1.1 On 2nd September 2011 the Justice Directorate of the Scottish Government launched a public consultation on the possibility of allowing religious ceremonies for civil partnerships and the possible introduction of same sex marriage. The aim of the consultation was to seek views on the proposed changes.
1.2 This report sets out the findings from the independent analysis of the consultation responses that were submitted to the Scottish Government by the consultation closing date of 9th December 2011.
Background to the consultation
1.3 Civil partnerships were established in the United Kingdom in 2004 and allow same sex couples to obtain legal recognition of their relationship. In the seven years since the first civil partnerships took place in December 2005, a total of 3,861 civil partnerships have taken place in Scotland.
1.4 The responsibilities and rights of civil partners are very similar to those for married couples, although there are key differences between civil partnership and marriage. Notably, in Scotland a marriage can be conducted through either a religious or a civil ceremony, while civil partnership ceremonies may not take place in religious premises and the partnership can only be registered by a civil registrar. These civil arrangements are designed to be clearly secular in nature and essentially to mirror civil marriage. However, there is nothing to prevent a same sex couple seeking to receive a religious blessing of their union; whether to offer such a blessing is a decision for religious bodies and their celebrants.
1.5 The bar on civil partnerships being registered in religious premises was removed for England and Wales in 2010. The UK Government introduced regulations in early 2012 (following consultation in 2011) so that civil partnerships can be registered in religious premises in England and Wales, but emphasised that the measure is entirely voluntary, with each faith group free to decide whether they wish to allow their premises to be used for civil partnership registrations.
1.6 In relation to marriage, under the Marriage (Scotland) Act 1977, any two persons may marry in Scotland as long as they meet six key requirements, one of which is that they are not of the same sex. Marriage can take place through either a religious or a civil ceremony. In the seven years between 2005 and 2011, a total of 204,687 marriages took place in Scotland. Of the 28,480 marriages that took place in 2010, 51% were through civil ceremonies, with the rest being carried out by religious or other belief bodies.
1.7 Civil marriages must be solemnised by a district or assistant registrar appointed by the Registrar General. They must take place in a registration office or at an approved place. Religious marriages may be solemnised by a minister of the Church of Scotland or by a celebrant from one of the other religious bodies that have been prescribed to solemnise marriage by Scottish Ministers. They may take place anywhere. The religious bodies that are currently prescribed by the regulations are:
- Baptist Union of Scotland;
- Congregational Union of Scotland;
- Episcopal Church in Scotland and other Anglican Communion Churches;
- Free Church of Scotland;
- Free Presbyterian Church of Scotland;
- Hebrew Congregation;
- Methodist Church in Scotland;
- Religious Society of Friends;
- Roman Catholic Church;
- Salvation Army;
- Scottish Unitarian Association; and
- United Free Church of Scotland.
1.8 In addition to those religious bodies noted above, other religious bodies may nominate celebrants to the Registrar General. Those authorised to solemnise marriage include celebrants from the United Reformed Church, the Jehovah's Witnesses, the Christian Brethren and the Islamic, Hindu and Buddhist faiths. There are also provisions which allow the Registrar General to grant any person a temporary written authorisation to solemnise marriages. These provisions are used, for example, to authorise deacons of the Church of Scotland and Humanist celebrants.
Initial views of the Scottish Government
1.9 The consultation paper set out the Scottish Government's initial views on religious registration of civil partnerships and the possible introduction of same sex marriage (page 1 of the consultation paper ):
"The Scottish Government is choosing to make its initial views clear at the outset of this consultation. We tend towards the view that religious ceremonies for civil partnership should no longer be prohibited and that same sex marriage should be introduced so that same sex couples have the option of getting married."
1.10 The paper also made it clear that no decisions have been reached and that all views expressed would be taken into account. The Government's view was also that no religious body or its celebrants should be required to carry out same sex marriages or civil partnership ceremonies.
