Consultation on the Draft Marriage and Civil Partnership (Scotland) Bill: Analysis of Written Responses

This report presents the findings of the independent analysis of responses to the Scottish Government's consultation on the draft Marriage and Civil Partnership (Scotland) Bill. The consultation ran from 12 December 2012 to 20 March 2013, and sought views on the detail of the legislation that will introduce same sex marriage, allow civil partnerships to be registered through religious or belief ceremonies and make other changes to marriage law.

Annex A - Campaign Suggested Text

Care For Scotland

Question 1 - Do you have any comments on the impact assessments prepared in relation to the proposed legislation?

I am concerned that the Equality Impact Assessment makes little or no mention of the probable negative implications of this legislation for people who hold to a religious belief or who have a conscientious objection to approving of same-sex marriage. The impact assessment fails to recognise that religious belief applies to the whole of life and conduct and limits the potential negative implications of the legislation solely to the matter of religious celebrants. It does not consider the implications of this legislation for Christians and others working across the breadth of the public sector. Many people may find themselves being placed in the position of having to choose between following their conscience or disobeying their employer and losing their job. In future many may find that certain career choices are no longer open to them if they disagree with same-sex marriage. Those wishing careers as civil registrars, teachers and social workers are likely to be affected, but also anyone wishing a career in the public sector. In addition, no mention is made of the possible negative implications for churches and religious charities, either in relation to the implications of the public sector equality duty for partnership working between public bodies and faith groups or on the charitable status of charities which do not support same-sex marriage.

Question 5 - Do you have any comments on establishing tests that a religious or belief body must meet before its celebrants can be authorised to solemnise marriage or register civil partnership?

This proposal poses a potential problem for new churches and faith groups which have only recently established a presence in Scotland. Any such system of tests would need to take into consideration the changing face of the Christian Church and other religious groups in the UK. In particular, a mechanism to recognise and facilitate newer denominations to conduct marriage ceremonies would need to be incorporated into the system of tests.

Question 7 - Do you have any comments on the proposals for authorising religious and belief celebrants who wish to solemnise same sex marriage?

There is a real danger of cases of discrimination being taken against religious celebrants and churches which refuse to marry same-sex couples. These claims could be based either on the grounds of sex or sexual orientation. The proposal to amend the Equality Act is welcome, but this may not be sufficient to stop a church or a minister being sued for refusing to marry a same-sex couple. In the immediate future it is likely that a claim of sex discrimination might be made and the Scottish government is proposing no protection in the Equality Act to ensure that this does not occur. In the longer term human rights laws could be used to force churches and religious celebrants to 'marry' same-sex couples on the ground of non-discrimination. The only way to guarantee that the civil liberties of religious celebrants and churches are not infringed is not to allow religious same-sex marriage.

Question 8 - Do you have any comments on the opt-outs for civil registrars who do not wish to solemnise same sex marriage?

I have grave concerns about the implications of introducing same-sex 'marriage' for civil registrars. Those who have a conscientious objection to solemnising same-sex 'marriages' may either be forced out of their jobs or, in the future, be unable to obtain employment as registrars. This is unfair discrimination against people of religious faith. The Scottish Government should include a conscience clause in its legislation which allows civil registrars to opt out of performing same-sex 'marriages'. 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. The precedent for this was set in the Abortion Act 1967 which allows doctors with a conscientious objection to opt out of performing abortions. Similarly the marriage issue is of fundamental importance to many people who have religious faith. It is essential that the Equality Act 2010 is amended to incorporate a requirement that employers take steps to reasonably accommodate the religious, philosophical and other beliefs of their employees which give rise to instances of conscientious objection. Until a commitment to amend the Equality Act in this way is obtained from the UK Government, the Scottish Government should refrain from pursuing the introduction of same-sex 'marriage'. The Scottish Government should include in its own legislation a condition which requires individual civil registrars to opt-in along the lines of that proposed for religion and belief celebrants and ask for the Equality Act to be amended to give legal protection to such registrars. Moreover, the Scottish Government should await the outcome of any appeal to the Grand Chamber of the European Court of Human Rights in the case of Lillian Ladele before rushing to legislate in this area.

Question 9 - Do you have any comments on the proposed approach in relation to freedom of speech?

I am very concerned that freedom of speech may be restricted if the Scottish Government presses ahead with its plans to legalise same-sex 'marriage'. It is difficult to comment on the proposed prosecutorial guidelines without seeing their content. Moreover, the guidelines may be open to reinterpretation over time. It is essential, therefore, that a clause protecting freedom of speech is included on the face to the Bill. There is a real danger that public sector employees who speak out against same-sex 'marriage' will lose their jobs. Already there has been a newspaper report of a police chaplain allegedly being forced out of job because of his views on same-sex 'marriage'. At the very least, new entrants to public sector professions (e.g. registrars, teachers and social workers) may find it difficult to get a job if they oppose same-sex 'marriage' and articulate this view during an interview. Indeed questions on this issue might be asked during interviews as a means to weed out those who oppose same-sex 'marriage' from the public sector. Similarly churches which teach that marriage is between a man and a woman may well be unable to hire school halls and could even lose their charitable status. Prospective foster parents may be discriminated against if they state opposition to same-sex 'marriage' during the approval process.

