Making sense of Cameron’s ‘Quadruple Lock’ on Equal Marriage

Opponents of equal marriage are, it seems, not alone in their inability to make sense of the government’s equal marriage proposals or the rationale behind the proposed ‘quadruple lock’, which is intend to ensure that religious denominations that remain opposed to same-sex marriage on theological grounds cannot be compelled to conduct such marriages against their express wishes.

As a result, we have Sunny Hundal asking a particularly dumb question

So the question is: will the Labour party commit to changing this exemption once in power?

Although, to be fair, he does appear to have been led up the garden path by a rather desperate and ill-informed piece of political grandstanding by Yvette Cooper who, as Shadow Home Secretary and Shadow Minister for Women and Equalities, really ought to demonstrate a better and more nuanced understanding of existing marriage law:

Why is the Government now rowing backwards on equal marriage? Having said that churches would be able to hold same sex marriages if they wanted to, they now say it will be illegal for the Church of England to do so even if it wants to in future. How can that be freedom of religion?

The Government is right to say that no church should be required to hold same sex marriages. But freedom of religion goes both ways. Churches that want to show they treat all loving couples equally should be able to do so.

Although the Church of England has said it does not support same sex marriage right now I hope it will change its position in time. But Parliament should not make it harder for them to do so by ruling that out.

So, for the hard of thinking, let’s explain the rationale behind both the extension of the government’s proposals to cover religious marriages and the proposed quadruple lock.

Okay, so why has the government now put religious marriage on the table when, previously, it was only offering to support same-sex civil marriages?

The answer to this lies in the legal advice that the government will have received prior to the publication of its response to the consultation on equal marriage in which they will have been told that by affording legal recognition to civil same sex marriages they would be paving the way for a legal challenge under article 9 of European Convention on Human Rights, which provides for freedom of thought conscience and religion.

To be absolutely clear on this, as this is an issue that has been widely misrepresented by opponents of equal marriage, the issue here is not that affording legal recognition to civil same-sex marriage would allow gay couples to use current equality legislation or the European Court of Human Rights to compel the Church of England, Roman Catholic Church, or any other religious group or denomination to set aside their theological/doctrinal objections to same-sex marriage.  Even without the proposed ‘quadruple lock’ the likelihood of either the High Court of England and Wales or the European Court of Human Rights forcing any religious organisation to carry out same-sex marriages against its wishes is somewhere on a par with the chance of my being elected the next Pope. The High Court does not, as a matter of principle and long-standing convention, issue rulings on matter of theology while the European Court’s preferred approach to religious cases is perhaps best characterised as ducking the issue by batting the matter back to national governments/courts under their margin of appreciation.

What was highly likely, had the government not made some provision for religious same-sex marriages, was a legal challenge to the government, and not to any individual church, under article 9 of ECHR from one or more of those denominations that has already indicated that it does wish to be able to conduct religious marriage ceremonies for same-sex couples, a list which currently includes the Unitarians, Quakers and Liberal Jews. From the point at which secular law recognises same-sex civil marriages their ceases to be any viable legal argument for restricting the ability of religious denominations to recognise and conduct same sex marriages, if that is consistent with their theological position, solely on the basis that other religious groups are, themselves, opposed to that same practice.

If secular civil law recognises or permits a particular practice then religious organisations have to be given the option of similarly recognising or permitting that same practice, even if some or most choose not to take up that option, as is the case with the Roman Catholic Church and the Church of England in regards to divorce, which neither are legally obliged to recognise for purpose of carrying out marriage ceremonies according to their own, religious, law.

So that being the case, what exactly is this ‘quadruple lock’ and what is supposed to achieve?

Let’s take each in turn…

No religious organisation, or individual minister, could be compelled to marry same-sex couples (or to permit this to happen on their premises);

That’s pretty much self-explanatory – churches and other religious organisation will not be compelled to marry same-sex couples and even if a particular organisation does opt-in, individual members of the clergy within that organisation will be entitled to refuse to carry out same-sex marriages as a matter of conscience

It will be unlawful for religious organisations, or their ministers, to marry same-sex couples unless the organisation’s governing body has expressly opted in to do so (and that would mean the religious organisation itself opting in, the presiding minister having consented and the premises in which the marriage is to be conducted having been registered);

This is clearly intend to avoid problems arising should a cleric decide to go ‘off the ranch’ and conduct a marriage ceremony for a same-sex couple contrary to the theological and doctrinal position of the church, or other religious organisation, of which they are a representative. What this is likely mean in practice, when this is translated into legislation, is simply that the law will not recognise marriages conducted in such circumstances.

The Equality Act 2010 would be amended to ensure that no discrimination claim could be brought against religious organisations or individual minister for refusing to marry a same-sex couple (or allowing their premises to be used for this purpose); and

This is as much a sop to opponents of same-sex marriages as it is a provision with any significant practical consequences. as I’ve already noted, it is highly unlikely that any court would seriously entertain a discrimination claim against any religious organisation or individual minister that is theologically or doctrinally opposed to same-sex marriage. As such, the only practical effect this will have is that of saving one or more religious organisations the time, expense and hassle defending a test case in order to establish, as a matter of law, that the courts will not interfere is what is, essentially, a theological matter.

As such, and in the unlikely event that anyone does wish to take a run at the courts because the religious group to which they are affiliated choose not to opt-in, their only legal recourse will be that of challenging the law, itself, and its compatibility with ECHR, via judicial review.

The bill will explicitly state that it would be illegal for the Church of England and the Church in Wales to marry same-sex couples, or to opt-in to do so. Canon law – which bans the marriage of same-sex couples – will continue to apply. That means that it would require a change in both primary and Canon law before Church of England and Church in Wales would be able to opt in to conduct same – sex marriages.

This is the ‘lock’ that has caused the greatest degree of consternation amongst people who clearly don’t understand the unique constitutional position of the Church of England as an established church.

Unlike other churches and religious organisations, the Church of England, as the established church, is legally obliged to conduct marriage ceremonies for anyone who asks subject only to the rules of canon law and secular provision of the Marriage Act 1949 (and subsequent amendments) irrespective of the actual religious beliefs of the parties who wish to marry. As long as both parties are content to be married under the rites of the Church of England, legally able to marry and are willing to comply with the Churches administrative requirements, e.g. the posting of banns, etc. then, save for an explicit legal exemption relating to divorcees whose former spouse in still alive, the Church has a legal duty to perform the ceremony.

This being the case, the government cannot merely leave the option open without creating a constitutional problem by giving rise to a potential conflict between statute and canon law, one that can only be resolved in one of two ways given that the Church remains, at least for the time being, opposed to carrying out same-sex marriages; the government must either legislate for the Church of England in line with current canon law, in which case statute law must specify that it remains unlawful for ministers of the Church of England to marry same-sex couples, or it must remove from law the Church’s legal duty to perform marriages for any heterosexual couple who asks to be married under the rites of the Church.

As this second option would entail the Church taking a very clear step on the road to disestablishment, the government have chosen to take the first option and maintain a consistent position between statute and canon law by retaining a ban of same-sex marriages within the Church of England in statute law.

In practical terms, all this actually means is that if and when the Church of England choose to recognise same-sex marriage in canon law, a new piece of primary legislation will be required not only to remove this lock from statute but to incorporate the Church’s agreed changes in canon law into statute. While it remains an established church, the Church of England can no more opt-in to conducting same-sex marriages than it can opt-out without specific provision being included in statute. As an established church, it is not like other religious organisations and cannot be dealt with, in statute law in the same manner as other religious organisations when it comes to matter that fall specifically under canon law.

This is not the problem that some people, perhaps, suppose that it might be. Just as the government cannot unilaterally amend or override canon law without provoking a constitutional crisis, so the reciprocal nature of the constitutional relationship between the state and its established church means that Parliament cannot refuse to amend statute law to validate any changes to canon law agreed by the without creating similar problems and an impasse that could, in likelihood, only be resolved by way of disestablishing the Church of England – the only alternative scenario would see the reigning monarch refusing to give Royal Assent to the legislation passed by Parliament, propelling the Crown into direct conflict with Parliament, a situation that, since the 17th century, has rarely ended well for the reigning monarch.

