Tim Hopkins: Clear safeguards already protect religious objectors

JOHN Macmillan questioned last week in this column whether an escape hatch could be added to the Equality Act 2010, to allow churches to refuse to conduct same-sex marriages.

But that escape hatch is already there. Paragraph 2 of schedule 23 to the Act applies to all religious bodies and religious celebrants. It exempts them from the sexual orientation equality laws which would otherwise apply to the provision of services or public functions.

That means the Roman Catholic Church will certainly be able to refuse to marry same-sex couples, without any risk of breaching the law.

Underpinning that protection, article 9 of the European Convention on Human Rights guarantees the freedom to manifest one’s religion. In a recent opinion for Liberty, leading human rights lawyer Karon Monaghan QC writes, “any requirement upon a church or religious organisation to conduct same-sex marriages, contrary to the religious convictions of its members, would violate their article 9 rights”.

The Scottish Government believe they have found a specific technical issue with the schedule 23 escape hatch. Where a church like the Catholic Church decides not to conduct same-sex marriages at all, that is clearly lawful.

But where a church, for example the United Reformed Church, decides in future that it will conduct same-sex marriages, the Equality Act might require all that church’s ministers to do so. However, the United Reformed Church would want to give its individual ministers the choice to opt out of marrying same-sex couples. The Scottish Government therefore propose a technical amendment to the Equality Act to put the issue beyond doubt.

Equality law is reserved, so the amendment needs the co-operation of the UK government. It could be made by UK statutory instrument, after Holyrood passes the Marriage Equality Bill, using standard powers for consequential amendments, in the Scotland Act 1998.

The Home Office last week pledged to co-operate with the Scottish Government on same-sex marriage, so there should be no barrier to getting this done before the legislation comes into effect in 2014 or 15.

• Tim Hopkins is director of the Equality Network