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Evolving marriage rights

17 September 12

The fuller version of this month's human rights briefing on recognition of same-sex marriage under international human rights instruments

by David Paton

In July, the Scottish Government confirmed its intention to legalise same-sex marriage, following an emotive consultation period where questions of equal rights and religious freedom were placed firmly in the spotlight.

When making the announcement, Deputy First Minister Nicola Sturgeon stated the Government “was committed to a Scotland that is fair and equal”, and that the move “was the right thing to do”. However, she added that “we are also deeply committed to freedom of speech and religion. The concerns of those who do not favour same-sex marriage require to be properly addressed”. Her comments strike at the heart of the debate, namely, how to keep a fair balance between the religious freedom of those who object to same-sex marriage, whilst at the same time respecting the rights of individuals wishing equal status to opposite-sex couples in both substantial and symbolic terms.

Those backing the change have argued that marriage represents a couple’s love, care and commitment to one another which is not conditional on race, religion or sexuality. For example, Professor Alan Miller, chair of the Scottish Human Rights Commission, welcomed the proposed change as “a means of ensuring that Scotland is a fair country which respects the human dignity and rights of everyone”. At the same time the Reverend Alan Hamilton on behalf of the Church of Scotland, when conveying the church’s conflicting position, stated: “We believe homophobia to be sinful”, and that “We reaffirm our strong pastoral commitment to all people in Scotland, regardless of sexual orientation or beliefs."

The definition of marriage?

Two of the questions arising from the discourse have been (1) what do human rights instruments say about the definition of marriage; and (2) would human rights law require ministers and priests to conduct religious same-sex marriages?

With respect to the first question, Cardinal Keith O’Brien, leader of the Roman Catholic Church in Scotland, sparked controversy when he described gay marriage as “a grotesque subversion of a universally accepted human right”. John Deighan, writing at Journal August 2012, 5, echoed a similar theme, albeit with strikingly less provocative language, when stating: “Our human rights instruments recognise marriage as a relationship between a man and a woman”.

This view is, one assumes, based on the text of article 16(1) of the Universal Declaration of Human Rights (“UDHR”), which provides that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family”. Whilst this article does not list sexuality as something “without any limitation”, nor is there anything explicitly stating that the article exclusively grants “men and women” the right to marry each other, admittedly it is unlikely that the drafters would have had the intention of including gay marriage when the UDHR was adopted in 1948. However, it is arguable that a more expansive definition would be applied, particularly in light of article 2 of the UDHR which reads: “Everyone is entitled to the rights and freedoms set forth in this declaration without distinction of any kind”.

To a large extent the question was answered, at least as it relates to the European Convention on Human Rights (“the Convention”), in the 2010 case of Schalk and Kopf v Austria (Application no 30141/04). The applicants argued that the Convention required member states to legally recognise same-sex marriage. In the first instance, they relied on article 12 of the Convention to support their case. This 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 right.”

The court rejected this argument. It was observed that, “looked at in isolation, the wording of article 12 might be interpreted so as not to exclude the marriage between two men or two women”. However, when looking at the Convention as a whole, the Strasbourg court observed that the other substantive rights were granted to “everyone”, or provided that “no one” was to be subjected to certain prohibited treatment. Therefore it concluded that the language used in article 12 must have been deliberate. Furthermore, consideration was given to the fact that the Convention was drafted in an era where marriage was only thought of as between a man and a woman. Consequently, article 12 does not oblige member states to introduce gay marriage.

These factors may appear to support the views of Cardinal O’Brien and John Deighan. However, this only tells half of the story. The court in Schalk and Kopf noted that there was an “emerging European consensus towards legal recognition of same-sex couples”, albeit at the moment the question is still to be regarded as “one of evolving rights with no established consensus, where states must also enjoy a margin of appreciation in the timing of the introduction of legislative changes”.

The Convention was drafted at a time when the treatment of black people, women, homosexuals and minorities was abhorrent by modern standards. In spite of John Deighan’s claims, it is recognised that for human rights texts to have contemporary significance they must be seen as living instruments, the interpretation of which evolves in line with changing social attitudes. Indeed, the court used the words “as matters stand”, leaving open the possibility that at some point in the future the recognition of gay marriage may be obligatory, depending on how European standards evolve.

Additionally, the court gave consideration to article 9 of the Charter of Fundamental Rights of the European Union (which speaks generally of the “right to marry” without reference to “men and women”) leading it to conclude that it “would no longer consider that the right to marry enshrined in article 12 must in all circumstances be limited to marriage between two persons of the opposite sex… however, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the contracting state”.

