The Marriage (Same Sex Couples) Bill has been published, together with its Explanatory Notes. Second reading in the House of Commons is scheduled for 5 February. In response, the Church in Wales has issued Marriage (Same Sex Couples) Bill – a statement and the Church of England has issued a press release entitled Bishop of Leicester responds to Marriage (Same Sex Couples) Bill.
The Bill makes provision
“… for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes”.
Inevitably, the Bill is long and complicated. Briefly, it:
- provides that same-sex couples in England and Wales can marry and that their marriages are to be treated the same as opposite-sex marriages;
- permits marriage of same-sex couples by way of a civil ceremony;
- except for the Church of England and the Church in Wales, permits religious marriage of same-sex couples where a religious organisation has opted in to that process;
- provides a process under which the Church in Wales can request legislative change to allow it to marry same-sex couples in its churches if it wishes to do so;
- provides that there will be no obligation or compulsion to carry out or participate in a religious marriage ceremony of a same sex couple; and
- provides protection under equality law for organisations and individual ministers of religion who do not wish to marry same-sex couples.
The Bill does not remove the availability of civil partnerships for same-sex couples; and the opportunity for civil partnership registrations on religious premises will continue on the same voluntary, opt-in basis as at present – and with no religious content. Existing civil partners will be able to convert their relationships to marriages if they so choose.
The Bill includes a series of protections against compulsion of religious organisations and their representatives that do not wish to marry same-sex couples:
- an explicit provision that no religious organisation or representative is required to marry a same sex couple;
- amendments to the Equality Act 2010 to ensure that no discrimination claim can be brought against a religious organisation or an individual for not marrying a same-sex couple;
- an opt-in mechanism whereby a marriage of a same-sex couple cannot be carried out on religious premises or with a religious ceremony without the express consent of the religious organisation’s governing body;
- a declaration that the legislation does not interfere with Anglican canon law; and
- a declaration that the common law duty on Church of England and Church in Wales clergy to marry parishioners does not extend to same-sex couples.
The Bill also amends the Gender Recognition Act 2004 to enable an existing marriage to continue where one or both parties changes legal gender and both parties wish to remain married (or an existing civil partnership where both parties change their gender simultaneously and wish to remain civil partners).
Schedule 2 gives the Secretary of State power to make an order, after obtaining the consent of the Scottish Ministers, to provide that a same-sex marriage under the law of England and Wales is to be treated in Scotland as a civil partnership formed under the law of England, pending the coming into force of the proposed Scots legislation. It also provides that marriages of same-sex couples under the law of England and Wales are to be treated as civil partnerships in Northern Ireland – where it is highly unlikely that same-sex marriage will be instituted in the foreseeable future.
What the Bill does not include is provision for opposite-sex civil partnerships – and one wonders whether that will survive a challenge in Strasbourg.
Finally, in Clause 4 (Opt-in: marriage in places of worship) an application for registration of a building for same-sex marriages
“… may not be made unless the relevant governing authority has given written consent to marriages of same sex couples … [and] … ‘relevant governing authority’ means the person or persons recognised by the members of the relevant religious organisation as competent for the purpose of giving consent for the purposes of this section”.
No doubt this is entirely clear for Churches with hierarchical/synodical systems of governance: for example, for the Church of England and the Roman Catholic Church. But it will be interesting to see how it works out for denominations such as the Baptists and the Congregationalists should any individual congregation wish to apply to register against the wishes of the denomination as a whole.