UK Marriage (Same Sex Couples) Bill and the ECHR

The UK House of Lords will today commence its deliberations on the Marriage (Same Sex Couples) Bill that, if enacted, would permit same-sex couples to contract civil marriage in England and Wales. 

A large number of Peers have requested to speak in the Second Reading debate and a considerable amount of time will no doubt be spent discussing the adequacy of the 'religious protections' (what the UK government initially described as the 'quadruple lock') in the Bill. 

The Bill contains a range of measures designed to placate the fears of religious organizations who are concerned that, should the Bill be enacted, litigious homosexuals will seek to challenge a church's refusal to solemnise same-sex marriage. 

Over the next two days in the Lords it is highly likely that religious opponents of the Bill will claim that the European Convention on Human Rights is a 'threat' to religious organizations because it offers homosexuals the opportunity to petition the European Court of Human Rights which, in turn, may compel the UK government to undo the 'locks' and force religious organizations to perform same-sex marriage ceremonies. In other words, the Court will again be depicted as a potential danger to religious organizations. 

Where do such ideas come from? One source of these ideas can be found in 'Human Rights Implications of the Marriage (Same Sex Couples) Bill: Advice to the Catholic Bishops’ Conference of England and Wales' prepared by Professor Christopher McCrudden. In this document, McCrudden sets out various scenarios (in terms that would no doubt appeal to St.Michael himself) of how homosexuals might use aspects of the Convention 'as a sword to attack protections for freedom of religion that the Bill seeks to incorporate' and how this may overcome and defeat the 'shield' of religious protections offered by other aspects of the Convention (particularly Article 9).

McCrudden's legal scenarios are extensive but really amount to one key claim: 

The Court often accords Article 9 rights relatively little weight, and accords a Member State a considerable margin of appreciation in deciding how to protect that right. Much greater weight is given to equality on the basis of sexual orientation, and the margin of appreciation is correspondingly significantly reduced. Differences in treatment based on sexual orientation can be justified only with very considerable difficulty, as indicated by the current case law of the Court.

The claim here is that the Court favours the rights of homosexuals over the rights of religious believers (of course, the two are often not exclusive) and that sexual orientation has 'the upper hand' over religion. 

Yet there is nothing in ECHR case law to support this view. The Court has never compelled a member state to force a religious organization to provide any service to people on the basis of sexual orientation. This is because the Court applies a general principle, established in Stec and Others v the United Kingdom and reiterated in Schalk and Kopf v Austria, that:

On the one hand the Court has held repeatedly that, just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification [...] On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy.

In respect of marriage, the margin for determining 'social strategy' is at its widest. Yet what religious organizations argue (and it is at the heart of McCrudden's advice) is that there is no 'guarantee' that this margin will remain wide and that the Court will at some unspecified point in the future close it down. At this point, it is argued, churches will be forced to conduct same-sex marriage. 

Again, there is no evidence to support this view. Of course, there is the possibility that the Court will, if (and only if) a European consensus on same-sex marriage is established, find that Article 12 of the Convention provides a right for same-sex couples to marry. Even so, this would be a long way from recognising the validity of a complaint by a same-sex couple under Article 14 that a state's organization of marriage law to allow churches to opt-out of solemnising same-sex marriage constituted discrimination. After all, Article 12 of the Convention provides that 'Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right'.

At the heart of legal arguments made by religious opponents of the Bill is the now regularly expressed fear that the rights of religious organizations are being trampled on by homosexuals in Strasbourg. Yet the reality is the opposite of this and the Court has repeatedly held that, in the sphere of relationship rights, it is for the member state to determine its own legal landscape. In this respect it is worth recalling the opinion of David Thór Björgvinsson (judge for Iceland, a member state that permits same-sex marriage) in Burden v the United Kingdom which, in reflecting on the development of civil partnership legislation in the UK, stated: 

it is important to have in mind that each and every step taken in this direction, positive as it may seem to be from the point of view of equal rights, potentially has important and far reaching consequences for the social structure of society, as well as legal consequences [...] It is precisely for this reason that it is not the role of this Court to take the initiative in this matter and impose upon the Member States a duty further to extend the applicability of these rules with no clear view of the consequences that it may have in the different Member States. In my view it must fall within the margin of appreciation of the respondent State to decide when and to what extent this will be done.