Tuesday, 18 June 2013

Same-sex marriage in England and Wales - more references to the ECHR

Yesterday, the UK House of Lords at Committee Stage agreed to Clause 1 of the Marriage (Same-Sex) Couples Bill 2013.

Clause 1 states: 'Marriage of same sex couples is lawful'.

During the debate several amendments were moved to change Clause 1 so that same-sex marriage and opposite-sex marriage would be distinguished from each other in law.

In support of his own amendment, which would have introduced the concept of 'traditional marriage' into English law (to distinguish it from same-sex marriage) Lord Dear relied on the European Convention on Human Rights for support. The text of the amendment is as follows:

“Protecting belief in traditional marriage

Any person, in exercising functions under or in consequence of this Act,
shall have regard to the following—

(a) that prior to the coming into force of this Act, marriage was the
union of one man and one woman for life to the exclusion of all
others (“traditional marriage”);

(b) that belief in traditional marriage is a belief worthy of respect in a
democratic society;

(c) that no person should suffer any detriment because of their belief in
traditional marriage.”


Lord Dear argued:

'I ask noble Lords to consider the words which case law has held to be paramount in this, that beliefs must be, “worthy of respect in a democratic society and not incompatible with human dignity”. They are words protected by the European Convention on Human Rights, and they cover both religious and philosophical beliefs. There are a clutch of cases which I could quote here, but I will refer briefly to only two of them.

The first is Grainger plc & Others v Nicholson in 2009. The court held that strong philosophical belief about climate change, for example, affected how the claimant lived. It went beyond mere opinion. It was setting out that opinion is one thing, which is not protected by the law, but that serious beliefs which stand above that should be so protected. That case really became the bedrock of this particular set of cases. In a 2005 case in the House of Lords, Regina v Secretary of State for Education and Employment and others ex parte Williamson, the noble and learned Baroness, Lady Hale, said that: “A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.

Agreeing with that judgment, the noble and learned Lord, Lord Walker, in accepting pacifism, vegetarianism, and teetotalism as beliefs, went on to say that they are not just religious beliefs, “but equally … may be based on ethical convictions which are not religious but humanist”. I galloped through that just to say that the words, “worthy of respect in a democratic society”, have a solid bedrock in both European law and the law of this country.'

Lord Dear's arguments are incredibly weak. All ECHR jurisprudence (domestically and in the ECtHR) supports the view that it is for an individual state to organise their own arrangements for marriage and inter alia determine what is worthy of respect in a democratic society. In this respect, Lord Dear did not need to look at judgments on vegetarianism to support his argument, he could have looked directly at ECtHR jurisprudence on sexual orientation.

Despite spending a day of Committee trying to introduce amendments that would have achieved the opposite of the purpose of the Bill - that is, to create equal marriage - all amendments were either withdrawn or not moved.

In agreeing Clause 1, the Lords have agreed the most crucial part of the Bill.

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