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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Jonathon van Maren Jonathon van Maren Follow Jonathon

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Arguments don’t have genitals

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By Jonathon van Maren

“As soon as he grows his own uterus, he can have an opinion.”

That was a comment left on The Abortion Rights Coalition of Canada’s Facebook page by a woman who presumably opposes men speaking out against misogyny, domestic abuse, rape culture, and female genital mutilation as well. Apparently, you see, male genitals disqualify people from speaking out on various human rights issues deemed by women who define themselves by their uteruses while protesting angrily against being defined by their uteruses as “women’s issues.”

Which abortion isn’t, by the way. It’s a human rights issue.

To break it down really simply for our confused “feminist” friends: Human beings have human rights. Human rights begin when the human being begins, or we are simply choosing some random and arbitrary point at which human beings get their human rights. If we do not grant human rights to all human beings, inevitably some sub-set of human beings gets denied protection by another group with conflicting interests. In this case, of course, it is the abortion crowd, who want to be able to kill pre-born children in the womb whenever they want, for any reason they want.

Science tells us when human life begins. Pro-abortion dogma is at worst a cynical manoeuvre to sacrifice the lives of pre-born human beings for self-interest, and at best an outdated view that collapsed feebly under the weight of new discoveries in science and embryology. But the abortion cabal wants to preserve their bloody status quo at all costs, and so they make ludicrous claims about needing a uterus to qualify for a discussion on science and human rights.

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In fact, feminists love it when men speak up on abortion, as long as we’re reading from their script, which is why the carnivorous feminists have such a support system among the Deadbeat Dads for Dead Babies set and the No Strings Attached Club.

Male abortion activists have even begun to complain about “forced fatherhood,” a new cultural injustice in which they are expected to bear some responsibility for fathering children with women they didn’t love enough to want to father children with, but did appreciate enough to use for sex. Casual fluid swaps, they whine, should not result in custody hearings.

This is not to mention a genuine social tragedy that has men forcing or pressuring women to have abortions or abandoning them when they discover that the woman is, indeed, pregnant.

Or the fact that abortion has assisted pimps, rapists, and misogynists in continuing the crimes of sex trafficking, sexual abuse, and sex-selection abortion.

And coming against these disgusting trends are thousands of men in the pro-life movement who believe that shared humanity means shared responsibility, and that when the weak and vulnerable are robbed of their rights, we have to stand up and speak out.

We are not at all convinced by the feminist argument that people should think with their reproductive organs or genitals. We think that the number of people currently doing that has perhaps contributed to the problems we face. And we refuse to be told that protecting the human rights of all human beings is “none of our business” and “outside of our interests.”

Arguments don’t have genitals, feminists. It’s a stupid argument trying to protect a bloody ideology.

Reprinted with permission from CCBR.


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Rachel Daly

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Gvmt strikes UK Catholic school admission policy that prefers Mass attendees

Rachel Daly
By Rachel Daly

St. Joseph's Catholic Primary School in Epsom, England, was ordered to change its admissions policy after it was ruled discriminatory by the nation's Office of Schools Adjudicator, according to Your Local Guardian. St. Joseph's reportedly had been granting preferred acceptance to students whose families attended Mass at the affiliated church.

St. Joseph’s School is for students from age 4 to 11 and describes itself as “enjoy[ing] a high level of academic success.” The school furthermore places high priority on its Catholic identity, affirming on its homepage that “We place prayer and worship at the center of everything we do.”

The school states in its current admissions policy that it was "set up primarily to serve the Catholic community in St Joseph’s Parish" and that when the applicant pool exceeds 60 students, its criteria for prioritizing students includes "the strength of evidence of practice of the faith as demonstrated by the level of the family's Mass attendance on Sundays." 

Opponents of this policy reportedly argue that since donations are asked for at Mass, it could allow donation amounts to influence acceptance, and that forcing non-accepted local students to seek education elsewhere imposes a financial burden upon their families. 

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As Your Local Guardian reports, the adjudicators dismissed claims that donation amounts were affecting school acceptance, given that it is impossible to track donations. Nonetheless, the adjudicators maintained that "discrimination ... potentially arises from requiring attendance at the church rather than residency in the parish."

The Office of Schools Adjudicators, according to its website, is appointed by the United Kingdom’s Secretary of State of Education, to perform such functions as mediating disputes over school acceptances. The Office's ruling on St. Joseph's will require the school to release a revised admissions policy, which is expected in the next few days.

Reprinted with permission from the Cardinal Newman Society.


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Carolyn Moynihan

African women at risk of HIV, hostages to birth control

Carolyn Moynihan
By Carolyn Moynihan

Which should be the priority for a health organisation: preventing an incurable disease, or preventing a natural function that might have adverse physical consequences?

Preventing the disease, you would think. But the World Health Organisation would rather expose African women to HIV-AIDS than withdraw its support from a suspect method of birth control, arguing that childbirth is also risky in Africa. Riskier, apparently, than the said contraceptive. And at least one of WHO’s major partners agrees.

