"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Saturday, 15 October 2011

The ties that bind us

Published on Halsbury's Law Exchange here

Prime Minister David Cameron made quite a few headlines with a passage in his recent speech to the Conservative Party Conference. Having stated that he was “consulting on gay marriage”, he went on to say:

"Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

Adam Wagner has a helpful post on the UK Human Rights Blog here. It is also a subject I have written on previously for HLE.

Mr Wagner’s post sets out the background. It seems to me that we have reached the point where Mr Cameron poses the question by having proceeded through three primary issues. The first issue was that the legal rights that marriage has long conferred, in the form of property, inheritance and so forth, were seen to discriminate against those who could not legally marry. The concept of civil partnerships was therefore created in order to provide same-sex couples with the same legal rights.

The second issue concerned the right of registrars to refuse to conduct civil partnerships on religious grounds. They were not permitted to refuse, though there may be more litigation to come on that point.

The third issue was whether religious premises should be permitted to host civil ceremonies. The law giving effect to this (s 202 of the Equality Act 2010) has not yet come into force.

We have therefore now reached, or are about to reach, the stage where civil partnerships have the same legal status of marriage; that no registrar can refuse to conduct them on religious grounds; and that religious groups may choose to host civil partnership ceremonies (but may not be forced to do so).

Two side issues arise. One is why civil partnerships have to be restricted to same-sex relationships akin to marriage: some siblings may choose to live together in a chase relationship all their lives, but they will not be permitted to enter into either a civil partnership or a marriage. The second concerns whether religious groups will always be able to refuse to conduct civil ceremonies on their premises. As enacted s 202 of the 2010 Act specifically provides that

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”

but obviously enough there will remain the possibility of change in the future as some religious groups fear.

Leaving those issues aside, however, brings us to Mr Cameron’s urging of the final step, with the end of the ban on same-sex marriages.

The fact that civil partnerships have the same legal status in domestic law is not a complete answer. The word “marriage” carries a deeply and sincerely held meaning for many, and has an ancient pedigree. We should not lightly dismiss those who object to changing it.

On the other hand, the very fact that the word carries powerful connotations gives weight to the argument that it should not be denied to those who want it. Pink News makes both of those points:

Religious gay people want religious ceremonies – something the law does not currently allow. Others, who may be religious or secular, crave the gravity and recognition the word marriage offers.

There may be no difference in the rights and benefits received by those in civil partnerships, but to be married is to make a statement – to your partner, to your loved ones, to the world.

Additionally, some straight couples ... want their relationships recognised in law without what they see as the patriarchal, traditional overtones of marriage. There is discrimination here too, as legally, they cannot have a civil partnership.

Mr Wagner in the article linked aove quotes one of the opposing viewpoints:

The Scottish Catholic Church has said it will fight the proposal in Scotland, arguing that the government did not have a mandate to “reconstruct society on ideological grounds”.

Aside from the emotional, religious and sentimental implications of the word “marriage” (which as mentioned should not be underestimated), there is the question of overseas recognition of marriages. The British concept of civil partnerships will not necessarily be recognised by foreign states should a couple emigrate. Then again, simply giving homosexual couples the right to use the word “marriage” will not necessarily mean that their marriage would be recognised abroad, at least not universally.

Personally I would not object to the term being extended to allow same-sex marriages. In the past there have been taboos – primarily social but in certain countries at certain times also legal – on mixed race or mixed religious marriages. We in Britain in the present day rightly disdain such discrimination. Further liberalizing the term to allow same-sex marriages is not, in the present context, illogical or unfair: if anything it would be the opposite.

One objection always raised is that of the “slippery slope”; if we allow x then y and z will follow. That is never a sufficient argument of itself, however. Unless we ban everything or nothing we are always on a slippery slope of sorts. No doubt some will argue that allowing gay marriage axiomatically should allow any other form of relationship – siblings, polygamy, bestiality – to marry as well; but that no more follows than to say that if homosexual marriages are prohibited so should secular marriages.

But it is fair to say that the issue is far from straightforward. In turn that means that Mr Wagner is correct that this is a matter for Parliament, not the courts (whether in this country or in Strasbourg).

I would finally reiterate the suggestion I made in the article linked above, namely:

“… a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved. Then since the ceremony would be akin to a private party or religious observance: no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets."

Such a solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation.

It is never possible to please everyone, but it seems to me that the solution proffered would come the closest to doing so.

Friday, 7 October 2011

When the press oppress

I will be published in next week's Criminal Law & Justice Weekly on the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug).  The citation for the article is Criminal Law & Justice Weekly, vol 175, 17 September 2011, p 591.

The opening two paragraphs are reproduced below, and the article will be accessible in due course on the CL&J website (link on the left hand side of the page):

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.

Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press. Balancing the competing principles formed the basis of the recent case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug).