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article imageLawyer on UK Churches: 'no legal grounds to resist' gay marriage

By Devan Jacobson     Apr 26, 2012 in Religion
United Kingdom - Following a coalition government decision to legalize same-sex marriage last fall, a Catholic attorney warns that the Catholic Church and others could be prosecuted despite assurances to the contrary from PM David Cameron's government.
In September of 2011 British Prime Minister David Cameron's coalition government announced its intention to grant legal recognition of same-sex marriages by 2015, apparently as a direct result of pressure from the PM himself. The proposal would apply to England and Wales.
As to the PM's level of involvement in the decision, the Daily Mail quotes an anonymous Downing Street official close to Cameron as saying "He [Cameron] was very keen to press ahead on this."
The policy was formally debuted that same month in a speech by Equalities Minister Lynne Featherstone to a Liberal Democrat Party conference in Birmingham. A jubilant Featherstone declared to the conference: "I am delighted to announce today that in March this Government will bring in a formal consultation on how to implement equal civil marriage for same-sex couples."
"The Government will be obliged to permit same-sex marriage on religious premises on exactly the same basis as it permits heterosexual marriage," Neil Addison was reported as saying, according to reporting by Britain's Catholic Herald on Friday. Mr. Addison is a practicing attorney and National Director of the Thomas More Legal Centre, a non-profit, Catholic legal advocacy group.
British Muslims have also vocalized their concerns over the government's stance. In a gesture of solidarity with concerned Christians, two prominent Muslim groups, the Islamic Medical Association, and the Council of Glasgow Imams have lent their voices to the chorus of concerned religious groups.
"Marriage in Islam is only between a man and a woman, ...It is the same belief of 1,600 million Muslims in the world ... It is the same belief also in the holy teachings of Judaism and Christianity." declared Dr. Majid Katme, head of the Islamic Medical Association.
Dr. Katme added "The time has come to establish a holy alliance of all faiths with those sensible people who are without faith in order to oppose gay marriage in any new law."
Similarly, the Council of Glasgow Imams unambiguously declared: "There is no scope for compromise on this issue and we simply say this: no to same-sex marriage..."
The government denies that religious groups will be adversely affected.
A consultative document issued on March 15, 2012 by the Government Equalities Office (a department of the Home Office) entitled "Equal civil marriage: a consultation" insists that the government has been in consultation with religious organizations, and denies that the extension of civil marriage to include homosexuals will compel churches to perform same-sex marriages against their will.
The document's Executive Summary reads: "We have listened to those religious organisations that raised concerns about the redefinition of religious marriage. We are aware that some religious organisations that solemnize marriages through a religious ceremony believe that marriage can only be between a man and a woman."
The document continues: "...this consultation is limited to consideration of civil marriage and makes no proposals to change the way religious marriages are solemnized. ... There will therefore be no obligation or requirement for religious organisations or ministers of religion to do this."
Mr. Addison's legal opinion cites a recent domestic legal precedent by Britain's Court of Appeal as well as a potentially binding ruling of the European Court of Human Rights (ECtHR), an arm of the Council of Europe, of which the United Kingdom is a signatory and a founding member.
In 2009, Lillian Ladele, an avowedly Christian Registrar of the London Borough of Islington, took her superiors on the Islington Council to court for forcing her to officiate over homosexual civil partnerships, and threatening her with termination if she refused. Ms. Ladele's conscientious objection was upheld by a lower court, however, the Islington Council appealed the ruling and subsequently won in the Court of Appeal.
In a 48 page transcript of the Employment Appeal Tribunal's judgment, the appeals court determined that Ladele's Christian definition of marriage "was not a core part of her religion."
The transcript of the proceedings also notes that in other regions of the country, employees with similar religious objections were suitably accommodated by excusing them from "civil partnership duties."
Paragraph 23 of the transcript continues: "The relevant registrar would not be designated for civil partnership services or else the work would be distributed to other registrars who had no concerns about performing those ceremonies. That could have been a line that Islington Council could have taken. It is not suggested that it would have been administratively difficult to have structured arrangements in that way."
The Council refused, claiming that it enforces this policy equally, and without exceptions.
Strasbourg, France - In March, a French lesbian couple (claimants Valerie Gas and Nathalie Dubois) sued the French government for denying their application to adopt a child. The case was brought before the ECtHR, which ruled that although same-sex marriage is not a civil right to which homosexuals are entitled, countries that legalize same-sex marriage must enforce the equal standard in all contexts, including on religious premises.
The claimants, Mss. Gas and Dubois, and indeed all legally recognized homosexual couples in France, are 'civil partners' under French law, which entitles them to fewer privileges and benefits than married couples, in contrast to the UK's civil partnership, which entitles homosexual couples to the same material benefits of heterosexual married couples.
Mr. Addison further elaborated on the legal implications of this ruling: "This means that if same-sex marriage is legalised in the UK it will be illegal for the Government to prevent such marriages happening in religious premises."
Under Article 46 of the founding charter of the ECtHR, the European Convention on Human Rights (1950), member states (members of the European Council, not to be confused with the smaller EU) are obliged to assent to rulings of the ECtHR by interpreting or amending their domestic legal codes in conformity with the Court's judgement.
Indeed, when referring to domestic regulations governing religious exemptions for employees, the transcript of the Employment Appeal Tribunal judgment which ruled against the Registrar (Ms. Ladele) cites section 3 of the domestic Human Rights Act which "has to be read in conformity with Article 9 of the European Convention on Human Rights."
Despite the assurances of the government, Mr. Addison's legal opinion that same-sex marriage would be mandatory for Churches, is strongly plausible in view of the European Court's ruling and the UK's historic deference to the pronouncements of the ECtHR, as well as the 2009 EAT ruling against Ms. Ladele, who lodged a religious objection to officiating over civil partnership ceremonies.
While the Daily Mail reports that "polls have shown that two thirds of the public would support gay marriage", all mainstream Christian churches in Britain have expressed their opposition to the proposal, with Catholic bishops instructing their faithful to do all in their power to resist the change.
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