JURIST Columnist Paul Johnson, Anniversary Reader at the University of York, argues that the effect of an on-going human rights debate in the British Isles and the European Court of Human Rights may have a detrimental effect on the same-sex marriage debate in the UK…

In its formal response to the public consultation on same-sex marriage in England and Wales, which I reported in an earlier article, the UK government announced [PDF] on December 11, 2012, that there will be a “quadruple lock” in new legislation to protect faith groups who do not wish to solemnize same-sex marriages. This will consist of: (1) ensuring the legislation states explicitly that no religious organization, or individual minister, can be compelled to marry same-sex couples or to permit this to happen on their premises; (2) providing an “opt-in” system for religious organizations who wish to conduct marriages for same-sex couples; (3) amending the Equality Act 2010 to reflect that no discrimination claims can be brought against religious organizations or individual ministers for refusing to marry a same-sex couple or allowing their premises to be used for this purpose; and (4) ensuring that the legislation will not affect the canon law of the Church of England or the Church in Wales.

The government’s proposed legislation means that the law will allow some religious organizations, such as the Religious Society of Friends (Quakers), Unitarians and liberal Judaism, to “opt-in” to same-sex marriage but the Church of England and the Church in Wales will be legally prohibited from conducting same-sex marriage. These measures have been included because of concerns about legal challenges that might be brought against churches by those who wish to solemnize same-sex marriage on religious premises.

The central focus given to these “protective” measures in the government response is evidence of a larger malaise about human rights in the UK. Whatever else the government’s response tells us — be it about the relationship between church and state and how it is mediated by an incumbent government; or the tensions between religious and LGBT rights — it illuminates a deeper problem in the UK. It is another example of a difficult relationship between the UK and human rights in general and, more specifically, with the European Convention on Human Rights (ECHR) [PDF]. The government’s response reiterates an entrenched view held by many in British society that an individual or group can, at any moment, bring a human rights complaint in order to assert their preference upon the majority of others. It panders to the worst fears of many people that human rights aid minority groups in gaining access to “special” social, cultural and political rights that the vast majority of right-minded people are against. It is because of these fears that the issue of same-sex marriage in churches has created the same outbreak of “rightsphobia” as the issue of votes for prisoners. In both cases, it has repeatedly been claimed that human rights are being used to force a change in moral principles that are deeply engrained in British culture. This is what has encouraged 72 MPs to sign a parliamentary motion calling for the repeal of the Human Rights Act 1998 — the instrument that incorporates the ECHR into UK domestic law. And it is what underpins the widespread discontent with the Human Rights Act 1998 that is detailed in a new report by the Commission on a Bill of Rights [PDF] that has been considering the role of the ECHR in English law.

Underpinning this fear is a cultural imagination about an institution, far away in Strasbourg, filled with black-robed tyrants who are always, it is said, on the side of litigants. The European Court of Human Rights (ECtHR) has taken on the role in the UK of being the organization that represents the preeminent threat to “our” law and “our” way of life. Britain’s history of being instrumental in drafting the ECHR and being the first country to ratify it is all but forgotten, and the ECtHR appears as just another Euro organization we could (and should) do without. Hence the “quadruple lock,” to prevent gay and lesbian Britons (and the morally dubious clergy who support them) from running off to Strasbourg and getting those “foreign” judges to support them in their cause to “force” churches to marry them.

As absurd as such an argument is — and it is made absurd by the jurisprudence of the ECtHR which has now twice clearly established that the ECHR provides absolutely no right to same-sex couples to marry — the government’s announcement perpetuates it. Instead of taking a proportionate course of action and allowing the Church of England and Church in Wales to make its own decisions about who it will and will not marry (as it does now), the government has accepted the unfounded argument that churches are at “risk.” The Church of England has advanced this argument [PDF] and, as I stated in my earlier article, it should be regarded as a highly dubious and cynical strategy to resist the introduction of same-sex marriage. But ill-informed commentators in favor of gay rights have also made the argument that churches are at risk from litigation. On December 10, 2012, for example, the BBC aired an interview with Professor Eric Anderson in which he stated that churches would suffer legal challenges under human rights legislation. Such claims are unhelpful and inaccurate.

On the basis of a growing moral panic about human rights in the UK, the government has announced deeply problematic legislation. Whilst they will extend marriage to same-sex couples in England and Wales, they will also amend the Equality Act 2010 to establish a form of legal discrimination in marriage based on sexual orientation. They will also write legislation to make same-sex marriage in a Church of England or Church in Wales church “illegal.” The UK government will, therefore, follow a number of other states, such as those African states like Nigeria, that are regularly held up in the UK as the embodiment of homophobia, and introduce legislation designed to prohibit same-sex marriage in a particular context.

On December 12, the Scottish government followed England and Wales and published its response to its own consultation on same-sex marriage. The response includes a draft of the proposed Marriage and Civil Partnership (Scotland) Bill that would, if enacted, extend marriage rights to same-sex partners. Unlike in England and Wales, the Scottish government is not proposing any formal prohibition on the religious solemnization of same-sex marriage and all faith groups in Scotland will be able to “opt in” if they wish. However, in a similar way to England and Wales, the Scottish government proposes extensive “protections” for religious groups. These include:

1. Provisions in the bill to ensure that no religious group is required to provide same-sex marriage and where a faith group does opt-in that no individual celebrant is required to solemnize a same-sex marriage;
2. A clause (currently section 12 of the draft bill) to ensure that religious speech opposing same-sex marriage is protected under Article 9 of the ECHR;
3. An amendment to the Equality Act 2010 to prevent a legal challenge on grounds of discrimination against churches who refuse to provide same-sex marriage; and
4. A variety of measures to enable schools to continue to provide “traditional” religious teaching on marriage and allow parents to exempt their children from teaching on same-sex relationships that they deem to be unsuitable.

Some might read the proposals of the Scottish government as a “bigots’ charter” which, although giving same-sex couples access to marriage, enshrines in law new ways of discriminating on the grounds of sexual orientation. Like the UK government’s proposals for England and Wales, all of the proposed protections in Scotland are the result of an intensifying and disproportionate fear of human rights. And, like in England and Wales, they will result in unnecessary statutory measures that exist only to appease the fearful.

Over the next year there will be widespread debate about same-sex marriage in the UK. Various individuals and groups will express their differing moral positions on marriage, religion and sexual orientation. This is welcome in a democracy. But if this takes place under the current veil of dread about human rights then this debate will be compromised. It is to be hoped that over the next year the debate will take account of the history of human rights on homosexuality and be informed by a sober look at exactly what the ECtHR has “forced” the UK to do. It simply isn’t the case that the UK has been at the mercy of the ECtHR on sexual orientation issues. In those cases brought against the UK that were successful — for example: the criminalization of male homosexual acts in Northern Ireland and the prohibition on same-sex sexual acts in the armed forces — there was widespread support for legal change across the UK and throughout the states of the Council of Europe. This mirrors the situation in respect of same-sex marriage where, as the Government response to the consultation shows, there is wide support across all constituencies for freedom in this important social institution. Over the next year, as the legislation passes through Parliament, it is hoped that debate will not be mired in the unfounded worry about human rights and ECtHR.

Paul Johnson is Anniversary Reader in Sociology at the University of York, UK. His most recent book is Homosexuality and the European Court of Human Rights (Routledge, 2012).

Suggested citation: Paul Johnson, Same-Sex Marriage To Be ‘Illegal’ in the Church of England and Church in Wales, JURIST – Hotline, December 18, 2012, http://jurist.org/hotline/2012/12/paul-johnson-coe-homosexuality.php