Peter Smith

What happens when we redefine marriage?

Peter Smith
By Peter Smith

October 10, 2012 (Mercatornet.com) - Back in January I set out David Cameron’s proposals for creating same-sex marriage, which he announced at the British Conservative Party’s annual Conference in October 2011, alongside some arguments against those plans.

A year later, the controversy has moved on. There are now two parallel movements for same-sex marriage in the UK, a result of the devolution of powers to the Scottish Government. A consultation in Scotland ended in December 2011 and its results were snuck out shortly before Olympic fever dominated the Isles.

It is notable how divisive same-sex marriage has been north of Hadrian’s Wall: an ‘unprecedented’ 77,508 responses were received in the ‘largest consultation exercise of its type ever held in Scotland’. Over 33,000 responses were submitted via forms amended by organisations with an interest in the two core proposals of same-sex civil marriage and religious civil partnerships. Opponents of same-sex marriage pipped supporters 52:48, but more than two thirds opposed religious civil partnerships. Nonetheless, the Scottish Government intends on continuing to legalise both relationships, and the Catholic Church – numerically and financially the largest single supporter of traditional marriage – has since ceased dialogue with Edinburgh on the matter.

Down south, we are a step behind. The Home Office has also consulted on its plans to create such relationships in England and Wales, but they are effectively limited to same-sex marriages and not religious civil partnerships. After months of campaigning, two umbrella organisations broadly covered the diverse faiths, standpoints and interest groups in the opposing camps. In favour of same-sex marriage stands the Coalition for Equal Marriage, and its slick media campaign, Out4Marriage.org, which publishes clips of well-known proponents of gay marriage such as Boris Johnson and Hugh Grant ‘coming out’ in support of the move. Against liberalisation is the Coalition for Marriage, based out of the Christian Institute’s offices in Newcastle, which has mobilised tens of thousands of Christians to sign petitions and dominate the postbags of Members of Parliament.

The Home Office consultation ended in June, and the results are unlikely to be known this calendar year. It is safe to say that there have been a considerable number of responses from both sides (although, as in Scotland, many will be standard pro-forma that campaign groups have handed out and emailed to supporters). Polls favouring both positions have been published. If, following the publication of the consultation document, the Government in Westminster puts legislation before Parliament in the new year, it is likely to be passed by the second anniversary of Cameron’s speech in 2013. But will that legislation be tabled?

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Opening Pandora’s box

The best hope for opponents of same-sex marriage in England is for the Government to conclude it is too difficult to pass coherent and stable legislation that creates such marriages in the narrow circumstances so far envisaged. Social conservatives should not be too hopeful that such sense will prevail: Nick Clegg, the Deputy Prime Minister, gave a glimpse of the liberal class’s mindset when his staff trailed a speech in which he described supporters of traditional marriage as “bigots” – a slur he was rapidly forced to retract.

As an example of the radical legal consequences of redefining marriage, the Coalition for Marriage has recently released a précis of a legal opinion by Aidan O’Neil QC, an expert in equality and discrimination law who practises from the same barristers’ chambers as Tony Blair’s wife, Cherie Booth. O’Neil was instructed to consider the implications for religious conscience and religious liberty arising from redefining marriage in England and Wales, and he considers the interplay between the Equality Act 2010 (including the Public Sector Equality Duty (PSEQ)), the European Convention on Human Rights, and case law on point. The PSEQ compels public authorities – including state schools, councils and the National Health Service – to “have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited…” when exercising their public functions. This includes the obligation to “tackle prejudice” and “promote understanding” between homosexual and heterosexual people.

It is a far-reaching obligation on an enormous range of bodies and organisations, and it reduces substantially the lawful opportunities for supporters of traditional marriage to explain – let alone mention – their views. The Coalition for Marriage asked O’Neil to consider some hypothetical situations where religiously-minded people could find themselves in difficulties – and potentially fired from their jobs. Here are elaborations of some of his examples (the précis contains more), which focus on practical positions that readers of MercatorNet might find themselves in, should the prohibition on same-sex marriage be removed. (For brevity, the precise legal reasoning is omitted. What follows is a characterisation of the legal positions, which are necessarily latent or untested propositions.)

The chaplain

A hospital chaplain is also a local Church of England vicar. Suppose he preaches, at a private wedding service in his church, that marriage is between only one man and one woman. If his hospital employers were to hear of this action, they could take into account his conduct outside of the workplace when determining whether the chaplain was acting in accordance with the requirements of his hospital work and the ethos of the hospital. This is true for any chaplain employed with the public sector (e.g. within a university or the Armed Forces) who, in all likelihood, would have a duty to accept only that marriage could be between two people of the same sex, and that any contrary restrictive view would lead to their lawful dismissal as this view would be ‘un-ethical’, ie, against the prevailing ethos.

