Response to Scottish Government proposals on same-sex marriage

Abstract

This submission to the Scottish Government – regarding its proposals to legalise same-sex marriage and religious ceremonies in the registering of civil partnerships – seeks to balance two concerns: namely, freedom of conscience and practice for those who, whether on religious or non-religious grounds, endorse same-sex marriages and civil partnerships (and who may wish to participate in realising them), and non-compulsion towards those who oppose or do not recognise them (and do not wish to participate). In common with many other Christian organisations, adherents and theologians, Ekklesia has elsewhere advanced the view that there are good traditional, biblical and theological reasons for the churches to repent of their hostility to same-sex relationships and of their homophobia, as was the case in the past with scripturally-defended slavery. But this consultation is not finally about approving or disapproving same-sex unions. It is about whether and how the civic authorities should make legal provision for them in a context where the majority of the public appear to endorse them (according to the latest Scottish Social Attitudes Survey), but where there is still significant moral disagreement. The approach in this submission is to say a clear ‘yes’ to lawful same-sex marriage and mixed- or same-sex civil partnerships, without compulsion toward those who disagree with either or both. The context for this submission is Ekklesia’s 2006 paper, ‘What Future For Marriage?’ which set out a theological and practical case for distinguishing between legal and religious arrangements for recognising partnerships in a post-Christendom setting.

1. Do you agree that legislation should be changed so that civil partnerships could be registered through religious ceremonies? YES

It is fair and reasonable that registration of civil partnerships should be made available to people regardless of religion or non-religion, and that the promises made by couples in the process of registration should be in a form that most accurately reflects the depth of their commitment. For some that will have an irreducible religious component, and this should not be excluded (as it is by present arrangements) from the choices available to the couples concerned. In this context, we see no contradiction between 'civil' and 'religious' commitments. A civic process may either include or not include a religious ceremony or element, with no compulsion either way.

2. Do you think that the proposals in England and Wales on registration of civil partnerships in religious premises would be appropriate for Scotland? NO

For reasons consistent with religious and civic freedom, and our answer to Question 1, we do not agree that proposals for the registration of civil partnerships in Scotland should exclude the use of a religious service while a civil partnership is being registered; should prohibit the registration being led by a minister of religion or other religious leader; should exclude extracts from an authorised religious service or readings from sacred religious texts, hymns or other religious chants; or should prohibit religious ritual or any form of worship.

Furthermore, we acknowledge the appropriateness of the arguments of the Scottish government regarding the different traditions of jurisdiction, and that the proposal for civic registrars to carry out official duties on religious premises would be contrary to the law, practice and tradition in Scotland, where a distinction is made between civil and religious ceremonies.

3. Do you agree with allowing religious celebrants to register civil partnerships in religious premises? YES

This provision allows couples who wish to have their registered civil partnership carried out by a religious celebrant on religious premises, but where the parties involved do not see this as equivalent to marriage, to do so.

4. Do you agree with allowing religious celebrants to register civil partnerships in other places agreed between the celebrant and the couple? YES

Religious celebrants and couples entering a civil partnership may reasonably wish to register the partnership in other places agreed between the celebrant and the couple for personal, religious or family reasons. This could include the non-recognition of civil partnerships by a religious body to which they are affiliated.

5. Do you agree that religious bodies should not be required to register civil partnerships? YES

Non-compulsion in these issues, for both individuals and free associations in the public square, is a matter of fundamental religious and civic freedom.

6. Do you consider that religious celebrants should not be allowed to register civil partnerships if their religious body has decided against registering civil partnerships? NO

The freedom of conscience of the religious celebrant and the registering couple should be allowed and recognised by the civic authorities, but without compulsion on the religious body to which they are affiliated.

7. Do you agree that individual religious celebrants should not be required to register civil partnerships? YES

Again, this should remain a matter of religious and civic freedom and conscience for the individual.

8. Which of the options do you favour to ensure that religious bodies and celebrants do not have to register civil partnerships against their will?

Option 1: to extend the existing authorisations of celebrants under the Marriage (Scotland) Act 1977 for opposite sex marriage so that the same celebrants would automatically have the ability to register civil partnerships. It would be made clear that religious bodies and celebrants who did not wish to register civil partnerships would not be required to do so.

Our reason for favouring Option 1 is that, in our view, it is preferable that the legal provisions in regard to civil partnership be equivalent, insofar as possible and appropriate, to those for marriage.

