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In discussing Lord Alli's amendment to the Equality Bill to allow religious elements in civil partnerships, the Bishop of Winchester raised the concern that the amendement would 'blur the distinction between civil and religious marriage as two paths to effect what is in law the same relationship [and]... the characteristics of the civil partnership as distinct from marriage, whether conducted in a church service or by a registrar.'
This objection formed the backbone of further criticism, including that offered by the government. Even for one as committed to equality for religious people of all sexualities as myself that is a serious concern, but is it true?
The objection is based on the assumption, as the bishop put it, that 'civil partnerships [are] in significant ways ... analogous to civil marriage.' This is of course correct. There are only two significant differences relating to the formation of civil partnerships
Although usually thought to be minor differences their effect on the ways in which a civil partnership and a civil marriage can come to include religious elements is profound.
In short what makes a civil marriage civil is that it is 'solemnized in the (office of a superintendent registrar / presence of a superintendent registrar)' (Marriage act 1949), however as civil partnerships are not solemnised but formed through a signature the corresponding clause in the civil partnership act 2004 reads 'the civil partnership registrar is officiating at the signing of a civil partnership document'. It is abundantly clear that any religious service would compromise the role that a superintendent registrar plays in solemnising marriage, since this would either require them to adopt a religious role or for there to be two simultaneous solemnisations occurring in the same place at the same time. However this need not, and in practice, does not extend to the signing of a civil document. A civil partnership registrar can officiate the signing of a civil partnership document at a religious solemnisation of the union between two people without either contradiction or confusion.
This is not a theoretical point for lawyers, it is an extremely practical point that already affects the civil partnership ceremonies of thousands. Whilst there are currently strict rules to prevent religious services of any kind taking place whilst the civil partnership document is being signed there is considerably more leeway in adding religious elements to a civil partnership ceremony then are available to couples having a civil marriage. It appears that the only thing the act explicitly excludes is the sort of religious witness that matters so much to those groups who want a change in the law, simple expressions of religious commitment or spirituality are not excluded, in theory or practice.
Whatever the intention, or the churches' expectations, of this legal distinction may have been its effects at present are to create a clear way in which religious organisations can take a full role in witnessing to the legal union of same sex couples without blurring the distinction either between civil and religious marriage or civil partnerships and civil marriages. We will still be left with marriages that can be solemnised either in the presence of a religious gathering or a superintendent registrar and partnerships which can be signed in the presence or a registrar and solemnised, or left unsolemnised, in whatever way the couple choose. This is a useful distinction, and the government should think twice before throwing it out.Tweet