The Church of Scotland has questioned whether it could continue to offer marriages if the advent of same-sex marriage legislation under the Marriage and Civil Partnership (Scotland) Bill were to lead to applications for judicial review.
The Kirk’s response to the Scottish Government’s consultation on the Bill after the 2013 General Assembly in May was pretty firmly opposed to same-sex marriage, as the following extract makes clear:
“5.The Church of Scotland does not support the introduction of marriage between persons of the same sex.
6. This would fundamentally change marriage as it is understood in our country. The nature of marriage in Scottish culture is that it is a relationship between one man and one woman. This is the position in law and fact.
7. If the Church were to support the redefinition of marriage to include same sex marriage this would involve a fundamental change in its understanding of marriage. In accordance with the historic position of the Christian Church, the Church of Scotland has always viewed marriage as being between one man and one woman. Despite recent discussions on the status of same-sex and other relationships, and of civil partnerships, the General Assembly has at no point been invited to consider any such redefinition of marriage. Indeed, a recent consultation among elders and ministers indicated only limited support for same-sex marriage (Report to General Assembly 2011 of Special Commission on Same Sex Relationships and the Ministry).
8. The Church has only ever taught that marriage is the union of a man and a woman. Scriptural references to marriage, whether literal or metaphorical, all operate under this understanding. Furthermore the point is established within the Reformed tradition of the Church, not least in its subordinate standards. The Church sees itself as part of the catholic or universal Church within which there is agreement, across confessional divides, that marriage is between one man and one woman”.
Appearing before the Scottish Parliament’s Equal Opportunities Committee which is currently scrutinising the Bill, the Revd Dr Alan Hamilton, Convener of the Kirk’s Legal Questions Committee, told MSPs that there were deep concerns within the Kirk about the Bill. According to the report from BBC Scotland, he reminded the Committee that the Churches are voluntary bodies reliant on the donations of their members:
“The thought of years of exhausting legal challenge, which is also incredibly expensive, is really very concerning. That is why the General Assembly of 2013 in May of this year instructed my committee, together with other councils and committees of the Church of Scotland, to consider whether in fact – and I’m saying this colloquially, this is not the terms of the deliverance of the General Assembly – whether it’s worth the Church of Scotland continuing to offer marriages in Scotland. It gives us considerable problems internally; we’re deeply concerned about the threat externally”.
In a statement released later by the Kirk, it said that it had no plans to stop conducting weddings but confirmed that it was examining the question as to whether all weddings should be civil ceremonies, with couples having the option of a church blessing afterwards:
“A decision made at the May 2013 General Assembly which has the authority to make laws determining how The Church of Scotland operates, agreed to look over a period of two years at the case for the practice common on the Continent of all marriages being civil but couples having the option of a Church blessing afterwards. Supporters argue it could encourage couples to make a more conscious decision to go to Church rather than treating Church as just a particularly nice place to marry. Members of the Church also wanted to explore the case for Church services being an optional extra after a civil ceremony, given the potential for ministers to be subject of legal action following the proposed legislation on same sex marriages”.
The BBC report also notes that the General Assembly’s remit to the Legal Questions Committee includes the following:
“Instruct the Committee, jointly with the Ministries and Church and Society Councils, Ecumenical Relations Committee and Theological Forum, to explore the possibility of ministers and deacons ceasing to act as Civil Registrars for the purpose of solemnizing marriages and report to the General Assembly of 2015” [Remits Booklet 27: 14]
In short, the French solution: but given that Scots marriage law is in any case largely about authorising celebrants rather than licensing buildings, would that be quite such a major departure as it might first appear? And even if it were, would it necessarily be totally bad? But perhaps things will become clearer when we see the official report of the evidence session.