Legalising gay marriage: is it time to separate church and state?

Patsy Lynch/Rex Features
By James Wilson

Last year the Scottish government began a consultation process asking if marriage in Scotland should be allowed for gay people through a civil or religious ceremony. The strength of opposing feelings on the issue is hinted at by the fact that on Valentine’s Day more than 1,000 people marched through Edinburgh in favour of the idea, whereas last year a pressure group calling itself “Scotland For Marriage” held a rally outside the Scottish Parliament to protest against it. 


The issue has also been debated recently in Australia.  Meanwhile the Nigerian government has not just simply banned same-sex marriage, it has actually made the act a criminal offence, with a penalty of 14 years’ imprisonment for any person who enters into a gay marriage contract or civil union. Apparently even that law was thought insufficient, and a separate offence was therefore passed which made “witness[ing], abet[ting] or aid[ing] the solemnization of same-sex-marriage” punishable by up to ten years’ imprisonment.

It remains the case in the UK under s 11(c) of the Matrimonial Causes Act 1973 that a marriage can be entered into only by a male and a female, but there have been significant developments over the past decade or so.

The first was the passage of the Human Rights Act 1998.  Article 12 of the European Convention on Human Rights provides: 

“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.”

Article 12 does not settle the issue because the European Court of Human Rights has decided (in Schalk and Kopf v Austria) that it is a matter for national authorities to decide whether to allow gay marriage.  The court’s reasoning was based in part on the fact that there was no consensus across member states on the issue (some, such as Spain, already allow gay marriages, but others do not).

More significant in the UK was the passing of the Civil Partnership Act 2004, which allowed same-sex couples to enter into a union conferring the same legal rights as marriage in the area of wills, tax and so on.  Interestingly, the right to enter into civil unions was restricted to same-sex couples, even though the form of partnership – legal rights with no religious implications – might equally appeal to some heterosexual couples.

The next step was lifting the restriction on conducting civil partnerships on religious premises by an amendment to the Equality Act 2010 – though (at least at present) no religious institution can be compelled to conduct them. 

The remaining question is of course the most emotive of all: whether gay marriage will be recognised in law, and if so, whether that step will be taken (and supported) by Parliament or by the courts. 

It is next to impossible to imagine that the courts will find a right to gay marriage in any existing domestic statute, and given that the European Court of Human Rights explicitly refused to find such a right in the Convention, that option will not be taken by the domestic courts either.  Even if the courts did take the step themselves, if Parliament disagreed it could either refuse to recognise the court’s ruling (if it came from Europe) or legislate to overrule it (if it came from a domestic court).  

Realistically therefore the only way a change will come about will be by an amendment by Parliament to the 1973 Act.  One would expect the robust debate in Scotland to be mirrored in the rest of the country before any such step is taken. 

In previous articles on the subject I have suggested a possible solution along the lines of France, to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue.

The well known American lawyer Alan Dershowitz advanced a similar view a few years ago, going one step further by arguing that the state should only confer civil partnerships, and leave the dispensing of the word “marriage” to the free market.

Either solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation. 

No doubt many will disagree, but in response I would simply say that removing state control of the issue would leave it to the marketplace of ideas.


  1. says

    None, but the point is that that is not the only way in which a legal marriage may presently be entered into. In the French weddings I have attended, as far as I was aware, the registry office signing was the only aspect in which the state was involved. Both couples were practising Catholics. They considered the registry office event to be a formality only – virtually none of the wedding guests attended the registry office (only the witnesses), and as far as all were concerned the actual marriage had not taken place until the ceremony in the Church was conducted.

    I suppose the idea is rather like an arbitration in reverse: anyone can conduct an arbitration under religious or non-religious rules (be it the Beth Din or one of the trade boards or whatever). Assuming the arbitration to meet common law requirements for a valid contract, including that it not contravene public policy, the state adds its rubber stamp, and thereafter will make available its enforcement mechanisms. But the substance of the agreement is arrived at by the parties themselves. Similarly, taking the French model, the state would award a marriage legal status, but the parties would then be free to consecrate the marriage or add whatever ceremony they wanted in accordance with their own beliefs. For them the legitimacy and substance of the marriage would derive from the ceremony of their choosing, the state would simply be ticking a box.

    This is effectively what happens anyway with civil partnerships or registry office weddings, so the only change would be to abolish the distinction between the two and call them both “marriage”.

    Any religious organisation could then choose freely whether or not to hold a ceremony to recognise the marriage according to its own tenets. None should be forced to do so – here I disagree with many equality campaigners who think otherwise. As I said in the Jeffrey John blog a couple of weeks ago, we should not attempt to force all equality laws on religious institutions, or freedom of religion will be in for a thin time indeed.

  2. Craig Rose says

    If couples choose to have a religious marriage, what is the harm in officiating clergymen also acting as civil registrars – as they do now in Christian and Jewish religious marriages? Why require them to have two different ceremonies when both can be carried out in the same place at the same time by the same officiant? Such a requirement seems totally inefficient to me. It is certainly not a prerequisite for the legalisation of homosexual marriages.

  3. says

    It doesn’t cause any harm, and if no-one objected to legalisation of homosexual marriages there wouldn’t be any need.

    The suggestion was put forward as a solution to the arguments about homosexual marriages, and the fear that the state will start forcing equality laws despite Art 9 of the ECHR) upon religious institutions to compel them to conduct such marriages or make their premises available for them. Such concerns were raised in regard to the conduct of civil unions on religious premises – a specific provision was included stating that no institution would be _forced_ to allow civil unions as opposed to merely permitting them if they so chose, but fears were expressed that that clause might be abolished in the future – or for something to happen akin to the JFS case where the Race Relations Act ended up being used in a way its drafters would never have foreseen.

    The article by Alan Dershowitz linked above makes a slight variation of that argument, and rather more fully than I have, albeit in the context of the US Constitution which is not of course identical to the ECHR and domestic legislation here.

  4. Sean Fear says

    “None should be forced to do so – here I disagree with many equality campaigners who think otherwise.”

    How widespread would you say is the view that religious institutions should actually be *required* to perform same-sex weddings? Presumably, that demand would remain in place even if the French system were adopted.

  5. says

    I would say the demand would fall away, or at least lose any logical force, if the French system were adopted. There could be no question of discrimination by the state in those circumstances, as it would only be involved at the registry office stage. It would then be up to the religion itself to hold whatever ceremony or ritual, and I can’t see why anyone would demand that religious rites ought to attract equality legislation. To be sure, many members of many churches are angry that women can’t become priests or whatever, but that’s up to the institution, surely, rather than the state.

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