Question 10 - Do you have any comments on the proposals in relation to education and same sex marriage?

I am concerned that children will be taught in school sexual health education that marriage can be between two people of the same sex. The institution of marriage will be reduced to little more than a subjective expression of affection between two individuals. Its objective purpose, the procreation of children within a stable and secure environment consisting of the complementarity of male and female parents, will be removed from education. This is contrary to the guidance issued when Section 28 was repealed. Many parents will be alarmed that their children may be taught something in school which runs contrary to their right to have their children educated in accordance with their religious and philosophical beliefs. Children should be taught about the benefits of marriage (defined as being between one man and one woman with the intent for life) for society and for families in sexual health and religious and moral education. Moreover, it is important to ensure that robust arrangements are in place to ensure that parents can exercise their right to withdraw their children from these aspects of the curriculum and that schools are inspected with regard to these arrangements. This right should be extended to other areas of the curriculum where same-sex marriage and same-sex relationships are discussed. I am very concerned that a range of books which discuss same-sex relationships are already being promoted by Stonewall for use in primary schools, including for very young children. If same-sex 'marriage' is legalised, schools will come under huge pressure to use these resources. Many parents will be unaware what their children are being taught. The Scottish Government should ensure that these books are not used in schools and that if they are being used that parents are made aware of their content. It is imperative that teachers should not be forced to conduct same-sex 'marriage' lessons if they have a conscientious objection to doing so.

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?

There is a very real danger that people with a conscientious objection to same-sex 'marriage' or the encouragement of homosexual relationships will suffer discrimination in the adoption and fostering processes. It is important, therefore, that fostering and adoption guidelines are not amended to encourage discrimination against people who disagree with same-sex 'marriage' or homosexual relationships. The Scottish Government should amend the Adoption and Children (Scotland) Act 2007 to make clear that opposition to same-sex 'marriage' and same-sex relationships cannot be taken into consideration in the adoption and fostering approval processes.

Question 13 - Do you have any comments on the proposed approach to the law on adultery?

The Scottish Government is proposing a two-tier system of marriage where the commitment requirements are not equal between opposite sex marriage and same-sex 'marriage'. Given that there is no proposal that same-sex couples should meet the basic faithfulness commitment requirement of marriage vis-a-vis adultery, the Marriage and Civil Partnerships (Scotland) Bill effectively keeps same sex relationship obligations at the level of civil partnership obligations. Had the Bill actually brought same sex relationships and subjected them to the same standards of commitment as marriage then there would have been some logical basis on which to argue for redefining marriage to include same sex relationships. In truth, however, all the Bill does is in creating the illogical arrangement whereby same-sex couples are held to civil partnership obligations regarding faithfulness, even whilst they are located in the context of the definition of marriage (which continues to embrace different sex couples subject to the actual marriage definitions of faithfulness and consummation), is to highlight the problem with the entire project. In failing to draw same-sex relationships into the same relational framework as marriage, the Bill makes the case for maintaining provision for same-sex relationships entirely through civil partnerships. It is completely wrong to place same-sex relationships with the levels of obligation proposed in this Bill in the same category of marriage with its quite different levels of obligation.

Question 16 - Do you have any comments on the proposed approach to ensuring that religious and belief bodies and celebrants do not have to register civil partnerships?

It is imperative that where a religious body has opted in and an individual celebrant has a conscientious objection that the Equality Act 2010 is amended in order to protect the religious celebrant concerned from being sued should he/she refuse to register a civil partnership.

Equality Network

I welcome Scottish Government plans to lift the ban on same-sex marriage and hope legislation will be passed soon to give LGBT people equal marriage rights in Scotland.

Question 7: Religious & belief marriage

I agree with the proposals for authorising religious and belief celebrants who wish to solemnise same-sex marriage. These proposals will protect and extend religious freedom by allowing religious and belief bodies to conduct same-sex marriages if they wish to do so.

Question 8: Civil Registrars

I agree that there should be no specific opt-out in the bill saying that civil registrars do not have to conduct same-sex marriages. Unlike religious celebrants, civil registrars are carrying out a civil function on behalf of the state and therefore an opt-out on grounds of their personal belief is not appropriate and would set a dangerous precedent.

Question 9: Freedom of speech

I agree with the freedom of speech guarantee in the bill, and that there is no need for additional new legislation to protect freedom of speech. I call on the Scottish Government to ensure that any new guidance issued does not stigmatise or discriminate against LGBT people.

Question 10: Education

I believe that education should be inclusive and welcoming to all regardless of sexual orientation, gender identity, or family situation. All levels of education should be fully inclusive of LGBT people. I believe no school should stigmatise or discriminate against LGBT people. Teachers should not teach that same-sex relationships or same-sex marriage are wrong. Same-sex marriage should not be treated as a controversial issue in schools. Parents should not have a right to opt children out of lessons that mention same-sex relationships or same-sex marriage. Primary schools should not be discouraged from mentioning same-sex relationships or same-sex marriage. Education and employment law should not be changed to enable public servants to discriminate against LGBT people. Any changes to guidance such as Education Circular 2/2001 should seek to promote equality for LGBT people, not stigmatise or discriminate against them.

