5 Same Sex Marriage
5.1 Part 3 of the consultation document sets out the Government's plans to introduce same sex marriage in Scotland. Specific areas covered include authorising religious and belief celebrants to solemnise same sex marriage, whether there should be legislative opt-outs for civil registrars, plans to protect freedom of speech and proposals relating to same sex marriage and the education system.
Authorising religious and belief celebrants to solemnise same sex marriage
5.2 The proposals for authorising religious and belief celebrants to solemnise same sex marriage include that:
- Religious and belief bodies and their celebrants will have to opt in to solemnise same sex marriage.
- Some religious and belief bodies may be prescribed by regulations. This means that all of their celebrants would be authorised to solemnise same sex marriage.
- In other cases, religious and belief bodies could nominate celebrants who wish to solemnise same sex marriage to the Registrar General.
- A celebrant who wishes to solemnise same sex marriage, but is in a body which has decided against opting in, could not solemnise same sex marriage.
- There is no obligation on a body or celebrant to seek authorisation to solemnise same sex marriage.
5.3 The consultation document also notes that the Scottish Government has asked the UK Government for an amendment to the Equality Act 2010 to protect an individual celebrant who is opposed to same sex marriage, even though the celebrant's religious or belief body has chosen to solemnise same sex marriage.
5.4 Around 14,700 respondents made a comment at this question, which was one of those for which suggested text was available from all three campaign organisations.
5.5 Some respondents stated their broad support for the proposals for authorising religious and belief celebrants who wish to solemnise same sex marriage. Respondents who agreed with the proposed arrangements generally made only limited further comments; these comments tended to focus on the reasonableness of a system which would allow, but not require, religious or belief bodies to undertake same sex marriage ceremonies. Many of these respondents also noted their agreement with the Scottish Government's plans to request an amendment to the Equality Act 2010.
5.6 Other respondents noted that, whilst not necessarily supporting the introduction of same sex marriage, they were broadly in agreement with the proposal for an opt-in system if the Scottish Government goes ahead with its plans. A small number of respondents stated that, although they might have preferred to see an opt-out system, they could understand the reasoning behind the opt-in approach and were happy to concur with the Government's proposal.
5.7 Other respondents disagreed with the proposals. Some simply stated their opposition to the introduction of same sex marriage at all, rather than commenting on the specific proposals. Others also made it clear that they did not support the introduction of same sex marriage, but still went on to raise specific concerns about the arrangements proposed. There were also some respondents who stated their support for the introduction of same sex marriage but expressed their opposition to some of the specific arrangements set out within the consultation document.
5.8 There were two main and, for many respondents, connected issues raised by those who disagreed with all or some aspect of the proposals: first, the protection of freedom of speech in general and of religious freedoms in particular; and secondly, concerns about the workability of the opting-in system as set out in the Bill.
Protecting freedom of belief and speech
5.9 The principal concern of many opposed to the proposals was that, even under the opt-in arrangements proposed, those bodies and celebrants that did not wish to solemnise same sex marriage could still find themselves subject to litigation. Some respondents acknowledged the Scottish Government's efforts to put protections in place, but made it clear that these had not allayed their considerable concerns. In particular, respondents suggested that:
- The Scottish Government has asked the UK Government for an amendment to the Equality Act 2010, but this amendment is not yet in place and cannot be guaranteed. Some respondents raising this issue suggested that, at the very least, same sex marriage should not be introduced until this amendment has been passed.
- Even if the Equality Act 2010 is amended as currently proposed, there remains the possibility that claims of sex discrimination could be made. The probable basis of any resulting legal case would be that a body or celebrant unwilling to solemnise a same sex marriage would have been willing to consider solemnising the marriage if one of the parties had been of a different gender. Some respondents pointed out that this possibility has been recognised by the UK Government, which plans to amend the Equality Act 2010 to prevent sex discrimination cases being pursued on these grounds in England and Wales. There were calls for the Scottish Government to ensure the same protections are put in place in Scotland.
- Irrespective of any changes to the Equality Act 2010, or any other domestic legislation, the possibility of a challenge in the European Court of Human Rights (ECtHR) cannot be ruled out. The Scottish Government cannot guarantee the outcome of any such case and the ECtHR could rule that if same sex marriage is available in any contexts it must be available to all on an equal basis. Any legislation or guidance could also be subject to repeal and revocation.
5.10 Another frequent concern was that, having been designed to afford protections to religious and belief bodies, the proposed opt-in system places too much emphasis on these bodies and fails to give necessary consideration to the position of individual celebrants. Celebrants from non-prescribed bodies which had decided to solemnise same sex marriage were seen as particularly vulnerable by some respondents. The concern was that, once no longer protected by a body-wide decision not to solemnise same sex marriage, any celebrants who did not wish to be named as willing to solemnise same sex marriage could be 'targeted' by campaign groups that support the change.
