Teh Gayers and Marriage

This is a bit of a bodyblow to the idea, isn\’t it?

Gay marriage is not a human right, according to European ruling

And do not forget, the definition of what is and is not a human right has been outsourced to those very judges. Not something for us to decide domestically any more.

And there\’s a sting in the tail to this as well:

Neil Addison, a specialist in discrimination law, told the Mail: \”Once same-sex marriage has been legalised then the partners to such a marriage are entitled to exactly the same rights as partners in a heterosexual marriage.

\”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.\”

Ah.

Now, that does in fact change matters. For the debate moves from, well, what skin off the Catholic (to take an example) Church\’s nose is it if Teh Gayers can marry elsewhere to you what, we\’re insisting that the Catholic Church must marry Teh Gayers in Church?

That is a substantial change in position I would suggest.

Which really leaves us with only one viable solution. We do as Portugal has done and just entirely remove from the legal code the entire idea of religious marriage. There is just one State contract open to any couple of any variation of adult humanity. This must, can only, take place on State premises.

Where you go as well so that the Sky Fairy would approve is entirely up to you and entirely sod all to do with the law.

Yes, that does mean that us Papists, the CofE, whoever else has those register rights in the middle of a ceremony loses them.

But if Addison is right then the only way to deal with the insistence on non-descrimination in religious marriage is to make religious marriage disappear from the law entirely. For really, seriously, no one is seriously suggesting that the local Mosque must marry Teh Gayers are they?

30 comments on “Teh Gayers and Marriage

  1. It’s what I’ve always argued is really at the heart of the churches’ opposition. It seems the sort of thing the Commission could fix quite easily, you would have thought.

  2. In those countries where being married is disadvantageous tax wise it is perfect, married in the sight of God, family and friends, not in the sight of the state.

  3. I wouldn’t rely on the word of one “specialist” quoted in the Daily Mail, but even if he’s right “illegal for the Government to prevent such marriages happening” is not the same as “illegal for the Government to give Churches a choice of whether to conduct such marriages”.

  4. If there was a general human right to marry, that would take us way beyond gay marriage. Brother-sister and father-daughter marriages would be permitted, as would polygynous, polyandrous and polyamorous unions.

    I agree with Tim. Let’s separate completely state marriage from religious marriage. Having one state church is bad enough. I don’t want the de facto nationalisation of all the other religions too.

    A couple of questions:

    1. Do the incest restrictions applied to heterosexual marriage apply to gay marriage too?
    2. If a gay couple used human rights law to force the Catholic church to marry them, would they lose the right to divorce without special Papal dispensation?

  5. Come on, no one would attempt to force a mosque gay wedding. The Left prefers to bully those who lack the desire to fight back

  6. Based on the language used, PaulB is correct. All he is saying is that is a religious establishment agrees to marry a couple, the government cannot overturn that decision. That’s a different proposition to allowing the government to FORCE a religious establishment to do so

  7. Once you take that step, why does the state need to be involved in marriage at all?
    Let people make whatever arrangements they like, sign a legal agreement that defines rights over shared property etc (there can be a default agreement drafted by the Law Society) and job done. No need for the state to define, validate, control etc, any more for they do for life-long friendships. Easy peasy.
    It would be impossible to tax based on marriage status of course, but then IMHO that would be a good thing.

  8. “Come on, no one would attempt to force a mosque gay wedding.”

    But an imaginative Islamic advocacy group could use the possibility to demand the legalisation of polygynous marriage as a quid pro quo.

  9. “It would be impossible to tax based on marriage status of course, but then IMHO that would be a good thing.”

    What about the provision of state benefits?

  10. State benefits aren’t provided on the basis of marital status. They are provided on a “household” basis, which is assumed to be two adults cohabiting plus assorted dependents or varying ages and abilities. Whether or not the two adults concerned are married, want to be married or even “know” each other in the Biblical sense is not something that concerns the tax people.

    What it WOULD foul up, potentially, is inheritance taxation. But IMHO that’s a good thing.

  11. “What about the provision of state benefits?”.
    Fair point. You are right that it leaves unsolved the situation of one earner plus one ‘homemaker’ or full-time parent. The state would not want to financially support the latter in that situation, and may need to define what constitutes that situation. But I think marriage is a lousy way to define it.
    What about cohabitees, siblings sharing a house, single mother living with her parent, divorced people still living in the same house, etc etc? Why should they be treated differently?

