'Churches in the firing line over gay marriage': leading barrister disputes government assurances

Last month, Monitor reported on a judgement by the European human-rights court in Strasbourg that there was no human right to same-sex marriage and therefore no obligation on EU states to introduce it.

Now a leading barrister has compared that judgement with that of a 2009 UK Court in a religious freedom case. His conclusion? It will be impossible for the UK government to introduce same-sex marriage without forcing the Churches to do the same.

Whatever the Government's reassurances, says Neil Addison on his blog, a clear legal case can be mounted on the basis of these two landmark judgements against allowing Churches to opt out from any future laws allowing gay marriage. 

Addison writes:

In the case of Gas and Dubois v France 25951/07 the Court reaffirmed its earlier decision in Schalk and Kopf v. Austria 30141/04 that there is no obligation under the European Convention of Human Rights (ECHR) for States to legalise same-sex marriage or indeed to legalise same-sex civil partnerships.

But it also reaffirmed that if a member State did decide to legalise same-sex marriage it had to ensure that it was provided on exactly the same basis as heterosexual marriage. This has particular relevance for the UK in view of the current consultation being carried out by the UK and Scottish Governments with a view to legalising same-sex marriage.

In the UK consultation the Government states that the legalisation would "make no changes to religious marriages. This [sic] 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.

What the Government is ignoring is the fact that, in law, there is no difference between, and no status for ,"civil" as opposed to "religious" marriage. Both are in law the same thing; they take place merely in different premises.

Therefore on the basis of the both the Schalk and Gas judgements, if the Government legalises same-sex marriage then it must legalise it on exactly the same basis as it legalises heterosexual marriage: the Government will be obliged to permit same-sex marriage on religious premises on exactly the same basis as it permits heterosexual marriage.

How this will affect the rights of Churches who are registered for marriage? And in particular how it will affect the Church of England and its clergy who are Registrars of Marriage by virtue of their status as priests of the Established Church? Certainly a good legal case can be made that any place or person who is registered to perform marriage must be willing to perform same-sex marriage on the same basis as they conduct heterosexual marriage since, in law, there will be no difference between the two.

It must also be remembered that in the case of Ladele v Islington Council [2009] EWCA Civ 1357 the Court of Appeal held that Mrs Ladele's view of Marriage -- "the orthodox Christian view that marriage is the union of one man and one woman for life" (para 7)  -- "was not a core part of her religion" (para 52). So if Churches are told that they have to be willing to perform same sex-marriage ceremonies they will have little legal ground to resist.

The combined effect of the European Court decision and the Ladele decision seems to be clear. If same-sex marriage is legalised in the UK then religious same-sex marriage will have to be legalised also. Churches which perform heterosexual marriages will have to be willing to perform same-sex marriages and they will have no legal grounds to resist, since the (secular) Courts have determined that the "Orthodox Christian view of Marriage" is not a "core" part of Christian belief.

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