5.11 There were also concerns about the protections being offered to a range of other individuals - such as Church or Mosque Elders, and Church organists - who could be involved or affected if a same sex marriage took place in a premises or congregation with which they were associated. The impact on all members of a religious body's congregation was also raised and it was suggested that any protections need to extend to all who might reasonably be expected to participate in, or facilitate, the solemnisation of a marriage.
5.12 Similarly, some respondents expressed concerns about the possible impact of the changes on those who have control over places of worship and other religious buildings in which opposite sex marriages are currently, or could be, solemnised. One example given was of a celebrant from another congregation asking to use a building that they had previously been permitted to use to solemnise an opposite sex marriage, in order to solemnise a same sex marriage. The extent of the protections for any of the leaders or decision-making groups from any congregation that did not wish their premises to be used for the solemnisation of same sex marriage was questioned.
5.13 Other specific issues raised around religious freedoms and freedom of speech included:
- Religious or belief bodies may offer a number of marriage-related services, such as pre-marriage counselling, marriage support services, marriage enrichment courses and pastoral care in marriage crisis situations or situations of marital breakdown. It is unclear at this stage whether celebrants would be protected by their exemption from delivering these activities to same sex couples.
- The proposed amendments to the Equality Act 2010 restrict the circumstances in which a celebrant may lawfully refuse to solemnise a same sex marriage, and only permit refusal if to do so 'would conflict with the approved celebrant's religious or philosophical beliefs'. This is too narrow and excludes, for example, the possibility that a religious celebrant may refuse to solemnise a same sex marriage in order to preserve the peace of his or her congregation.
- The draft Bill does not make it clear that a religious or belief body may only nominate one of its celebrants to solemnise same sex marriage with the agreement of that celebrant. The Bill also does not specify that there is no duty on any celebrant to allow themselves to be nominated and/or remain registered.
5.14 Although most of the freedom of belief and speech related comments were made by those concerned about the position of those not wishing to solemnise same sex marriage, some respondents commented on the equivalent right to freedom of belief and conscience of those celebrants who did wish to solemnise same sex marriage. The principal concern was that celebrants of non-opting in bodies are being offered no route through which they would be able to act according to their own beliefs by solemnising a same sex marriage if asked to do so. This issue was sometimes raised as part of a wider view that the focus of the proposals is very much on protecting those opposed to the introduction of same sex marriage and that equivalent attention has not been given to protecting the rights of those who support the change.
Practical issues with the proposed opt-in system
5.15 Respondents had a range of concerns about various aspects of the opt-in system as set out within the consultation document. Those raising issues included some respondents who agreed that the overall opt-in approach was the right way forward, but who were concerned about whether the arrangements as proposed would be workable.
5.16 Issues raised included that the proposals effectively impose decision-making standards, for example that all of their celebrants must be in support before the body can be prescribed, on those religious and belief bodies that might wish to solemnise same sex marriage. A number of respondents were clear that it is not for the Scottish Government to dictate how an autonomous religious or belief body chooses to come to its decisions. In particular, a religious body should be able to (and indeed will have already) decided whether it requires decisions to be unanimous or based on the majority view.
5.17 Beyond this point of principle, respondents also pointed out that the actual decision-making requirements as laid out in the consultation document are not compatible with the existing and well-established practices of a number of religious bodies; any plans taken forward would need to respect the diverse range of current arrangements. These would be likely to include those religious bodies that make collective decisions based on majority opinion but do not require unanimity. The absence of centralised decision-making structures in some bodies also needs to be taken into account.
5.18 Moving on to consider specific arrangements proposed, some respondents questioned the practicality and/or fairness of requiring all celebrants to be willing to solemnise same sex marriage before a body can be prescribed in regulations to solemnise same sex marriage or register civil partnerships. The principal objection was to an approach which would mean that the dissent of a single celebrant could disenfranchise the celebrants of an entire body.
5.19 The appropriateness of a religious body which had made the decision to be prescribed being removed from the list because only one of its celebrants had a change of mind, or because a newly appointed celebrant did not wish to solemnise same sex marriage, was also questioned. Concerns about these issues led some respondents to favour the 'list of celebrants' option to the 'prescribed in regulations' option.
5.20 Other issues raised about the system as currently proposed included the following:
- To be prescribed, a religious or belief body must assure the Registrar General in writing that all of their celebrants are content to carry out same sex marriage ceremonies. It is not clear how this will work in practice. For example, it will be difficult for the leadership of a large body to really know what all their celebrants believe on this issue and it will be difficult to test whether any written assurances provided by the body are comprehensive. Given these challenges, along with the potential for individuals to feel compelled to conform to a majority position, there must be a mechanism for the individual celebrants themselves to inform the Government that they do not wish to be authorised to marry same-sex couples.