  12. PaulB’s interpretation of the Wail’s expert is correct, and the expert’s opinion is likely to be correct. Clergy presently are permitted to refuse to conduct wedding ceremonies for divorced couples, or on religious grounds (e.g., one is Roman Catholic and the other not), and churches are permitted to refuse access to their facilities for those purposes. Unless the Government proposes over-turning those permissions too, there is no reason to suppose churches would be forced to admit ceremonies against their will.

    Which is not to say that simply admitting gay couples to the institution of marriage is without its problems: the definitions of consummation and adultery, for example, would need amending, if the concepts were even thought to be relevant.

    This is why I prefer chucking the state out of marriage and letting everyone contract civil partnerships, or whatever, instead. But we don’t need to go down the Portuguese or French route to do this: the Swedish seem to manage all right while allowing churches to impose their own rules.

  13. Tim, there is no such thing in English law as marriage: there is only marriage. There are two forms of marriage ceremony – weddings – but only one form of marriage. One room; two doors to it.

  14. Look, the doctrine of human rights is just silly nonsense. For perfectly obvious reasons the perpetrators of the American and French revolutuons didn’t want to use an accurate description of what they wanted – British Rights – and so played up a handy alternative phrase. From that dishonesty much damage has flowed.

  15. …remove from the legal code the entire idea of religious marriage. There is just one State contract open to any couple of any variation of adult humanity.

    That’s the way it is done in Germany, so a couple of Germans have told me. You go to the town hall and go through the civil ceremony, such as it is, and then go, or not, to the church of your choice for its ceremony.

    It seems eminently sensible to me, as it would in a stroke remove all confusion in terminology that seems to be dominating the debate.

  16. I raised this point some threads back. Surely, the effect of the Equality Act will be that churches or mosques or synagogues cannot refuse to marry gays?

    So in effect all the warm words from Lynn Featherstone on this point are so much hot air. Once you allow gay civil marriage there is no legal way in which you can prevent a religious gay couple from demanding that their church marry them in church.

    And what happens if they refuse: will the state force the church to pay damages or close them down if they refuse?

    I also cannot see a government removing the right of churches to marry couples legally. Imagine how that will play: Civil partnerships have the same legal consequences as marriage but in order to allow gays to marry civilly we will remove the right of churches to marry you.

    It seems to me that however well-meaning this proposal is it simply has not been thought through properly.

  17. Philip Scott Thomas,

    The point I was trying to make at comment 2 is that who gives a crap what the state thinks, especially so if the state will tax you more as a married couple? It is not the least bit of importance to me, and I’m sure MrsBud too, that the state recognises us as being married (as libertarians we do not feel that it is for the state to confer married status upon us). For us it is important that our friends and family recognise us as being a married couple, irrespective of the legal status, and if the church is willing to provide such a service and setting, then amen to that.

  18. A couple of questions:

    1. Do the incest restrictions applied to heterosexual marriage apply to gay marriage too?

    If the same restrictions are applied to gay marriage as are currently applied to civil partnerships, then yes.

    2. If a gay couple used human rights law to force the Catholic church to marry them, would they lose the right to divorce without special Papal dispensation?

    Why? They couldn’t possible consummate the marriage as is held under Catholic doctrine therefore although the service has been held, the marriage could be (more trivially than involving il Papa) annulled.

    Surely, the effect of the Equality Act will be that churches or mosques or synagogues cannot refuse to marry gays?

    There are already derogations in the Equality Act, mostly in Schedule 3, permitting discrimination under certain circumstances (i.e. marrying transexuals), as I believe I pointed out at the time. If the Act implementing Gay Marriage amends the Equality Act to include similar derogations for the churches and gay marriage then that would be legal under the Equality Act. And the ECHR seems to suggest that challenge under HRA Art 12 would be turned down. Less sure about Art 14 but remember that the churches, even the CoE, are not the government therefore are not directly bound by HRA. The challenge would have to be against the government’s implementation of the derogations in the Equality Act, and then against the churches under the re-amended Equality Act.

  19. The equality argument is a McGuffin. What tehy want is camp.

    Of course, we could argue that a church should have the same rights to refuse entry as a pub. (Which is unlimited and arbitrary.)

    But that’s not what a church is for.

  20. Surreptitious Evil: I’ve seen nothing to suggest that there will be any explicit derogations from the Equality Act for religious bodies. And even if there are it is highly likely that such derogations will be declared to be unlawful by the courts under the ECHR.

