Myths and realities about Equal Marriage

The complexity of the process should not dissuade the Government from sticking to its guns.

 

The Marriage (Same Sex Couples) Bill is back before Parliament today for its Report Stage. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.

This is all very complicated, both legally and politically, as you might expect for such a significant social change. I thought it would be useful to discuss five of the key issues in the current debate - what follows is not comprehensive and I would of course welcome comments.

1. Marriage equality was not in the Conservative Party Manifesto

Partial myth. This is a regular complaint of Tory Party activists (e.g. Conservative Grassroots complaint last week that "Same-sex marriage was not in our manifesto"). Technically, they are right - there was no mention of equal marriage in the 2010 Manifesto document. However, it was mentioned in the Conservative Party's Contract for Equalities, published at the same time, which promised

We will also consider the case for changing the law to allow civil partnerships to be called and classified as marriage. 

So while it is right to say that marriage equality was not an explicit promise the 2010 Manifesto, it was clearly on the Conservative agenda so should not come as a surprise to any Tory supporter who bothered to read up on what the party was going to do in power.

2. The European Court of Human Rights will force vicars to conduct gay marriage

Almost certainly a myth. This has been a concern of religious leaders from the start. It has always been incredibly speculative - see my post from last year. I agree with Karon Monagham QC's opinion which can be found annexed to Liberty's consultation response; as she says at page 40:

51.    a refusal by a church or other religious organisation, to conduct a same- sex marriage, so as to comply with the tenets of its religion or the strongly held and faith based convictions of its members, will invariably be regarded by any court as justified. 

Given the range of views across Europe as well as the extreme sensitivity of this issue to some religious believers, the European Court of Human Rights is unlikely to find that any priest, Rabbi, Imam or other religious leader breached human rights law by refusing to conduct a gay marriage. 

3. The "quadruple lock" protecting religious communities will not survive a European Court of Human Rights challenge

Unclear. It is important to separate the issue of religious observers being forced by the Strasbourg court to conduct gay marriages (see above) with the question of whether the current proposals for a "quadruple lock" protecting religious denominations from having to do so is sustainable. As said above, I think that the protection for religious organisations which refuse to 'opt in' is probably fine in terms of a human rights challenge. The problem, however, is the exception made for the Church of England

The European Court of Human Rights has made clear in recent case law (see my summary) that it will not force states to legalise gay marriage, but also that once gay marriage is legalised, it would treat gay marriages as "analogous" to opposite-sex marriages for the purposes of anti-discrimination rules. The effect of this would be that the Court may be willing to step if the rules which regulate same-sex marriage are themselves discriminatory. 

The Government was right to allow religious communities to 'opt in' to same-sex marriage in its draft bill, an idea which wasn't actually proposed at the consultation stage. If it had simply banned religious communities from solemnising gay marriages, as was the case initially with civil partnerships, this would have been very vulnerable to a European Court challenge. In reality, the so-called 'quadruple lock'    is part of a (sensible) enabling mechanism for religious communities.

But here's the problem. The Government slightly fudged the issue by preventing the Church of England from opting in. The justification was that as the established church, the CoE was in a unique position, as it is obliged to conduct 'marriages' however defined, and would need further protection. Another issue is the complex interaction between Cannon and domestic law. That may all be right, but the position remains that the Church of England as religious denomination will  be prevented, by law, to opt in to the system should it wish to, uniquely amongst religious denominations. This may amount to discrimination, but my instinct is that the European Court of Human Rights would accept the UK Government's position that this is really about the unique legal position of the CoE rather than any discrimination within the meaning of the ECHR.

4. Teachers will be forced to promote gay marriage

Probably a reality. Section 403 of the Education Act 1996 provides that the Secretary of State must issue guidance ensuring that when children are given sex education, "they learn the nature of marriage and its importance for family life and the bringing up of children". Since "marriage" is going to be redefined for the purposes of all legislation (see Para 1 of Schedule 3 to the Draft Bill), that includes s.403. 

So, the Secretary of State will be under a legal duty to ensure that children learn about the importance of marriage - including same-sex marriage - for family life and the bringing up of children. And when teaching sex education, teachers will have to emphasise it too. Teachers who are sacked for 'conscientiously objecting' may find the courts disagree with their view, as they did in the recent case of Eweida and Others v UK (see paras 105-106).

