The REAL Mythbusters - February 2013

THE REAL MYTHBUSTERS – SETTING OUT THE TRUTH The Government has issued a ‘mythbusters’ document that claims to set out the reality of the Marriage (Same Sex Couples) Bill. This document presents the truth in response to claims made within the Government’s paper.

MYTH: Allowing same-sex couples to marry will destroy the institution of marriage.

REALITY: Marriage is a hugely important institution in this country. The principles of long-term commitment and responsibility which underpin it bind society together and make it stronger. The Government believes that we should not prevent people getting married unless there are very good reasons – and loving someone of the same sex is not one of them.

CARE’s RESPONSE: Commitment and responsibility are key components of marriage. For years the law has recognised this by making adultery a ground for divorce. According to the Marriage (Same Sex Couples) Bill, adultery does not apply to marriages between two people of the same sex. Lawyers have already said that this situation is unsustainable and that, in time, adultery will in practice be removed as a basis for divorce altogether.1 In light of these things, the Government cannot claim that the Marriage (Same Sex Couples) Bill will promote commitment and responsibility. In reality it will have quite the opposite effect.

MYTH: Marriage has not changed in hundreds of years.

REALITY: Marriage is not static. It has always been an evolving institution. In the 19th century inequalities prevented Catholics, atheists, Baptists and many others from marrying except in the Anglican Church. In the 20th century the law was changed to recognise married men and married women as equal before law.

Opening up marriage to all couples will strengthen the vital institution of marriage, and help ensure that it remains an essential building block of society.

CARE’s RESPONSE: This response wilfully confuses two completely different things. Of course the laws regulating marriage have evolved and changed over the years as the Government rightly point out. However, marriage between one man and one woman predates the state and the law.

This fundamental truth – helpfully codified in the 1866 case of Hyde v Hyde2 – has never been changed.

MYTH: Religious organisations or minister of religion will be forced to conduct same-sex marriages.

REALITY: This is not true. The Marriage (Same Sex Couples) Bill makes clear that no religious organisation or religious minister will be compelled to marry same-sex couples. A ‘quadruple lock’ of legal protections will ensure that all religious organisations are free to choose and can act according to their doctrines and beliefs.

CARE’s RESPONSE: The stated intent of the Marriage (Same Sex Couples) Bill is, indeed, that no minister or church should be compelled to marry same sex couples. However, in his legal opinion, Aidan O’Neill QC questions the Government’s assurances. He submits that the protections afforded to the Church of England are unsustainable because it has a legal obligation to marry a couple where at least one of the partners lives within the parish. He posits that the Church of England would most likely lose any court battle and then have to choose either to marry same sex couples or embrace partial disestablishment. With respect to churches apart from the Church of England, O’Neill submits that it is unclear how the state will be able to provide a legally enforceable right of conscientious objection for ministers of religion who wish to marry same sex couples against the wishes of their church or vice versa. He also suggests that such churches which refuse 1

http://www.dailymail.co.uk/news/article-2268689/Concept-adultery-abolished-law-grounds-divorce-wake-Government-s-plans-gaymarriage.html 2 Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130

to marry same sex couples will be at risk if they wish to continue marrying different sex couples as local authorities who approve of marriage venues are required (under The Public Sector Equality Duty) to ‘remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic.’

MYTH: The European Court of Human Rights will force religious organisations to conduct same-sex marriages.

REALITY: The case law of the European Court of Human Rights makes it clear that same-sex marriage is a matter for individual states to decide. Any case before the Court would be brought against the UK Government, not a religious organisation. The Court would be bound to give priority to the rights of a religious organisation under Article 9 of the European Convention on Human Rights, which guarantees the right to freedom of religion.

CARE’s RESPONSE: The European Court of Human Rights (ECtHR) does indeed take the view that it is not its place to impose same sex marriage on states that don’t want it. However, once a state legalises same sex marriage, recent cases in the ECtHR indicate that the European Convention on Human Rights does not allow for a difference of treatment or reasonable accommodation (see, for example the case of Eweida and Others v The United Kingdom.3). In addition, O’Neill argues that the position of the Church of England would be completely unsustainable in relation to the ECtHR. MYTH: The Church of England and Church in Wales have been banned by the Government from conducting same-sex marriages.

