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

John Moore
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The man who created the fake Tube sign explains why he did it

"We need to consider the fact that fake news isn't always fake news at the source," says John Moore.

"I wrote that at 8 o'clock on the evening and before midday the next day it had been read out in the Houses of Parliament."

John Moore, a 44-year-old doctor from Windsor, is describing the whirlwind process by which his social media response to Wednesday's Westminster attack became national news.

Moore used a Tube-sign generator on the evening after the attack to create a sign on a TfL Service Announcement board that read: "All terrorists are politely reminded that THIS IS LONDON and whatever you do to us we will drink tea and jolly well carry on thank you." Within three hours, it had just fifty shares. By the morning, it had accumulated 200. Yet by the afternoon, over 30,000 people had shared Moore's post, which was then read aloud on BBC Radio 4 and called a "wonderful tribute" by prime minister Theresa May, who at the time believed it was a genuine Underground sign. 

"I think you have to be very mindful of how powerful the internet is," says Moore, whose viral post was quickly debunked by social media users and then national newspapers such as the Guardian and the Sun. On Thursday, the online world split into two camps: those spreading the word that the sign was "fake news" and urging people not to share it, and those who said that it didn't matter that it was fake - the sentiment was what was important. 

Moore agrees with the latter camp. "I never claimed it was a real tube sign, I never claimed that at all," he says. "In my opinion the only fake news about that sign is that it has been reported as fake news. It was literally just how I was feeling at the time."

Moore was motivated to create and post the sign when he was struck by the "very British response" to the Westminster attack. "There was no sort of knee-jerk Islamaphobia, there was no dramatisation, it was all pretty much, I thought, very calm reporting," he says. "So my initial thought at the time was just a bit of pride in how London had reacted really." Though he saw other, real Tube signs online, he wanted to create his own in order to create a tribute that specifically epitomised the "very London" response. 

Yet though Moore insists he never claimed the sign was real, his caption on the image - which now has 100,800 shares - is arguably misleading. "Quintessentially British..." Moore wrote on his Facebook post, and agrees now that this was ambiguous. "It was meant to relate to the reaction that I saw in London in that day which I just thought was very calm and measured. What the sign was trying to do was capture the spirit I'd seen, so that's what I was actually talking about."

Not only did Moore not mean to mislead, he is actually shocked that anyone thought the sign was real. 

"I'm reasonably digitally savvy and I was extremely shocked that anyone thought it was real," he says, explaining that he thought everyone would be able to spot a fake after a "You ain't no muslim bruv" sign went viral after the Leytonstone Tube attack in 2015. "I thought this is an internet meme that people know isn't true and it's fine to do because this is a digital thing in a digital world."

Yet despite his intentions, Moore's sign has become the centre of debate about whether "nice" fake news is as problematic as that which was notoriously spread during the 2016 United States Presidential elections. Though Moore can understand this perspective, he ultimately feels as though the sentiment behind the sign makes it acceptable. 

"I use the word fake in inverted commas because I think fake implies the intention to deceive and there wasn't [any]... I think if the sentiment is ok then I think it is ok. I think if you were trying to be divisive and you were trying to stir up controversy or influence people's behaviour then perhaps I wouldn't have chosen that forum but I think when you're only expressing your own emotion, I think it's ok.

"The fact that it became so-called fake news was down to other people's interpretation and not down to the actual intention... So in many interesting ways you can see that fake news doesn't even have to originate from the source of the news."

Though Moore was initially "extremely shocked" at the reponse to his post, he says that on reflection he is "pretty proud". 

"I'm glad that other people, even the powers that be, found it an appropriate phrase to use," he says. "I also think social media is often denigrated as a source of evil and bad things in the world, but on occasion I think it can be used for very positive things. I think the vast majority of people who shared my post and liked my post have actually found the phrase and the sentiment useful to them, so I think we have to give social media a fair judgement at times and respect the fact it can be a source for good."

Amelia Tait is a technology and digital culture writer at the New Statesman.