John Macmillan: Churches can’t pull out of same-sex marriages

Published on 27/07/2012 00:00

THE Scottish Government has committed itself to the introduction of same-sex marriage, but on the basis that no person would be forced to conduct such a ceremony in a church.

As the Equality Act 2010 is currently written, there is an escape hatch in schedule nine that allows organised religion to avoid some of the Equality Act terms in the “employment” arena. For example, it allows the Roman Catholic Church (and other churches) to fulfil its doctrine of only appointing males as priests.

However, those fulfilling a public function are required by section 149 of the same act not to discriminate. Marrying people must be a public function. So, if the law allows same-sex marriage, then arguably there should be no difference for the churches.

The Scottish Government has said the UK Government would require to amend the act to accommodate the political ambition of allowing the churches to avoid the effect of the proposed new legislation by another escape hatch or an extended one.

Will Westminster do that to accommodate what is currently a purely Scots initiative? That must be doubtful but it could only be done after a detailed study of the conflicting interests.

Will Westminster be concerned that that would be out of step with increasing rights for homosexuals? That must be a distinct possibility as the Court of Appeal in England has suggested in the Ladele case that “orientation” rights prevail over “belief” rights within UK law.

Ms Ladele was a registrar of births, deaths and marriages in London. A strongly committed Christian, she was dismissed when she refused to conduct civil partnerships on religious grounds.

If the law says same-sex marriage is acceptable as a concept, why should the churches be exempt?

Will clergymen and women and/or their churches be sued for compensation if they refuse to accept couples for marriage on orientation grounds? Almost certainly yes if the equality law is not changed and the legal position is not made much clearer than it is at present.

We may well be back in the land of letting the genie out of the bottle.

• John Macmillan is a specialist employment lawyer with MacRoberts.