REALITY: This is not true. Like every other religious organisation, the Church of England and Church in Wales will be able to decide for themselves whether and when to allow the marrying of same-sex couples according to their rites. The Bill contains specific measures to deal with the unique legal position of the Church of England and the Church in Wales. Unlike any other religious body in this country, their clergy have a specific (common law) legal duty to marry parishioners. The Bill makes clear that this duty is not extended to marriage of same-sex couples, and will ensure that Anglican Canon law does not conflict with civil law and can continue to state that for them marriage is between one man and one woman.

CARE’s RESPONSE: The O’Neill legal opinion notes that it is possible that the Bill amounts to a ban and we are concerned at the very real possibility of a challenge to the ECtHR. MYTH: The Church of England and Church in Wales are being given extra protections.

REALITY: The Bill contains specific measures to deal with the unique legal position of the Church of England and the Church in Wales. The clergy of the Church of England and Church in Wales have a legal duty to marry parishioners. The Bill provides them with protection to address this point. The Bill also ensures that Church of England Canon law, which states their belief that marriage is between one man and one woman, is not affected by this Bill. These provisions are required to take account of these Churches’ particular legal circumstances – they do not provide more, or less, protection than is given to other religious organisations.

CARE’s RESPONSE: This is correct but, as outlined above, it is extremely doubtful that the protections will work.

MYTH: The Church of England and Church in Wales were not consulted properly.

REALITY: During the course of both the consultation and the drafting of the legislation, the Government has had numerous and detailed discussions with stakeholders about the provisions within the Bill. These discussions have included a number of religious organisations including the Church of England, the Catholic Church and the Church in Wales.

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Eweida and Others v The United Kingdom (2013) (Application nos. 48420/10, 59842/10, 51671/10 and 36516/10)

CARE’s RESPONSE: Although The Church of England and The Church of Wales were consulted they were not told about the Government’s plans to allow same-sex marriages on religious premises until the announcement to Parliament by Culture Secretary Maria Miller.4 MYTH: Teachers will have to promote same-sex marriage to pupils in sex and relationships education.

REALITY: This is not true. No teacher will be required to promote or endorse views which go against their beliefs. As with any other area of the curriculum teachers will of course be required to teach the factual position, that under the law marriage can be between opposite-sex couples and same-sex couples. There are many areas within teaching, particularly within faith schools, where this type of issue already arises and where subjects such as divorce are taught with sensitivity. The guidance governing these issues is the same guidance that will govern how same-sex marriage in the classroom will be approached. Sex and relationships education is categorically not about the promotion of a particular sexual orientation - that would be inappropriate teaching.

CARE’s RESPONSE: It is not at all clear that teachers will be given the option of teaching about the new definition of marriage in the purely factual way suggested. Suppose a primary school teacher is required to use the book King and King which tells the story of two Princes who fall in love and marry. Most Christians would feel unable to use such a resource because it does not simply deal with facts but seeks to promote same sex relationships. A Christian teacher with orthodox views about same sex marriage could not use this resource without acting in violation of their faith. Aidan O’Neill advises that teachers in this situation would have no chance of success in court.5 Additionally, with regard to sex and relationships education, under the terms of Section 403 of the Education Act 1996, there is an explicit duty to 'encourage those pupils to have due regard to moral considerations and the value of family life', an arguably implicit duty to promote marriage under S.403 (1A, a) and an explicit duty to have ‘regard to the age and the religious background of the pupils concerned'. It is difficult to see how redefining marriage will not bring teachers into conflict with the law and perhaps stigmatise children from religious backgrounds who themselves do not want (or whose parents do not want them) to learn about same-sex marriage.

MYTH: Teachers who oppose same-sex marriage will be sacked from their jobs.

REALITY: Teachers will continue to have the clear right to express their own beliefs, or that of their faith in a professional way, such as that marriage should only be between a man and a woman. No teacher will be required to promote or endorse views which go against their beliefs.

