We had a few comments from readers regarding my recent post on the Church of England’s views on same-sex marriage, co-written with my colleague Iain McLean. Below are two reader responses, and my replies.

 

 

David wrote:

‘that differential treatment of the applicants’ rights fell within the ‘margin of appreciation’ afforded to member states.’

This is crucial factor in assessing the Church of England’s response.

The reason for the European Court respecting the margin of appreciation. Judge Malinverni put it clearly: ‘Article 12 is inapplicable to persons of the same sex. Admittedly, in guaranteeing the right to marry, Article 9 of the Charter of Fundamental Rights of the European Union deliberately omitted any reference to men and women, since it provides that “the right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”.’

So. if the national law changes to accommodate same-sex marriage, the Court is under no obligation to extend any margin of appreciation anymore. The Court can hold that differential treatment constitutes a violation of Article 9 rights.

As I’ve stated elsewhere: While the marriage rite is a valid manifestation of belief, the margin of appreciation granted by the European Court would be removed, if gay marriage became legal in the UK. Article 9 does not protect against interferences (in the right to manifest one’s religion) that are deemed ‘necessary to a democratic society’.

My reply:

The difficulty of applying Article 9 of the Charter of Fundamental Rights (CFR) to this question is that it applies to EU member states only when they are implementing EU law. There is no EU law of marriage, and both Article 9 and Article 12 are guaranteed only ‘in accordance with the national laws governing those rights’.

Judge Malinverni, whose concurring judgment you quote, is actually disagreeing with the majority opinion on exactly the point at issue here. He argues that Articles 9 and 12, when they refer to marriage, refer only to a marriage between one man and one woman. Thus, he doesn’t open the door as far as the majority opinion does. He goes on to say, ‘Article 9 of the Charter simply leaves it to States to decide whether they wish to afford homosexual couples the right to marry’ — and this in the context of a decision about civil, not religious marriage. By Malinverni’s interpretation, the danger of using EU law to trump policy decisions of individual states is even less than the majority opinion makes it out to be.

I am less concerned than you are that the ECHR Article nine’s protection of religious freedom might be ‘removed’ by a European Court. Even if I thought that same-sex marriage is ‘necessary to a democratic society’ (and I’m not sure even I can stretch quite that far), I would have little hope that I could convince a court that that necessity trumped the equally important value of preserving freedom of religion. Thus, I have a hard time, as a lawyer, imagining advising a client that there was a case in good faith for challenging a church’s refusal to celebrate same-sex marriages. (This might change if there was a requirement that the state permit same-sex marriage and the church in question were established.) I can imagine a day when the European Court of Human Rights might insist that a state offer civil marriage if enough agreement existed on the subject that it had become an outlier (but see Malta’s refusal to recognise divorce until 2011). Nevertheless, I think that the religious freedom protections afforded by Article 9 will be a powerful guarantee protecting religious marriage from requirements like these, and that’s what makes the Church of England’s argument on this basis pretty deplorable.

Blair wrote:

I think there’s much that’s good in your article but would like to ask some questions: first, you say at bullet point #5, “This argument is wrong, because (a) important benefits obtain in marriage, which do not in civil partnerships”. What benefits obtain in marriage that do not in CPs? Granted you mention this later, but all three of the benefits of marriage you cite (“portability of status, a broader understanding of the couple’s status, as well as the potential for religious recognition”) either do or could apply to CPs too. I don’t see how you can argue that “portability of status” is a benefit of marriage, but not of CPs, when a few paragraphs earlier you cited the example of a mixed-race couple whose marriage was recognised in one US state but not another (unless I’ve misunderstood the meaning of “portability of status”). And can you list any rights afforded by civil marriage, that are not afforded by CPs?

Another quibble: you assert, without arguing for it, that “The best analogy for the differential treatment of same-sex couples by offering them civil partnership as opposed to civil marriage is in the systematic prejudice suffered by African-Americans in the United States”. How can you equate racially segregated schooling with marriage vs civil partnerships, and how would argue for your analogy rather than merely asserting it? And surely separate can be equal if two things are different in kind but equal in status and the rights they confer?

Your sub-section ‘Religious marriage is different from civil marriage’ seems to me flawed. There’s a distinction between civil and religious marriage *ceremonies* but not between civil or religious marriage as a ‘state’ so to speak – it’s one mansion (marriage) which can be entered by one of two (civil or religious) doorways isn’t it? And as John H has blogged herehttp://curlewriver.wordpress.com/2012/04/13/redefining-marriage/ under English law marriage is more than a civil contract. Also, I fail to see how quoting CS Lewis helps your case, when he is arguing for what “ought to be” not about what *is*.

