare-mongering of the worst kind. They are safe under the law of their adopted land.

As for the actions of the leadership of the provinces of Canterbury and York, they speak and act, without having consulted their clergy and members on this matter. Let alone those of us who are lgbti. I have been speaking to them about this for over 40 years now, to no avail.

They commission reports - which they then suppress when they do not like what they are told - as in the suppression of the excellent report by the Dean of Salisbury some years ago.

The religious public and the general public are much more intelligent and progressive than either the Church or the Sikh authorities seem prepared to give them credit.

Posted by: Revd Laurence J.Roberts on Tuesday, 6 August 2013 at 11:19am BST

I have a hypothesis about legal action.

Schools, in particular, will collapse into a heap if you mention that you've spoken to someone who once had a drink with a man whose wife did the accounts for a man who used to be a solicitor. By contrast, the HR director of my former employer used to rub his hands with glee at the threat of employment tribunals and mutter about how much he enjoyed taking things to appeal.

My hypothesis is that if you're a school, the vague threat of legal action means that you have to report the threat to your governors and your LEA, where relevant, and if the legal action gets even to the point of a solicitor's letter your life is sufficiently complex that it's better to buy the complainant off. The threat is as much grief as a final judgement from the Supreme Court, and cost is secondary to reputation and effort. Whereas the HR director of a company has much more autonomy, and is probably quite happy to run it through an ET and an EAT just for the fun of it, and then compromise the case out if it gets too expensive. It's a different mindset.

So the whole business of churches and gurdwaras panicking in corners about the idea of a court case is the same problem. A court case attempting to undermine primary legislation which is patently within the margin of appreciation and has been signed off as HRA-compliant will fail. A reasonably feisty lawyer would let the complainants squirm for a bit then get a settlement for costs, always assuming that the complainants had been able to find a solicitor stupid enough to take the case on in the first place. But a church organisation scared of legal trouble would panic anyway, and get as worried about a futile and hopeless legal action against them as they would about something much more founded.

"We'll see you in court" is a perfectly reasonable response, along with a whiff of Arkell vs Pressdram if required.

Posted by: Interested Observer on Tuesday, 6 August 2013 at 3:35pm BST

As, thank God, the secular authorities are now driving compassionate and sensible reform regarding same-sex marriage, whilst the Church of England continues to give out negative messages only - I for one would welcome a serious challenge in the courts.

Posted by: Concerned Anglican on Tuesday, 6 August 2013 at 4:33pm BST

There's a couple of people in England who seem to be rather well known. And they wanted to get married. Name of Charles and Camilla, if I recall. The church they are members of bristled at the notion of performing the ceremony, but had no problems recognizing and blessing a civil ceremony.
How about:
The local registrar performs all civil weddings. If the couple also desires a religious ceremony, they go to the house of worship of their choice. If the proper religious authorities approve, fine and dandy. If the religious authorities disapprove, the couple can either respect the authorities' decision -- or find another house of worship.
I thought the gay marriage act passed by Parliament, and and signed by Her Majesty, the Queen, provided freedom of religion? For Sikhs and everyone else?

Posted by: peterpi - Peter Gross on Tuesday, 6 August 2013 at 9:05pm BST

I merely observe that article 9 combined with the heightened analysis of arts 10 and 11 (both essential to the effective freedom of religion) is usually there to defend religious bodies from states. Here the state is trying to protect religions and the courts are (potentially) threatening it - which is a topsy turvy world.

Also topsy turvy is that I think both the quadruple lock and the Campaign for Marriage types have themselves brought this state of affairs about.

The quadruple lock itself is a curious device - clever, but perhaps too clever by half. A simple opt in for all with a guarantee of 'no compulsion' - again for all, would surely have sufficed. The quadruple lock gives the impression the State is stopping people from being able to do something they would otherwise be able to do, which creates the urge to sue.

And the C4M types have done little more than go around and tell us that there wil be a challenge and they have evidently been putting the idea in people's heads.