The teacher

A teacher is told by her head that she must use in class a book recommended by the local council and a gay advocacy charity. This book is about a man who falls in love with a prince and marries him. If the teacher asked to opt out of using the book on the grounds of conscientious objection, she would be refusing to obey the otherwise lawful instructions of her employers, thus constituting grounds for her dismissal. Moreover, it would make no difference if the school was a faith school or any type of school with a religious ethos or none.

The child

A child says in a school assembly that he thinks marriage is only between a man and a woman, on religious grounds. The assembly theme is on marriage and same-sex marriage is discussed. The child is subsequently bullied but the school takes no action. Because the school is under a duty to teach about marriage, and because marriage would mean same-sex marriage, a school which taught marriage equality (same-sex and opposite-sex marriages are the same) would not be discriminating against the child’s religious views. Furthermore, the school is potentially under a duty to ensure that the curriculum it teaches is delivered in a way that discourages and even eliminates the attitudes held by its pupils that involve sexual orientation. This potentially implies that it may brook no dissent from the redefinition.

The parents

Concerned parents learn that their school is planning a gay and lesbian history month, including lessons on ‘the campaign for marriage equality’. The parents insist that they have the right to withdraw their child from these history lessons. In fact, even if the school were a faith school teaching a subject in a manner contrary to the orthodox teachings of that faith, the parents would be completely unable to withdraw their child from these lessons, and the European Convention would not facilitate it.

The foster couple

Couples who apply to become foster carers and, during the interview process, let it be known that they could not support same-sex marriage, could be barred by a local authority or council from continuing with their application. The local authority is under an obligation to investigate the views of potential foster parents, and to consider the extent to which those views might influence and affect the behaviour and treatment of a child in their care. As a public authority, the council is under an obligation to safeguard and promote the welfare of looked-after children and this could be construed to include the prevention of exposure to an environment that is potentially exclusive of same-sex marriage.

The crucial lesson of civil partnerships

It is worth noting again the analogy between same-sex marriage and civil partnerships in England and Wales. When the Civil Partnerships Act was winding its way through Parliament in 2003 and 2004, Tony Blair promised that no religions would be compelled to carry out partnerships. In fact, religious readings, music or symbols were prohibited from the partnership ceremony. However, with only cursory scrutiny by Parliament, this ban was lifted in December 2011. This substantial change in civil partnership policy demonstrates that religious leaders should be very wary of accepting any ‘red line’ promises from ministers (even the Prime Minister) as a way of ameliorating opposition to the current proposals.

In the current proposals, there will be a blanket ban on religious ceremonies in England and Wales. This is effectively a religious exemption and means that churches and ministers cannot host or celebrate same-sex marriages. However, the O’Neill opinion suggests there would be a strong case that a blanket ban would be overturned by European human rights law. The material provision is Article 12 of the European Convention, which establishes a right for two individuals to marry: “men and women of marriageable age have the right to marry and found a family…”

O’Neil raises the spectre of a fundamental reinterpretation of this Article, from the right of one man and one woman to marry, to same-sex couples, if redefinition occurs in English law. The consequence of this would be to open up other legal avenues, like human rights law, to support same-sex marriage. This could spell the end of the religious exemption.

Even if churches were allowed to conduct same-sex marriages, it would be mistaken to think that a happy settlement could be reached whereby those vicars who accepted it would be free to do so, whilst supporters of traditional marriage would be free not to. Because of the established identity of the Church of England, granting the Church a unique and privileged place amongst religions in England, once any vicar allows same-sex marriages it becomes untenable in law for the whole Church not to participate. Thus O’Neil concludes:

“Churches might indeed better protect themselves against the possibility of any such litigation by deciding not to provide marriage services at all, since there could be no complaint then of discrimination in their provision of services as between same sex and opposite sex couples.

“And, in principle, the Church of England might be better protected under any such claim if it were disestablished in the sense that its clergy were no longer placed under formal legal obligations by the general law to solemnise the marriages of all and any person otherwise eligible to marry under the general law…”

It isn’t too late, Mr Cameron

Already, MPs are queuing up to remove the hypothetical ban on same-sex marriages in religious places, and Ed Milliband, the leader of the opposition Labour Party, appears to have outflanked Cameron in the latter’s rush to social liberalism.

