Marriage (Same Sex Couples) Bill 2012/13
House of Commons, Second reading briefing
5 February 2013
For more information, please contact:
Ellie Rose, ellie.rose@equalityhumanrights.com or 020 7832 7850
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The Commission’s analysis
The Equality and Human Rights Commission has analysed the Marriage
(Same Sex Couples) Bill 2012/13 in light of the requirements of the
Equality Act 2010 and the Human Rights Act 1998. This analysis
concludes that the change would be in accordance with provisions within
the legislation and would further the rights of individuals to equality
before the law, in so far as it will:
 enable same sex couples to marry in civil ceremonies;
 ensure those religious organisations that wish to do so can opt in
to conduct marriage ceremonies for same sex couples;
 provide protection under equality law for ministers of religion who
do not wish to marry same sex couples;
 enable civil partners to convert their partnership to a marriage;
and
 enable married individuals wishing to change their legal gender to
do so without having to end their marriage.
The Commission will be issuing a further, more detailed analysis of the
bill to MPs at committee stage. Please note, this bill will apply in
England and Wales only.
Clause 1: "Extension of marriage to same sex couples"
Equality Act 2010
The Equality Act 2010 says unlawful discrimination occurs when a
person is treated less favourably than another because of a protected
characteristic, such as their sexual orientation1. There are specified
exceptions to that rule, however, including differential treatment which
has been permitted by another statutory provision2. The Commission
has concluded that the proposed change would be in line with the overall
intentions of the Act.
1
2
Equality Act 2010, Clause 13: direct discrimination, read with clause 12: sexual orientation.
S191 and Schedule 22 Equality Act 2010
2
Human Rights Act
The Human Rights Act refers to four Articles in the European
Convention on Human Rights which are of particular relevance to
clauses that will extend marriage to same sex couples:
- Article 8 states that everyone has the right to respect for his of her
private and family life, home and correspondence3;
- Article 9 guarantees freedom of religion or belief4;
- Article 12 guarantees the right to marry to men and women of
marriageable age, subject to the laws of that country 5; and
- Article 14 states there should be no discrimination in the
application of any rights with the Act on grounds including sexual
orientation6.
The European Court of Human Rights first considered the issue of same
sex marriage in the case of Schalk v Kopf7. The court noted that there
had been major social changes in the institution of marriage since the
adoption of the Convention. The Court referred to Article 9 of the Charter
of Fundamental Rights of the European Union, which deliberately
omitted the reference to ‘men and women’ and simply provides that the
‘right to marry and to found a family shall be guaranteed’. The
commentary to the Charter confirms that ‘Article 9 is meant to be
broader in scope than the corresponding articles in other human rights
instruments’. However, the court observed that Article 9 ‘leaves the
decision whether or not to allow same sex marriage to the States’8.
Schalk and Kopf developed the court’s case law in three important
respects.
3
Human Rights Act 1998, Schedule 1, Article 8: right to respect for your private life, your family life, your home
and your correspondence.
4
Human Rights Act 1998, Schedule 1, Article 9: freedom of thought, conscience and religion.
5
Human Rights Act 1998, Schedule 1, Article 12: right to marry.
6
Human Rights Act 1998, Schedule 1, Article 14: prohibition of discrimination.
7
[2010] ECHR 995
8
Paragraph 60 ibid
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i.
First, the rights contained in Article 12 of the European Convention
on Human Rights are now clearly not restricted to opposite sex
couples ‘in all circumstances’9.
ii.
Second, the court now recognises that same sex couples can
establish family life10.
iii.
Third, the court found that there was, however, ‘no European
consensus regarding same sex marriage’ at that point. Referring
to Article 9 of the Charter, the court said that ‘it may be argued
that there is no obstacle to recognize same sex relationships in the
context of marriage. There is, however, no explicit requirement that
domestic laws should facilitate such marriages’11.
The court also decided that in light of ‘a rapid evolution of social attitudes
towards same sex couples’ and the fact that ‘a considerable number of
Member States have afforded legal recognition to same sex couples’, it
was artificial to maintain the view that same sex couples cannot enjoy
'family life' for the purposes of Article 8.’ However, the court clearly ruled
that Article 8, taken in conjunction with Article 14, does not require
Contracting States to grant same sex couples legal recognition
conferring the same status as marriage in each and every respect.
In light of the above, the Commission would conclude that the
government’s proposal to permit same sex marriage is in accord with the
court’s interpretation of human rights legislation, that is, same sex
marriage is permitted, but not required.
