The claim

“There are legitimate fears of European Court of Human Rights challenges and churches being forced down the line to conduct such ceremonies against their wishes.”
Eric Pickles, 13 September 2012

The background

Conservative heavyweight Eric Pickles is the latest MP to weigh in on the issue of legalising gay marriage.

The Communities Secretary spoke out in an attack on the “aggressive secularism” that he said was creeping into public life.

The coalition has pledged to introduce same-sex civil marriage by 2015, but a number of prominent Tories have expressed reservations.

Mr Pickles isn’t saying he doesn’t want the change in the law to go ahead – but he is echoing the Church of England in warning of potential legal challenges from European courts.

Is a legal minefield about to blow up in the government’s face?

The analysis

Both David Cameron and Nick Clegg are committed to a change in the law, which comes after the creation of civil partnerships in 2004.

The government proposes a change to “civil marriage” and insists that “no changes will be made to how religious organisations define and solemnise marriages”.

A civil partnership confers many of the same legal rights on a same-sex couple as a marriage, but isn’t the same thing in law. So all those headlines about, say, Elton John being David Furnish’s “husband” are wrong.

This has led to the suggestion that gay people are still being discriminated against by not being allowed to call themselves “married”.

Marriage in English law is still a fundamentally heterosexual activity: “The union of one man, with one woman, voluntarily entered into for life.”

The Church of England happens to think it should stay that way, and says the government will undermine this definition of marriage by changing the law.

The government says it only wants to change “civil weddings” not “religious weddings” but the Church points out that there is no legal distinction between the two: “In law, there is one social institution called marriage, which can be entered into through either a religious or a civil ceremony.”

The bishops appear to be correct when they say that a change in the definition of marriage to remove the one-man-and-one-woman bit would be a “fundamental change” with legal consequences possibly unforeseen by the government. Of course, that doesn’t mean change is impossible or wrong.

Practically speaking, ministers are adamant that they don’t want to force religious institutions to do anything that goes against their beliefs.

In fact, not only will religious organisations not be obliged to conduct same-sex weddings, they won’t be allowed to even if they want to.

That would appear to be that, but bishops say they are afraid of legal broadsides from Europe on that very point.

It’s clear from recent rulings that the European Court of Human Rights is not in the business of telling signatories whether they should legalise gay marriage or not – the court has repeatedly said that is up to individual countries.

But in the “Schalk” case, the court said it would no longer consider the right to marry as set in Article 12 of the European Convention on Human Rights to be limited only to people of the opposite sex.

The Church interprets this as a sign that once a country does decide make provision for same-sex marriage, gay couples will enjoy the same Convention rights as heterosexuals.

You might then have a legal argument about whether ministers have balanced the right to religious freedom set out in Article 9 of the Convention with the right to marry and with Article 14, which prohibits discrimination. What trumps what?

The Church of England sought a legal opinion from leading barrister Aidan O’Neill QC, and he said an outright ban on religious gay weddings could indeed be overturned by European law.

The human rights organisation Liberty hit back by obtaining an opinion from Karon Monaghan, also a QC and from the same chambers as Mr O’Neill.

She concluded that “the protection afforded by Article 9 to religious organisations is strong” and an attempt to force vicars to marry gay couples on human rights grounds “would inevitably fail”.

A group of Oxford academics has argued that the Schalk case may not be such a big change after all. Article 12 actually states that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this rights.”

So the national law still takes precedence, and the article doesn’t even say that the men and women have to marry each other.

Another experienced barrister, Adam Wagner, is less dismissive of the Church’s argument but put the likelihood of a legal challenge succeeding as “no more (but also no less) than ‘reasonable’”.

The verdict

When leading lights of the legal world disagree, what are the chances of us ordinary mortals settling this question?

Slim, perhaps. But there are some facts we can agree on.

Same-sex marriage is already the law in Sweden, Portugal, Belgium, the Netherlands, Norway, Iceland and Spain, and as far as we know, none of those countries have faced a legal challenge like this at the European Court of Human Rights.

If there were such a challenge, there’s no guarantee it would be successful – even the Church of England doesn’t go that far.

They are relying on an obiter dictum, a remark made by the judges, rather than a substantive ruling. All the actual rulings made by Strasbourg suggest that the court is generally reluctant to interfere with law passed by national parliaments on this issue.

And even if a human rights challenge was upheld, that doesn’t automatically mean judges in Europe would actively force clergymen to carry out same-sex marriages. The Church itself concedes that the most the Court could do is leave open the possibility of them doing so.

As Eric Pickles said, closing off that possibility might require further legislation, perhaps years down the road.

But there is no reason why the government could not change the law later to adjust for a possible intervention from the European Court of Human Rights.

It’s up to the reader to decide whether these highly nuanced, hypothetical legal arguments are good enough reasons to stop the progress of legislation on gay marriage.

In the meantime, there seems to be little realistic possibility of any religious institutions being forced to carry out gay weddings any time soon.

By Patrick Worrall