UK: Homosexual Marriage Article

Last Updated: 12 February 2013
Article by Andy Williams

Recent newspaper headlines have suggested that the Government's proposed legislation to allow homosexual marriages will force religious groups, against their beliefs, to marry homosexual couples on religious premises on the grounds that not doing so would constitute discrimination under the Equality Act 2010. Here we take a look behind the headlines and examine the Government's proposals.

Current Position

The current position is that civil partnership and marriage are two entirely separate legal regimes based on different pieces of legislation, although parties to each type of arrangement enjoy equivalent legal rights. Civil partners cannot call themselves married for legal purposes and married couples cannot call themselves civil partners for legal purposes. This means that when making a declaration of marital status to an employer or other organisation, the individual will be effectively declaring his/her sexual orientation at the same time. Marriages for heterosexual couples can currently be conducted either by means of a religious ceremony or a civil ceremony. Civil partnerships can only be conducted through a civil ceremony, although since December 2011 it has been possible for couples to have their civil partnership registration take place on religious premises (if the religious organisation allows this), although the registration has to remain secular.

Government Proposals

The Government's proposals were to allow homosexual couples to get married through civil ceremonies, to retain civil partnerships for homosexual couples and to allow transsexual people to change their legal gender without having to end their existing marriage or civil partnership. It was also proposed to adopt a mechanism that would allow couples who are currently in a civil partnership to convert it into a marriage. The proposals made it clear that the rights of married homosexual couples would be the same as those which married heterosexual couples currently enjoy; with increased international recognition for homosexual marriage.

The Government did not propose to change the rules regarding civil partnership, such as having no religious elements in the ceremony and being only for homosexual couples. Under the proposals, homosexual couples would have been able to choose either a civil marriage ceremony on secular premises or a civil partnership registration on secular or religious premises. Homosexual couples would not have been eligible for a religious marriage ceremony on religious premises.

Religious groups, such as the Church of England and other faiths that hold the view that marriage can only be between a man and a woman, would not be guilty of discrimination under the proposals if they refused to conduct a same-sex marriage introduced by the new legislation. These faiths would also be able lawfully to continue to preach their belief that marriage should only be between a man and a woman. There was no proposal to force religious groups to carry out homosexual religious marriage ceremonies on their religious premises, although several groups, for example the Quakers, liberal Jews and some elements of the Unitarian Church have all stated they would be willing to do so.

Public Consultation

Consultation closed on 14 June 2012 following the largest response ever received to a Government consultation, with over 228,000 replies. The response to the Consultation was published in December 2012, in which the Government largely agreed to implement its proposals as set out above.

Importantly, homosexual couples will now be granted the right to get married or convert their civil partnership to marriage. Notably, following a strong response in relation to religious ceremonies, the Government has amended its proposals and agreed to allow religious organisations who wish to do so the ability to marry homosexual couples in a religious ceremony. This is subject to a "quadruple lock" of protections to prevent religious organisations being forced to carry out weddings for gay couples against their will and to allow them to refuse to do so without fear of discrimination claims.

The Government has proposed that this will entail the following steps:

  • the legislation will state explicitly that no religious organisation, or individual minister, can be compelled to marry same-sex couples or to permit this to happen on their premises;
  • it will be unlawful for religious organisations, or their ministers, to marry same-sex couples unless they have expressly opted in to do so and the legislation will make it clear that no law requires any religious organisation to opt-in;
  • amending the Equality Act 2010 to ensure that no discrimination claims can be brought against religious organisations or individual ministers for refusing to marry a same-sex couple to allow their premises to be used for this purpose; and
  • ensuring that the legislation will not affect the Canon law of the Church of England or the Church in Wales.

Civil partnerships will, however, still be available for homosexual couples as an alternative to marriage. The option to become civil partners will not be provided to heterosexual couples, with the Government remaining of the now arguably untenable view that civil partnership is "not intended or designed as an alternative to marriage". This may be an issue for a larger-scale overhaul of legislation relating to marriage and cohabitation in general, which has long been the matter of debate given the increasing number of cohabiting couples who no longer choose to get married.

Conclusion

The response to the Consultation strikes a balance between permitting religious marriage for homosexual couples, whilst offering extensive protection for religious organisations who do not wish to offer these services for reasons relating to their faith. Homosexual couples who are currently registered as civil partners can remain that way or choose to convert to marriage, addressing the issue of someone automatically disclosing their sexuality by describing their relationship as a civil partnership. Whilst the Government has arguably taken steps towards bringing the law governing homosexual and heterosexual relationships closer together, there now appears a perhaps anomalous imbalance in relation to civil partnerships, which remain an option for same sex couples only. As regards the current proposals, the Government has stated its intention to introduce this legislation within the lifetime of this Parliament, which may prove ambitious for a tumultuous coalition Parliament already half-way through its term.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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