The Marriage Union Of Same-sex Couples

We know that the Government endorses the concept of “equal civil marriage” in principle, and has pledged to give same-sex couples the right to marry in the near future, but what exactly does that mean, and what exactly is its plan for gay marriage? And how is it treading the decidedly fragile line between discrimination against those same-sex couples who wish to marry, and discrimination against those with religious convictions that would cause them to object to any such union?

On 11 December 2012, the Minister for Women and Equalities, Secretary of State Maria Miller announced that the Government will bring forward same-sex marriage legislation for England and Wales in early 2013. This followed consultation in 2012 in which support for same-sex marriage outweighed objections to it.

Currently, same-sex marriage is not legal in the United Kingdom, nor is it “recognised” here either. It is legal in Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden and some (not all) of the United States and, although it is not performed, it is recognised in Brazil, Aruba, Israel, Mexico and some other states of America.

In the UK, since 2005, same-sex couples have been allowed to enter into civil partnerships, which are formally recognised unions but are distinct from marriages, by virtue of the Civil Partnership Act. Whilst sometimes referred to as “gay marriages” the Government made clear that in fact they were not. This has caused some same-sex couples to feel that a civil partnership is both practically and symbolically a lesser substitute, and “a second-best option.” As such, it leads to feelings of discrimination.

Historically, at common law a marriage between persons of the same sex was always held to be void ab initio (from the outset). In a case of polygamy, back in 1866 (Hyde v Hyde and Woodmansee), Lord Penzance declared that:

“Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others.”
But even now, the Matrimonial Causes Act 1973 (which is still in force today) declares that a marriage is void if the parties are not respectively male and female.
According to recent opinion polls, support for gay marriage has increased. In March 2012, the Government launched its consultation on equal marriage, proposing to enable same-sex couples to have a “civil” marriage but to make no changes to “religious” marriages, which would continue to be possible only between one man and one woman.

Responses led to the proposals being extended to allow religious organisations to ‘opt-in’ to performing same-sex marriages if they wished.
Further it was proposed that there be ‘quadruple-lock’ of additional measures to put the protection of religious freedoms “utterly beyond doubt.”

These are:

to make sure that no religious organisation, or individual minister, can be compelled to marry same-sex couples or to permit this to happen on their premises;
to provide an ‘opt-in’ system for religious organisations who wish to conduct marriages for same-sex couples, which also allows individual ministers to continue to refuse to perform same-sex marriage even when their religious organisation opts in;
to amend the Equality Act 2010 to reflect that no discrimination claims can be brought against religious organisations or individual ministers for refusing to marry a same-sex couple or allowing their premises to be used for this purpose; and
to ensure that the legislation will not affect the Canon law of the Church of England or the Church in Wales, i.e., unless Canon law and the same-sex marriage legislation are changed in future, both churches will be legally barred from performing same-sex marriages.

What this means in essence is that same-sex couples will be allowed to have a civil marriage, and may be allowed to have a religious marriage conducted by a minister in religious organisation which has opted-in to the idea. However, if an individual minister refuses to perform a same-sex marriage ceremony, even if his religious organisation has opted-in to the idea, he cannot be sued for discrimination because of that.

The Quakers, Unitarians, Liberal Judaism and some Pagan and Buddhist organisations have expressed support for the concept of same-sex marriage. But the quadruple lock makes it impossible for the Church of England (or the Church of Wales) to perform same-sex marriages unless and until its Canon law is changed (i.e. if and only if the Church of England embraces the idea and changes its Canon Law of its own motion).

The Government could have required the Church of England to change its Canon Law – it has sovereignty over the Church of England – but it stopped short of doing that. Should it have? Has it done enough?

The answer to that probably depends on which side of the fence you are sitting on. What is certain is that the proposals have been put forward as one way of trying to keep everyone happy (not an easy task). Whether that is possible remains to be seen.