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The wider consequences of the Bill have not been adequately addressed

04/02/2013 9:30 am

The consequences of the Bill will be wide-ranging. The Government has not identified all these consequences and they certainly have not all been addressed. Three of the wider potential repercussions are explored below, but there are and will be many others.

(a) Unknown Implications For Public And Private Law:

Clause 11(1) is extremely broad and its implications cannot possibly be known in advance. It states: ‘In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.’ The intention is to ensure, as the default position, that same sex marriage is for all legal effects the same as opposite sex marriage. To incorporate such a broad provision is a dangerous substitute for the detailed (and extensive) inquiry that is necessary. Inadequate thought has been given to the repercussions of such a significant change, no doubt because of the rushed way in which the legislation was prepared. This provision is likely to lead to costly litigation, the need for continuing ad hoc parliamentary engagement, or both.

Given the constitutional importance of this proposed change of law, such a clause (with extensive and unknown consequences that may detrimentally affect a number of people and institutions) is unacceptable.
 
(b) Education – Freedom of Expression and Freedom of Religion:

A change in the definition of marriage will have an adverse impact on schools because the Secretary of State is under a statutory duty to issue guidance on ‘the nature of marriage and its importance for family life and the bringing up of children’ under s.403 of the Education Act 1996. A statutory change may therefore result in religious schools being compelled to teach a definition of marriage contrary to their own understanding and thus impact on previously accepted and protected religious freedoms.

There is also a danger that teachers will be limited in their freedom of expression both inside and outside school as far as same sex marriage is concerned.

It is imperative that freedom of expression and the freedom of thought, conscience and religion, are protected in the school curriculum, when individuals are teaching, or where teachers publicly express dissenting views in other contexts. The Bill fails to do this.

(c) An emerging gulf between religious and secular conceptions of marriage:

In marriage, legal and religious institutions are thoroughly intertwined. It is one of the central examples in Britain where there is, at present, no clear separation of church and state. This is true not just with regard to the special role of the Church of England, but more generally. Britain, unlike most continental European countries, provides that ‘religious’ marriages are also valid ‘civil’ marriages.

The effect of the Bill, if it is passed, will be to make a more complete separation of church and state in the area of marriage almost inevitable. ‘Civil’ marriages will be performed by state officials only and the state will determine the legal benefits, rights and duties that accompany marriage, but these will not be regarded as marriages in the eyes of many Churches. ‘Religious marriages’ will be performed by religious institutions according to their own doctrine and rites, and will have no effect on legal relations. Over time, civil and religious marriages will become fundamentally distinct institutions.

Some will welcome that development; some will not. But either way it is important that Members of Parliament are fully aware of the longer-term effects of the Bill in this respect. The choices that Parliament is being called to make will have profound implications for the future architecture of relations between church and state in Britain.

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.