If same-sex marriage legislation is pushed into the House of Commons, David Cameron will likely see a back-bench rebellion from his own MPs on the right of the Party, who are vociferously opposed to the measures. He knows that many Tory MPs hold seats where the UK Independence Party and the Liberal Democrats cannot oust the incumbent Conservatives in a fair fight, but they can succeed if the Tory vote is split (over Europe, for instance) or because Conservative voters simply absent themselves on election day because they are angry or disappointed at the Party leadership. Gay marriage is such an issue.

In any event, Cameron will be left in the embarrassing position of relying on Liberal Democrat and Labour support for a majority to be secured (particularly as he is likely to give a free vote), and he will see the Parliamentary Conservative Party split cleanly on this social issue, conservative/liberal, when unity is needed to push through controversial healthcare reforms.

Given the political difficulties of creating same-sex marriage and the legal consequences of doing so, it would suit him well to put the plans back on the shelf and move on to getting Britain out of its slump and recession.

Peter Smith is a lawyer living and working in London. This article reprinted under a Creative Commons License from Mercatornet.com

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Brian Fisher

Birth mothers: real heroes of the pro-life movement

Brian Fisher
By Brian Fisher
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What does it mean to be brave? Is it the doctor who dedicates himself to improving the health of a third-world nation? Is it the woman who faces her third round of chemotherapy to fight the progression of cancer? Is it the teacher who forgoes the comforts of a suburban school to reach minorities in the inner city? All of these are examples of bravery demonstrated in exceedingly challenging circumstances. And our society longs for stories of bravery to inspire us and fill us with hope.

As someone who works day in and day out with those on the front lines of helping rescue babies from abortion, I’m no stranger to stories of bravery. I see courage every day in the eyes of the men and women who sacrifice their time and energy to help women facing unplanned pregnancies. I see it every time a young mom — despite being pressured by her parents or significant other to get an abortion — chooses LIFE. And perhaps more profoundly than in any other situation, I see it when an expectant mom with no relational support, job, or income chooses to place her baby for adoption rather than abort her son or daughter.

This was Nicky’s situation.

When Nicky found herself pregnant with her boyfriend’s child, her life was already in shambles. During her 26 years, Nicky had already given birth to and surrendered sole custody of a little girl, committed several felonies, lived in her car, lost several jobs, and barely subsisted on minimum wage. So when she met up with an old boyfriend, Brandon, Nicky believed she was being given a second chance at happiness. “Our first year together was beautiful. We were getting to know each other and deciding if we would stay together forever.” Unfortunately, a positive pregnancy test result changed everything.

“When I told him I was pregnant, Brandon sat down on the bed, looked me in the eyes, and told me to ‘get an abortion’.” Nicky says those three little words changed everything for her. “I became depressed living with someone who wanted his child ‘dealt with.’”  Like thousands of women every day, Nicky began searching online for information on abortion, hoping her boyfriend would eventually change his mind. Through our strategic marketing methods, Online for Life was able to guide Nicky to a life-affirming pregnancy center where she received grace-filled counsel. “The woman I sat with was beyond wonderful. She helped me to just breathe and ask God what to do….And so I did.”

Nicky left the pregnancy center that day with a new resolve to choose life for her child, even though she still wasn’t sure how she’d financially support a child. “I was alone with just $10 in my pocket…and without any type of plan for what I was going to do.” So Nicky relied on the support of the staff she met at the life-affirming pregnancy center. With their help and through a chain of fortunate events, Nicky was put in contact with the couple who would eventually become her daughter’s adoptive parents.

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After meeting this couple face to face and coming to terms with her own desperate situation, Nicky conceded that the best thing for her unborn child would be to place her in someone else’s loving home. She told Brandon about her plans and he agreed that adoption would give their child the best chance at a happy and secure future. He even returned home to help Nicky prepare for the birth of their child. “The weeks leading up to my delivery were filled with a mixture of laughter, tears, protectiveness and sadness,” Nicky recalls. But one sentiment continued to be shared with her. “Brave…so brave.” That’s what everyone from the life-affirming pregnancy center to the adoption agency to the birthing center kept calling Nicky. “The nurses kept coming up to me and telling me they were honored to care for and treat someone like me.” After several weeks of preparation, Nicky finally gave birth to a healthy baby girl, and she made the dreams of a couple from the other side of the country come true.

Nicky’s adoption story continues to be riddled with a strange combination of pain and joy. “I cry every day, but I know my baby, who came out of a very bad time, ended up being loved by people from across the country.” When asked what message she’d like to share with the world about her decision to give up her child for adoption, Nicky responds, The voice of the mother who gives up a baby for adoption isn’t heard. We need to change that.”

