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?

Click “like” if you want to defend true marriage.

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

FREE pro-life and pro-family news.

Stay up-to-date on the issues you care about the most. Subscribe today. 

Select Your Edition:


Share this article

Advertisement
Featured Image
Drew Belsky

,

2016 candidates react to the Supreme Court’s marriage decision

Drew Belsky
By Drew Belsky

WASHINGTON, D.C., July 2, 2015 (LifeSiteNews) – Five days after the U.S. Supreme Court's 5-4 decision mandating the redefinition of marriage to include same-sex couples, most of the 2016 presidential candidates have made their opinions on the issue known.

While all of the Democrats currently in the race aggressively supported the ruling, the Republicans' reactions to the Supreme Court's marriage ruling have been more varied.

Wisconsin governor Scott Walker, who is expected to announce his candidacy soon, criticized the Obergefell decision, calling it "a grave mistake." Walker suggested that "the only alternative" to Friday's decision is "to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage."

Texas senator Ted Cruz has doubled down on Walker's call for a constitutional amendment. Not only is Cruz seeking an amendment to protect states' right to define marriage, but he also hopes to amend the Constitution to demand "periodic judicial retention elections" for Supreme Court justices – namely, Cruz said, for those who "overstep their bounds [and] violate the Constitution."

Former Florida Governor Jeb Bush shied away from a constitutional marriage amendment. "Guided by my faith," Bush said in a statement, "I believe in traditional marriage." However, "in a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate."

Florida senator Marco Rubio agreed with Bush, exhorting Republicans to "look ahead" and concentrate on the nomination process for new judges. Likewise with Ohio governor John Kasich, who said on Face the Nation that "it's time to move on" and "take a deep breath."

Click "like" if you want to defend true marriage.

Former Hewlett-Packard CEO Carly Fiorina concurred. While "I do not agree that the Court can or should redefine marriage," Fiorina said, "[m]oving forward...all of our effort should be focused on protecting the religious liberties and freedom of conscience."

South Carolina Senator Lindsay Graham forthrightly condemned a constitutional marriage amendment as "a divisive effort that would be doomed to fail." Graham told NBC News, "I would not engage in the Constitutional amendment process as a party going into 2016. Accept the Court's ruling. Fight for the religious liberties of every American."

Libertarian-leaning Kentucky Senator Rand Paul wrote in Time Magazine that the federal government should remove itself completely from the marriage issue. "Our founding fathers went to the local courthouse to be married, not Washington, D.C.," Paul wrote.

Louisiana Governor Bobby Jindal "strongly disagree[s]" with the Obergefell ruling, but he admitted on Sunday that his state would ultimately comply with the Supreme Court's decision. "We do not have a choice."

New Jersey Governor Chris Christie went one step farther. While he "agree[s] with Chief Justice John Roberts" that "this is something that should be decided by the people, and not ... five lawyers," the governor admitted that "those five lawyers get to impose it under our system, and so our job is going to be to support the law of the land[.]"

Former Pennsylvania senator Rick Santorum foresees a widespread silencing of those who dissent from the Supreme Court's interpretation of marriage. "There's no slippery slope here," Santorum told the Family Research Council Friday; "religious liberty is under assault today – not going to be, it is – and it's going to be even more so ... with this decision."

Former Arkansas governor Mike Huckabee expressed similar sentiments, excoriating the Supreme Court for flouting millions of Americans who voted to affirm "the laws of nature." Huckabee said on Friday, "I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat."

On the other end of the spectrum, former Democratic Maryland governor and Baltimore Mayor Martin O'Malley contended that it is homosexuals, not religious objectors to the Obergefell decision, who need more protections from the state.

Calling the ruling a "major step forward," O'Malley proceeded to demand passage of the Employment Non-Discrimination Act (ENDA), a bill that criminalizes "discrimination" based on an "individual's actual or perceived sexual orientation or gender identity." Opponents worry it would force religious employers to hire homosexuals and transgender people.

Passing ENDA, O'Malley said, would help "more fully realize the vision of an open, respectful, and inclusive nation that Friday's decision aspires us [sic] to be."

Advertisement
Featured Image
Drew Belsky

,

Obama Department of Justice to Virginia school: Let girl use boys’ bathrooms

Drew Belsky
By Drew Belsky

July 2, 2015 (LifeSiteNews) - The Obama administration's Department of Justice (DoJ) filed a "statement of interest" Monday in support of a Virginia high school sophomore who is seeking to use bathrooms designated for members of the opposite sex.