We recognise that the Scottish Government will need to take account of the devolution settlement and existing provisions in UK equality legislation. Under section L2 of Part II of Schedule 5 to the Scotland Act 1998, equal opportunities are reserved but the imposition on certain Scottish public authorities of some functions in relation to equal opportunities is devolved. Schedule 23 to the Equality Act 2010 contains a number of exemptions from equality legislation for religious organisations and ministers of religion. Ensuring religious bodies and religious celebrants do not have to carry out civil partnerships against their will may require an amendment of the Equality Act 2010, which is generally reserved, to ensure that religious bodies and religious celebrants are not at risk of contravening the 2010 Act. In addition, the Scottish Government will need to have regard to the European Convention on Human Rights.

9. Religious bodies may not wish their premises to be used to register civil partnerships. Do you agree that no legislative provision is required to ensure religious premises cannot be used against the wishes of the relevant religious body? YES

Where there is a disagreement about the use of religious premises not determined by legal ownership (e.g. on rented or gifted premises) we believe it would be preferable to allow disagreements of this nature to be resolved at a local level, through discussion and mediation, rather than by making further legislation. This allows issues to be discussed between the parties involved and solutions reached by civic rather than statutory means. We note that discernment, mediation and reconciliation by agreement are core values in many religious bodies.

10. Do you agree that the law in Scotland should be changed to allow same sex marriage? YES

Many same-sex couples, religious and non-religious, see marriage as involving a deeper commitment or realisation than a civil partnership (whether religiously or non-religiously conducted and registered), and therefore wish to enter a lifelong union characterised in this way. We see no reason why the civic authorities should deny them this possibility by means of subscribing to a particular religious view. Rather, it is consistent with non-interference of the state in religious affairs that it should make provision for all in the matters of both civic partnership or civic marriage.

11. Do you agree that religious bodies and celebrants should not be required to solemnise same sex marriage? YES

Non-compulsion in these issues, for both individuals and free associations in the public square, is a matter of fundamental religious and civic freedom.

12. Do you agree with the introduction of same-sex civil marriage only? NO

The state should neither require nor preclude religion or non-religion in the matter of marriage. (Our broader understanding of 'civil' is that it pertains to civic life, which should be open to all, whether religious or non-religious).

13. Do you agree with the introduction of same-sex marriage, both religious and civil? YES

For the reasons stated in answer to Question 12 (above).

14. Do you agree that religious bodies should not be required to solemnise same sex marriage? YES

Non-compulsion in these issues, for both individuals and free associations in the public square, is a matter of fundamental religious and civic freedom.

15. Do you consider that religious celebrants should not be allowed to solemnise same sex marriages if their religious body has decided against solemnising same sex marriage? NO

The freedom of conscience of the religious celebrant and the couple wishing to be married should be allowed and recognised by the civic authorities, but without compulsion on the religious body to which they are affiliated.

16. Do you agree that individual religious celebrants should not be required to solemnise same sex marriage? YES

Once more, this should remain a matter of religious and civic freedom and conscience for the individual.

17. Which of the options do you favour to ensure that religious bodies and celebrants do not have to solemnise same sex marriage against their will?

Option 1, which would be to extend the existing authorisations of celebrants under the Marriage (Scotland) Act 1977 so that the same celebrants would have the ability to solemnise same sex marriage. It would be made clear that religious bodies and celebrants who did not wish to solemnise same sex marriage would not be required to do so.

In our view, it is preferable that the law in regard to same-sex marriage be equivalent to that for opposite-sex marriage.

We recognise the Scottish Government will need take account of the devolution settlement and existing provisions in UK equality legislation. Under section L2 of Part II of Schedule 5 to the Scotland Act 1998, equal opportunities and the subject matter of the Equality Act 2010 are generally reserved but the imposition on certain Scottish public authorities of some functions in relation to equal opportunities is devolved. Schedule 23 to the Equality Act 2010 contains a number of exemptions from equality legislation for religious organisations and ministers of religion to ensure it is clear that the Act is not contravened in those circumstances. Ensuring religious bodies and religious celebrants do not have to solemnise same sex marriage against their will may therefore require amendment of the Equality Act 2010, which is generally reserved, to ensure that religious bodies are not at risk of contravening the 2010 Act. In addition, the Scottish Government will need to have regard to the European Convention on Human Rights.