CARE’s RESPONSE: Teachers who refuse to endorse same-sex marriage are not given any legal protection under the Marriage (Same Sex Couples) Bill. Senior figures in The Department for Education have already expressed concerns that teachers could be sacked for opposing same sex marriage. A senior source in the Department noted that the final decision on such questions about the freedom of conscience and expression for teachers might ultimately be taken by the court in Strasbourg. He said: “We have had legal advice, the problem is that there is this inherent uncertainty about such matters,” He added: “it is just fundamentally uncertain because Britain isn’t in control of this.”6 Teachers may well have to promote the new definition of marriage. (See above.)

MYTH: There is no difference between civil partnership and marriage.

REALITY: There are some small legal differences between civil partnerships and marriage. But for many people there are important differences in the perception of and responsibilities associated with these separate institutions.

4 5 6

http://www.itn.co.uk/UK/63995/church-of-england-says-lack-of-consultation-on-gay-marriage Ibid. paras 7.1 – 7.9 http://www.telegraph.co.uk/news/politics/9825341/Government-powerless-to-protect-teachers-from-sack-over-gay-marriage.html

CARE’s RESPONSE: There are no substantive rights that a same sex couple would access through marriage that they cannot access now through a civil partnership. If the Government wanted to provide same sex couples with the same relationship as marriage, then why is adultery only a ground for divorce for opposite sex married couples? And why is non-consummation not a ground on which a same sex marriage is voidable?

MYTH: You are abolishing the terms ‘husband’, ‘wife’, ‘mother’ and ‘father’.

REALITY: This is not true – these terms will continue to exist. ‘Husband’ will refer to a male marriage partner and ‘wife’ will refer to a female marriage partner, as now.

CARE’s RESPONSE: This is correct. However, the Government did say in the impact assessment to its consultation document that the terms ‘husband’ and ‘wife’ would be removed from official documents.7 MYTH: Not introducing civil partnerships for opposite-sex couples is unfair.

REALITY: This is not true. We believe in the institution of marriage and we do not believe that opposite-sex couples are disadvantaged by not being able to enter into civil partnerships. This Bill is designed to remove the unfairness of same-sex couples being excluded from marriage.

CARE’s RESPONSE: By ensuring that civil partnerships are only an option for same sex couples the Government have created a manifest inequality. Further, they have made this decision against the views of the majority in the consultation.8 MYTH: This is the thin end of the wedge – further changes to the law to enable other groups to marry are likely.

REALITY: This is simply not the case - we have absolutely no plans to amend the law on marriage in any other area.

CARE’s RESPONSE: No one is suggesting that the Government intends to further redefine marriage. The point is simply that once you have redefined something that has never before been redefined, an important precedent is set, opening the door for further redefinition. During a Bow Group meeting in Parliament last year, a proponent for redefining marriage, Andrew Lilico,argued that the Government should not just legalise marriage between two people of the same sex but should allow polygamous marriages also.9 In Canada and in some US states, where same-sex marriage has been legalised, attempts are now being made to legalise polygamy. 10In the Netherlands, where same-sex marriage was legalised in 2001, three-way relationships have been given legal recognition through a “cohabitation agreement.”11 MYTH: You did not take into account the large number of petitions received opposing a change in the law.

REALITY: 228,000 individuals and organisations responded to the consultation on how to open up marriage to same-sex couples. Additionally there were petitions for and against equal marriage. The largest was from the Coalition for Marriage against the proposals which contained over 500,000 signatures opposed to the proposals. The views expressed in the petitions were considered along with all the other responses received.

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Equal Marriage – Impact Assessment, Home Office, January 2012, pages 7-8 61% of those questioned thought that civil partnerships should be open to heterosexual couples and only 24% thought that they should not.

9 Andrew Lilico, The Bow Group Gay Marriage Debate, Portcullis House, May 23rd 2012. See also: http://conservativehome.blogs.com/thecolumnists/2012/02/andrew-lilico-civil-partnership-vs-gay-marriage-why-does-it-matter-what-youcall-it.html 10 See: http://www.pinknews.co.uk/2009/02/04/mormon-accused-of-polygamy-to-use-gay-marriage-as-defence/ 11 The Brussels Journal, 26 September 2005.

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However, the Government have always been clear that the consultation was focussed on how to implement a change in the law, rather than whether to change the law.