Ultimately, there are no legal ramifications to this explicit statutory ‘lock’ on the Church of England. If and when the church consents to it removal, or task for it be be modified to allow it some scope for opting-in to equal marriage, Parliament is constitutionally bound to accede to the express wishes of the church. Politically, things may look rather different to supporters of equal marriage within the Church of England who may very well feel that government has made it more difficult for them to secure any movement within the church toward even a compromise position in which individual parishes, and/or ministers, are permitted to opt-in to conducting same-sex marriages on their own conscience. Were this purely a concern for the Church of England alone, such an argument might have a tinge of validity to it but in the broader context of the global Anglican Communion, any hope that the mother church might be willing to risk a schism for the sake of even a limited compromise same-sex marriage is, I suspect, more than a touch naive and over-optimistic and the fight for recognition of same sex marriage will, ultimately, be need to won internally without any outside interference from the state.

What is, however, altogether more questionable is the inclusion of the Anglican Church in Wales in this same statutory ‘lock’, given that the church itself was disestablished in 1920 and may not, therefore, be subject to quite the same legal duties as the Church of England in respect of its performance of marriage ceremonies. This situation has been made even less clear by the decision of the Archbishop of Wales, Dr Barry Morgan, to speak out against this fourth lock despite the government having said that the Church in Wales is currently against same-sex marriage:

Dr Morgan said: “The Government is specifically excluding the Church in Wales and the Church of England from the legislation so that it will be illegal for them to have gay marriage. I think that is a step too far.

“It does not leave it to the governing bodies of the two churches to decide whether they want to opt in or out as other churches are allowed to do. It curtails our freedom of choice and seems to close the door on even the possibility of doing so in the future without a change in law.

“It makes these churches seem exclusive and I think that is unfortunate.”

That said, it does appear from the church’s own response to the government’s consultation on equal marriage that any problems it now has with the government’s proposals are largely of the church’s own making:

We note that at no point in the consultation document is the Church in Wales mentioned:  paragraph 2.10, for example, refers exclusively to the Church of England.   The Church in Wales is in an almost identical position to the Church of England with regard to the solemnisation of marriages.   The Church in Wales’ concerns about the legal implications are therefore the same as those of the Church of England.  We have taken note of these, and would seek assurances that the Government would specifically include the Church in Wales in any provisions for the Church of England under the proposed legislation.

So, in fact, Dr Morgan is now in the rather curious position of complaining publicly about the government giving his church exactly what it asked for, the exact same provisions in law that are to be applied to the Church of England should the bill pass without any amendments to these statutory locks. One has to wonder, therefore, whether the Church in Wales simply didn’t understand exactly what it was asking for or what the ramifications of its request would be given the unique constitutional position of the Church of England as an established church, or whether Dr Morgan is perhaps being just a little bit disingenuous and opportunistic in his newly discovered opposition to a statutory bar on same-sex marriages within his own church.

What is true here is that, unless the Church in Wales has a legal duty to marry all-comers similar to that which applies to the Church of England then there is no obvious reason why it cannot be left out of the explicit statutory provisions that are intended to apply to the Church of England, but it did, nevertheless, get exactly what it asked for and should at least have the courage to admit to that fact before it goes on to argue against the fourth lock.

There is no need for the church to over-elaborate – “Oops, my bad!” will do very nicely.

As might already be apparent from the analysis above, I’ve got very little time for, or patience with, some of the carping that’s coming from erstwhile supporters of marriage equality over the government’s proposals, which have ultimately gone further that was originally intended.

Although the confusion and uncertainty over why the the law needs to make specific provision for the Church of England is, for the most part, both understandable and eminently forgiveable in members of the public, who cannot reasonably be expected to understand the full ins and outs of the constitutional relationship between the Church of England and the State, one would expect senior politicians like Yvette Cooper to have at least clarified the position with a legal advisor before running off at the mouth and accusing the government of rowing back on proposals that go further than originally intended.

The Independent, in particular, appear to have given up all pretence of being a liberal newspaper with its mean-spirited attack on these proposals:

David Cameron has made much of his promise to make the institution of marriage equally available to all British citizens, heterosexual or homosexual. But the plans that his Government unveiled today shamefully fail to deliver on such a pledge. Indeed, they are so hedged about with concessions that they will, in all likelihood, cause as much indignation among campaigners for equality as the original proposal did among opponents on the Tory right.

Campaigners can be as indignant as they like, the fact remains that civil marriage will, under these proposals, be available to all, irrespective of sexual orientation or, indeed, of any change in gender as the government also propose to allow anyone who changes their legal gender, while married, while remaining within the marriage if both parties agree that they wish the marriage to continue. Indeed the government has gone further than it originally intended by making at least some limited provision for religious same-sex marriage ceremonies, even if it cannot guarantee that same-sex couples will be necessarily permitted to marry within their religion of choice.

