Better... but the government is still in a mess over marriage

By Simon Barrow

January 25, 2013

The UK government's culture secretary, Maria Miller, gave a rather faltering performance on BBC Radio 4's flagship 'Today' programme this morning, answering questions -- or, rather, trying to avoid them -- about the Marriage (Same-Sex Couples) Bill.

The Bill was tabled in the House of Commons yesterday, is published in parliament today (25 January 2013) and will get its second reading on 5 February, when MPs are able to vote on it.

Overall, this legislation is a huge step forward. It makes civil marriage fully available to same-sex couples, and takes the block off religious ceremonies in many instances -- while clearly, and rightly, operating on the basis that religious bodies and ministers/priests should not be legally compelled to conduct weddings if they do not wish to.

However, given the current continuing elision of civil and religious marriage (which Ekklesia has long advocated should be distinguished and separated for the benefit of all concerned), the unevennesses of marriage law in England and Wales will be perpetuated by the way the established Church of England and the disestablished Church in Wales will be treated.

Ms Miller said this morning that churches should be "free to act on their beliefs" but that "when it comes to civil society we should be treating people equally and fairly". This is a de facto admission that, given the unnecessary 'quadruple lock' the government is imposing on the Church of England (without consulting it) and the Church in Wales (without it asking for it, according to its most senior figure), the members of two churches will not be able to be free, equal or fair.

This is because these churches, alone among all religious bodies, will be forbidden by law from allowing same-sex wedding ceremonies on their premises, even if (as R4 interviewer John Humphreys pointed out a couple of times), some of their priests and congregations wish to do so, as will definitely be the case.

The government's position here introduces precisely the element of compulsion, in a negative direction, that others are rightly being freed from. It is inherently unfair and blatantly discriminatory. It will therefore almost certainly be subject to legal challenge (the outcome Ms Miller and her department were precisely charged with avoiding, ironically), it goes against the spirit of the rest of the legislation, and it will likely impose further legal costs on the taxpayer.

So why is the government doing this? Because it has been panicked by a misplaced but loudly-voiced disinformation campaign that has alleged that the Anglican churches in England and Wales could face successful legal challenges if their priests decline to conduct ceremonies to same-sex couples, even though the legislation is explicitly framed to rule out compulsion either way. This is because, it is said, both these churches, as part of their automatic licensing to conduct marriages recognised by the state, have a "common law duty" to marry people, unlike other religious bodies.

This is true. But, equally, it is true (and evidenced by practice over many, many years) that these churches cannot thereby be compelled to marry anybody, without regard for their own doctrines and regulations. There is no reason why this should be any different with regard to same-sex ceremonies, or why (many believe) the manifest protection afforded to belief-based bodies in the current legislation should not be adequate for these two churches in the way that it will be for Catholics, Methodists and others.

Moreover, even if further safeguarding against compulsion is required, it is perfectly possible for the government to vary common law duties by legislation. And, as the president of the Law Society in England and Wales has said, it is "unimaginable" that the European Court of Human Right (ECtHR) would act to force religious bodies to marry people.

Ms Miller worked hard to avoid facing the obvious charge of unevenness, unfairness and discrimination on the radio this morning. Inter alia she demonstrated a rather loose grasp on the nature of different religious bodies in England and Wales, puzzlingly referring to "the Quaker church" (the Religious Society of Friends has meetings not congregations, and does not use the term 'church') and, extraordinarily, something called a "Jewish free church", whatever that might be. Presumably not a synagogue.

So the government stumbles on. It has got a good deal right in the Bill it is publishing today, and it would be churlish not to recognise that. But confusions and inequities continue, and as human rights campaigner Peter Tatchell has pointed out, heterosexual couples are still disadvantaged by not being allowed to contract a civil partnership.

Hopefully the Scottish Government will model a better way forward with its own equal marriage legislation, developed through reserved powers under devolution.

But the real, long-term solution has to be a larger reform by which marriage as a civil, legal matter is distinguished from religious ceremonies, blessings and meanings. In other words, civil (not religious) marriage should be what the state offers, alongside whatever other contracts (civil partnerships) it may wish to provide to ensure security and protection to relationships between couples. Religious bodies and congregations should then be free to bless (or not bless) these contracts as they see fit, according to their own customs and practices, and to provide the distinctive meaning which different religious traditions confer to "getting married", but which the state cannot.

This would enable equal access for all to civil, legal provision. Equally, it would allow churches and others to maintain their own particular doctrines of marriage and relationships, without either having these imposed on everyone else through the state, or being compelled by the state to change them, or confusing theological arguments about their nature with non-theological ones. Such an arrangement recognises that true freedom of belief and non-belief which surely ought to be foundational for a democratic order and for a free church (or other religious institution) alike.

* Ekklesia's 2006 paper on this, 'What Future for Marriage?', can still be accessed here: http://tinyurl.com/rpq9a

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© Simon Barrow is co-director of Ekklesia.