Human Sexuality Task Group (2012)
The group met on 30th September 2013
Members of the GEAR Focus Group joined the meeting to share their concerns and to hear about the current situation with regard to the legislation.
a) Scottish legislation.
· We were reminded of the need to remember that the Scottish situation is different from that of Westminster
· The Scottish situation requires registration of the celebrant rather than registration of the building in England and Wales.
· Nomination of URC celebrants in Scotland is currently the responsibility of the Synod of Scotland.
· The denomination will wish to make decisions about the principle relevant to the whole denomination but the legal working out of the principle will be made in the different places.
· It is not yet clear whether there might still be changes to the Scottish legislation and the overall timescale is uncertain at this stage.
b) Westminster legislation – update provided by Augur Pearce from the Law and Polity Group.
Since 23rd July , several Government departments had begun work on Regulations for England & Wales and he had attended one meeting with other churches' representatives at the Ministry of Justice.
The Equal Opportunities Committee of the Scottish Parliament had held four oral evidence sessions on the Scottish Bill, at one of which the Convener of the URC National Synod’s Church & Society Committee had appeared. The first vote in the full Parliament – on the principle of the Bill – could be expected later in the Autumn, but it would not be clear until 2014 whether significant changes were likely on points of detail. Since 2015 had been mentioned as the likely date for implementation in Scotland, it now seemed possible that SSM might actually come first (in 2014) to England & Wales.
The Scottish Government had very recently published the remit for its own review of civil partnership. The terms of reference were similar to those published earlier for the English & Welsh review.
The risks of the ‘local option’
[The GEAR Focus Group delegates] outlined the legal issues on which the Focus Group’s members and local churches in contact with them had concerns. Augur Pearce addressed these concerns: he appreciated that reassurance was needed not only on domestic law, but also that safeguards currently in domestic law would not have to be changed because of a successful challenge by a same-sex couple invoking their European Convention rights.
Augur believed that the Scottish draft legislation, and in almost all respects the English Act of 2013 insofar as it affected the URC, struck a proportionate balance consistent with the European Convention and that no challenge at the European level need be feared unless there were a very substantial shift in the European consensus.
So long as Convention rights continued to be interpreted broadly as they are now, this itself would protect the churches against sudden swings in government policy. In any event the three main parties at Westminster and the two main parties at Holyrood all appeared to be agreed on both the principle of their legislation and its safeguards. Particular couples wishing to make a public point might still launch challenges, but if they took competent legal advice they would in most cases be dissuaded from a hopeless endeavour. It was never possible to guard entirely against litigants pressing ahead with poor or no advice.
The question therefore was whether the safeguards in domestic law would ‘work’, particularly to protect ministers and local churches of the URC opposed to SSM in the event that a denominational decision for the ‘local option’ were taken. Augur’s view was that the ‘local option’ would not in any way increase the risks of successful challenges to opposed ministers and churches, compared to the risk if the URC throughout Great Britain set its face against facilitating SSM at all.
In England & Wales the ‘local option’ would mean that, governing authority consent to SSM having been given, it would be up to trustees of local church buildings to seek the registration of those buildings for SSM. In the light of the trusts on which they held the buildings, they should only do so if the Church Meeting had so resolved. If the local church were opposed to SSM, therefore, no Church Meeting resolution would be passed, no application would be made, and the building would remain unregistered for SSM. It would therefore be legally impossible for a SSM to be solemnized there; which would be a sufficient answer for any minister or other church organ, accused of taking an unlawful or discriminatory decision in a particular couple’s case, to give. There was no question of a building registered for OSM being thereby authorised for SSM.
It is possible that the ‘authorised person’ in relation to OSM for a particular registered building might be opposed to SSM. No problem would arise in such a case, because authorisation to validate and register OSM is quite separate from authorisation to validate and register SSM. The same person can be authorised for both, but certainly will not have to be, and it is inconceivable that the local church would authorise a person unwilling to be so named. The 2013 Act expressly states that nobody can be compelled to accept authorisation.
In Scotland the ‘local option’ would most likely mean that nominations of particular individuals – mainly ministers – were made on behalf of the URC to the Registrar-General for Scotland. Augur did not imagine that the Church, at whatever level, could wish to nominate unwilling individuals, so it could be taken that all those becoming ‘approved celebrants’ in this way would be happy to officiate at SSM. There was no question of an approved celebrant for OSM being thereby approved for SSM: so a person not so nominated would be legally incapable of celebrating a SSM.