On that last point I do have to say that, speaking as an atheist, if you belong to a religion that cannot tolerate you for who what you are then maybe its time you thought about find one that will, or even giving the whole organised god-bothering thing a miss altogether. That said, if you want to carrying on fighting the good fight from the inside, feel free, but don’t ask or expect the state to fight your battle for you – it is not the job of the state to tell people what they can and cannot believe and so any help you can expect from government is necessarily limited to what it can achieve by way of persuasion rather than coercion.

Not only will the new law allow other churches, synagogues and mosques to refuse to conduct gay marriages – and give them “watertight” protections against gay couples who want to take them to court to enforce equality legislation. It will also refuse to allow dissenting clerics to conduct same-sex marriages in individual churches if their organisation’s governing body has expressly declined to opt in.

And your point is?

Organised religions have rules that they expect adherents, and especially members of its clerical class, to follow as a condition of membership of that religion. If you can’t abide by the rules, don’t join the church – and if you’re already a member of the church, don’t expect to remain a member if you happen to be caught breaking the rules – at least the one’s that your church takes really serious – or expect the church sanction conduct which takes place outside or goes against their core rules.

Most disappointing of all, same-sex marriages will be illegal in the Church of England.

For reasons I’ve already explained at some length.

Such restrictions are a tragedy both for enlightened members of those religions and also for Britain’s established Church, already struggling to demonstrate that it is in touch with the rest of British society.

Although I’m not usually inclined to equate enlightenment with membership of organisation which espouse core moral attitudes on same-sex relationships that originated in, and should be consigned to, the Bronze Age, it is not the job of the state to enforce a change of beliefs on any religious organisation. If the ‘enlightened members of those religions’ who do oppose same-sex marriage choose to remain within those religions rather that look elsewhere for their regular fix of god, that’s their choice. Organised religion is an optional extra that many of us can happily do without and, in a free society, no one is obliged to join any organisation – religious or otherwise – if they choose not to do so. One doesn’t have to be a member of any particular organised religion to believe in god, a little matter that I distinctly recall being central to a series of historical events which we tend to refer to, collectively, as the Protestant Reformation.

As for the Church of England being out of touch with the rest of British society, that’s more of an argument for disestablishment than for forcing it to conduct same-sex marriages, given that it is out of touch by choice and not because its is being forced to remain out of touch by state legislation.

For the Prime Minister, however, the implications of today’s proposals are worse still, for they are nothing short of a betrayal of his undertaking to offer equal treatment to all couples wishing to marry. Mr Cameron talked big; what he delivered is a cobbling together of compromise and cowardice of which he should be ashamed.

Except, of course, that Cameron gave no such undertaking in respect of religious marriages, only for same-sex civil marriages. Were it not for the fact that a failure to allow those few religious groups who are prepared to conduct same sex religious marriage would likely run afoul of ECHR’s provisions on freedom of thought, conscience and religion, we would even be having this debate at all, or criticising the government for cobbling together a compromise on religious same sex marriages.

That said, my favourite daft argument of the day comes a little further on, when the Sindy complains that:

Lawyers will be bemused by the complications it introduces on consummation and adultery.

Will they really?

What the government is actually proposing to do is not very much at all and nothing that has, so far, caused any particular confusion in relation to civil partnerships.

What the government put on the table in its consultation was the proposition that new legal definitions of non-consummation and adultery for same-sex couples could be allowed to evolve in case law, a situation that certainly would have created confusion and uncertainty up to the point at which there had been enough test cases through the courts to bottom out these new common law concepts.

From what I can see, what the government got back by way of the responses they acknowledge in their response to the consultation are two contradictory views on these questions, one supported by religious organisations, including the Catholic Bishops Conference of England and Wales, which supported the retention of the existing common law definitions of both consummation and adultery, neither of which would at all applicable to lesbians without redefining the meaning of ‘penis’ in common law to encompass a combination dildo and water pistol. On the other side of the argument, the Family Law Bar Association proposed the extension of both concepts in line with the current definition of sexual activity in s4 of the Sexual Offences Act 2003, which would have the effect of covering the vast majority of the usual bases – vaginal, oral and anal intercourse, oral and anal penetration with fingers, tongues, other body parts, strap-ons, vibrators, butt plugs and dildos, whether designed for that purpose or improvised for other foreign objects that might be to hand. What would be left out of the equation, particular in regards to consummation, is the current requirement for ejaculation to have occurred as part of the consummatory act while adulterous lesbians would get a pass as long as they stick clitoral stimulation only.