- The proposals appear to suggest that to be a celebrant someone has to belong to a recognised religious or faith body. This may discriminate against minority religious or belief bodies, which might have only one active minister and potential celebrant. There also does not appear to be any provision for the approval and/or authorisation of independent celebrants, such as Independent Interfaith Ministers or Independent Rabbis.
- The proposals suggest that the Registrar General would not authorise celebrants 'if there is any doubt' that the religious or belief body to which they belong has decided that some or all of their celebrants may, if they wish, solemnise same sex marriage. To avoid the possibility of doubt, and in particular the possibility of any doubt being cast on the validity of any marriages that have taken place, it would be important to establish what kind of evidence the Registrar General would require to inform this decision.
- There was some support for the arrangements to allow the temporary authorisation of celebrants for a specific ceremony or period. However, it was suggested that, as is currently the case under the equivalent arrangements for opposite sex marriages, it would be important for the Registrar General to take steps to confirm that the relevant person is a bona fide celebrant and is authorised to undertake marriages by their religious or belief body.
- Although unlikely, it might still be possible for a celebrant to solemnise a same sex marriage in opposition to the views of his or her religious or belief body. For example, with a celebrant's permission the celebrant might be nominated to solemnise same sex marriage by a different branch of the religious or belief body which employs them. The respondent raising this possibility suggested that this should be an internal disciplinary matter for the body concerned, but that any marriage that may have been solemnised should remain valid.
- It is not clear how the proposals relate to armed forces' chaplains.
Alternatives to the proposed opt-in system
5.21 The alternative approaches favoured by those who did not support, or had significant concerns about, the opt-in system were varied and included:
- An approach which is permissive rather than prescriptive, with individual celebrants, including those who are members of prescribed bodies and those who are not, able to choose to opt-in or opt-out.
- Anyone currently authorised to solemnise opposite sex marriage should automatically be authorised to solemnise same sex marriage. If a celebrant solemnises a same sex marriage against the wishes of their religious or belief body, that should be an internal disciplinary matter for the religious or belief body.
- Individual celebrants from opting-in bodies should be given the option to opt-out. These comments generally appeared to refer to celebrants from bodies which had stated that they wished to be prescribed in regulations, rather than those sending a list of celebrants who wished to solemnise same sex marriage to the Registrar General. One of the concerns raised was that celebrants who did not wish to solemnise same sex marriage might otherwise have no option but to leave their religious or belief body.
- Any legislation should make it clear that a religious or belief body may only nominate a celebrant to be registered to solemnise same sex marriage with the express agreement of that celebrant.
- It should be an opt-out rather than an opt-in system, with the assumption that bodies would be willing to solemnise same sex marriage unless they expressly stated to the contrary. Those that favoured this approach sometimes suggested that once it becomes legal, willingness to solemnise same sex marriage should simply be the default position.
- Within opting-in bodies, all celebrants should also have to actively opt-in as individuals. This approach appeared to be favoured as offering some additional 'layer of protection' to individual celebrants within prescribed bodies in particular.
- No religious or belief bodies and/or celebrants should be allowed to opt-out from solemnising what would be a legal and state-sanctioned arrangement. Some of those advocating this position suggested that allowing bodies to opt-out is tantamount to the state sanctioning discrimination.
- No religious body with a public and, in some ways state-sanctioned role, should be able to opt out of solemnising same sex marriage. Although not in all cases, some respondents making this comment referred explicitly to the Church of Scotland.
- Only those who became celebrants prior to same sex marriage being introduced should be allowed to opt out. Anyone who becomes a celebrant subsequent to the change would do so knowing that solemnising same sex marriage could be part of their role and they should be willing to undertake that role to the full.
- The relationship between the state, religious and belief bodies and marriage should undergo a fundamental change. Most of those raising this issue suggested that marriage should become a civil arrangement (as widely practised in other European countries) and that those who chose and were able to do so could also have a religious or belief ceremony. It was also suggested that, if the Government does not maintain the present definition of marriage, the state should effectively withdraw and offer civil partnerships to all, with the option for religious or belief bodies to bless those unions which their conscience allowed.
Impact on other areas
5.22 Finally, a number of respondents made comments about how the introduction of religious same sex marriage could impact on other areas of interest to religious or belief bodies. The particular concern of a number of respondents was that unwillingness to conduct same sex marriage (on the part of either bodies or individual celebrants) should not affect their authorisation to solemnise opposite sex marriages in any way. Although some respondents noted the reassurances from the Scottish Government that this will not be the case, they also voiced concerns that these reassurances - in the form of the planned changes to the Equality Act 2010 discussed above - may be insufficient and unsustainable.