Anyway I profoundly disagree with any challenge against the newly minted Act because it offends against the role Parliament plays in our country of creating laws that balance competing interests.

I have no sympathy with the challenge and will be praying hard it fails even though I am not a fan of the quadruple lock. I think it far better to redesign it through Parliament which requires talking to politicians and - yes - the Church of England to get a change in the architecture of the legislation.

I also think that believers prone to a touch of paranoia (most of them it seems) will feel worry and distress even at a rumour of an action at law even before any papers are served. I also dislike that - the law should be designed to offer protections to churches.

Posted by: Craig Nelson on Tuesday, 6 August 2013 at 9:37pm BST

The Drewitt-Barlow challenge is deeply regrettable. Were it to be successful it would make it far more difficult to pass progressive legislation in future and increase the pressure for the UK to leave the European human rights structures. Of course, it won't be successful, but even bringing a case will give the opponents of the legislation a field day.

This is a close parallel to the Christian Legal Centre: bringing a case not in the expectation of winning but to stir things up and gain some publicity on the way.

I look forward to the CofE celebrating same-sex marriages and expect to see that within my lifetime. But the way to achieve this is by convincing people and working to get it agreed, not by trying to subvert the democratic process.

Posted by: Stuart, Devon on Wednesday, 7 August 2013 at 1:23pm BST

Stuart, you said "I look forward to the CofE celebrating same-sex marriages and expect to see that within my lifetime. But the way to achieve this is by convincing people and working to get it agreed, not by trying to subvert the democratic process."

May I respectfully disagree.

About 15 years ago the UK armed forces also had an anti-gay policy. Same-sex sexual acts for members of the armed forces were against the law. People suspected of being gay were often arrested, subject to intrusive questioning about their sexual activities, and sacked from their jobs.

The support group for gay serving and sacked members of the armed forces decided that the best way to deal with the issue was to end the discriminatory law, and they started a legal case that ended at the European Court with the UK Government being instructed to end the ban on gay persons serving.

Within 6 months Ministry of Defence officials were sitting down at the same table as members of that same gay support group, asking for advice on how to change regulations and develop new policy. Within 2 years some people who had been sacked in disgrace for being gay had re-enlisted, with the full support and co-operation of the Ministry of Defence, and were serving successfully.

Ref your "the way to achieve this is by convincing people and working to get it agreed". I fully agree, but how do you convince people who don't listen to you? The Ministry of Defence refused to listen to us. But once they were forced by the court case to sit down at the same table and talk to us they saw that our arguments were valid and a lot of their fears were illusory.

A court case does not SUBVERT the democratic process, the Law is A PART OF the democratic process, and can be a perfectly valid tool to use to progress the equality battle.

Simon Dawson

Posted by: Simon Dawson on Wednesday, 7 August 2013 at 5:19pm BST

"But the way to achieve this is by convincing people and working to get it agreed, not by trying to subvert the democratic process."

I partially agree with you. More honestly, I want to agree with you. The problem is that time is running out for some couples to achieve their human rights.

I don't know the details of the fiscal impact of inequality on LGBT couples in the UK. In the US, I will be a lot more fiscally secure when my partner and I have full, federal, legal marriage.

I am hoping that my diocese will do the Sacrament of Marriage once my state has marriage equality (ours does blessings, but it isn't clear that it will move as fast as our legal environment). Otherwise, I'll be in the position of foregoing the church marriage that I long for, for the sake of fiscal security. We aren't ancient, but we are hitting middle age and we have to think about these things now and get ourselves sorted as best we can.

I just want what our straight friends have with no fuss, the Sacrament, the support of our faith community, our human rights, and the fiscal security that we've built up together (given that we've thrown our entire lot together).

For those a decade or so ahead of us, I can understand the worry and urge to push things forward.

Posted by: Cynthia on Wednesday, 7 August 2013 at 5:41pm BST

Simon,

You neglect to mention that the government had also changed to one (led by Tony Blair) in favour of ending that discrimination.