    Following the latest ruling, if the government were to say “no” to gay marriage, it would not lose a challenge to that under the ECHR because there is no such right.

    However, if the government introduces gay marriage but seeks to exempt religious bodies from it, then that could be challenged and that challenge would be likely to succeed.

    At that point there is the prospect of a real conflict between church and state over this issue.

    What would happen if, say, a synagogue said no? Would it be forced to pay damages? Would bailiffs be sent in to seize its property? Would it be closed down?

    It seems to me that the proponents behind this simply have not thought through the potential consequences.

  21. I’ve seen nothing to suggest that there will be any explicit derogations from the Equality Act for religious bodies.

    Except that there already are explicit derogations from the Equality Act for religious bodies. Schedule 3 Sections 24 to 30. And the Minister responsible has stated that religious organisations will be not be bound to offer the sacrament. Even despite the mendacious incompetence of both our politicians and whatever the last couple of decades have done to the Parliamentary Draftsman’s Office, it is not an unreasonable assumption that the new derogations will be based on the existing ones. Note that these are derogations to the Equality Act. Derogations to the ECHR are also possible but, I agree, less likely.

    And even if there are it is highly likely that such derogations will be declared to be unlawful by the courts under the ECHR.

    I’m not even sure they’ll be challenged – the transexual derogations haven’t. But the gay lobby might do so and even win. Just remind me what the voting status of convicts in England is at the moment? Some, well, six or so years after the ECHR ruling.

    At which point you merely start repeating yourself.

    But, if a church said no, I suspect any case might be struck out by the relevant Law Officer as not in the public interest.

  22. “It seems to me that the proponents behind this simply have not thought through the potential consequences”. Oh yes they have. That’s the point.

  23. Alex,

    If the state decided to support “single earner-homemaker” couples, that wouldn’t necessarily have to have anything to do with marriage. As the real aim is to support children, it should apply equally to cohabiting couples. And personally I don’t see why couples should be given state benefits so they can pay someone else to look after their children, but not so they can look after them themselves. The simplest way of supporting single-earner couples with children would be to allow stay-at-home parents to claim childcare tax credits. Mind you, this is tax and benefits we are talking about, so you can guarantee that the simplest and most logical solution WON’T be the one eventually adopted.

    What cohabitants can’t claim is any automatic rights over each other’s property – hence my comment about inheritance taxation. In the event of the death intestate of one of them, any jointly-held property has to be sold and the proceeds go into the estate, which after tax and expenses goes to the surviving next of kin – not the cohabitant. Contrast this with marriage, where the UNTAXED estate goes to the surviving spouse. Unfair, much? The answer always given is “well, they can always get married”. But for atheists that can be a problem, because of the religious language in the vows. As far as I know you can’t rewrite a marriage ceremony to suit your lack of religous views.

    Personally I would rather see extension of civil partnerships to heterosexual couples, and recognition of “marriage” as an optional religious add-on to a civil partnership. I think this is the French system, sort of, isn’t it?

  24. Frances: on the contrary: you’re free to write your own vows for a civil marriage ceremony, so long as you avoid religious content. As I did.

  25. As far as I know you can’t rewrite a marriage ceremony to suit your lack of religous views.

    And, in certain enlightened churches, you can rewrite your vows to suit the modern world. We did.

    But I agree, as has been expressed before, with Frances underlying point. The state should butt out of “marriage” and leave that to the religions.

    However, I am perfectly happy for the state to recognise appropriate clerics or equivalents as “state registrars” who can combine a civil partnership and a religious marriage in the same ceremony.

  26. Gay marriage is not a human right, according to European ruling

    And do not forget, the definition of what is and is not a human right has been outsourced to those very judges. Not something for us to decide domestically any more.

    But none of this is true.

    What the judges said is that, “The European Convention on Human Rights does not require member states’ governments to grant same-sex couples access to marriage.”

    They cannot hand down decisions about rights that are not in the Convention.

  27. They cannot hand down decisions about rights that are not in the Convention.

    And Article 14 – freedom from discrimination – explicitly only applies to the Convention rights. Therefore if there is no Article 12 right, there is no Article 14 discrimination challenge.

    And HMG can introduce derogations from it’s own Acts, subject to them being compliant with the HRA.

    Anyway, even if there were a challenge, it becomes an Article 9 versus 14 argument and I’m not aware of any case law that elevates one of these above the other.

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