To learn more about Online for Life and how we’re helping to make stories like Nicky and her daughter’s story a possibility, please visit OnlineforLife.org.

Author, speaker, and business leader Brian Fisher is the President and Co-Founder of Online for Life, a transparent, metric-oriented, compassion-driven nonprofit organization dedicated to helping rescue babies and their families from abortion through technology and grace.

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New York farmers stop hosting weddings after $13,000 fine for declining lesbian ceremony

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By Dustin Siggins

New York farmers Robert and Cynthia Gifford, who were ordered last week to pay $13,000 for not hosting a same-sex "wedding," say they are closing that part of their operation.

"Going forward, the Giffords have decided to no longer host any wedding ceremonies on their farm, other than the ones already under contract," said Alliance Defending Freedom (ADF) lawyer James Trainor. ADF represented the Giffords in their legal fight against New York's non-discrimination law.

Last week, the Giffords were ordered to pay a $10,000 fine to the state of New York and $3,000 in damages to a lesbian couple, Jennifer McCarthy and Melisa Erwin, who approached them in 2012 about hosting their "wedding." The Giffords, who are Roman Catholic, said their religious convictions would not let them host the ceremony, but that McCarthy and Erwin could hold their reception on their property.

Unbeknownst to the Giffords, lesbian couple recorded the two-to-three minute conversation. After declining to hold the reception on the Giffords' farm, on which they live and rent property, the lesbian couple decided to make a formal complaint to the state's Division of Human Rights.

Eventually, Judge Migdalia Pares ruled that the Giffords' farm, Liberty Ridge Farm, constitutes a public accommodation because space is rented on the grounds and fees are collected from the public. The Giffords argued that because they live on the property with their children, they should be exempt from the state law, but Pares said that this does not mean their business is private.

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Trainor told TheBlaze that the Giffords' decision to end wedding ceremonies at Liberty Ridge “will hurt their business in the short run," but that was preferable to violating their religious beliefs.

“The Giffords serve all people with respect and care. They have hired homosexual employees and have hosted events for same-sex couples,” he said.

However, "since the state of New York has essentially compelled them to do all ceremonies or none at all, they have chosen the latter in order to stay true to their religious convictions," Trainor explained to LifeSiteNews. "No American should be forced by the government to choose between their livelihood and their faith, but that’s exactly the choice the state of New York has forced upon the Giffords."

"They will continue to host wedding receptions," said Trainor.

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South African mom files ‘wrongful life’ lawsuit on behalf of Downs son

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By Thaddeus Baklinski

A South African woman has launched a "wrongful life" lawsuit against the Cape Town-based Foetal Assessment Centre, claiming a failure to inform her that the child she was carrying was at risk of having Down Syndrome prevented her from aborting her baby.

A twist in this lawsuit is that, unlike other "wrongful birth" lawsuits, the mother in this case missed the time limit to file the claim on her own behalf, so she is asking the South African Constitutional Court to allow her to sue the center for “wrongful life” on behalf of her now-born son.

“You have a duty to tell my mother carrying me that I'm malformed so that she can make an informed decision as to whether or not to carry me to term,” the statement of claim against the Foetal Assessment Centre reads, according to SABC News.

“It is not as if the foetus is sort of putting up its hand and saying why you didn’t destroy me," the mother's lawyer, Paul Hoffman, explained to Deputy Chief Justice Dikgang Moseneke. "The foetus is complaining that its malformation, its development is the result of the bad advice that was given.”

The SABC report did not say what compensation the woman is seeking.

The scope of the case is similar to that of a New Zealand couple who won a lawsuit claiming monetary compensation after a routine 20 week ultrasound scan failed to discover that their daughter had spina bifida.

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The mother, whose name has not been released, claimed that the continuance of the pregnancy was a “personal injury,” and, had she been given the correct diagnosis after that scan, she would have aborted her daughter.

"We consider that the continued pregnancy of the appellant following a misdiagnosis in the 20 week scan is capable of being an injury suffered by the appellant,” the court ruled, and directed the New Zealand Accident Compensation Corporation (ACC) to make the woman eligible for compensation for the ongoing surgical and physiotherapy expenses incurred by their child.

New Zealand disability advocate Mike Sullivan said the underpinning attitude behind the decision is that those with disability, both born and unborn, are seen as a burden on society.

“This is what happens,” Sullivan said, when “the children become reduced to nothing – wrong even to exist.”

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