The two situations are fundamentally different in another way, however. Discrimination against LGBT people in the military was a historic remnant. The intent of the Drewitt-Barlow challenge is to overturn a freshly minted Act of Parliament before it has even taken force. I wish the quadruple lock was not there, but the fact remained that legislators were encouraged to vote for the bill on the basis of the text that stood before them, with great play being made of the "protections" for the CofE and other religious groups.

It's one thing for the courts to tell parliament and the executive that an ancient law is outdated due to subsequent legislation and so must be changed. It's quite another for the courts to tell the legislature that they don't like a new law - prepared with extensive legal advice - and so it cannot stand.

As I say, the challenge is not going to succeed so it will merely allow the Daily Mail, Christian Concern et al to get in a huff over nothing. There is no way the ECHR is going to hand down a decision that would require the Roman Catholic Church to celebrate same sex marriage across most of Europe - which would be the inevitable consequence.

Posted by: Stuart, Devon on Wednesday, 7 August 2013 at 6:34pm BST

Cynthia,

All best wishes for you and your partner to have access to full legal marriage as soon as possible.

In the UK, civil partnership already provided the financial benefits of marriage - the CofE, for example, changed its pension scheme following legal advice to extend spousal rights to surviving partners of clergy.

To be clear: that doesn't make it any less important that the church moves to celebrate same sex marriage, but the financial implications are not those that you face in the US.

Posted by: Stuart, Devon on Wednesday, 7 August 2013 at 7:13pm BST

Stuart, you said

"Simon, You neglect to mention that the government had also changed to one (led by Tony Blair) in favour of ending that discrimination."

Please don't rewrite history. Just as bishops now claim to have supported Civil Partnerships when in fact they opposed them every step of the way, the Blair Government actually opposed gay equality in the Armed Forces, an opposition it now forgets as it finds it embarrassing.

And if discrimination against LGBT people in the Armed Forces is a "historic remnant", then why is discrimination against LGBT people in the Church not a historic remnant?

I don't disagree that in this particular case a legal case might not be wise. I simply disagree with you strongly that, in general, legal challenges subvert the democratic process, or that the Church should be protected from legal challenge.

With best wishes

Simon

Posted by: Simon Dawson on Wednesday, 7 August 2013 at 7:51pm BST

I do agree with Stuart about something very improper in our culture and society in legally challenging a new law (especially considering it expands rights considerably and is very much pushed and sponsored by the LGBT community). This doesn't make much sense in any culture or country but in a representative parliamentary democracy it is deeply troubling.

Personally I find it very unpleasant to be on the same side as C4M and Christian Concern, but they are clearly in the right on this, sadly and regrettably. I dislike the groups heartily but, as I say, if they are right they are right.

In response to Cynthia I would say that the UK government isn't denying people their human rights. Same sex couples in the UK already has the right to Civil Partnerships which accord most of the rights of marriage and the new law allows for marriage and religious celebration. Both in England and Wales and Scotland the legislation is being pursued and adopted on the explicit basis religious bodies will be protected, as indeed is the case everywhere in the world where marriage equality is considered. Religious freedom has always been at the cornerstone of our campaign.

There is no bar on religions marrying same sex couples (and hopefully soon, Humanists) - you can have the sacrament as well, but the sacrament comes from the action of an ordained minister acting according to a faith community's understanding of their doctrine. A sacrament cannot be mandated by a Court against theological understandings.

Posted by: Craig Nelson on Wednesday, 7 August 2013 at 7:59pm BST

I look forward to the day when the C of E will choose to marry same-sex couples. But people who would like to see the courts override religious freedom, controlling even faith groups' worship, should consider the wider consequences. I do not want the civil authorities to have power over all aspects of belief and community practice.

Posted by: Savi Hensman on Wednesday, 7 August 2013 at 8:38pm BST

I think that using the courts here does subvert the democratic process because in the case of the military service case there was a contravention of the right to a private life - so found the courts.

