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 sucessful challenge.

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.