1.11 With specific reference to the civil partnership proposals for England and Wales, the Scottish Government considered that equivalent arrangements would not be appropriate for Scotland for three main reasons:
- The focus in Scotland is on who should be able to act as an approved celebrant or an authorised registrar. The proposals for England and Wales reflect their different tradition, with its focus on the concept of "approved premises";
- The proposal for registrars to carry out official duties on religious premises would be contrary to the law, practice and tradition in Scotland, where a distinction has always been made between civil and religious ceremonies; and
- The proposals for England and Wales do not allow same sex couples to have a religious service even if a religious body and celebrant are content to carry out the service.
1.12 The UK Government's proposals on same sex marriage in England and Wales were published on 15 March 2012, after Scotland's consultation paper was issued. The UK Government's proposal is to enable same sex couples to have a civil marriage but to make no changes to religious marriage. The UK Government also proposes the retention of civil partnerships for same sex couples and allowing couples already in a civil partnership to convert this into a marriage. There is also a proposal that individuals will, for the first time, be able legally to change their gender without having to end their marriage.
The consultation questions
1.13 The Scottish Government's consultation paper set out 20 questions: 9 relating to civil partnership, 10 relating to the same sex marriage proposals and a final question asking for further views. The 9 questions relating to civil partnership were as follows:
Question 1: Do you agree that legislation should be changed so that civil partnerships could be registered through religious ceremonies?
Question 2: Do you think that the proposals in England and Wales on registration of civil partnership in religious premises would be appropriate for Scotland?
Question 3: Do you agree with allowing religious celebrants to register civil partnerships in religious premises?
Question 4: Do you agree with allowing religious celebrants to register civil partnerships in other places agreed between the celebrant and the couple?
Question 5: Do you agree that religious bodies should not be required to register civil partnerships?
Question 6: Do you consider that religious celebrants should not be allowed to register civil partnerships if their religious body has decided against registering civil partnerships?
Question 7: Do you agree that individual religious celebrants should not be required to register civil partnerships?
Question 8: Which of the options do you favour to ensure that religious celebrants do not have to register civil partnerships against their will?
Question 9: Religious bodies may not wish their premises to be used to register civil partnerships. Do you agree that no legislative provision is required to ensure religious premises cannot be used against the wishes of the relevant religious body?
1.14 The 10 questions relating to same sex marriage were as follows:
Question 10: Do you agree that the law in Scotland should be changed to allow same sex marriage?
Question 11: Do you agree that religious bodies and celebrants should not be required to solemnise same sex marriage?
Question 12: Do you agree with the introduction of same sex civil marriage only?
Question 13: Do you agree with the introduction of same sex marriage, both religious and civil?
Question 14: Do you agree that religious bodies should not be required to solemnise same sex marriage?
Question 15: Do you consider that religious celebrants should not be allowed to solemnise same sex marriages if their religious body has decided against solemnising same sex marriage?
Question 16: Do you agree that religious celebrants should not be required to solemnise same sex marriage?
Question 17: Which of the options do you favour to ensure that religious bodies and celebrants do not have to solemnise same sex marriage against their will?
Question 18: Religious bodies may not wish their premises to be used to solemnise same sex marriage. Do you agree that no legislative provision is required to ensure religious premises cannot be used against the wishes of the relevant religious body?
Question 19: If Scotland should introduce same sex marriage, do you consider that civil partnership should remain available?
1.15 The final question (Question 20) asked for any further comments, although in particular invited views on the potential implications of the proposals for transgender people, on possible transitional arrangements and recognition of Scottish same sex marriages elsewhere. Comments were also invited on forced and sham marriages, and on the potential financial and equality implications of the proposals.
1.16 Craigforth Consultancy and Research were appointed to undertake the analysis by the Scottish Government after a competitive tendering process and this report sets out the analysis of consultation responses undertaken by Craigforth. The next chapter (Chapter 2) gives an overview of the consultation process and the approach taken to the analysis. Chapter 3 looks at a range of contextual issues of relevance to the subsequent analysis. The report then presents the analysis from all of the twenty consultation questions, with Chapters 4 and 5 covering the possible introduction of religious civil partnership and Chapters 6 and 7 the possible introduction of same sex marriage. Chapter 8 gives an overview of additional comments made at Question 20 and the final chapter (Chapter 9) presents a short summary of the key themes to emerge from the analysis of responses to the consultation.
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