The new law that is being assailed creates equality and removes discrimination - no-one can say their human rights are being curtailed or restricted by the United Kingdom, unless the CofE is seen as a mere instrument of secular power (the CofE is a clearly self governing denomination, even though a State church). Nonetheless there is no discrimination in the new law as it allows for both same sex marriage and for religions to marry same sex couples where they wish to do so.

Unelected judges should only impugn laws where there is contravention of binding human rights instruments (e.g the ECHR) or core constitutional principles of the common law - there is no contravention of human rights here so the democratically elected chamber should be able to legislate unhindered and find the best way to balance competing rights.

Even if Strasbourg finds we are contravening the ECHR it still comes back to Parliament to make changes to the law in question, the courts cannot strike down primary legislation unlike in other countries. I simply observe that with current Conservative thinking we are already halfway out of the Council of Europe so an adverse ruling here would simply mean we left the Court's jurisdiction.

Posted by: Craig Nelson on Wednesday, 7 August 2013 at 9:33pm BST

How soon the oppressed become the oppressor.

Posted by: Robert Ian Williams on Wednesday, 7 August 2013 at 11:05pm BST

If a case does get to Strasbourg, I think the chance of the C of E being forced to marry same-sex couples is not much greater than of Nick Clegg joining the Labour Party in the next year.

Posted by: Savi Hensman on Wednesday, 7 August 2013 at 11:09pm BST

I suppose the fact that a Same-Sex couple might challenge the right of the Church to abstain from solemnising Same-Sex Marriage should not be too surprising. The point at issue here being; the ethic of the Church's choice to withhold the sacrament from people of the same gender.

However, in order to prevent paranoia by the Church of England, its right to say no to Same-Sex Marriage has been guaranteed by the legislation. It remains to be seen whether that guarantee is water-tight in law. The challenge was bound to come at some time or another.

What could be a problem, would be for the Court of Human Rights to challenge the right of the U.K. Government to require the consent and opting-in of a particular church body in order for the conduct of a S/S Marriage to be authorised.

Posted by: Father Ron Smith on Wednesday, 7 August 2013 at 11:53pm BST

I agree w Savi.

[But RIW, I assume you're speaking of the UK legalization of the RCC? ;-/]

Posted by: JCF on Thursday, 8 August 2013 at 1:42am BST

Here's an article by somebody who is in favour of the challenge
http://www.dyfedwynroberts.org.uk/index/same-sex-marriage-in-church

Posted by: Simon Sarmiento on Thursday, 8 August 2013 at 8:28am BST

I am not surprised at the illiberal comments that appear here on this blog.
The legislation is essentially flawed. I am both forbidden from doing marriages for those who have a perfect right to expect this, while similarly excluded from the ability to consecrate our lives in our own Church. It is heinous and despicable and all fair minded people should be supporting and applauding any challenge.

There is more than a reasonable hope that a Welsh couple might also challenge the law. There are those in the Church in Wales who now believe their pursuit of separate consideration within the legislation has had the opposite effect to that intended. To quote a lawyer and judge at the heart of the matter:
".....the Act permits the Church in Wales to perform same sex weddings, in that it provides a mechanism by which the law shall be changed to enable such weddings to take place. If the church chooses not to utilise that mechanism, then it is discriminating against gay and lesbian people in not exercising its right to change the law ... In other words, the Act does the opposite for the Church in Wales of what people thought it was doing."
We have advice that says there is more than a slim chance of success.

Posted by: Martin Reynolds on Thursday, 8 August 2013 at 11:53am BST

Martin, to be clear, do I take it that you're defining as "illiberal" being in favour of the church celebrating same sex marriages, but wishing that to be achieved through the democratic processes of parliament and synod rather than the courts - have I got that right?