CARE’s RESPONSE: Civil servants suggested that signatories to the Coalition for Marriage petition, which indicate a clear answer to question 1 of the consultation,12 would be counted as consultation submissions. Later the Government backtracked on this assurance and said that whilst they had regard to the petition, they would not count signatories as submissions. On this basis they could claim that 53% of submissions were in favour of redefining marriage. If the Government had honoured their original undertaking, then a staggering 83% of submissions would have been against their proposals. Many people who would have made a separate submission had they not been misled now feel cheated and deceived.13 The Government’s line that the consultation was only concerned with how and not whether marriage should be redefined is completely unsustainable given that the first two questions of the consultation were explicitly about whether marriage should be redefined.

MYTH: The Government has no mandate to introduce same-sex marriage.

REALITY: The Conservative Party’s Contract for Equalities, published alongside its General Election Manifesto in 2010, set out clearly that we would consider the case for changing the law to allow civil partnerships to be called and classified as marriage. Independent surveys, such as the one carried out by the Times in March 2012, show support by the general public with 65% thinking gay couples should have an equal right to marry, not just to have civil partnerships.

CARE’s RESPONSE: There was no manifesto commitment to redefine marriage from either the Government or opposition parties. The Conservative Contract for Equalities talked in terms of considering same sex marriage but did not make a pledge to redefine it. The change it said the party would ‘consider’ was to reclassify civil partnership as marriage, which is a more moderate proposal than what is presented in this Bill14. Furthermore, the contract was not part of the manifesto and only came out 3 days before the election, long after postal voting had begun. Polling

by ComRes in November 2012 shows that 62% of people think that marriage should remain as a relationship exclusively between a man and a woman. Just 28% disagreed.15 MYTH: People will be sacked if they criticise same-sex marriage at work.

REALITY: This is not true. We have always been absolutely clear that being able to follow your faith openly is a vital freedom that we will protect. Everyone is entitled to express their view about same-sex marriage, at work or elsewhere. No employee will be required to promote or endorse views about same-sex marriage which go against their conscience. But it is an entirely different matter to act in an offensive or discriminatory way because of someone’s sexual orientation and the two issues should not be confused.

CARE’s RESPONSE: It may not be the Government’s intention that people will be sacked but as the Aidan O’Neill legal opinion makes very clear there is a serious prospect of employees being dismissed because of their views on marriage. In 2012 a housing manager was demoted and had his salary slashed by 40% because he expressed his opposition to same-sex marriage on his 12

Question 1: Do you agree or disagree with enabling all couples, regardless of their gender to ave a civil marriage ceremony? Agree Disagree Don’t know Question 2: Please explain the reasons for your answer. Please respond within 1,225 characters (approx 200 words). http://www.homeoffice.gov.uk/publications/about-us/consultations/equal-civil-marriage/consultation-document?view=Binary 13 Colin Hart, campaign director for the Coalition for Marriage (C4M), which opposes gay marriage, said: “The decision to ignore a petition of half a million people is disgraceful and undemocratic and goes against assurances from civil servants that all submissions would be treated equally and fairly.“All those who have signed the petition which the Government has now chosen to ignore deserve to be told why their name on a petition, which includes their address and signature, has been airbrushed out, while completely anonymous internet questionnaires have been counted.” http://www.telegraph.co.uk/news/politics/9735738/Ministers-accused-of-sham-consultationover-gay-marriage.html 14 The document talks of ‘considering the case for changing the law to allow civil partnerships to be called and classified as marriage.’

Reclassifying civil partnerships as marriage is something that has been done in South Africa. It is not proposed by this Bill.

15 http://www.comres.co.uk/polls/C4M_Same_Sex_Marriage_November_2012.pdf

private Facebook page.16 If these sorts of cases are happening before same-sex marriage has been introduced there is cause for serious concern if it is legalised.

MYTH: The four recent European Court cases show that people are not free to follow their beliefs at work.

REALITY: On the contrary, Ms Eweida won her right to wear a cross at work. These cases were not about same-sex marriage. However, we have always been absolutely clear that being able to follow your faith openly is a vital freedom that we will protect. We believe people should be able to wear discrete religious symbols, provided it doesn't hinder or physically get in the way of their job. In the other cases the Court found that the needs of health and safety and the requirement not to discriminate against customers were relevant considerations, on the facts of those particular cases – it is all about striking a sensible balance, which our legislation does.

