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The Proposed ‘Safeguards’ are Inadequate

04/02/2013 9:30 am

The Government’s safeguards, although well intentioned, will not provide adequate protection for individuals or religious organisations with conscientious objections to same sex marriage.

(a) The Religious Protection Provision Inadequately Protects Individuals:

The Bill is likely to generate further difficulties and barriers for individuals with conscientious objections to same sex marriage both inside and outside the work place.

The government purports, in Clause 2, to protect individuals from being ‘compelled’ to conduct same sex marriages even if their religious organisations have opted-in; but it has failed to protect individuals in other circumstances, where the state is involved. Carefully tailored protections are needed for individuals who have a conscientious objection to same sex marriage in several other contexts.

For example, such individuals should be able reasonably to express views that relate to same sex marriage without fear of criminal prosecution under public order legislation. Freedom of expression is one of the hallmarks of a democratic society and it is central to achieving individual freedoms. It deserves to be protected explicitly.

The right to freedom of thought, conscience and religion of employees may also be limited as a result of the Bill. Protection should be accorded to those working in the public and religious sectors. Individuals should be able reasonably to excuse themselves from activities, or be able reasonably to express views, that relate to same sex marriage without fear of being reprimanded or losing their jobs.

(b) The Religious Protection Provision Inadequately Protects Religious Organisations:

The Prime Minister personally, and the Government in general, have also sought to reassure religious organisations that they will not be required under any circumstances to conduct same sex marriages if they object to them. Clause 2 of the Bill seeks to protect religious organisations in two ways: by providing that religious organisations may not be ‘compelled’ to opt-in, and by providing that religious organisations may not be ‘compelled’ to conduct same sex marriages. Whilst we welcome the recognition that protections are necessary, we do not consider that these provisions adequately address the problem, because it is entirely unclear what the protection from being ‘compelled’ in law means in these circumstances.

As regards Clause 2(1), there remains a significant risk that religious organisations that conduct legally recognised opposite sex marriages (in the civil and religious sense) will be regarded as ‘public bodies’ for the purposes of the Human Rights Act 1998 and judicial review. This could result in legal challenge to a decision not to ‘opt in’, thus limiting the breadth of the discretion of those religious organisations. This is a significant threat and even if such litigation may ultimately be successfully resisted, it would only be after significant costs had been incurred. Religious organisations should not be exposed to such costs, and more explicit protections are therefore needed.

(c) The Implications of the Public Sector Equality Duty Have Not Been Addressed:

A similar problem arises under section 149 of the Equality Act 2010. Most public authorities, such as local authorities, are under a duty to have ‘due regard’ to the need to ‘advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.’ In particular, public authorities must have ‘due regard’ to the need to ‘remove or minimize disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic’.

The Bill does nothing to prevent public authorities from taking into account a decision by a religious organisation not to opt-in to same sex marriage. The Bill does nothing to prevent religious organisations which do not opt-in to same sex marriage from being treated less favourably by public authorities, for example by refusing to award public contracts or grants to religious organisations. It is not at all clear that Clause 2(1) protects religious organisations from such less favourable treatment.

(d) Interference with the autonomy of other Churches establishes a dangerous precedent:

We have made it clear that the Catholic Church will not be conducting same sex marriages. But our concerns extend beyond the effect of the Bill on the Catholic Church. We are concerned also about the significant inroads that the Bill makes on the internal affairs of other religious organisations, in two respects.

First, Clause 2(3) makes it unlawful for the Church of England to conduct same sex marriages. Whether or not religious organisations wish to provide same sex marriage ceremonies is a decision that must be made by the religious organisations alone. The Bill establishes a dangerous precedent for government interference with other religious organisations.

