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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Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey 99% of respondents with Down syndrome described themselves as "happy." Shutterstock
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‘Sick and twisted’: Down’s advocates, pro-life leaders slam Richard Dawkins’ abortion remarks

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By Dustin Siggins

Advocates on behalf of individuals with Down syndrome, as well as pro-life leaders, are slamming famed atheist Richard Dawkin’s statements made on Twitter earlier today that parents have a moral responsibility to abort babies diagnosed in utero with Down’s.

During a shocking Twitter rant, Dawkins responded to questioners saying that it was "civilised" to abort Down Syndrome babies, and that it would be "immoral" to choose not to abort babies diagnosed with the condition.

He said that his goal is to "reduce suffering wherever you can," indicating that unborn children cannot suffer, and that unborn children don't "have human feelings."

In addition to being scientifically challenged - unborn children can feel both pain and emotions - Dawkins' comments drew criticism for his callousness towards children with disabilities.  

"A true civilization – a civilization of love – does not engage in such cold and ultimately suicidal calculus"

“It's sick and twisted for anyone to advocate for the killing of children with disabilities,” Live Action President Lila Rose told LifeSiteNews. “Dawkins's ignorant comments serve only to further stigmatize people with Down syndrome.

“While many people with Down syndrome, their families, and advocacy groups are fighting discrimination on a daily basis, Dawkins calls for their murder before they are even born,” she said. “Those with Down syndrome are human beings, with innate human dignity, and they, along with the whole human family, deserve our respect and protection.”

Carol Boys, chief executive of the Down's Syndrome Association, told MailOnline that, contrary to Dawkins’ assertion, “People with Down’s syndrome can and do live full and rewarding lives, they also make a valuable contribution to our society.”

A spokesperson for the UK disabilities charity Scope lamented that during the “difficult and confusing time” when parents find out they are expecting a child with disabilities, they often experience “negative attitudes.”

“What parents really need at this time is sensitive and thorough advice and information,” the spokesperson said.

Charlotte Lozier Institute president Chuck Donovan agreed with Rose’s assessment. "Advocates of abortion for those 'weaker' than others, or of less physical or intellectual dexterity, should remember that each of us is 'lesser' in some or most respects," he said.

According to Donovan, "we deliver a death sentence on all of humanity by such cruel logic."

"A true civilization – a civilization of love – does not engage in such cold and ultimately suicidal calculus" he said.

One family who has a child with Down syndrome said Dawkins was far from the mark when he suggested that aborting babies with Down syndrome is a good way to eliminate suffering.

Jan Lucas, whose son Kevin has Down syndrome, said that far from suffering, Kevin has brought enormous joy to the family, and "is so loving. He just has a million hugs."

She described how Kevin was asked to be an honorary deacon at the hurch they attend in New Jersey, “because he is so encouraging to everyone. At church, he asks people how their families are, says he'll pray for them, and follows up to let them know that he has been praying for them."

It's not just strangers for whom Kevin prays. "My husband and I were separated for a time, and Kevin kept asking people to pray for his dad," said Jan. "They didn't believe that Kevin's prayers would be answered. Kevin didn't lose hope, and asking people, and our marriage now is better than ever before. We attribute it to Kevin's prayers, and how he drew on the prayers of everyone."

"I don't know what we'd do without him," said Jan.

Speaking with LifeSiteNews, Kevin said that his favorite things to do are "spending time with my family, and keeping God in prayer." He said that he "always knows God," which helps him to "always keep praying for my friends."

"I love my church," said Kevin.

Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey 99% of respondents with Down syndrome described themselves as "happy." At the same time, 99% percent of parents said they loved their child with Down syndrome, and 97 percent said they were proud of them.

Only 4 percent of parents who responded said they regretted having their child.

Despite this, it is estimated that in many Western countries the abortion rate of children diagnosed in utero with Down syndrome is 90%, or even higher. The development of new and more accurate tests for the condition has raised concerns among Down syndrome advocates that that number could rise even higher. 


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Asked about Iraq on his return flight from South Korea, Francis replied that 'it is legitimate to halt the unjust aggressor.' Shutterstock
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Pope Francis: steps must be taken to halt ‘unjust aggressor’ in Iraq

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Pope Francis and his emissary to Iraq’s persecuted non-Muslim minorities, Cardinal Fernando Filoni, have both called on the United Nations to act in concert to protect Iraqis Christian and Yazidi minorities from the radical Islamic forces of ISIS.

Asked about Iraq on his return flight from South Korea, Francis replied that “it is legitimate to halt the unjust aggressor.”

He added, however, that “halt” does not mean to “bomb” and lamented “how many times with the excuse of halting the unjust aggressor…have powerful nations taken possession of peoples and waged a war of conquest!”