In June 2015, the American Civil Liberties Union (ACLU) filed suit against the Gloucester County School Board on behalf of 15-year-old Gavin Grimm, who is biologically female but wants to use male bathrooms and locker rooms.

Grimm claimed that she had used such facilities without incident for seven weeks until December 2014, when the school board enacted a policy requiring "transgender" students to use private restrooms.

Grimm testified in early 2015 that "[n]ow that the board has passed this policy, school no longer feels as safe and welcoming as it did before[.] ... Being singled out is a glaring reminder of my differences and causes me significant discomfort every time I have to use the restroom."

The Obama administration declared in May 2014 that sex discrimination under Title IX applies to those who identify as "transgender."  The Department of Education followed up last December by ordering federally funded schools to classify students based on "gender identity" rather than biological sex.

Regardless, Alliance Defending Freedom attorney Jeremy Tedesco told LifeSiteNews in June of this year that Grimm's and the ACLU's discrimination claims would not hold water.  Citing a district court case in Pennsylvania, Tedesco noted (emphasis in original) that "[t]he Court ... highlighted that Title IX's implementing regulations state that schools do not violate Title IX when they 'provide separate toilet, locker room, and shower facilities on the basis of sex.'"

Title IX, part of the U.S. Education Amendments of 1972, is a statute that "prohibits discrimination on the basis of sex in any federally funded education program or activity."

"Every court to consider this issue has held that single-sex restrooms and locker room facilities are permitted under Title IX," Tedesco concluded.

Now, according to the DoJ's "statement of interest" in support of Grimm, filed this week, "[t]he United States has a significant interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination and that the proper legal standards are applied to claims under Title IX" (p. 2, all citations omitted).  Per the DoJ, Grimm "is likely to succeed on the merits" of her Title IX claim, and "it is in the public interest to allow [Grimm] ... to use the male restrooms at Gloucester High School."

Regarding the Pennsylvania case mentioned by Tedesco, the DoJ claims that "[t]he district court's reasoning in that case was faulty and should not be followed."

One Gloucester County School Board member who voted against the December bathroom policy fretted that "federal dollars are at stake." Her concern was well-founded: five months later, the Obama administration threatened to deny Virginia's Fairfax County School Board $42 million in federal funding if the board refused to change its own bathroom protocols.  The Fairfax board ruled in May – over the strenuous objections of parents in attendance – that "transgender" students could use facilities in accordance with their "gender identity."

"Although certain parents and community members may object to students sharing a common use restroom with transgender students," the DoJ declared in its brief for Grimm, "any recognition of this discomfort as a basis for discriminating would undermine the public interest."

Advertisement
Featured Image
Lisa Bourne

, ,

Girl Scouts returns $100,000 donation over transgender stipulation

Lisa Bourne
By Lisa Bourne

July 2, 2015 (LifeSiteNews) - An unusual request from a major donor to a regional branch of the U.S. Girl Scouts has drawn attention to the organization’s ongoing support for gender ideology and transgender issues. 

Girl Scouts of Western Washington CEO Megan Ferland revealed last week that the council had recently received a donation for $100,000. However, after the Girl Scouts’ practice of allowing boys who identify as girls to join the Scouts hit the news during the media’s coverage of the Bruce Jenner case, Ferland says she received a note from the donor putting a condition on the donation.

“Please guarantee that our gift will not be used to support transgender girls,” the donor reportedly asked. “If you can’t, please return the money.”

In the end, Ferland said she chose to give the $100,000 - what could have comprised nearly a fourth of the council’s annual fundraising goal - back to the donor.

“Girl Scouts is for every girl,” Ferland stated in a report from SeattleMet.com. “And every girl should have the opportunity to be a Girl Scout if she wants to.”

In the meantime, the council used the publicity over the refused donation to launch a social fundraising campaign on IndieGoGo, a social fundraising site. The #ForEVERYGirl has far exceeded its goal, raising over $300,000 for the group in just three days.

"Our vision at Girl Scouts of Western Washington is that EVERY girl in our region—regardless of her race, ethnicity, socioeconomic status, sexual orientation, gender identity or geographic location—is empowered to unleash her potential, build her future and transform her world," states the campaign.

This is not the first time that Ferland has been involved in a controversy over the Scouts’ support for transgenderism.