My reply:

Let’s take things point by point.

1. Benefits of marriage not applicable to civil partnership.

The best discussion of this is in Leslie Green’s lecture. The thrust of the argument is that ‘marriage’ is a term that is generally recognized for immigration purposes. In addition, marriage has broad, normative cultural underpinnings that do not apply to civil partnership. The non-portability of interracial marriage in the US was a problem that was eventually resolved (as was the more complex problem of interstate divorce), but a-marriage-is-a-marriage-is-a-marriage for purposes of foreign immigration law outside the US (not in the US because of the Defense of Marriage Act, which has recently been held unconstitutional). (The UK, for example, would never have refused to recognise an interracial marriage as ‘not-a-marriage-at-all’, as far as I’ve been able to determine.) You say that the rights of the parties to CPs and marriages ‘either do or could apply’ in both cases, and that’s true, but until they do (and marriage has taken centuries to take on the intangible meaning it currently has) the parties to civil partnerships will be second-class citizens.

One interesting right that may inhere in marriage but not in civil partnership is the right to divorce a partner for adultery. I (quite honestly) have not had the opportunity to think this through completely; so I’m not sure how it cuts. But it would seem to me that there should be an explicit recognition that unfaithfulness was a breach of the marriage contract between same-sex couples, just as it is for opposite-sex ones.

In addition, here’s a short list of formalities, which does not include the intangible benefits that are more part of the ‘separate but equal’ argument that we advance; quaere whether there’s a policy reason that the two institutions have been treated differently in these respects:

• Civil partnerships do not require banns (or equivalent), or declarations made aloud in public using specific words;
• In a civil partnership, the parties do not both have to be present at the registration; and
• Civil partnerships cannot be annulled for non-consummation.

2. Racial Discrimination and Discrimination based upon Sexual Orientation.

I think that our central argument is that the distinctions relied upon in both cases are not functional ones. There is simply no functional basis (despite what some people in the US used to think) to segregate people on racial grounds, either for education or for anything else. And there is no functional reason to deny people of the same sex to marry. One argument advanced by the Church of England claims, ‘To argue that [complementarity] is of no social value is to assert that men and women are simply interchangeable individuals’. But in a liberal, democratic society, they simply are, just as blacks and whites are ‘simply interchangeable individuals’. The motive for the distinction relied upon in both cases is the same (prejudice), and the loss to the individuals is the same, since even if separate were equal, the latter status (civil partnership) would be in some sense inherently inferior. (Take a quick look at the facts in McLaurin v. Oklahoma State Bd of Regents, on whether separate can ever be equal).

We allow for functional distinctions. For example, a person with a driving license is better than one without one for a delivery job, and an accounting degree is a good reason to distinguish between candidates for a job in business management. But we don’t (or perhaps shouldn’t?) give preference to a graduate of Oxford, when we’re hiring for the foreign office any more, without requiring that they should be more qualified for the job in other respects. (It didn’t used to be that way, of course.) Our argument is that the preferential treatment given to opposite-sex couples, when it comes to civil marriage, is more like the second kind of distinction than it is like the first.

3. Civil and Religious Marriage.

I don’t think that the civil law has ever recognized marriage as anything other than a contract between consenting parties. Halsbury’s Laws, quoted in the blog you link to, conflates the two. But as we point out, the Church of England has done its best to keep them distinct until now, when it suits the Church’s purpose to do so. That difference is in why there can be no religious elements in a civil marriage. I’m not exactly sure what an ‘estate’ is (I know the word is used in the Book of Common Prayer), but the civil part of the ‘estate’ carries with it certain rights and responsibilities; those rights and responsibilities are inherent in religious marriage as well, but there’s more, too. That’s why the C.S. Lewis quote is apposite. Both the teaching of the Roman Catholic Church and of the Church of England (the latter inconsistently held and enforced) is that marriage is a life-long union. That hasn’t been the case with civil law since at least 1857, when divorce became more widely available in England and Wales. Think of civil marriage as the lowest common denominator and religious marriage as something that people enter into within their particular faith community. The state can’t force religious communities to dumb down their ‘estate’, but religious beliefs should not be the basis for determining whether the ‘estate’ is available to through civil doors, provided that those doors do not also offer religious rights or privileges that have to be recognised by faith groups. And they don’t.

Iain and I (and the other authors of the submission to the Government Equalities Office, if I can speak for them) appreciate your willingness to engage on these difficult issues.

Scot Peterson is a Lecturer in the Department of Politics and International Relations, Oxford. 

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