18. Religious bodies may not wish their premises to be used to solemnise same sex marriage. Do you agree that no legislative provision is required to ensure religious premises cannot be used against the wishes of the relevant religious body? YES

Where there is a disagreement about the use of religious premises not determined by legal ownership (e.g. on rented or gifted premises) we believe it would be preferable to allow disagreements of this nature to be resolved at a local level, through discussion and mediation, rather than by making further legislation. This allows issues to be discussed between the parties involved and solutions reached by civic rather than statutory means. We note that discernment, mediation and reconciliation by agreement are core values in many religious bodies.

19. If Scotland should introduce same-sex marriage, do you consider that civil partnerships should remain available? YES

Many people, for both religious and non-religious reasons, regard marriage as a more solemn and sacred commitment than a civil partnership. We recognise that understandings of, and meanings ascribed to, the two may differ considerably in both religious and non-religious circles. It is best that the civic authorities do not impose one meaning or understanding, leaving it instead to the parties and bodies involved – or withholding their involvement.

20. Do you have any other comments? YES

Our comments are in our area of specialism - namely the religious disputes which have surrounded the Scottish government's proposals:

We fully recognise that while some religious bodies (including Quakers, Unitarians, Pagans and Liberal Judaism) have stated their willingness to recognise, authorise and/or conduct same-sex marriages, some larger Christian bodies (including the Roman Catholic Church, the Church of Scotland and the Episcopal Church) have expressed the view that marriage in traditional Christian understanding is reserved for opposite-sex couples. However, there remain many theologians, ministers of religion and reflective adherents who take a different view, and who believe that the core components of marriage (love, lifelong faithfulness, mutual creativity even where procreativity is not possible, and related virtues) can and should be extended to same-sex couples as a legitimate extension of ecclesial and scriptural tradition. There are correspondingly and differently varied views of marriage in other religious traditions outwith Christian ones.

In our view it is not for the state to determine or arbitrate such debates by requiring religious bodies to abandon their specific traditions, views and practices. This is why non-compulsion should remain a central principle in achieving suitable legislation for civil same-sex marriage.

By the same token, it is not appropriate that individual religious bodies should require those who are not adherents to operate according to their codes and beliefs alone, by seeking to superimpose those views on civic arrangements; or that they should seek to deny the freedom of adherents or non-adherents to construe (and enter into) civil partnership or marriage in other contexts and settings, either religious or non-religious.

In 2006, Ekklesia published a detailed paper entitled 'What Future For Marriage?' (http://www.ekklesia.co.uk/research/papers/rethinkmarriage), which provides the full context for this response. Our overarching view is that it would be preferable, on both civic and theological grounds, for the civic authorities to offer a range of civil partnership options, and for religious bodies to be left free to decide which to bless and endorse in terms of their own beliefs, commitments and ceremonies.

The starting point of this consultation is different, but the effect of what the Scottish government is proposing is broadly consistent with this - allowing freedom of expression and conscience to those of differing convictions and commitments, while upholding the possibility, means (and, we would say, desirability) of lifelong unions as a context in which love, faithfulness, justice, human flourishing and the nurturing of family and community can take place.

ABOUT THE RESPONDENT

Ekklesia (http://www.ekklesia.co.uk/about) is an independent think-tank seeking to examine the social, political and cultural role of religion, beliefs and values in a creatively critical way. It also aims to advance ideas in a range of policy areas from a forward-thinking, theologically resourced perspective. Ekklesia is deeply rooted in the Christian tradition, but not tied to any one denomination or major church body.

FURTHER READING

* ‘What future for marriage?’, by Simon Barrow and Jonathan Bartley, Ekklesia, June-July 2006 - http://www.ekklesia.co.uk/research/papers/rethinkmarriage

* 'Fruitful love: beyond the civil and legal in partnerships', by Savi Hensman, Ekklesia, December 2011 - http://www.ekklesia.co.uk/node/15884

* ‘Sex, orientation and theological debate’, by Noel Moules, Ekklesia, March 2010 - http://www.ekklesia.co.uk/node/11195

* ‘Wrestling biblically with the changing shape of family’, by Professor Deirdre Good, Ekklesia, March 2007 - http://www.ekklesia.co.uk/node/4844

* ‘Contrasting church attitudes on human rights for all’, by Savi Hensman, Ekklesia, February 2009 - http://www.ekklesia.co.uk/node/8492