Plans to introduce same sex marriage in Scotland
27 July 2012
The Scottish Government intends to place a Bill before the Scottish Parliament in order to allow same sex marriages and religious ceremonies for civil partnerships.
Following upon the announcement, Deputy First Minister Nicola Sturgeon has made it clear that an amendment should be considered to the UK Equality Act 2010 in order to protect ministers who do not wish to solemnise such marriages.
The reason for that is although the Equality Act expressly protects religious organisations, there is the risk of exposure to individual ministers who take a different view from their denomination.
In recent media interviews, the Deputy First Minister has declined to speculate on the possibility of such an amendment not being made to the Equality Act made prior to Scottish legislation coming into force. It is anticipated that the UK government will fully comply with any required amendment, and that any amendment will be fairly straightforward, hence the confidence that it will be in place before any Act comes into force.
What would any such an amendment look like, in order to provide protection to individual ministers or celebrants who did not wish to participate in the whole process? It might look something like this:-
EQUALITY ACT 2010
SCHEDULE 23
Organisations relating to religion or belief
…2(1)This paragraph applies to an organisation (or any minister of such an organisation) the purpose of which is –
(a) to practise a religion or belief,
(b) to advance a religion or belief,
(c) to teach the practice or principles of a religion or belief,
(d) to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief, or
(e) to foster or maintain good relations between persons of different religions or beliefs.
(2)This paragraph does not apply to an organisation whose sole or main purpose is commercial.
(3)The organisation (or any minister of such an organisation) does not contravene Part 3, 4 or 7, so far as relating to religion or belief or sexual orientation, only by restricting -
(a) membership of the organisation; or
(b) participation in activities undertaken by the organisation or on its behalf or under its auspices; or
(c) the provision of goods, facilities or services in the course of activities undertaken by the organisation or on its behalf or under its auspices; or
(d) the use or disposal of premises owned or controlled by the organisation.
(4) A person does not contravene Part 3, 4 or 7, so far as relating to religion or belief or sexual orientation, only by -
(a) doing anything mentioned in sub-paragraph (3) as a minister of or on behalf of or under the auspices of the organisation; or
(b) refusing to solemnise or act as celebrant or participate in a marriage (or civil partnership) of persons of the same sex, whether or not the organisation permits such solemnisation or acting as celebrant or participation.
(5) A minister does not contravene Part 3, 4 or 7, so far as relating to religion or belief or sexual orientation, only by restricting –
(a) participation in activities carried on in the performance of the minister's functions in connection with or in respect of the organisation; or
(b) the provision of goods, facilities or services in the course of activities carried on in the performance of the minister's functions in connection with or in respect of the organisation.
(6) Sub-paragraphs (3) to (5) permit a restriction relating to religion or belief only if it is imposed necessary -
(a) because of the purpose of the organisation, or
(b) to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief, or
(c) to avoid conflict with the strongly held convictions of the minister.
(7) Sub-paragraphs (3) to (5) permit a restriction relating to sexual orientation only if it is imposed necessary -
(a)because it is necessary to comply with the doctrine of the organisation, or
(b) to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief, or
(c) to avoid conflict with the strongly held convictions of the minister.
(b)to avoid conflict with strongly held convictions within sub-paragraph (9).
(8) In sub-paragraph (5), the reference to a minister is a reference to a minister of religion, or other person, who—
(a) performs functions in connection with a religion or belief to which the organisation relates, and
(b) holds an office or appointment in, or is accredited, approved or recognised for the purposes of the organisation.
(9)The strongly held convictions are—
(a)in the case of a religion, the strongly held religious convictions of a significant number of the religion's followers;
(b)in the case of a belief, the strongly held convictions relating to the belief of a significant number of the belief's followers.
Whether or not the required amendment will be in place before the Bill is presented to Parliament remains to be seen. However, since the Bill will be open to further consultation and scrutiny, the Scottish Government would be well advised to encourage the early amendment that itself has stated to be necessary.
Further protections in the Bill itself should also be express – in fact, there is some speculation that there will be a new register of those allowed to conduct same sex marriages and religious ceremonies of civil partnerships. If so, then only those ministers and celebrants who have “opted in” to the new register would be eligible to conduct such weddings and ceremonies. Any other ministers and celebrants would be automatically excluded, and thus precluded from conducting them by default. No such minister or celebrant could then be compelled to conduct such a marriage or civil partnership ceremony, as they would not be officially permitted to do so in any event.
Of course, the “opting-in” system would allow those who wish to express a desire to conduct such weddings and civil partnerships to do so in a positive way. A new “opting in” system would also involve far fewer numbers (and less potential room for embarrassing errors and unfortunate mishaps) than an “opting-out” system, which would be a much more negative and costly exercise.
The Bill should be published later in the year, and we’ll provide further comment at that stage.
Our Gus Macaulay regularly advises individuals and local authorities on a range of family law matters. If you have any concerns about any matter of family law and require clear advice, please do not hesitate to contact Gus on 0141 229 0880 or by e-mail at gus@inksters.com
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