This is one of the stories you will not have read in coverage of the International AIDS Conference held in Melbourne last week, despite the fact that WHO made an announcement about it during the conference and the findings of a highly relevant study were presented there.

The story is this: there is increasing evidence that the method of contraception preferred by family planning organisations working in Africa (and elsewhere) facilitates the transmission of HIV. The method is the progesterone injection in the form of either DMPA (Depo Provera, the most common) or NET-En (Noristerat).

Millions of women in sub-Saharan Africa receive the injection every three months. The method overcomes problems of access. It can be given by nurses or health workers. A wife need not bother her husband for any special consideration; the teenage girl need not remember to take a pill.

But for 30 years evidence has been accumulating that, for all its “effectiveness” in controlling the number of births, the jab may also be very effective in increasing the number of people with HIV.

Three years ago at another AIDS conference in Rome, researchers who had analysed data from a number of previous studies delivered the disturbing news that injectables at least doubled the risk of infection with HIV for women and their male partners.

That study had its weaknesses but one of the experts present in Rome, Charles Morrison of FHI 360 (formerly Family Health International, a family planning organisation that also works in AIDS prevention), considered it a “good study” and subsequently led another meta-analysis that addressed some of the issues with previous research.

Last week at the Melbourne conference he presented the results. His team had re-analysed raw data on the contraceptive use of more than 37,000 women in 18 prospective observational studies. Of these women, 28 percent reported using DMPA, 8 percent NET-En, 19 percent a combined oral contraceptive pill, and 43 percent no form of hormonal contraception. A total of 1830 women had acquired HIV while in a study.

The analysis showed that both injectables raised the risk of infection by 50 percent:

Compared to non-users [of any hormonal contraceptive], women using DMPA had an elevated risk of infection (hazard ratio 1.56, 95% CI 1.31-1.86), as did women using NET-En (1.51, 95% CI 1.21-1.90). There was no increased risk for women using oral contraceptives.

Similarly, comparing women using injections with those using oral contraceptives, there was an elevated risk associated with DMPA (1.43, 95% CI 1.23-1.67) and NET-En (1.30, 95% CI 0.99-1.71).

Morrison also noted:

The results were consistent in several subgroup and sensitivity analyses. However, when only studies which were judged to be methodologically more reliable were included, the increased risk appeared smaller.

Morrison acknowledged that observational studies such as the FHI analysis depended on have their limitations. He is looking for funding to conduct a randomised controlled study – something that, after 30 years of suspicions and evidence, still has not been done.

So what is his advice to the birth control industry? Stop using this stuff in regions with a high prevalence of HIV until we are sure that we are not feeding an epidemic?

No.

One reason is that FHI is at least as interested in contraception as it is in HIV prevention. Though its website reflects a broad range of development activities, its core business is integrating birth control programmes with HIV prevention. The WHO – one of its partners -- describes the US based, 83 percent US government funded non-profit as “a global health and development organization working on family planning, reproductive health and HIV/AIDS.”

Another reason is that FHI 360 has a vital stake in precisely the kind of contraceptives that are under suspicion. Its annual report refers to:

Our trailblazing work in contraceptive research and development continues, as we develop and introduce high-quality and affordable long-acting contraceptives for women in low-income countries. Research is under way to develop a new biodegradable contraceptive implant that would eliminate the need for removal services. We are also working with partners to develop an injectable contraceptive that would last for up to six months. Currently available injectables require reinjections monthly or quarterly, which can be challenging where health services are limited.

That project is funded by the Bill and Melinda Gates Foundation and USAID.

So Morrison did not argue in Melbourne for restrictions on the use of injectables, and neither did the WHO, whose representative at the conference outlined the UN body’s new guidelines on contraception and HIV. Mary Lyn Gaffield said a review of studies up to – but not including Morrison’s – did not warrant a change to WHO’s policy that DMPA and NET-En should be available, without restriction, in areas of high HIV prevalence.

The most WHO will advise is that women should be informed of the risk:

“Women at high risk of HIV infection should be informed that progestogen-only injectables may or may not increase their risk of HIV acquisition. Women and couples at high risk of HIV acquisition considering progestogen-only injectables should also be informed about and have access to HIV preventive measures, including male and female condoms.”

Condoms? How do they defend such cynicism? By equating the risk of HIV with the risks of motherhood – complications of pregnancy or childbirth, maternal death and the effect on infants... And yet motherhood remains risky precisely because 90 percent of the world’s effort is going into contraception!

Seven years ago a meeting of technical experts convened by WHO to study the injectables-HIV link showed the reproductive health establishment worried about that issue, to be sure, but also concerned that funding was flowing disproportionately to HIV-AIDS programmes, setting back the cause of birth control. The integration of family planning and HIV prevention spearheaded by FHI 360 looks like they have found an answer to that problem.

Whether African women are any better off is very doubtful. They remain pawns in a game that is, above all, about controlling their fertility. They and their partners are encouraged to take risks with their health, if not their lives, while researchers scout for funds to do the definitive study.

FHI had an income of $674 million last year, most of it from the US government. Couldn’t it give Charles Morrison the money to do his research today?

Reprinted with permission from Mercatornet.com.


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