Second, there is a further problem of principle. Clause 2(2) seeks to allow individuals, connected to a religious organisation which has opted-in to same sex marriages, to refuse to conduct or be present at a same sex marriage ceremony. This will undoubtedly generate conflict and the religious freedom of individuals will (under the Bill) be accorded greater weight than the institutional autonomy of religious organisations. The major effect of this safeguard will be to undermine the traditional institutional autonomy of religious organisations, providing scope for further dispute and division between religious organisations and their members. Were this protection to be accorded to individuals outside the religious sector as well, this interference would be justified. The fact that this is directed only at religious organisations is disturbing.

(e) Sharing Religious Buildings – Creating Future Friction Between Religious Organisations:

Clauses 44 A-D of Schedule 1 will generate friction between religious organisations and damage inter-faith relations. This provision is likely to lead to division between religious organisations that share buildings but have opposing views on same sex marriage. It will result in disputes over whether or not one religious organisation has the right to veto the use of shared religious buildings, and it will hinder inter-faith relations by engendering a reluctance to share buildings and resources in the future.

(f) Recourse to the ECHR renders the ‘safeguards’ questionable in any event:

Parliament may seek to provide protections for religious individuals or religious organisations under domestic law but it cannot ensure that these protections themselves will withstand complaints against them to the European Court of Human Rights (ECtHR).

There is a risk that the ECtHR will find that the protections provided by the Bill are incompatible with the Convention under Article 8 alone, or Articles 8 and 12, read with Article 14, on the ground that the Bill adopts a discriminatory regime by enabling some religious organisations to refuse to perform same sex marriage ceremonies.

A key reason for this increased risk is that Britain, by changing the law on ‘marriage’ as such would open up the prospect that a discrimination claim could succeed because the claimed discrimination would then come ‘within the ambit’ of Article 12. It is clear that a challenge directly under Article 12 would be unlikely to succeed (because the ECtHR has held there is no right to same sex marriage under Article 12) but a claim under Article 14 read with Article 12 is a different matter.

The Government has argued that the chance of a successful challenge to the protections in the ECtHR is low on the basis that Article 9 (protecting freedom of religion) would protect the safeguards. But the recent judgment by a Chamber of the ECtHR in the case of Eweida and Others v The United Kingdom [2013] (Application nos. 48420/10, 59842/10, 51671/10 and 36516/10) illustrates that the right to freedom of thought, conscience and religion (Article 9) does not provide adequate protection when there is a clash between it and other competing rights and interests. The Government cannot therefore guarantee that the ECtHR would accept the safeguards put in place to protect the position of individuals and organisations that have a conscientious objection to same sex marriage, should a challenge be brought.

There is no precedent from the ECtHR on the acceptability under the Convention of balancing religious protections with sexual orientation in the context of a same sex marriage law that has been introduced by a Member State. Previous case law has involved the question whether Member States should introduce same sex marriage, not on how it legislates for same sex marriage. What we know from case law, however, is that the Court often accords Article 9 rights relatively little weight, and accords a Member State a considerable margin of appreciation in deciding how to protect that right. Much greater weight is given to equality on the basis of sexual orientation, meaning the margin of appreciation is correspondingly reduced. Differences in treatment based on sexual orientation can be justified only with very considerable difficulty, as indicated by the case law of the ECtHR.

It is also likely that challenges will be made under the Human Rights Act in domestic courts, where, of course, the margin of appreciation does not apply. The proposed ‘safeguards’ may turn out not to be safeguards at all.

Sections of the Briefing

THE MEANING OF MARRIAGE MATTERS

RETAINING MARRIAGE SOLELY FOR OPPOSITE SEX COUPLES IS NOT DISCRIMINATORY

THERE IS NO MANDATE FOR THIS CHANGE AND THE VIEWS OF MANY HAVE BEEN IGNORED

THE BILL PAVES THE WAY FOR YET MORE FUNDAMENTAL CHANGE

THE PROPOSED ‘SAFEGUARDS’ ARE INADEQUATE

THE WIDER CONSEQUENCES OF THE BILL HAVE NOT BEEN ADEQUATELY ADDRESSED

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Briefing to Members of Parliament on the Marriage (Same Sex Couples) Bill.