Posted by: Stuart, Devon on Thursday, 8 August 2013 at 12:28pm BST

To flip what Martin says around a little, if the Church in Wales is obliged to apply for the freedom to marry same sex couples then there is effectively no choice and they are obliged to carry out such marriages even though the letter and spirit of the law say the opposite. Churches do indeed do iniquitous things but it's surely not for the Courts to rectify that. People can either persuade their fellow religionists or exercise their freedom to leave the denomination. But the idea behind the legislation is that the denomination had to opt in. The time to be against that was when the law was being consulted on not now it has just passed and is about to be brought in.

Posted by: Craig Nelson on Thursday, 8 August 2013 at 4:17pm BST

Craig: 'Even if Strasbourg finds we are contravening the ECHR it still comes back to Parliament to make changes to the law in question.'

In this case, not necessarily. Take a look at sections 17(2) and 17(3) of the Act. They mean that the Secretary of State can abolish part or all of the quadruple lock [*] without a further Act of Parliament. (Although he would have to obtain a resolution in each House of Parliament confirming his action.) I don't normally approve of Henry VIII clauses, but I must confess to feeling a certain grim satisfaction about this one.

I do, however, agree with everyone who has said that it is immensely unlikely that any court, British or European, will rule against the quadruple lock on human rights grounds.

[*] In fact, as I read them, they mean that the Secretary of State can change _any_ aspect of UK marriage law - and yes, I mean "UK", including Scotland (as a result of section 20(2)(c)) and Northern Ireland (as a result of section 20(3)(c)).

Posted by: Feria on Thursday, 8 August 2013 at 11:02pm BST

I don't think that's a correct interpretation of Clause 17, Feria. Clause 17 deals only with "Transitional and consequential provision".

Posted by: Simon Sarmiento on Thursday, 8 August 2013 at 11:52pm BST

The Human Rights Act gives the power to change legislation by order where it is incompatible with the Convention. However it is still Parliament 's decision ultimately.

It's rather moot because I haven't seen anywhere anyone claiming the legislation does breach the Convention.

Posted by: Craig Nelson on Friday, 9 August 2013 at 8:59am BST

I do agree with Stuart about something very improper in our culture and society in legally challenging a new law (especially considering it expands rights considerably and is very much pushed and sponsored by the LGBT community). This doesn't make much sense in any culture or country but in a representative parliamentary democracy it is deeply troubling."

Why is this so troubling?

New laws often fall short of just principles.

Read de Tocqueville on the tyranny of the majority.

Posted by: Jeremy on Friday, 9 August 2013 at 7:52pm BST

I hardly think Tocqueville apposite in this case.

The same sex marriage law is done by the majority, while churches not wishing to enter into such unions are minorities that according to Tocqueville would require protection. Tocqueville and J.S. Mill both highlight the problem of a tyrannical majority. A majority that enforced its views on unwilling churches would be acting tyrannically and it is for that reason we have the protections of the ECHR (e.g. art 9).

Anyway what I find troubling is the idea that the elected Parliament (and the one half non-elected one) can be overruled by a few men and women in wigs unless there is good cause to do so.

The new law is precisely not tyrannical because it is (by and large) a permissive law. It allows those churches who want to to carry out same sex marriages but does not compel.

Posted by: Craig Nelson on Saturday, 10 August 2013 at 1:26am BST

The Governing Body of the Church in Wales is quite an elderly body, and I can't see it going out of the way to opt out of this governmment legislation.

Posted by: robert Ian williams on Sunday, 11 August 2013 at 7:09am BST

"The Governing Body of the Church in Wales is quite an elderly body" - Robert Ian Williams -

And so is the governing body of the Roman Catholic Church at the Vatican; but what does that have to say about church governance?

Ah Well! Point taken!

Posted by: Father Ron Smith on Tuesday, 13 August 2013 at 2:05am BST

On the other hand the House of Lords are fairly aged but they came through for us. I do have a lot of hope vested in Wales, especially after their evidence at the Commons committee stage.

Posted by: Craig Nelson on Tuesday, 13 August 2013 at 6:23pm BST
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