5.23 More specifically, some respondents were concerned that local authorities might suggest the public sector equality duty (as set out in the Equalities Act 2010) would not be satisfied if they authorised bodies/celebrants opting out of solemnising same sex marriages to solemnise opposite sex marriages. Whilst this was a common concern, there were also some respondents who took the contrary position and suggested that bodies and celebrants should only be authorised to solemnise opposite sex marriage if they were willing to solemnise all marriages.
5.24 Another issue about which respondents expressed contrasting views was around charitable status or funding. Most of those raising this issue were clear that the charitable status of religious or belief bodies, or of organisations which they run, should not be threatened by their not agreeing to solemnise same sex marriage. Similarly, the funding or other support for services delivered by religious or belief bodies on behalf of central or local government should not be withdrawn simply because they decide not to solemnise same sex marriage. However, others suggested that bodies which are not prepared to undertake a legal, state-supported ceremony such as same sex marriage should not expect to receive the benefits associated with charitable status or public sector funding.
5.25 The draft Bill does not include any legislative opt-outs for civil registrars. The Scottish Government does not agree with legislative opt-outs for a number of reasons, including that civil registrars are carrying out a civil rather than religious function and that providing for a legislative opt-out would cut across the relationship civil registrars have with their local authority employers.
Question 8: Do you have any comments on opt-outs for civil registrars who do not wish to solemnise same sex marriage?
5.26 Around 14,750 respondents commented at this question, including those responding through all of the three campaigns.
5.27 Those that agreed with the Scottish Government that civil registrars should not be able to opt-out of performing same sex marriages frequently pointed out that registrars are performing a public function, on behalf of a public body, and should be expected to carry out a full range of registration duties - this would include solemnising same sex marriages. Some respondents also noted that registrars would not be allowed to decline to provide a service to people based on any other equality characteristics, such as race or gender, and the same basic principles should apply here. Respondents also pointed out that registrars do not currently have the option to opt-out of officiating at civil partnership ceremonies and that this system seems to work well. It was also suggested that registrars themselves (either as individuals, through their professional organisations or through their trade unions) have not been demanding that any such provisions should be put in place.
5.28 Some of those who did not agree with an opt-out system suggested that any problems a civil registrar might have with conducting a same sex marriage ceremony would be best dealt with through discussions with their employer, on a case-by-case basis, and in accordance with employment legislation. This view was sometimes accompanied by a statement in support of the Scottish Government's position that it is not their role to regulate the employer/employee relationship between registrars and local authorities.
5.29 The recent guidance from the Equality and Human Rights Commission on religion or belief in the workplace, which suggests that employers should consider requests from an employee to opt out of part of their job based on religious or belief objections, was also cited. Responses from some local authority respondents suggested this would indeed be their starting point, not least because the quality of service could be affected if a registrar was clearly uncomfortable in the role they were performing. However, the need to provide continuity of service, and to be fair to and not overburden other members of staff, was also seen as important.
5.30 Other respondents took a strongly contrasting view. A commonly expressed position was that registrars should have the same protections as religious or belief celebrants, and that the failure to include a conscience clause for registrars who have a conscientious objection to solemnising same sex marriages ignores the fact that those of faith aim to live their whole lives - including their work lives - according to the tenets of that faith. A number of respondents also pointed out that a precedent exists, since the law allows doctors and other health professionals to have an opt-out if they have a conscientious objection to participating in abortions.
5.31 Many respondents were concerned about the likely repercussions for some registrars if a conscience clause is not introduced. Most obviously, it was suggested registrars who have a conscientious objection to solemnising same sex marriages may be forced out of their jobs, with the Lillian Ladele case frequently cited in support of this assertion. It was also suggested that those who might otherwise have wished to become registrars would be unable to consider applying for such a position and that registrars' chances of career advancement could be affected by their objecting to solemnising same sex marriages.
5.32 On this theme, some of those who did not support the introduction of an across the board opt-out did differentiate between those currently employed as registrars and those who might apply to be a registrar once any legislation has been passed. Respondents making this distinction generally felt that anyone applying to be a registrar in the future would be doing so in the knowledge that solemnising same sex marriages would be part of the role, and hence they should not have any facility to opt-out. However, those who had become registrars before the legalisation of same sex marriage were not aware that they would be called upon to solemnise same sex marriage, and hence their objections should be accommodated if possible.
5.33 Other points raised by those calling for civil registrars to be able to opt-out of solemnising same sex marriage included the following:
- An obligation could be placed on local authorities to ensure that an alternative means to deliver the service is available in order to ensure no discrimination against a same sex couple;
- Existing and trainee registrars should be given the opportunity to opt-in to solemnising same sex marriages, as is proposed for religious or belief celebrants.
