Should same-sex marriage be introduced in the UK, churches that refuse the ceremonies are likely to face legal challenges, and statutory protections for religious freedom may then be overturned by the European Court of Human Rights (ECHR).
In a recent case, the ECHR quoted a non-binding resolution by the Parliamentary Assembly of the Council of Europe which said that, should same-sex marriages be legalised, it will place the State under an obligation to “ensurethat [the] rights and obligations [of homosexual couples] are equivalent to those of heterosexual couples in a similar situation.” (Gas and Dubois v. France, March 2012 (no. 25951/07)).
The Government has claimed that no church will be forced to conduct such ceremonies. However, if same-sex marriage is allowed on religious premises then there are bound to be legal ‘test cases’ brought against those churches that do not want to provide such ceremonies.
Any such discrimination claims against churches may well succeed irrespective of any legislative safeguards for conscience as the European Court may overturn any such protections.
It is not possible to accurately predict what the European Court would decide if such legal challenges went forward. Therefore Government assurances towards religious freedom cannot be given with any certainty.
Civil Premises
There will also be a threat to religious freedom even if same-sex marriage is only allowed initially on civil premises. The Government would be open to legal challenges under equality law for restricting the rights of same-sex couples.
Should same-sex marriage be introduced onto civil premises, there would be a huge push for such ceremonies to also be made available in churches. Stonewall is already campaigning for this and has the support of many MPs. It would only be a matter of time before same-sex marriages were then made available in churches.
Civil Partnership ceremonies themselves were initially restricted to civil premises but have now been allowed to take place on religious premises. The same is likely to happen with same-sex marriage.
Not a Human Right
The Judges also stated that same-sex marriage is not a human right, undermining the claim by Equalities Minister Lynne Featherstone that it is a ‘rights’ issue.
The ECHR rules on disputes arising from the European Convention on Human Rights which was incorporated into UK law in the Human Rights Act 1998. It is unlawful for any public body to act in a way which is incompatible with the ECHR.
The ruling was made by ECHR judges following a case involving a lesbian couple in a civil partnership who complained that the French courts would not allow them to adopt a child.
The ECHR ruled that, because the couple were civil partners, they did not have the rights of married people, who in France have the sole right to adopt a child as a couple.
Consequences
Lawyer Neil Addison, a specialist in discrimination law, said:
“Once same-sex marriage has been legalised then the partners to such a marriage are entitled to exactly the same rights as partners in a heterosexual marriage.
“This means that if same-sex marriage is legalised in the UK it will be illegal for the Government to prevent such marriages happening in religious premises.”
Church of England lawyers have previously warned that vicars may end up being sued under equality law should they refuse to marry homosexuals on their premises, as any safeguards against this are unlikely to be sufficient.
And Conservative MP Peter Bone has warned that if same-sex marriage is introduced then parents and teachers who objected to promoting the new arrangements in schools could be penalised, and teachers forced to resign.
Comment
Andrea Minichiello Williams, CEO of Christian Concern, said:
“Unless we stop this redefinition of marriage now, then further down the line we could well see priests, pastors and vicars being dragged to Court for believing that marriage is between one man and one woman and for refusing to participate in same-sex marriages.
“Any Government assurances to the contrary appear to be worthless.
“The implications for religious freedom are staggering.”
Source:
Resources:
Christian Concern: Sexual Orientation
Christian Concern: Response to Scottish Government consultation on same-sex marriage