The government’s proposals to allow same-sex marriages have polarised opinion on both sides of the argument, some of which opinion has shed more heat than light and some of which has misconstrued the argument itself.
European Law is not the issue. In the leading case of Schalk and Kopf v Austria, the European Court of Human Rights decided that it was up to national governments, not European Convention law, to decide whether two men or two women can marry, and said that denial of such a right was not unlawful discrimination in the enjoyment of the right to respect for private life, on the sensible basis that the Austrian couple had the right, as a same-sex couple would in the UK, to enter into a civil partnership anyway.
The fuss is really about nothing, as the Government only intends that same-sex couples can marry in a civil ceremony, when they already have civil partnership ceremonies available, they are just not called ‘marriage ceremonies’.
The Church of England it seems fears that if civil ceremonies of marriage are allowed, a same-sex couple will then have a ‘springboard’ claim that there is indeed discrimination if they are not allowed to go that step further and get married in Church. But on that question the weight of legal opinion is clear: it is one thing imposing on a religious body a duty to comply with the law of the land in relation to (say) the matter of adoption, but quite another to dictate that a religious body must conduct its very own religious ceremony in breach of its very own religious doctrines (and difficult incidentally to see why anyone would ask them to, unless they were being very churlish!). Such an attempt would almost certainly be in breach of Article 9 of the Human Rights Act, namely freedom of thought, conscience and religion.