Freedom of speech
5.34 As the consultation document acknowledges, protecting freedom of speech and belief emerged as a key concern of many respondents to the previous consultation on the proposed introduction of same sex marriage and the religious registration of civil partnerships. Having considered the implications of the introduction of same sex marriage for freedom of speech, the Scottish Government has included a provision (at section 12 of the draft Bill) making it clear that the introduction of same sex marriage does not affect existing rights under the European Convention on Human Rights and elsewhere to freedom of thought, conscience, religion and expression.
5.35 The consultation document also reports that the Lord Advocate intends to publish prosecutorial guidelines on allegations of breach of the peace and threatening or abusive behaviour arising out of opposition to same sex marriage.
Question 9: Do You Have Any Comments On The Proposed Approach In Relation To Freedom Of Speech?
5.36 Around 14,500 respondents made a comment at this question, with suggested text available from all three of the main campaigns, and with a number of respondents clearly feeling very strongly about this issue.
5.37 For many respondents, the Scottish Government's plan to protect freedom of speech was welcomed and seen as sufficient. However, other respondents had concerns that essential safeguards to protect freedom of speech and of conscience, are lacking from the proposals.
5.38 Those who felt the proposed protections to be insufficient frequently cited recent examples of people who have been penalised - through loss of paid employment, being unable to work in a voluntary capacity or hold a position on a board of management - for having expressed their opposition to same sex marriage. A similar concern was that new entrants to a range of essentially public sector professions (teaching, social work or the registrar service) may find it difficult to find a post if they are, or have been, vocal in their opposition to same sex marriage. Some respondents suggested that the draft Bill makes no provisions that will protect people in these types of employment-related situations.
5.39 In terms of the actions required to mitigate these risks, the following were suggested:
- Employment discrimination law should be amended to bar employers from taking action against employees who hold to the traditional view of marriage.
- Particular protections are likely to be required for public sector employees.
- The Scottish Government must ensure that the Equality Act 2010 is amended to specifically include beliefs about marriage under the protected characteristic of religion or belief.
- A clause protecting freedom of speech should be written into the text of the Bill and not just referred to in footnotes or appendices.
5.40 Another frequently raised concern related to the effect of public order legislation on freedom of speech. In particular, section 12 of the draft Bill was often dismissed as virtually worthless, with the specific concern that it only applies to part 1 of the draft Bill, covering technical changes to the law of marriage. However, some respondents reported that their concerns are not with marriage law directly, but with the impact of the redefinition of marriage on how other existing laws, and particularly public order law, will be applied. The suggestion was that new protections will be needed within public order legislation and these changes will need to acknowledge that there are various and deeply-held views about what marriage should mean in Scottish society.
5.41 Continuing on the public order theme, some respondents were concerned that an issue as important as whether expressing opposition to same sex marriage leads someone to be committing an offence is only to be dealt with through the production of prosecutorial guidelines. Specific issues raised about any prosecutorial guidelines developed included that they:
- Must not stigmatise or discriminate against LGBT people.
- May be open to reinterpretation over time.
- Should be made available in draft form for comment before being introduced.
5.42 Finally, there was a group of respondents who disagreed with the Scottish Government's plans, but who came at the issue from a very different standpoint. These respondents tended to suggest that there is simply no need to attach specific provisions relating to freedom of speech to this legislation since existing legislation, such as the Equality Act 2010, would apply. There were concerns that same sex marriage is being 'singled-out' as in some way exceptional and different to other legal arrangements and that this in itself could contribute to a perception that it is acceptable to discriminate against LGBT people.
5.43 Similarly to freedom of speech, many respondents to the previous consultation were concerned about the impact of the introduction of same sex marriage on children and the Scottish education system in particular. Annex C of the consultation document details the Scottish Government's proposed approach which includes that:
- Parents will continue to have the right to withdraw their child from religious education as per the existing provision in section 9 of the Education (Scotland) Act 1980.
- Parents will also continue to have the right to withdraw their child from programmes of sexual health education.
- There are no plans to allow parents to opt children out of any class which might happen to mention same sex marriage or civil partnership.
5.44 The consultation document also notes that the Scottish Government does not consider that employment law should be amended to provide specific protections for teachers as existing employment law covers matters such as unfair dismissal. The consultation document also notes the Scottish Government's continuing support for denominational education.
Question 10: Do you have any comments on the proposals in relation to education and same sex marriage?
5.45 This was another question at which the considerable majority of all respondents (around 14,700), including those responding through one of the three campaigns, made a comment.
5.46 While some respondents stated their broad support for the Scottish Government's plans, this topic was unusual in that many of those who appear to support the introduction of same sex marriage, as well as many of those who do not, had concerns about the intended approach. These concerns tended to crystallise into one of two broad positions, each of which will be set out in turn below.
5.47 Some respondents (many of whom also made their support for the introduction of same sex marriage clear at this question or elsewhere within their response) raised the following points or concerns:
- Research has shown that prejudice, discrimination and bullying against LGBT people are significant problems in Scotland's schools.
