The British Government’s response to its consultation on same-sex marriage shows how keen it is to railroad through partial and divisive proposals.
As attentive readers will know, a little over a year ago British Prime Minister David Cameron proposed creating same-sex marriage in the United Kingdom. His Coalition Government subsequently held a public consultation and, on December 14, Culture Secretary Maria Miller announced the official response to the consultation. (Because of a recent reshuffle and the need for the Minister for Equalities to be a women, the responsible ministry has switched from Home to Culture).
The Government’s response has been criticised heavily for ignoring the numbers opposed to same-sex marriage: over half the 228,000 people questioned opposed its creation, and more than 600,000 people have now signed the Coalition for Marriage’s petition. As the Catholic Voices website explained, the consultation “had no other purpose than to shroud a shamelessly undemocratic exercise in a cloak of false legitimacy”. Religious same-sex marriages were expressly outside the scope of the consultation, leading to calls for a new consultation.
A neat diagram summarises the new plans, to be tabled in Parliament shortly:
- Same-sex couples will be able to marry in civil ceremonies, and religious organisations that wish to conduct marriages for same-sex couples will be able to do so if they have opted-in.
- A series of protections for religions will be created to disoblige religions from such marriages if they do not wish to conduct them.
- Civil partnerships will be retained for same-sex couples only, and Britain’s 100,000 or so civil partners will soon be able to ‘convert’ them to marriages for a nominal fee of £100.
- A new process will mean people are able to change their legal gender without ending their marriage first.
In the main, these proposals reflect what was predicted all along. However, the possibility of religious same-sex marriages is new. These had previously been discounted, partly on the grounds that the Government considered them too provocative, given the widespread religious sentiment against same-sex marriages in the first place, and partly because they would be a legal nightmare.
Essentially, the Government wanted to create the legal power for religious communities to officiate, without either directly or indirectly obliging them to do so, as a whole or on a parish-by-parish basis. Yet, as explained in October on this website, the consequences of creating gay marriage were predicted to be widespread and profound, potentially creating a European human right that would shape foreign recognition of same-sex marriage, and impacting on the conscientious objections and practices of those opposed.
The legal framework for religious participation centres on a so-called ‘quadruple lock’ to protect religious bodies. These are (a) the explicit statement in law that no religious organisation, or individual minister, can be forced to marry same-sex couples or permit this to happen on their premises; (b) amendment of the Equality Act 2010 to prevent discrimination claims being brought against religious organisations or ministers for refusing to marry a same-sex couple or allowing their premises to be used for this purpose; (c) the creation of an offence prohibiting religious organisations or their ministers from conducting same-sex marriages unless they have expressly opted to do so; and (d) the Church of England (and in Wales) will be exempted from the legislation so that it will continue to be illegal for the C of E to conduct gay marriages or opt into the legislation.
The legal protections these “iron-clad” locks afford will remain uncertain, as European Convention human rights jurisprudence – especially Article 12, which states “men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right” – has a knack of finding legal spaces for new rights to be carved out.
The public sector equality duty also loiters in the undergrowth. But it would seem, prima facie at least, that the proposed framework will create a degree of religious freedom. It would appear that for a same-sex marriage to take place in a religious building and/or in a religious ceremony, both the church collectively and the specific minister will have to agree expressly, and absent either agreements, it will be illegal for the wedding to occur. Such agreements will be impossible for a court to construe, eg through claims of discrimination by gay couples turned away at the presbytery door.
The politics of the new regime
The Church of England seems less het-up about its blanket exemption that it did about the recent failure of its legislative body, the General Synod, to permit women to become bishops. Perhaps this indicates the corporate C of E opposition to gay marriage, but a betting man would take note of the quick deletion in December 2011 of the prohibition on religious same-sex civil partnerships that Tony Blair used to appease religious opposition when creating these in 2004. A similar sleight of hand will no doubt follow in a few years; this will have specific problems for the Church, as it is established in English law, and a corporate opt-in will trump opting-out by any individual vicars. This will, in time, lead to yet more Anglican clergymen departing for Rome or an evangelical faith.
