The Scottish government says no religious groups will be forced to conduct same-sex marriages
The Church of Scotland has questioned whether it could continue to offer marriages if same-sex legislation led to expensive court challenges.
MSPs were told there were “deep concerns” in the Kirk about the Marriage and Civil Partnership (Scotland) Bill.
The bill has been designed to protect the rights of religious groups not to carry out same-sex ceremonies.
But the Kirk fears this protection could be challenged in court.
Appearing before Holyrood’s Equal Opportunities Committee, which is scrutinising the bill, Rev Alan Hamilton said the legislation could be an “invitation” to take religious bodies to court.
Mr Hamilton, the convener of the Kirk’s legal questions committee, added: “We are voluntary bodies. We rely upon the donations of our members, and the thought of years of exhausting legal challenge, which is also incredibly expensive, is really very concerning.
It gives us considerable problems internally; we’re deeply concerned about the threat externally”
Rev Alan Hamilton Church of Scotland
“That is why the General Assembly of 2013 in May of this year instructed my committee, together with other councils and committees of the Church of Scotland, to consider whether in fact – and I’m saying this colloquially, this is not the terms of the deliverance of the General Assembly – whether it’s worth the Church of Scotland continuing to offer marriages in Scotland.
“It gives us considerable problems internally; we’re deeply concerned about the threat externally.”
Mr Hamilton raised concerns that individuals or groups could end up taking religious bodies to court if they decided not to offer same-sex services.
They may be “disappointed” that a denomination or celebrant is not prepared to conduct the ceremony, he suggested.
The Kirk later said it had “no plans” to stop conducting marriages.
But it confirmed it was examining whether all marriages should be civil, with couples having the option of a church blessing afterwards.
A statement released by the Kirk said: “A decision made at the May 2013 General Assembly, which has the authority to make laws determining how the Church of Scotland operates, agreed to look over a period of two years at the case for the practice common on the continent of all marriages being civil but couples having the option of a church blessing afterwards.
“Supporters argue it could encourage couples to make a more conscious decision to go to church rather than treating church as just a particularly nice place to marry.
“Members of the Church also wanted to explore the case for church services being an optional extra after a civil ceremony, given the potential for ministers to be subject of legal action following the proposed legislation on same sex marriages.”
The official terms of the instruction to the Kirk’s legal questions committee were outlined in a “remits booklet” report by the General Assembly.
It called for the committee to “explore the possibility of ministers and deacons ceasing to act as civil registrars for the purpose of solemnizing marriages and report to the General Assembly of 2015”.
The Church of Scotland called for freedom of religious belief and practice to be respected when the Scottish government published its proposals in June.
The government said at the time that religious bodies that wish to perform same-sex marriages would have to opt in.
It is giving freedom to discriminate, which we are not happy with. But for the sake of getting this bill passed, we will concede it”
Ross Wright Humanist Society Scotland
It also said protection would be in place for individual celebrants who considered such ceremonies to be contrary to their faith.
Mr Hamilton appeared before the Holyrood committee alongside representatives of the Scottish Council of Jewish Communities, the Free Church of Scotland, the Scottish Episcopal Church and lobby group Scotland for Marriage, which all have concerns about the bill.
But the proposals have cross-party support in the Scottish Parliament, and have been backed by several smaller religious groups.
Speaking after the session, Rev David Robertson, a Free Church minister in Dundee and director of the Solas Centre for Public Christianity, said: “What the Scottish government is doing with this bill is effectively turning all marriages into civil partnerships, and therefore destroying marriage.
“We do not accept that any government has the right to redefine marriage any more than it has the right to redefine a circle as a square.
“We also believe that the Scottish government is rushing into this without a proper understanding of the consequences of this fundamental change in society.”
The committee also heard from organisations who expressed the view that the protections offered to religious bodies in the bill were adequate.
Rev David Coleman, from the Scottish United Reformed Church, said: “From one point of view they may even seem excessive but maybe it is sufficient to guarantee they are there, and no one is forced to engage in something that they are spiritually disinclined to do.
“We are in support of things because we believe the guarantees are there.”
Humanist celebrant Ross Wright, of Humanist Society Scotland, told the committee the provisions in the bill were “an accommodation we are prepared to make”.
“It is giving freedom to discriminate, which we are not happy with. But for the sake of getting this bill passed, we will concede it,” he added.