- All levels of education in Scotland should be fully inclusive of LGBT people; no school or teacher should stigmatise or discriminate against LGBT people. Rather, they should be welcoming of all pupils, regardless of their sexual orientation, gender identity or family circumstances. Scotland's schools should be places that promote equality and tackle discrimination against LGBT people.
- Young LGBT people, and young people with LGBT parents, have a right to an education which addresses their needs and reflects their lives. These rights are set out within the United Nations Convention on the Rights of the Child 1989, which has been ratified by the UK Government.
- The focus of these proposals should be on the needs of these young people, rather than on the impact any changes will have on those opposed to same sex marriage. However the consultation document, and Annex C in particular, mostly focuses on protecting religious freedoms and gives inadequate consideration to protecting young LGBT people, or young people with LGBT parents, from discrimination.
- Parents should not be able to withdraw their child from classes that mention LGBT people, same sex relationships or same sex marriage. Such an opt-out would impact adversely on a child's right to receive an education and access key information. Some respondents stated explicitly that this should also apply to sex education classes, and that allowing such an opt-out could have serious repercussions for a young person's health in the future. However, others did agree that parents should be able to withdraw their child from sex education or religious education classes if they so choose.
- Teachers should be required to teach the school curriculum. If their personal position on same sex marriage is at odds with the curriculum, as it may also be in other areas, this is a personal matter which should not intrude into their work life.
- It is appropriate for religious education classes to inform pupils about the range of views held, including on the subject of marriage. However, teaching children that same sex relationships are harmful and dangerous is not acceptable.
- Despite voicing some of these reservations, some respondents did note their agreement that no new legislation is required in relation to education as a result of same sex marriage being introduced. This included there being no need to amend employment law or the Equality Act 2010 to provide specific protections for teachers.
5.48 The alternate position, frequently taken by respondents who made their opposition to the introduction of same sex marriage clear at this question or elsewhere within their response, concentrated on the following issues:
- The fundamental principle of freedom of conscience with respect to same sex marriage should be extended to the education system.
- While most head teachers and local authorities are reasonably-minded when it comes to interpreting government guidance, there may be occasions where this is not the case. In such a scenario, there is very little protection for teachers who have a conscientious objection to teaching about aspects of same sex marriage. UK employment law does not, or may not, give adequate protection to teachers and others involved in education. Teachers should have both their conscience and human rights respected if they have concerns about same sex marriage and the use of teaching materials which are inconsistent with their religious beliefs.
- Particular care needs to be taken to ensure that denominational schools are able to teach children according to the values and beliefs of their religion, including on the benefits of the traditional concept of marriage.
- A number of religious member organisations are actively involved in Scottish schools and wider Scottish education work - often providing much-appreciated services such as lunchtime and after school clubs, mentoring services, religious observance and assemblies and chaplaincy services. Without an explicit clause affirming that opposition to same sex marriage should not be discriminated against, many of these organisations could be excluded from working within the Scottish education system as a result of the public sector equality duty.
- Given these and other concerns, a freedom of conscience clause will need to be clearly spelled out within any legislation that goes forward. Some respondents also suggested an amendment to the Equality Act 2010 would be required.
- Any guidance issued should include the present understanding of marriage as distinct from any new definition of marriage that may be taught. There should be the opportunity for people to express the Christian or other religious viewpoint so that children hear the range of views and can make informed decisions on these matters.
- The proposals do not allow for parents or guardians to withdraw a child from any lessons covering same sex marriage. The consultation document states that this is not to be introduced because the Government does not wish to infringe a child's right to education. However, the European Convention on Human Rights states that the State shall respect the right of parents to ensure education and teaching is in conformity with their own religious and philosophical convictions.
- Some children would themselves have a conscientious objection to being required to participate in classes promoting a view of marriage which they consider wrong.
- There must be changes to the law to put a duty on schools to give parents advance notice of lessons that will deal with the definition of marriage. Some respondents also suggested that parents should have the right to have sight of any teaching materials to be used.
- Same sex marriage could be particularly confusing if raised with younger children and this should not be an issue that is covered within the primary school curriculum.
5.49 Finally, a number of group respondents, including those taking both of the positions outlined above, noted that they would hope to be consulted on any changes to Educations Circular 2/2001 (on the conduct of sex education in schools) or to any other relevant guidance.
Other consequentials as a result of same sex marriage
5.50 The consultation document notes the Scottish Government's intention that, where possible, opposite sex and same sex marriage should be treated in the same way.
5.51 Since 1999, Acts of the Scottish Parliament have, where possible, avoided using gender-specific pronouns and nouns and there has been a move to gender-neutral drafting with the use of the term "spouse", rather than "husband and wife". In considering the impact of the introduction of same sex marriage on existing legislation and on private arrangements - such as wills and contracts - the Government has borne in mind that there will be exceptions. For example, to protect religious and belief bodies and celebrants who do not wish to solemnise same sex marriage, the provisions in the draft Bill on the solemnisation of marriage draw a clear distinction between same sex marriage and opposite sex marriage.