The politics of the same-sex marriage debate have been relatively predictable. The Conservatives find themselves in a tricky position, as they have substantially lost the trust of homosexual interest groups, annoyed core voters in the shires and the over-60s, and split the Parliamentary party. It goes without saying that same-sex marriage was not in the Coalition Agreement that was hammered out in the days following the General Election in 2010. Rather, it was announced out-of-the blue in October 2011, and trailed in the press shortly before.
Neither the Tories nor the Lib Dems (nor Labour, for that matter) had any promises regarding same-sex marriage in their election manifestos. But given the liberal sentiment in Britain’s ruling and chatting classes, the lack of popular democratic support seems irrelevant. Britons live, after all, in an elected dictatorship when the voters have no say except once every five years.
The biggest beneficiary of this has been the UK Independence Party (UKIP), whose popularity has never been higher, according to two recent polls. UKIP are a little like the Tea Party in the US: they represent an ‘anti-politics’, a politics of popular dissent with the conventional mainstream parties. UKIP’s selling point is full independence from the European Union, but it lacks evolved views on the nitty-gritty of social policy, criminal justice or international development. It remains to be seen whether Tory voters will abandon their party for 2015, or whether this is a flash-in-the-pan that will be forgotten at the ballot box.
Impact on schools
Perhaps the most interesting aspect of the proposals now is not how they play out in the public square, but the impact they have on relatively private spaces, and in particular schools. The Government is reported to have promised that “teachers, particularly in faith schools, will be able to continue to describe their belief that marriage is between a man and a women while acknowledging and acting within the new legislative position which enables same-sex couples to get married. [They] should ensure their personal beliefs are not expressed in a way that exploits pupils’ vulnerability or involves discriminating against them”.
This means that faith schools will be able to teach about same-sex marriages in ways congruent with their ethos. Secular schools will have to be more careful but, as same-sex marriages will be exempt from the Equality Act 2010, which gives recourse to discrimination claims in Britain, it seems that no particular obligation to evangelise for same-sex marriage will trump the freedom of a teacher to voice criticisms if these are within the “broad and balanced advice on marriage” the Government envisages.
But wait (as Tory peer Baroness Warsi is) for the legislative wording before worrying about how gay marriage will interact with existing rights and duties, particularly under the Education Act 1996.
The social conservative press has taken a mixed view on the consultation. Influential commentator Charles Moore is ambivalent in the Daily Telegraph on the political prudence of Cameron’s measure, but reminds conservatives that marriage – as an institution, even if not in every practice – is about children: “if you are a conservative you respect the past in order to secure the future”.
Warnings that procreation and the traditions of marriage are not trumped by equality are echoed by Roger Scruton in The Times (£): “Don’t sacrifice marriage on equality’s altar”. Fraser Nelson of The Spectator, a centre-right fortnightly magazine, thought that the slurs and insults thrown during the past year (including Deputy Prime Minister Nick Clegg’s reference to “bigots” opposing same-sex marriage) were “a glimpse of the crazy world of culture wars” that was alien to British tolerance of such issues.
But the most striking reflection was on the ConserativeHome website, which noted an article in the American Weekly Standard:
Viewed in practical terms, marriage is a support system and in its absence people turn to alternative support systems – not least, the state:
"As Robert George put it after the election, limited government ‘cannot be maintained where the marriage culture collapses and families fail to form or easily dissolve. Where these things happen, the health, education, and welfare functions of the family will have to be undertaken by someone, or some institution, and that will sooner or later be the government.’"
It is, when you think about it, a blindingly obvious point. Yet many so-called ‘liberal conservatives’ still believe that one can be a conservative on economic matters, but a liberal on social issues. Good luck with that:
"The two greatest institutions ever devised for lifting people out of poverty and enabling them to live in dignity are the market economy and the institution of marriage. These institutions will, in the end, stand or fall together."
And thus the debate continues.
Peter Smith is a lawyer living and working in London.