He also cautioned that no single nation could determine the right measures. Any intervention must be multilateral and preferably by the United Nations, he said.

Meanwhile, Cardinal Foloni, who is visiting Iraq on behalf of Pope Francis, issued a joint statement this week with Chaldean Catholic Patriarch Louis Raphael I Sako and the Iraqi bishops that urged the international community to “liberate the villages and other places that have been occupied as soon as possible and with a permanent result.”

The statement also urged efforts to “assure that there is international protection for these villages and so to encourage these families to go back to their homes and to continue to live a normal life in security and peace.”

Archbishop Giorgio Lingua, the Vatican nuncio to Iraq, was also asked by Vatican Radio earlier this month about the U.S. airstrikes in Iraq.

“This is something that had to be done, otherwise [the Islamic State] could not be stopped,” the archbishop said. 

Although Pope Francis’ own remarks about an intervention in the war-torn country were carefully guarded, Catholic commentator Robert Spencer, author of such bestselling exposes of Islam as “The Truth About Muhammad: Founder of the World's Most Intolerant Religion,” told LifeSiteNews he believes the pope was clearly calling for an “armed intervention, though a very limited one.”  

“Only a fool would think there is another way to stop an ‘unjust aggressor,’” he said.

Spencer expressed concerns that both Francis and Pope John Paul II before him have both referred to Islam a “religion of peace,” which Spencer says is “completely false.” However, he suggested that Francis’ remarks calling for action in Iraq are a sign of a more realistic attitude towards Islam.   

On this, Spencer would likely have the support of Amel Nona, the Chaldean Catholic archbishop of Mosul, who issued a letter last week warning the West in stark terms about the encroaching threat of Islam.

“Our sufferings today are the prelude of those you, Europeans and Western Christians, will also suffer,” Nona warned. “Your liberal and democratic principles are worth nothing here.

“You must consider again our reality in the Middle East, because you are welcoming in your countries an ever growing number of Muslims. Also you are in danger. You must take strong and courageous decisions, even at the cost of contradicting your principles,” he said

“You think all men are equal, but that is not true: Islam does not say that all men are equal. Your values are not their values. If you do not understand this soon enough, you will become the victims of the enemy you have welcomed in your home.”


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'Apparently I'm a horrid monster for recommending WHAT ACTUALLY HAPPENS to the great majority of Down Syndrome fetuses,' said Dawkins. 'They are aborted.' Shutterstock
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Richard Dawkins: it’s ‘immoral’ NOT to abort babies with Down syndrome

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By Dustin Siggins

In a bizarre rant on Twitter earlier today, atheist Richard Dawkins wrote that choosing not to abort a child with Down Syndrome would be "immoral."

The conversation started when Dawkins tweeted that "Ireland is a civilised country except in this 1 area." The area was abortion, which until last year was illegal in all cases.

A Twitter user then asked Dawkins if "994 human beings with Down's Syndrome [having been] deliberately killed before birth in England and Wales in 2012" was "civilised."

Dawkins replied "yes, it is very civilised. These are fetuses, diagnosed before they have human feelings."

Later, Dawkins said that "the question is not ‘is it 'human'?’ but ‘can it SUFFER?’"

In perhaps the most shocking moment, one Twitter user wrote that he or she "honestly [doesn't] know what I would do if I were pregnant with a kid with Down Syndrome. Real ethical dilemma."

Dawkins advised the writer to "abort it and try again. It would be immoral to bring it into the world if you have the choice."

According to Dawkins, the issue of who should be born comes down to a calculation based upon possible suffering. "Yes. Suffering should be avoided. [The abortion] cause[s] no suffering. Reduce suffering wherever you can."

Later, however, he said that people on the autism spectrum "have a great deal to contribute, Maybe even an enhanced ability in some respects. [Down Syndrome] not enhanced."

When Dawkins received some blowback from Twitter followers, he replied: "Apparently I'm a horrid monster for recommending WHAT ACTUALLY HAPPENS to the great majority of Down Syndrome fetuses. They are aborted."

It is estimated that in many Western countries the abortion rate of children diagnosed in utero with Down syndrome is 90%, or even higher. The development of new and more accurate tests for the condition has raised concerns among Down syndrome advocates that that number could rise even higher. 

Although it is widely believed that people with Down syndrome are doomed to a life of suffering, in one large survey 99% of respondents with Down syndrome said they were "happy." At the same time, 99% percent of parents said they loved their child with Down syndrome, and 97 percent said they were proud of them.

Only 4 percent of parents who responded said they regretted having their child. 

A number of Dawkins' statements in the Twitter thread about fetal development are at odds with scientific realities. For example, it is well-established that 20 weeks into a pregnancy, unborn children can feel pain. Likewise, unborn children have emotional reactions to external stimuli -- such as a mother's stress levels -- months before being born. 

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