The government’s contention that the adoption of gay civil marriage laws would not affect religious marriage is not supported by recent U.K. Court of Appeals and European Court of Human Rights Rulings, religion law expert Neil Addison writes.
“It is fair to say that the entire subject is not as legally straight forward as the Government is suggesting,” Mr. Addison, author of the Religion Law Blog he told Anglican Ink.
“In order to permit same sex couples to marry the Government merely needs to repeal s11(c) Matrimonial Causes Act 1973 which says ‘11 Grounds on which a marriage is void; c)that the parties are not respectively male and female’.”
“However if it does repeal that sub section then those organisations and individuals which are authorised to register Marriage (which of course includes Church of England Priests by virtue of their office) would at that point be obliged to perform Same Sex marriages unless there is a specific statutory exemption,” he said.
The current state of the law, Mr. Addison wrote on his blog was that there was no difference between “Civil” as opposed to “Religious” marriage [as] both are in law the same thing and merely take place in different premises.”
In the case of Gas and Dubois v France 25951/07 the European Court of Human Rights reaffirmed its earlier decision in Schalk and Kopf v. Austria 30141/04 that there is no obligation under the Convention for States to legalise same sex marriage or indeed to legalise same sex civil partnerships, Mr. Addison said.
“The important point,” he told AI is that under law “you either have same sex marriage which is identical to heterosexual marriage in all respects or you don’t have same sex marriage. What you can’t do is create same sex marriage and then give it different rules.”
While, the government’s consultation states “the legalisation of same sex marriage would ‘make no changes to religious marriages. This will continue to only be legally possible between a man and a woman.’ But this assurance is completely at odds with the European Courts decision in both the Schalk and Gas cases,” he said.
He noted the laws governing marriage in the U.K. would differ from Spain and other countries which had adopted gay marriage. In 2009 the U.K. Court of Appeal in the case of Ladelle v Islington Council held the “orthodox Christian view that marriage is the union of one man and one woman for life” was “not a core part” of the Christian religion.
Given this Court of Appeal precedent, if “Churches are told that they have to be willing to perform same sex marriage ceremonies they will have little legal ground to resist,” he said.
First printed in The Church of England Newspaper.