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).
‘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.
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.’