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Will the European court force churches to conduct gay weddings?

5 February 2013

Would the European Court of Human Rights force churches to conduct same-sex marriages against their will? That’s the professed fear of some opponents of the Same Sex Marriage Bill being debated in the Commons today. The Church of England sent MPs a briefing paper saying ‘We doubt the ability of the Government to make the legislation watertight against challenge in the European courts’, and such fears have been invoked in today’s debate by Graham Brady and other Tory backbenchers. They present their opposition as a defence of religious freedom (even though maintaining the current law restricts the religious freedom of those churches who would like to perform same-sex marriages).

Such fears were stoked by a Daily Mail article last year, reporting the ECtHR’s decision in Gas and Dubois v. France. The Mail wrongly claimed that:

‘The ruling also says that if gay couples are allowed to marry, any church that offers weddings will be guilty of discrimination if it declines to marry same-sex couples. It means that if MPs legislate for same-sex marriage, the Coalition’s promise that churches will not be compelled to conduct the weddings will be worthless.’

On the UK Human Rights Blog, Daniel Sokol rightly pointed out that ‘The judgment says no such thing’ and said it ‘appears to be pure fabrication’ on the part of the Mail. The Mail conceded, correcting its article online by removing the first sentence and admitting that ‘this statement was not, in fact, contained within the judgement’ — though it cheekily left the second sentence as a non sequitur.

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But those who fear churches being forced to conduct same-sex marriages might well find the ECtHR an ally rather than the bogeyman many portray it as. Article 9 of the European Convention on Human Rights guarantees ‘the right to freedom of thought, conscience and religion’, including the freedom ‘to manifest his religion or belief, in worship, teaching, practice and observance’. Karon Monaghan QC calls this protection ‘strong’ and says it ‘would provide real safeguards to a religious organisation that did not wish to conduct same-sex marriages on doctrinal grounds.’ She says:

‘In my view, a refusal by a church or other religious organisation, to conduct a same-sex marriage, so as to comply with the tenets of its religion or the strongly held and faith based convictions of its members, will invariably be regarded by any court as justified.’

Three of the country’s top human rights QCs — Baroness Kennedy, Lord Lester and Lord Pannick — concur in a letter to the Times yesterday:

‘Given the importance which the Court places on the right to freedom of conscience and religion under Article 9 of the Convention, it is simply inconceivable that the Court would require a faith group to conduct same-sex marriages in breach of its own doctrines.’

Leading human rights barrister Adam Wagner has examined this question on the UK Human Rights Blog. He points out that, in Shalk and Kopf v. Austria in 2010, the ECtHR explicitly said it is up to the member states whether to allow same-sex marriage (‘the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State’). But Wagner also says that ‘the Church [of England] is correct to highlight that Schalk was about a state where there was no gay marriage at all’ — so the Court may treat a challenge against the UK differently once equal marriage is introduced. ‘It may be’, he says, ‘that once a state decides to implement gay marriage, the court will be less cautious in ruling on how exactly the rules are implemented.’

But he still does not think a challenge would be all that likely to succeed: ‘I would put the prospects of success at no more (but also no less) than “reasonable”,’ he says. ‘The Court is still likely to give individual states a wide margin of appreciation as to how it legislates for gay marriage, particularly in the highly sensitive religious context.’

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Show comments
  • Blutherup

    The (re)marriage of divorced persons is allowed under the law, but not permitted by the Church of England or the Roman Catholic Church. Have there been any instances of court actions by divorced persons claiming the churches should marry them?

  • Alex R

    The ECHR is sufficiently vaguely drafted that an activist court will rule whatever it wants. As we have seen, elements of the Treaty have been used to justify rulings and the extension of responsibilities that were never intended or envisioned at the time of drafting.

    But surely the more fundamental point that it that is that Parliament has (for once) unequivocally stated its wish. That shouldn’t then be subject to unpicking by a Court which lacks an basis of democratic legitimacy.

  • Tom M

    One thing for sure is that somebody quite soon is going to legally test the ECHR on this point. Why? Because like Everset “it is there”. With the legal opinion divided it is anybody’s guess as to how this willl play out.
    I await with interest as to what the mosques will do with a decision that proclaims inequaity if they refuse to marry gays.

  • 2trueblue

    Give it time.

  • Theodoxia

    Are we expected to believe that all the professional trouble makers, presented with a new target in conservative Christian churches refusing to conduct same-sex marriages, will be content to sit on their hands? That the European Court of Human Rights will virtuously defend the rights of Christians to maintain their historic beliefs? They must think that we all have birth certificates dated 4th February 2013.

  • Tom Tom

    The simple fact is that there is a War against Christian Faith in Europe. Whatever form of Absolutism it requires to eradicate it will be used. It will survive underground. There is simply no prospect of Believers being able to be open in Europe and as in cHina it must thrive underground. Islam already knows what has happened to Christianity in Europe and will resist the Statists as they seek Absolute Adherence to The State and they are right to do so. Europe has become what lies at the core of its soul, an Absolutist Totalitarian Polity

  • Tony (Somerset)

    Will this lead to members of the clergy being locked up as prisoners of conscience ?

    • Alex


  • Andy

    You can be damn sure that the ECHR will meddle in all of this sooner rather than later. You only have to look at the absurd rulings on Prisoner Votes to realize that.

  • the viceroy’s gin

    You don’t even have to ask this question. You already know the answer.

    • salieri

      Quite. And especially when three senior British human rights specialists describe that answer is inconceivable.

  • HooksLaw

    They have had plenty of opportunity to date to force Portuguese Churches and Spanish Churches to conduct such marriages.
    Plus churches in Belgium, Denmark, Iceland, Netherlands, Norway, and Sweden.
    Have there been any reports of such actions?

    • Tom Tom

      Zapatero would have been better advised regulating Spanish Cajas rather than Spanish marriage

    • Tom Tom

      Continental Europe has CIVIL Marriage and Church Blessings. ONLY the Church of England is the Vicar obliged to marry ANY Parishioner as he is a Registrar as well as a Churchman. This measure will lead to the Church losing the right to conduct Marriages and ALL Marriages being in Registry Offices with optional Church Blessings

    • Tom Tom

      In Belgium and Luxembourg there is a criminal penalty for celebrating a religious wedding PRIOR to a civil ceremony. In GErmany the Church has no right to conduct weddings. In Austria, Portugal, Bulgaria and Hungary a religious wedding has no civil validity. So DImwit Hook’s Law, you really are so abnormally stupid that you must work at Tory Central Office….you spout on but have not a damned clue about the BS you spout.

  • MirthaTidville

    Does anyone serious think that this `Kangeroo Court` would come down on the side of any belief that was not of a secular view. The thought of it offering protection to strongly held religious beliefs is laughable, as is the governments proposed lock. What I dont get is why so much effort for so little result. Pity Cameron can`t attack our financial problems with the same vigour

    • Daniel Maris

      A rather pertinent observation.

    • Nicholas chuzzlewit

      Agreed. I suggest that church in question argues that it answers to a higher authority than the ECHR on what is a spiritual matter. I wish them luck.

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