CARE’s RESPONSE: All but one of the European Court cases concluded that people should not be able to live out their religious beliefs in the work place. In both the cases most relevant to the subject at hand - Ladele and MacFarlane - employees lost their case. Ladele said that she could not officiate at civil partnership ceremonies without acting in violation of her faith. She asked if she would be able to concentrate on officiating at different sex marriage ceremonies and if other colleagues without a faith objection could handle the same sex cases. In order to be helpful she said that she would be happy to have some involvement in paper work surrounding civil partnerships. The effect of the Courts ruling, however, is that she must either act in violation of her faith or be dismissed from her job. This obviously has huge implications for the application of the Marriage (Same Sex Couples) Bill.

MYTH: The Trafford Housing case with Adrian Smith shows that people can be sacked because of their religious beliefs.

REALITY: Adrian Smith actually won his case in the High Court, a judgment which shows that expressing views about this type of issue in a measured and non-offensive manner does not permit an employer to discipline an employee. Any such action by an employer would be unlawful.

CARE’s RESPONSE: That this case should have been brought at all, at a time when the law only recognises marriage between people of the opposite sex, is deeply concerning. Despite the very considerable distress and financial loss caused, Mr Smith was only awarded £100 compensation. 17 Additionally, as the Trafford Housing Trust is not a public authority there is no useful precedent set here for the people for whom there is a principal concern, namely those working for public authorities.18 MYTH: Local councils will stop giving religious groups contracts or letting them use their facilities if they refuse to conduct same-sex marriages.

REALITY: This is not true. The Equality Act 2010 protects people from being discriminated against because of religious belief. Treating someone in this way because of their religious opposition to same-sex marriage would be unlawful discrimination. It would also be a misuse of the council’s powers if it penalised a religious body for doing something which is lawful.

CARE’s RESPONSE: The Public Sector Equality Duty requires public authorities, such as local authorities, to have ‘due regard’ to the need to ‘remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic.’ As there are 24 million people married to a person of the opposite sex, it is likely that the duty would first be applied to minimise disadvantages suffered by persons married to someone of the same 16

Daily Mail, 17 November 2012 http://www.dailymail.co.uk/news/article-2234252/Vindicated--ruined-In-historic-victory-Christian-demoted-work-writing-Facebookopposed-gay-marriage-church-tells-battle-come-terrible-price.html 18 Ibid. para 3.7.

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sex. Those religious groups that oppose the new definition of marriage are likely to be treated less favourably by public authorities and may be refused contracts, grants or facilities.

MYTH: This Bill is being rushed through Parliament and has not been properly thought through.

REALITY: This is untrue. The Government is committed to introducing same-sex marriage and published a consultation in March 2012 which resulted in the biggest ever response to a UK consultation. The Minister for Women and Equalities made a statement to the house in December 2012 announcing the Government’s intention to bring forward legislation.

CARE’s RESPONSE: There was no Green Paper, or even a White paper laying out the Government proposals. Nor were the proposals in The Queen’s Speech. The Government have decided to whip the Programme Motion following Second Reading which will ensure their timetable – which is very unlikely to involve a prolonged Committee Stage – is agreed to with little fuss.

There has also been no second consultation on a draft Bill as one would have expected (unlike Scotland where a second consultation is underway on their draft Bill to redefine marriage).

MYTH: Polling shows that the public is not supportive of this policy.

REALITY: This is untrue. Recent polling shows that there are a range of views on this subject. We know that there are many people who are in favour of and supportive of this policy, as shown by 53% of people who responded to our consultation.

CARE’s RESPONSE: In addition to the ComRes poll (see above) a poll by YouGov for The Sunday Times, published in March 2012, found that 47% opposed marriage between people of the same sex with 43% supporting it.19

Produced by CARE’s Public Affairs Team Christian Action Research Education 53 Romney Street London SW1P 3RF 19

YouGov/ Sunday Times Survey Results, 8-9 March 2012, page 7