In light of this, one of the current amendments to the Bill seeks to withdraw the obligation to promote marriage. But the issue is a bit more complex than that. Under the Equality Act, teachers must teach in a way which is not discriminatory or harassing. Teachers who are anti-gay marriage, even if for religious reasons, will have to be sensitive in the way they teach about the topic so as not to offend students.

But, and this a big but, this is nothing new. Being sensitive to the feelings and beliefs of pupils, even if they are different to the views of the teachers, is central to being a good teacher, as it always has been. Teachers who want to use classrooms to as a bully pulpit against gay marriage should probably consider doing so in a different setting.

5. Preventing opposite-sex civil partnerships is discriminatory

Probably a reality, but only once the bill in its current form becomes law. Civil partnerships are currently only available for same-sex couples. Legalising gay marriage without legalising opposite sex civil partnerships would  therefore arguably leave opposite-sex couples in a worse position than same-sex couples. 

This, it seems to me, is probably at risk of a court challenge. The disparity is accident of legislative history. For that reason, it seems pretty obvious that civil partnerships will eventually be allowed for opposite sex couples. But the current Government will not want to include that as part of this bill as it would arguably water down the institution of marriage by giving opposite sex couples an alternative, albeit one which looks very similar to a marriage in terms of the legal rights generated for civil partners. 

So the question of whether civil partnerships are allowed for opposite sex couples now rather than later is really one of politics rather than principle. But it will need to happen at some point.

On myths and reality

Contrary to the naysayers, the Government has done a pretty good job so far in plotting a path through the key issues surrounding this bill, most significantly by introducing the "opt-in" for religious communities after almost everyone said that it must do so to prevent a court challenge. There are plenty of other difficulties surrounding the Marriage (Same Sex Couples) Bill, but that should surprise no one. As alluring as it is to pretend there is an easy way to bring in such a major legal and social change, as Peter Tatchell does in the Guardian, the reality is that legalising equal marriage is a complex business. That complexity should not discourage the Government from sticking to its guns.

Adam Wagner is a barrister at 1 Crown Office Row specialising in human rights and medical law. He is the founding editor of the UK Human Rights Blog and tweets as @adamwagner1

A protester holds up a placard at a demonstration for equal rights for gay couples in Trafalgar Square in March 2013. Photograph: Getty Images

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

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Who will win in Copeland? The Labour heartland hangs in the balance

The knife-edge by-election could end 82 years of Labour rule on the West Cumbrian coast.

Fine, relentless drizzle shrouds Whitehaven, a harbour town exposed on the outer edge of Copeland, West Cumbria. It is the most populous part of the coastal north-western constituency, which takes in everything from this old fishing port to Sellafield nuclear power station to England’s tallest mountain Scafell Pike. Sprawling and remote, it protrudes from the heart of the Lake District out into the Irish Sea.

Billy, a 72-year-old Whitehaven resident, is out for a morning walk along the marina with two friends, his woolly-hatted head held high against the whipping rain. He worked down the pit at the Haig Colliery for 27 years until it closed, and now works at Sellafield on contract, where he’s been since the age of 42.

“Whatever happens, a change has got to happen,” he says, hands stuffed into the pockets of his thick fleece. “If I do vote, the Bootle lass talks well for the Tories. They’re the favourites. If me mam heard me saying this now, she’d have battered us!” he laughs. “We were a big Labour family. But their vote has gone. Jeremy Corbyn – what is he?”

The Conservatives have their sights on traditional Labour voters like Billy, who have been returning Labour MPs for 82 years, to make the first government gain in a by-election since 1982.

Copeland has become increasingly marginal, held with just 2,564 votes by former frontbencher Jamie Reed, who resigned from Parliament last December to take a job at the nuclear plant. He triggered a by-election now regarded by all sides as too close to call. “I wouldn’t put a penny on it,” is how one local activist sums up the mood.

There are 10,000 people employed at the Sellafield site, and 21,000 jobs are promised for nearby Moorside – a project to build Europe’s largest nuclear power station now thrown into doubt, with Japanese company Toshiba likely to pull out.

Tories believe Jeremy Corbyn’s stance on nuclear power (he limply conceded it could be part of the “energy mix” recently, but his long prevarication betrayed his scepticism) and opposition to Trident, which is hosted in the neighbouring constituency of Barrow-in-Furness, could put off local employees who usually stick to Labour.