5.52 The Government will conduct a search to identify any references in legislation to which the general provision that references to spouses and marriage should mean both opposite sex and same sex marriage and spouses is not to apply. Questions 11 and 12 sought comments on the impact of the same sex marriage legislation on common law or private arrangements and asked for examples of legislation where there is a need to make it clear that references to marriage or spouse should not extend to both opposite sex and same sex marriage or spouses.
Question 11: Do you have any comments on the government's proposals on the impact of same sex marriage on legislation, the common law or on private arrangements?
Question 12: Are you aware of legislation where there is a need to make it clear that references to marriage or spouse should not extend to both opposite sex and same sex marriage or spouses? If you are, please give details of the legislation and explain why it should not be extended in this way.
5.53 Around 14,300 respondents made a comment at Question 11, although only around 450 commented at Question 12.
5.54 Whilst some respondents applauded the gender-neutral approach, others suggested this issue exemplified just how profound the effect of the changes will be on the whole of society. Others suggested that the use of gender-neutral terminology is yet one more example of the extent to which the institution of marriage is being undermined. It was also suggested that there are laws and constitutional obligations which include definitions of marriage and which the Scottish Government is unable to overturn as a devolved administration.
5.55 A further suggestion was that, rather than redefining the long-established meaning of existing words (such as marriage, husband and wife), the Scottish Government should consider the use of alternative, new terminology to apply to same sex unions and the partners within those unions. Some respondents also expressed their personal objection to no longer being referred to as their partner's husband or wife, but rather as their spouse.
5.56 Many of the comments made at Question 11 related to fostering and adoption and this issue was also covered in the suggested text at Question 11 provided by all three campaign groups. Many respondents felt that foster care should be welcoming and inclusive for children whatever their actual or potential sexual orientation or gender identity, or family background. This led to concerns that guidance might be amended to state that a would-be foster carer or someone wanting to adopt should not be rejected because of his or her views on same sex marriage. Respondents taking this view urged the Government to give careful thought to the possible implications of such an amendment on a young person who is being fostered or adopted and who comes to realise that they are, or may be, LGBT.
5.57 However, other respondents took a contrasting position and were concerned that those with a conscientious objection to same sex marriage should not suffer discrimination in the adoption and fostering processes. Frequent references were made to a Glasgow adoption agency facing the loss of its charitable status because of its belief in traditional marriage. Respondents suggested that examples such as these demonstrate that, contrary to their assurances, the Scottish Government has not put in place the necessary protections to preserve the freedom of conscience of those opposed to same sex marriage. Again, there were calls for the Equality Act 2010 to be amended.
5.58 More specifically, there were calls for the Scottish Government to amend the Adoption and Children (Scotland) Act 2007 to make it clear that opposition to same sex marriage and same sex relationships cannot be taken into consideration in the fostering and adoption approval processes. Other respondents suggested that a range of legislative protections will be required to ensure that those who believe in traditional marriage: do not suffer any discrimination in the workplace; are not denied access to public services; and are not disallowed from fostering or adopting children. It was also suggested that consideration should be given to additional Islamic marriage concepts in legislation, common law and private arrangements.
5.59 Few respondents went on to give specific examples of legislation that would need to be amended, although some did comment on the scale of the task and questioned whether such work should be a priority of Government. Suggestions that were made included:
- The Charities and Trustee Investment (Scotland) Act 2005 - to remove the potential for opposition to same sex marriage being seen as 'dis-benefit'.
- The Family Law (Scotland) Act 2006 - this was cited as an example of the complexity and potential for confusion in relation to status, in this case of a cohabitant, should the Bill become law.
5.60 The meaning of adultery in Scots common law relates to heterosexual conduct only and the Scottish Government does not plan to change this. This would mean that:
- A spouse seeking a divorce in an opposite sex or same sex marriage could still establish that the marriage has irretrievably broken down by providing proof that his or her spouse has committed heterosexual adultery.
- It will remain possible for a spouse to seek a divorce if the other spouse behaves unreasonably. 'Unreasonable behaviour' can include sexual conduct that falls outwith the scope of adultery.
Question 13: Do you have any comments on the proposed approach to the law on adultery?
5.61 Around 950 comments were made at Question 13. As at other questions, some respondents simply stated that they either agreed or disagreed with the approach proposed. It was also noted that the proposed approach with regard to same sex marriage is the same as that which has been in place since the introduction of civil partnerships and that no significant issues have arisen.
5.62 However, a number of respondents made it clear that they would prefer to see all the laws regulating marriage apply equally to opposite and same sex marriages. Not only did these respondents consider this approach would meet the basic standards of equality, but also that it would help guard against any suggestions that partners within same sex marriages would not expect to be held to the same standards as their opposite sex counterparts.
