Equal Marriage and Human Rights
By Geraldine Chenery
After years of challenges and reforms relating to
civil-partnerships and the limitations of such unions in
the UK and in Europe, the Government is proposing to extend the
right of marriage to same-sex couples. Allowing same-sex couples to
marry will enable them to enjoy equal rights to
those of heterosexual married couples.
However, this proposal raises the question of whether religious
institutions may be forced to allow same-sex marriages when
preventing such a marriage could be seen as a breach of human
rights, even where such unions are prohibited by their faith. As
reported in the Telegraph, Human Rights Lawyer Aidan
O'Neill has also warned the Prime Minister that cases could also be
brought against schools where teachers refuse to present gay
marriage as a valid choice. He also argues that priests
and registrars refusing to conduct same-sex marriage
ceremonies will not be protected from litigation from couples that
believe this is a breach of their human rights.
The Government has indicated in its response to the consultation
on same-sex marriages, "Equal marriage: The Government's response December
2012" that the proposal takes into consideration this risk of
litigation in respect of the European Convention of Human Rights.
The proposal includes
provisions that should minimise the possibily of a
As part of the response, the goverment has detailed protection
that will be in place to prevent religious organisations from being
forced to perform same-sex marriages, including an 'opt-in'
system where same-sex marriages can only be carried out when the
religious governing body has expressly consented to do so.
To protect religious organisation further, they also propose an
amendment to the Equality Act 2010. This will mean that claims of
discrimination could not be brought against organisations or
individuals that refuse to carry out same-sex marriages.
It is a concern that such provisions won't guarantee
protection for those that choose not to accept or endorse gay
marriage within their organisation for religious reasons. Even the
government may be at risk of challenge - as the protections in
place could be construed as descriminatory. This is a
major change to the institution of marriage. Time will tell
what the consequences will be.