The Commission previously examined the government's former proposal
not to legislate to allow religious organisations to solemnise religious
marriages for same sex couples12. Here, our analysis found that, once
the law had changed, if a religious organisation which wanted to
solemnise same sex marriages and a same sex couple who wanted to
9
See paragraph 61 ibid
See paragraph 94 ibid
11
See paragraph 60 ibid and paragraph 105.
12
'Equal civil marriage consultation', Home Office 2012 http://www.homeoffice.gov.uk/publications/aboutus/consultations/equal-civil-marriage/consultation-document?view=Binary
10
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marry challenge the provisions on the grounds that this domestic legal
bar amounted to an infringement of their right to manifest their religion,
such a claim is more likely to succeed.
Clauses 2 to 5: "Religious protection"
Clauses 2 to 5 permit those religious bodies wishing to conduct same
sex marriage to 'opt in' and marry those wishing to have such a
marriage. The legislation will leave marriage according to the rites of the
Church of England unchanged, and if ever the Church of England
wished to make changes to its doctrine and practice of marriage it would
require legislation by the Church's General Synod.
The Commission has examined the prospects of a legal challenge to this
position. The Human Rights Act includes a guarantee of freedom of
religion or belief13:
‘Freedom to manifest one’s religion or beliefs shall be subject only to
such limitations as are prescribed by law and are necessary in a
democratic society in the interests of public safety, for the protection of
public order, health or morals, or for the protection of the rights and
freedoms of others.’
This is a qualified right, meaning the state can interfere with it in the
circumstances specified. To do so, the state needs to show that the
interference meets the legitimate aims set out in the justification test
outlined above and that their action is proportionate.
On the basis of this, the Commission's analysis suggests that, should
the law be amended as proposed by the government, a legal challenge
by a couple who wanted to be married by a religious organisation which
did not wish to solemnise same sex marriages is very likely to fail, as in
this instance the religious body would argue that it was contrary to their
religious doctrine. The bill will not mean that religious organisations or
ministers will be forced to conduct same sex marriages, and
organisations and individual ministers will not find themselves forced by
litigation to conduct same sex marriages.
13
Human Rights Act 1998, Schedule 1, Article 9: freedom of thought, conscience and religion
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Similarly, we see no reason why employees of all kinds will not remain
free to express their views about same-sex marriage. Employees should
not be sanctioned for disagreeing with the new law, and it would be
unlawful for an employer to discipline or sack an employee for this. This
is the case for all employees, whether in the public or private sector,
including teachers and chaplains. The bill will not require anyone to
promote views about same-sex marriage which they do not support.
There is sufficient protection for individuals who hold the religious or
philosophical belief that marriage should only be between a man and a
woman. Specifically, the Equality Act 2010 protects employees from
direct and indirect discrimination, and also unfair dismissal, because of
religion or belief.
In summary, the Commission's analysis suggests the bill appropriately
accommodates the right to freedom of religion of those religious
organisations which want to conduct same sex marriage. It also respects
the views of religious organisations and individuals that do not wish to
conduct single sex marriage ceremonies.
About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body,
established under the Equality Act 2006. It is the independent advocate
for equality and human rights in Britain. It aims to reduce inequality,
eliminate discrimination, strengthen good relations between people, and
promote and protect human rights.
The Commission enforces equality legislation on age, disability, gender
reassignment, marriage and civil partnership, pregnancy and maternity,
race, religion or belief, sex, sexual orientation, and encourages
compliance with the Human Rights Act. It also gives advice and
guidance to businesses, the voluntary and public sectors, and to
individuals.
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The Commission has analysed the Marriage (Same Sex Couples) Bill in
furtherance of a number of its statutory and non-statutory duties.
The Commission has a statutory duty under the Equality Act 200614 to
encourage and support the development of a society in which: people's
ability to achieve their potential is not limited by prejudice or
discrimination, there is respect for and protection of each individual's
human rights, there is respect for the dignity and worth of each
individual, each individual has an equal opportunity to participate in
society, and there is mutual respect between groups based on
understanding and valuing of diversity and on shared respect for equality
and human rights.
The Commission is responsible for monitoring the effectiveness of the
equality and human rights enactments and advising on the effectiveness
of enactments, as well as the likely effect of a proposed change of law15.
As a UN accredited National Human Rights Institution, the Commission
is required to ‘promote and ensure the harmonisation of national
legislation, regulations and practices with the international human rights
instruments to which the State is a party’.16 This includes the European
Convention on Human Rights, incorporated in the Human Rights Act
1998.
Finally, the Commission has a dual responsibility to promote equality for
same sex couples and ensuring freedom of religion and belief.
Find out more about the Commission’s work at:
www.equalityhumanrights.com
14
Equality Act 2006, section 3.
Equality Act 2006, section 11.
16
Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly
resolution 48/134 of 20 December 1993.
15
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