5.63 Others took the view that the very fact that the same approach is not being taken is symptomatic of a lack of consistency and clarity in the Scottish Government's thinking and that, whilst claiming the proposed changes are designed to ensure that everyone is treated the same, the Government is then choosing to treat people differently when this suits or is easier. In this case, it was suggested that the intention to keep same sex marriage obligations at the same level as those for a civil partnership brings the logic of redefining marriage to include same sex relationships into question. It was also suggested that the apparent difficulty in providing a suitable definition of adultery in same sex marriage simply highlights that opposite and same sex marriage are different entities.
5.64 Other issues raised by respondents included:
- Irrespective of the Scottish Government's intentions or wishes, a challenge under the Equality Act 2010 could result in the courts redefining adultery under common law.
- There may be a case for abolishing adultery as the basis for a divorce - particularly given that it is rarely used.
- One alternative would be to replace the concept of adultery with that of sexual infidelity.
- It is unclear how the concept of adultery will apply for those who are bisexual and in a relationship with two others of different genders.
Permanent and incurable impotency
5.65 In Scotland, a marriage is voidable if, at the time of the marriage, one of the spouses is permanently and incurably impotent in relation to the other spouse. In its report on family law in 1992, the Scottish Law Commission recommended that marriage should not be voidable on the grounds of impotency. However, this recommendation has not been implemented.
Question 14: Do you have any comments on the proposed approach to the law on permanent and incurable impotency?
5.66 Only 550 respondents made a comment at Question 14, with the main issues raised very similar to those at the previous question: that any laws and arrangements should apply equally to opposite and same sex marriages; and that the lack of equivalence highlights the problems associated with proceeding with the introduction of same sex marriage.
5.67 Other comments made included that:
- The idea that impotency (or any other medical condition) should be grounds for voiding a marriage is archaic and cruel - it should be abolished as grounds for voiding opposite sex marriages and should not be introduced for same sex marriages.
- The concept of 'voidable' marriages can have some advantages, particularly for those who might wish to enter another marriage but would not be able to do so if they were divorced.
5.68 The final question in Part 3 of the consultation document asked for views on the Scottish Government's proposed approach in relation to bigamy. In Scotland, bigamy is currently a common law offence. The current proposals include that:
- Entering into a same sex marriage when you are already married (whether to someone of the same sex or opposite sex) should be an offence.
- It should also be an offence to enter into an opposite sex or same sex marriage when you are already in a civil partnership with someone else.
- It should continue to be an offence to enter into a civil partnership when you are already married or in a civil partnership.
- Bigamy would become a statutory offence.
Question 15: Do you have any comments on the proposed approach to the law on bigamy?
5.69 Around 550 respondents made a comment at this question. Some of those who voiced their support welcomed the Scottish Government's clear commitment that neither bigamy nor polygamy will be legalised in Scotland. Amongst other issues raised by those respondents who supported the Government's proposals were the following:
- It is appropriate and commendable that equivalent arrangements and penalties are being suggested for those in opposite and same sex marriages, as well as those in civil partnerships.
- Making bigamy a statutory offence is a sensible approach.
- The current maximum penalty of life imprisonment seems excessive. Some respondents suggested that imprisonment is not an appropriate penalty and that alternatives, such as community service, would be more in keeping with the nature of the offence. However, others considered that the maximum penalties being proposed (of a prison term not exceeding two years and/or a fine) do not reflect the seriousness of the offence and should be reconsidered.
5.70 Those that disagreed with the proposals included some respondents who suggested that - assuming all parties are aware of the arrangements - polygamous and polyandrous marriages should be permitted and bigamy should not be an offence. Others suggested that, despite any reassurances given, redefining marriage will lead to calls for further redefinition in the future, including allowing more than two people to be party to a marriage.
5.71 Finally, a number of respondents wanted to make it clear that there is no relationship between bigamy, polygamy and same sex marriage and that it was unfortunate that these issues have been included as part of the same set of proposals.
Recognition of same sex marriage overseas
5.72 A number of respondents noted that they considered it important for same sex marriages and civil partnerships solemnised or registered in Scotland to be recognised in other parts of the UK and overseas. It was suggested that the Scottish Government should work with the UK Government to this end.
Survivor benefits in pensions
5.73 A further issue that some respondents commented on at Question 15 was survivor benefits in pensions. The primary concern was that the UK Government has announced that pensions law will treat same sex marriages in the same way as civil partnerships are currently treated. This would mean that bereaved same sex spouses could get much smaller pensions than their opposite sex counterparts. Some respondents went on to call for the Scottish Government to make approaches to the UK Government and press for more equitable arrangements to be put in place.
Email: Alison Stout
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