When a boy self-identifying as a girl attempted to join a Colorado Girl Scout troop in 2011 and was initially refused by the leader because of his male gender, Ferland, then head of the Colorado council, issued a statement welcoming boys identifying as girls, and saying efforts were in progress to find the boy a troop. The council also renounced the troop leader’s actions in refusing the boy access.

“Every girl that is a Girl Scout is a Girl Scout because her parent or guardian brings her to us and says, ‘I want my child to participate,’” Ferland stated at the time. “And I don’t question whether or not they’re a girl.” 

Western Washington Girl Scouts current program brochures show that gender ideology is woven right into the council’s programming for girls, with promotion found right in the council’s workshops:

SafeZone for Girl Scouts Sat, May 23, 11 a.m.-3 p.m. Tacoma Learn how you can become an ally and advocate for your Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) peers. Includes activities and discussion around: inclusive language, the process of coming out, the power of the straight ally, how to respond to homophobic/trans-phobic incidents, where to go for help and much more. Bring lunch.

Girl Scouts and radical feminism

For years, pro-family leaders have raised alarms about partnerships and programs that indicate that the Girl Scouts have moved toward embracing a radical feminist identity.

As far back as 2004 a U.S Catholic Bishop intervened when a Girl Scout-Planned Parenthood partnership threatened young girls. 

Then-Austin Bishop Gregory Aymond warned local Catholics not to sign their children up for Planned Parenthood’s “Nobody’s Fool,” a sex-ed campaign designed for pre-pubescent children which had been integrated into the local Girl Scouts.

A survey, also from 2004, found that many Girl Scouts councils were partnering with Planned Parenthoood in some fashion. 

In 2010 the Girl Scouts were found to be pushing a radical agenda on its young members with Planned Parenthood given access to distribute an explicit ‘sex guide’ at a closed-door, no-adults-welcome meeting at the UN sponsored by the Girl Scouts.

Lincoln, Nebrask Bishop James Conley warned in 2011 as auxiliary bishop of Denver that involvement in the Girl Scouts could serve to make girls more open to the pro-abortion agenda.

Roughly 90 Girl Scouts of Northern California members and their families marched in San Francisco’s 2013 Gay Pride Parade. 

"The San Francisco Girl Scouts participate in many parades that celebrate the diversity of San Francisco," Girl Scouts of Northern California Communications Manager Dana Allen told LifeSiteNews at the time. "Girl Scouts is inclusive and reflects the communities we serve."

A sexuality-based Girl Scout troop was started earlier this year in Utah aimed at gay and lesbian families and boys who consider themselves “transgender.” It meets at the Utah Pride Center.

"As long as a youth identifies as a girl or with girls, even if they are genderfluid on the day that they registered, then they can become a Girl Scout," Shari Solomon-Klebba, the Utah Girl Scout outreach coordinator, and an open lesbian who started the troop, told a local news station at the time.

The United States Conference of Catholic Bishops (USCCB) urged caution last year in engaging with the Girl Scouts after conducting a two-year examination of the scouts. That study identified concerns about several Girl Scouts USA policies, affiliations and structural weaknesses.

Girl Scout alternatives

The representatives of two organizations for girls frequently considered a Christ-centered alternative to the Girls Scouts told LifeSiteNews this latest incident with the Western Washington Scouts underscores the need for other options for families and their children.

“There has been a huge cultural shift in redefining life-long truths that have many families carefully considering their youth program options. American Heritage Girls has often been regarded as a Christian-based alternative to the Girls Scouts,” American Heritage Girls National Communications Specialist Jennifer Troutman said.

American Heritage Girls marked its 20th anniversary this past week. There are more than 40,000 members within the organization.

“Now more than ever American Heritage Girls recognizes the importance of bringing Christ-centered, character development programming to girls across the nation.”  

The head of Little Flowers Girls’ Club concurred.

“I feel very blessed that we can offer an authentically Catholic alternative to Girl Scouts,” Joan Stromberg told LifeSiteNews.

Little Flowers started over 20 years ago, not as a reaction against what Girl Scouts were doing, or where they are now, Stromberg said, but as a way to help moms and girls bond together to learn about the world through a Catholic lens.

“It is sad that Girl Scouts policies and positions have put them in direct conflict with Church teachings,” Stromberg continued. “I am just pleased that girls and moms have alternative places like Little Flowers where they can go.”

Advertisement

Customize your experience.

Login with Facebook