Question 11: Fostering

I have concerns about the proposal to amend fostering guidelines and call on the government to ensure that any changes focus on the needs of the child and do not risk placing children in an environment which would not be supportive of an LGBT young person.

Question 17: Civil Partnership

I disagree with the proposal to maintain the ban on mixed-sex civil partnership. I call on the Scottish Government to ensure full equality by giving mixed-sex couples the same right to have a civil partnership as same-sex couples. Existing civil partners who did not have the option of same-sex marriage should be able to convert their civil partnership to a marriage via a free administrative process if they wish.

Question 18: Transgender people

I support the aim of ending the requirement for transgender people to end their marriage or civil partnership in order to obtain full gender recognition. The procedure for gender recognition needs more consideration; it should be straightforward and with no additional costs. Existing pension rights should not be affected. Partnership rights should be entirely gender neutral and ensure that all people, regardless of their gender identity or whether they are intersex, can access equal recognition of their relationships.

Scotland for Marriage

Question 7: Do you have any comments on the proposals for authorising religious and belief celebrants who wish to solemnise same sex marriage?

The opt-in system has not been fully thought through. Too much emphasis is placed on the religious bodies, and not enough emphasis on the individual celebrants. The system also must make sure that conducting same-sex marriages does not become a condition for celebrants being authorised to conduct traditional marriages. The proposed amendment to the Equality Act to protect individual celebrants is too narrow. The amendment needs to provide an exception covering sex discrimination, not just sexual orientation discrimination. This is what the Westminster Government is doing.

Question 8: Do you have any comments on opt-outs for civil registrars who do not wish to solemnise same sex marriage?

The Scottish Government's inflexible approach leaves no room for conscience, which should be respected in a modern democracy. Doctors are allowed a conscientious objection for abortion, why are registrars not afforded the same accommodation for same-sex marriage? Reasonable accommodation should be made in the law for registrars, so that a registrar would be able to opt-out of solemnising same-sex marriages as long as the service provision was not unduly disrupted. At the very least, the Scottish Government should ensure through Codes of Practice that local councils take into account the conscientious objections of their employees.

Question 9: Do you have any comments on the proposed approach in relation to freedom of speech?

Section 12 of the Bill, the Scottish Government's attempt to protect free speech, is virtually worthless. It is drafted so narrowly that it only applies to Part 1 of the Bill itself, the technical changes to the law of marriage. But the free speech concerns are not with marriage law directly. The problem is the impact of the redefinition of marriage on how other existing laws, particularly public order law, will be applied. In a completely new situation where marriage has been redefined, new protections are needed within public order legislation, to reflect that there are various, deeply-held views in our society about what marriage should mean. If Alex Salmond is going to keep his promise to protect free speech, he has to do far more than is proposed. As a means of protecting free speech, as well as freedom of conscience, employment discrimination law must be amended to outlaw employers from punishing employees for their views on traditional marriage. 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 so that such discrimination is unlawful. Already, a police chaplain has been removed from his post because he expressed his personal beliefs about marriage. There will be more cases like this if marriage is redefined.

Question 10: Do you have any comments on the proposals in relation to education and same sex marriage?

Guidance does not provide enough protection for the rights of parents. The Scottish Government must extend the right of withdrawal, which currently only applies to sex education and religious education, to cover all lessons which may endorse same-sex marriage. There should also be changes to the law to put a duty on schools to inform parents of lessons that will deal with the definition of marriage. The law must ensure that lessons dealing with same-sex marriage must treat it as a controversial issue on which there is no consensus in society, like abortion or a party-political matter. The Scottish Government must make explicit in law that belief in traditional marriage should be properly respected and that those expressing this view, whether pupils or parents, must not be disadvantaged within schools. To protect teachers, the Equality Act 2010 must be amended to ensure that belief in traditional marriage is one that is protected under employment discrimination law. Teachers should not be forced to endorse same-sex marriage in the classroom against their sincere beliefs, and there should be reasonable accommodation for teachers who believe in traditional marriage.

Question 11: Do you have any comments on the proposals on the impact of same sex marriage on legislation, the common law or on private arrangements?

I am concerned about the implications of redefining marriage for our everyday language. Well understood words like husband and wife are being removed from parts of the law and redefined in others. The law must be amended to guarantee protection for charities, like St Margaret's adoption agency in Glasgow, that believe marriage should only be between a man and a woman. Equality law must be amended to ensure that a local authority could not use the Public Sector Equality Duty as an excuse to prevent a church that only marries opposite-sex couples using a publicly-owned facility like a community centre. The Scottish Government's assurance that people who are against same-sex marriage will not be banned from being foster parents is welcome. However, this needs to be backed up by a provision within the Bill upholding the right of those who hold to the traditional definition of marriage to foster and adopt children.


Email: Alison Stout

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