But it’s not that simple. The constituency may rely on nuclear for jobs, but I found a notable lack of affection for the industry. While most see the employment benefits, there is less enthusiasm for Sellafield being part of their home’s identity – particularly in Whitehaven, which houses the majority of employees in the constituency. Also, unions representing Sellafield workers have been in a dispute for months with ministers over pension cut plans.

“I worked at Sellafield for 30 years, and I’m against it,” growls Fred, Billy’s friend, a retiree of the same age who also used to work at the colliery. “Can you see nuclear power as safer than coal?” he asks, wild wiry eyebrows raised. “I’m a pit man; there was just nowhere else to work [when the colliery closed]. The pension scheme used to be second-to-none, now they’re trying to cut it, changing the terms.”

Derek Bone, a 51-year-old who has been a storeman at the plant for 15 years, is equally unconvinced. I meet him walking his dog along the seafront. “This county, Cumbria, Copeland, has always been a nuclear area – whether we like it or don’t,” he says, over the impatient barks of his Yorkshire terrier Milo. “But people say it’s only to do with Copeland. It ain’t. It employs a lot of people in the UK, outside the county – then they’re spending the money back where they’re from, not here.”

Such views might be just enough of a buffer against the damage caused by Corbyn’s nuclear reluctance. But the problem for Labour is that neither Fred nor Derek are particularly bothered about the result. While awareness of the by-election is high, many tell me that they won’t be voting this time. “Jeremy Corbyn says he’s against it [nuclear], now he’s not, and he could change his mind – I don’t believe any of them,” says Malcolm Campbell, a 55-year-old lorry driver who is part of the nuclear supply chain.

Also worrying for Labour is the deprivation in Copeland. Everyone I speak to complains about poor infrastructure, shoddy roads, derelict buildings, and lack of investment. This could punish the party that has been in power locally for so long.

The Tory candidate Trudy Harrison, who grew up in the coastal village of Seascale and now lives in Bootle, at the southern end of the constituency, claims local Labour rule has been ineffective. “We’re isolated, we’re remote, we’ve been forgotten and ignored by Labour for far too long,” she says.

I meet her in the town of Millom, at the southern tip of the constituency – the opposite end to Whitehaven. It centres on a small market square dominated by a smart 19th-century town hall with a mint-green domed clock tower. This is good Tory door-knocking territory; Millom has a Conservative-led town council.

While Harrison’s Labour opponents are relying on their legacy vote to turn out, Harrison is hoping that the same people think it’s time for a change, and can be combined with the existing Tory vote in places like Millom. “After 82 years of Labour rule, this is a huge ask,” she admits.

Another challenge for Harrison is the threat to services at Whitehaven’s West Cumberland Hospital. It has been proposed for a downgrade, which would mean those seeking urgent care – including children, stroke sufferers, and those in need of major trauma treatment and maternity care beyond midwifery – would have to travel the 40-mile journey to Carlisle on the notoriously bad A595 road.

Labour is blaming this on Conservative cuts to health spending, and indeed, Theresa May dodged calls to rescue the hospital in her campaign visit last week. “The Lady’s Not For Talking,” was one local paper front page. It also helps that Labour’s candidate, Gillian Troughton, is a St John Ambulance driver, who has driven the dangerous journey on a blue light.

“Seeing the health service having services taken away in the name of centralisation and saving money is just heart-breaking,” she tells me. “People are genuinely frightened . . . If we have a Tory MP, that essentially gives them the green light to say ‘this is OK’.”

But Harrison believes she would be best-placed to reverse the hospital downgrade. “[I] will have the ear of government,” she insists. “I stand the very best chance of making sure we save those essential services.”

Voters are concerned about the hospital, but divided on the idea that a Tory MP would have more power to save it.

“What the Conservatives are doing with the hospitals is disgusting,” a 44-year-old carer from Copeland’s second most-populated town of Egremont tells me. Her partner, Shaun Grant, who works as a labourer, agrees. “You have to travel to Carlisle – it could take one hour 40 minutes; the road is unpredictable.” They will both vote Labour.

Ken, a Conservative voter, counters: “People will lose their lives over it – we need someone in the circle, who can influence the government, to change it. I think the government would reward us for voting Tory.”

Fog engulfs the jagged coastline and rolling hills of Copeland as the sun begins to set on Sunday evening. But for most voters and campaigners here, the dense grey horizon is far clearer than what the result will be after going to the polls on Thursday.

Anoosh Chakelian is senior writer at the New Statesman.