In reality, this is all a bit of non-issue in terms of adultery as sexual activity outside marriage is already covered to the extent proposed by the Family Law Bar Association under ‘unreasonable behaviour’ and the use of adultery as grounds for divorce has declined considerably over the last 18-20 years with a corresponding growth in divorces granted on the grounds of unreasonable behaviour.

Non-consummation is a slightly different issue since this provides grounds not only for a divorce but also for annulment, which some churches deem necessary if an individual is to be afforded a second religious marriage ceremony while their original spouse remains alive. That said, this is, at least for the time being, still going to a non-issue as any religious denomination that is currently liberal enough in its outlook to marry same-sex couples is hardly going to overly taxed by the thought of marrying divorcees.

So what the government proposed to do here is dodge the issue of consummation altogether by excluding it from the provisions for same sex marriage, which is no different to the position that already exist in relation to civil partnerships, while leaving the common law definition of adultery completely alone, which does create a slightly odd situation in which only heterosexual infidelities will count as adultery, which same-sex infidelities will merely fall under unreasonable behaviour but, from what I’ve seen over the last few days when opponents of same-sex marriage have tried to suggest that complications arising from the current common law definitions of non-consummation and adultery amount to yet another argument against marriage equality, the general response of the LGBT community has been ‘Nah, not a problem with civil partnerships, won’t be a problem with marriages either’.

That, frankly, is plenty good enough for me and if any divorce lawyer cannot manage to get their head around what the government is actually proposing to do then I’d suggest it’s time to consider pursuing a different area of law, if not a different and much less intellectually demanding career altogether.

Okay, so what the government have put on the table is not the perfect outcome that some supporters of marriage equality might have liked, but neither is it a climbdown or a betrayal of principle, as the Sindy is trying to suggest. It is a modest but necessary step in the right direction, one that, if nothing else, should prove conclusively over time that affording legal recognition to same sex marriage will not result in the end of civilisation as we know it or a sudden and wholly unexpected volcanic eruption in the centre of Brighton.

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  • Richard Gadsden

    I think there’s one omission in this otherwise excellent and comprehensive posting.

    The legal advice obtained by the Scottish Government was that, in a denomination that had opted-in, an individual celebrant who declined to conduct same-sex marriages would be in breach of the Equalities Act (not in breach of the ECHR, just the Equalities Act) and that, since amending the Equalities Act was not within the competences of the Scottish Government, they would wait for the UK to amend the Equalities Act.

    It seems clear that the UK Government have got similar legal advice on this point and will be making that amendment in respect of marriage in England and Wales also.

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  • surreptitiousevil

    It’s not just divorcees (oh, God, with posts this long you need numbered paragraphs but it’s the one that begins “if secular law”). You’ll note that the Act also allows discrimination against people who are not a member of their sect and against carded transexuals.

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  • http://www.facebook.com/craig.nelson.1426 Craig Nelson

    Excellent post and I agree with almost everthing you said. The government’s plans are actually quite good and will look even better when the Bill comes out as the Church of England/Church in Wales situation will be better fleshed out and CofE representatives will be a bit calmer after taking the vapours. Actually the risk of legal challenge is very theoretical and most unlikely to take place let alone come within a sniffter of success, let alone getting traction at ECtHR (they recognise some states have same sex marriage, don’t insist on it, are happy to leave to national bodies to sort out the details – ‘sort it out yourselves, we’re not interested’ is the general message from Strasbourg).

    Nevertheless because of the scare tactics being deployed it makes sense to put some ‘locks’ in. Danger is that paranoid types will just see this as confirmation they were right all along (indeed we are seeing exavtly that – mot a single MP has said they were worried about this but is reassured by the existence of 4 locks). Still seems sensible to tidy up the legislation and remove the opponents’ debating points from them. In that sense, even though they are not necessary apart from lock number 1 I still am in support of the 4 lock strategy.

    On the 4th lock it is now open to the two churches to negotiate a legilsative provision they are happy with. I like Yvette Cooper very much but she should be supporting the government’s legislation which is reasonable and balanced, in my view (with due scrutiny of course).

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