Overall, what is clear from Schalk and Kopf is that member states currently have no obligation to introduce same-sex marriage. However, it is equally clear that the definition of marriage is not limited exclusively to the relationship between a man and a woman. The decision on how to define marriage is one for national authorities to make. Should they choose to introduce gay marriage, then such couples will be afforded the rights within article 12 of the Convention.

Will religious bodies be forced to conduct gay marriages?

Following the Government’s announcement, the Church of Scotland voiced concerns that the Government will “legislate without being able to effectively protect religious bodies or their ministers whose beliefs prevent them from celebrating civil partnerships or same-sex marriages”. The Church of England, responding to the UK Government’s consultation on the issue, similarly warned that there is a “serious prospect of a successful challenge” under the Convention if same-sex marriages were limited only to civil ceremonies. This leads to the second question – will religious bodies be forced to conduct same-sex marriages against their will?

It should be noted that south of the border, the current proposals are only to extend same-sex marriages to civil ceremonies. In Scotland, religious gay marriages will be permissible under current plans, but Scottish ministers have stressed that an “opt in” system will apply and no religious group or individual will be forced to conduct gay weddings without their consent. Moreover, in an attempt to reassure faith groups, proposals have been made to add specific freedom of expression and religion clauses to the legislation, and/or amend the Equality Act 2010 for additional certainty.

In its consultation submission, the Church of England relies on the Schalk and Kopf judgment to support its concerns, namely, that if national bodies choose to introduce same-sex marriage then article 12 of the Convention will protect same-sex and opposite-sex marriages equally. If opposite-sex couples can get married in both civil and religious ceremonies but same-sex couples can only get married in civil ceremonies, this would potentially constitute a violation of article 12 when taken in conjunction with article 14 – the prohibition of discrimination.

The Church makes an argument worthy of consideration. However it arguably underplays the extent to which the different treatment could be justified as a proportionate way of pursuing a legitimate objective. By way of analogy, no one has suggested that a successful challenge could come on the basis of articles 12 and 14 from divorcees wishing to get remarried in a Catholic church.

The consequences of any ruling requiring faith groups to carry out religious wedding ceremonies against their will would be far reaching. It would radically interfere with religious freedom by effectively requiring worshippers to compromise their core beliefs. The churches’ concerns are therefore totally understandable. However, they are also unfounded for this same reason. Placing an obligation on religious bodies to conduct religious ceremonies would undermine the very heart of the rights enshrined in article 9 of the Convention, namely the right to “freedom of thought, conscience and religion”. The Strasbourg court has traditionally offered broad protection of article 9 rights, particularly in the sphere of morality when a European wide consensus is lacking, and national bodies would likely have a wide margin of appreciation with respect to how they choose to implement gay marriage.

Furthermore, in the event of a challenge by a married gay couple, the court would seek to strike a balance between the article 12 and 14 rights of the applicants on one hand and the article 9 rights of religious objectors on the other. For the foregoing reasoning, the article 9 rights would most likely prevail.

Rapid movement

It may be as early as 2014 when Scotland joins its European neighbours (Netherlands, Iceland, Norway, Denmark, Sweden, Belgium, Spain and Portugal) by allowing same-sex couples to legally wed. At this point, we will no longer need to talk about same-sex marriage but simply marriage. For everyone.

It is submitted that it is disingenuous to claim that human rights instruments recognise marriage as being the exclusive domain of male-female relationships. Case law demonstrates that the way in which marriage is defined is a matter for national bodies to determine. If they choose to legalise gay marriage, same-sex couples will be entitled to the protection of the rights enshrined in article 12 of the Convention. Religious groups have voiced legitimate concerns about their status being diluted through any change in the law. However, rather than undermine their position, human rights legislation justifies their right to object to carrying out same-sex religious ceremonies. In short, a perceived legal dichotomy between religious freedom and the equal status of homosexual couples does not reflect reality. Human rights legislation strikes a balance to secure the rights of those on both sides of the fence.

The movement towards equal marriage has taken off at a rapid pace over recent years. To some this may only be a reflection of something long overdue. Many people would surely feel slightly uneasy when they reflect on the fact that homosexuality was only decriminalised in Scotland in 1980. Yet perhaps this is testament to how far our society has evolved in such a short space of time. An unprecedented 77,508 responses were received to the consultation, and the debate continues to be passionate and volatile. Many questions have been asked and some remain unanswered. However perhaps in another 30 years we will look back with only one question: “What was all the fuss about?”

David Paton, DWF Biggart Baillie and Scottish Human Rights Law Group
Twitter: @SHRLG1

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