Same sex marriage moves a step closer

10 September 2012

The Scottish Government recently announced its legislative programme for 2012/2013 and this included the anticipated Marriage & Civil Partnership Bill. 

There will be a number of family law changes if the Bill is to become law as intended by the Scottish Government. 

First of all, there will be three ways to get married. At present, most folks are aware of the choice between either a civil ceremony or a religious ceremony. 

There is a problem with those descriptions. Humanist ceremonies account for a growing number of weddings (and funerals). However, the description of “religious” is not a perfect fit for humanists, even although they have distinctive beliefs. Therefore, the Scottish Government intends to bring forward legislation to allow for three forms of ceremonies. Those will be known as “civil”, “religious” or “belief” ceremonies.

Another change is that civil partnerships will no longer be just by civil ceremony. Given the new categories of marriage, civil partnerships will also be allowed to be registered by way of a religious ceremony or a belief ceremony. It remains to be seen how many same sex couples will choose a civil partnership after the new legislation comes into force.

The Scottish Government also intends to make changes in relation to the law of marriage registration. That will, if enacted, allow same sex couples to be registered as married but it will also make changes as to who can conduct marriage ceremonies. 

One of the anticipated changes is to allow Church of Scotland deacons (i.e. not just ministers) to marry opposite sex couples. It is not clear why this would only relate to deacons of one particular denomination (other denominations in Scotland have deacons or similar office-holders). It is also not clear why it would be restricted to opposite sex couples, if same sex couples are allowed to be married. 

As a result of the Scottish Government carrying out its consultation on same sex marriage, it is well known that it produced a range of differing responses. However, the Scottish Government is pressing forward with legislation to allow same sex couples to be married through a religious, belief or civil ceremony. The Government states that they are currently in discussions with various bodies, including religious bodies and those involved in education.

Those discussions will centre on what protections may be required for those who take a different stance from those who agree with same sex marriages. There will be consequences for a whole range of individuals - ministers of religion, civil registrars and teachers (especially those in non-denominational schools).

The Scottish Government considers that an amendment to the Equality Act 2010 is required to protect the conscience of individual celebrants. This is a UK Act and the Scottish Government has stated that it is currently working with the UK Government to secure an amendment to the Equality Act.

The Scottish Government has stated that it would wish to have the amendment in place before their Bill is introduced to the Scottish Parliament, and before the legislation comes into force. Of course, whether or not that can actually be secured remains to be seen.

We previously suggested what the amendment may look like here.

The difficulty for religious celebrants is a vexed one, and an issue that has been mentioned by both the First Minister and Deputy First Minister on several occasions. The Scottish Government has given assurances that no religious celebrant would be expected to participate in same sex ceremonies against his or her will.

Although the Equality Act allows religious bodies to be exempt from conducting same sex marriages, there would be difficulty if the religious body allowed celebrants to conduct such marriages but individual celebrants took a different stance from their denomination.

There is a practical solution to all of this. This would be in the form of a new “opt-in" register for those who wish to conduct same sex marriages. That was not part of the recent Government announcement but it has been raised by some interested parties before.

The idea is that those who have not opted into a new register of those allowed to conduct same sex couples could not be obliged to conduct such ceremonies. The reason is that they would not appear on the new register of authorised celebrants for same sex marriages. This would provide a measure of comfort and protection to religious celebrants who did not opt-in to the new register. Whether civil celebrants working for a local authority would be allowed to choose whether or not to opt-in is another matter.

This could also apply to places where a same sex ceremony could take place. That is, every local government building where civil marriages can take place could be "opted-in" to the new register. However, individual places of religion could decide for themselves whether or not to opt-in to the new register for places where a same sex marriage can take place. The simplicity of that appraoch would be that, if they were not on the register, no-one could oblige such a religious place to participate - they are simply not on the register.

The very positive side of all that is that those celebrants and those places that did wish to participate could appear on a register that same sex couples could look at, and decide who and where was available. This would avoid disappointment and potentially awkward situations all round. The register would be a positive affirmation from those who were willing to officiate at same sex marriages.

Of course, the details require to be clarified in due course, but it would certainly avoid issues with the Scottish Government not securing an appropriate amendment to the UK Equality Act 2010 (which they themselves have said is necessary). It would also appease the concerns of those who fear being obliged to conduct such services (or suffer liability or penalty for not doing so). This could include discretion on the grounds of conscience to public servants working in registry offices, to avoid them being obliged by their employers to conduct civil ceremonies for same sex marriages or civil partnerships (or disciplined for not doing so).

In the meantime, given that the Scottish Government considers that an amendment to the Equality Act is required to protect the conscience of individual celebrants, they have stated that they are currently working with the UK Government to secure such an amendment before their Bill is introduced to the Scottish Parliament, with a view to it being in place before the legislation comes into force. Of course, whether or not that can actually be secured remains to be seen.

Whether or not that amendment is in place, the Scottish Government has stated that there will be a further consultation later in 2012 on a draft Bill. It is therefore anticipated that a draft Bill will be prepared prior to the end of the year.  Once the Bill has been prepared and the next consultation is under way, we will provide further comment at that time.

Our Gus Macaulay advises a range of individuals and local authorities on family law matters and should you require any advice, please do not hesitate to call him on 0141 229 0880 or e-mail him here.  


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