The Marriage (Same Sex Couples) Bill is back before the House of Commons on 5th February.
So what does the Bill do? Clause 1(1) declares simply that the ‘marriage of same sex couples is lawful’. So far, so good. Clause 9 provides that a civil partnership can be converted into a marriage. So far, rather better. The problems, some might say, start at this point. In somewhat convoluted language, clause 1(3) says that nothing in the canon law of the Church of England providing that marriage can only be between one man and one woman shall be contrary to any other law (i.e. the Church of England’s current ban on same-sex marriages will remain lawful). The Church in Wales is treated rather differently. Clause 8 provides that the law will be changed if and when its Governing Body decides to allow same-sex marriages in the future. No such provision is included for the Church of England. Whilst I am not a canon lawyer, I am told that were the Church of England to amend canon law to allow for the celebration of same-sex marriages, the law (i.e. the real law) would be amended to allow for this (with or without Parliament’s approval). I struggle with the subtleties of this, and suspect the real reason why express provision is not made for the Church of England to ‘opt-in’ later if it wants to is political. The issue of same-sex marriages is now the Church of England’s problem, and given recent debates upon the issue of women bishops and ‘celibate’ gay bishops, I wouldn’t hold your breath (unless you are prepared to do so for another 20 years).
Finally, nothing in the draft Bill obliges any religious celebrant or place of worship (of whatever religious persuasion) to celebrate same-sex marriages unless they wish to do so. This is provided for in clause 2 and gives rise to the ‘opt-in’ provisions in clauses 4 and 5. Although this has caused consternation for some, I am tempted to justify it as a matter of practicality. However, such logic would also allow discrimination in other spheres on the ground of gender or race, which cannot be right. In truth, a balance has been struck between attempting to avoid discrimination against same-sex couples on the one hand and religious freedom and tolerance on the other.
As a lawyer, I can live with the Marriage (Same Sex Couples) Bill, although there is certainly room for improvement. What concerns me – not as a lawyer, but as a gay man – is that the Bill and the most vocal opposition to it are apparently (party) political. I imagine the government will be pleased that I am pleased that draft legislation has been brought forward to remove what some (including me) consider an obvious discrimination against same-sex couples. I don’t buy into the idea that civil partnerships are ‘good enough’. If a Jewish couple or a black couple or a disabled couple were only permitted to enter into a civil partnership and were denied the right to marry, I doubt anyone could justify such overt discrimination on the basis that a civil partnership is a marriage in all but name. I imagine most of those who object to same-sex marriage on religious grounds are appalled to see their objections being overshadowed by regional party chairman threatening to deselect MPs if they don’t vote against the Bill. The real debate is at risk of being lost in internal party politics.
by Philip Marshall QC
More about the author.
Philip specialises in divorce and matrimonial finance cases. Called in 1989, he was made a QC in 2012. He is usually instructed in ‘big money’ cases (with 3 cases in the House of Lords) and has extensive experience of drafting pre-nuptial agreements and advising in civil partnerships disputes.
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