In Scotland there would be a separate question whether a local church opposed to SSM, whose minister was in favour, would be forced to host the ceremony in its building against its will. In Scotland the venue has no relevance to the validity of a marriage; but the owners of private property still control access to it. The trustees of local church buildings act on the decision of the Church Meeting in making the building available: if the Church Meeting decided that it was not to be made available for a SSM (even though its own minister was the celebrant) then the couple and minister would have to find another venue. Conversely if the church were supportive of SSM but the minister were not, the Elders could invite another (willing) celebrant to officiate on the premises.
Christopher McCrudden, the barrister advising the Roman Catholic Bishops’ Conference for England & Wales on the Marriage Bill, had indicated in a published Opinion that he believed a challenge was possible at the earlier stage of this process. He did not express it in URC terms, but his fear translated into URC terms would be that trustees (or a Church Meeting) deciding not to seek registration of a building in England or Wales for SSM, or the competent council of the URC deciding not to nominate certain ministers in Scotland for SSM, would be open to challenge because of the distinctions they were drawing between same- and opposite-sex couples.
Augur found this view unconvincing. He shared the Government’s view that these stages in the process would not fall within any of the contexts to which equality law applies. In particular, trustees of URC buildings are not providing a service to the public, discharging a public function or disposing of premises at the moment when they apply to the registration authority for their building to be registered for SSM. A council of the URC is not providing a service to the public or discharging a public function at the moment when it requests the Registrar-General for Scotland to add names to a list of approved celebrants. At those moments the ‘public function’ is clearly being discharged by the registration authority or registrar-general.
Augur accepted that there were certainly points at which URC members do discharge a public function or offer a public service in relation to marriage. The authorised person in England & Wales and the approved celebrant in Scotland were, in his view, public authorities, doing precisely what a civil registrar might otherwise do. But the fact that, as already indicated, no unwilling person would be so authorised or approved meant he did not anticipate any clash between law and conscience in these situations.
The Church Meeting and trustees making or not making a building available for a wedding liturgy, for a liturgy in connection with civil partnership formation or for a reception afterwards would have to be slightly more cautious about discriminatory practice, since decisions in this area would fall within the ‘public service’ or ‘disposal of buildings’ context. But he believed that here the existing religious exemptions in the Equality Act 2010 would cover the case - it could be shown that the differing treatment of opposite-sex couples was ‘to avoid conflict with strongly held religious convictions of a significant number of the religion’s followers’; which would be true so long as any significant number of members of the URC believe that marriage is an exclusively opposite-sex institution or (as the case may be) that the same-sex relations expressed in or facilitated by civil partnership are wrong.
Fidelity and consummation
Augur was invited to address the question of how far SSM under the new law of England or of Scotland would parallel the law’s existing expectations of OSM in relation to marital fidelity and to consummation. To do this he suggested considering first what the existing law really says in these areas.
Current English and Scots law on adultery merely gives special treatment to one form of sexual infidelity over others, and the law as amended will continue to do so. If one party to a marriage (whether same- or opposite-sex) has an extra-marital same-sex liaison, that is not adultery. The wronged spouse seeking a divorce has to satisfy an objective test, showing the court that he/she cannot reasonably be expected to go on living with the offending spouse. That objective test is absent from the law if the offender's liaison was with an opposite-sex, rather than a same-sex partner, and therefore constitutes legal adultery.
Whether this special treatment of one particular form of infidelity is warranted is indeed an open question. But it is not essential to the notion that the law encourages fidelity in marriage. That can be asserted so long as courts continue to grant ‘behaviour’ divorces on the basis of ‘sex on the side’.
As for consummation, Augur said this has never been essential to constituting marriage. However, in English law (under a rule adopted from the medieval canon law) a marriage is voidable if one party is incapable of consummating it by a sexual act defined in terms that make it applicable only to opposite-sex unions. A 20th-century rule also makes a marriage voidable for one party's wilful refusal to consummate it. Parliament has rejected attempts to redefine consummation to cover same-sex conduct (which would, in the case of lesbian couples, be a particularly difficult task). But it seems difficult to argue that this deprives SSM in England of any theologically essential factor given that (a) the wilful refusal rule's introduction was opposed by several mainstream churches, (b) the incapacity rule does not apply if one spouse, knowing of the incapacity, leads the other to suppose that proceedings will not be taken - which gives it a very subjective basis in terms of the spouses' feelings, and (c) neither rule exists in the law of Scotland.
The date of the next meeting is Wednesday 4th December
The agendas of future meetings will include
· The theology of marriage
· The Commitment
· Further discussion resulting from the discussion due to take place at Mission Council in November
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