“People who are not registrars are given the right, not the duty, to conduct marriages. Because of that, it is a mystery to me why we even need the opt-in and opt-out clauses. But they are an additional part.”
Comments in the Herald
Saturday 14 September 2013
Your headline “Kirk plan to halt all weddings if gay marriage becomes law” (The Herald, September 13) seems to be justified by the ill-judged and misleading responses by the Rev Alan Hamilton, convener of the Kirk’s legal questions committee, to the Scottish parliamentary committee.
Your headline \”Kirk plan to halt all weddings if gay marriage becomes law\” (The Herald, September 13) seems to be justified by the ill-judged and misleading responses by the Rev Alan Hamilton, convener of the Kirk’s legal questions committee, to the Scottish parliamentary committee.
The fact is that any minister is a celebrant, not a registrar, and two people who wish to be married will approach one or more celebrants before they are ready to confirm their arrangements. They must apply to the registrar for a Marriage Schedule which states the date and place of the wedding. When they have made their public commitment to each other, the Marriage Schedule is duly signed and witnessed and returned to the registry office for the marriage to be registered.
But a couple cannot demand that one particular celebrant should conduct their marriage ceremony. For a variety of reasons the celebrant may refuse to marry them or the couple may decide that they wish to choose another celebrant. Any celebrant has the legal right, but not the legal obligation, to perform the marriage ceremony for two people who are eligible.
There is a great deal of confusion in our society about the purpose and meaning of marriage, whether civil or religious. Apart from the personal and/or spiritual significance of the wedding, marriage is an important legal contract between two people that confers rights, responsibilities and protections on the couple and also on any children they share. In that respect, civil partnership is identical to marriage. Our society suffers from the instability of many families and that instability is much more common among unmarried parents.
The Kirk has failed to promote the benefits of marriage. We should be glad that same-sex couples want to make the solemn commitment expressed by marriage vows. I strongly support committed relationships of mature adults, whether heterosexual or homosexual, that are confirmed and recognised through marriage and civil partnership.
4 Burnbrae Road, Auchinloch, Glasgow.
Those of the bus-pass generation have witnessed many profound changes in society and many have been bewildered at the pace of change and disturbed by the nature of some of these changes. There are occasions when what were considered the essential foundations are in danger of becoming unrecognisable.
Now we have our national church declaring that it is giving consideration to the cessation of conducting marriage ceremonies if the gay marriage law is enacted in Scotland. Concern is expressed on behalf of the Church of Scotland that they could be faced with litigation, and the associated costs of same, should a minister decline to perform a marriage ceremony involving two people of the same sex.
They have received assurances that there is really nothing for them to worry about because the legislation will secure the right to refuse. The Church of Scotland remains concerned and, in the light of some of the decisions emanating from the Eoropean Court of Human Rights, who can criticise them for its hesitation in accepting the assurances? Let us recall the assurances given by some that the introduction of civil partnerships would adequately deal with the discrimination complained of.
Are we really going to finish up in a country where our national church will no longer be conducting marriage ceremonies?
Ian W Thomson,
38 Kirkintilloch Road,
Whilst the Church of Scotland’s latest piece of scare-mongering may be dismissed as just that, it does raise the thought that maybe we should move to a system similar to that used in France. All weddings are performed in the local Mairie where words are uttered, documents are signed and the newly-weds sent on their way. A religious ceremony may follow, but that is entirely up to the couple and to the Almighty’s representatives. Scotland could benefit from such a system. We would then be spared the irritation of listening to men in frocks trying to scare their faithful with spurious, inane threats.
24 Portman Avenue,
The tail of anti-gay activists entrenched in its central committees is in danger of wagging the Church of Scotland dog over the question of same-sex marriage.
A very large number of the parish clergy like me support the move and the laity reflects the views of the general public, which polls show to be three to one in favour.
Our wiley First Minister Alex Salmond would not have backed this controversial issue were he not convinced that it was the will of the vast majority in Scotland.
There is not the slightest chance of the Kirk ceasing to conduct the marriages of its people and the outrageous suggestion that it might do so is pure scaremongering.
And there will be “clear and robust” protection of the kind already in place in Europe, so the claim that this long overdue reform is a threat to religious liberty is absurd.
Rev Dr John Cameron,
10 Howard Place,
You report that the Church of Scotland might cease altogether to conduct legally recognised marriages, in order to avoid being forced by a court to conduct same-sex marriages.
The Scottish same-sex marriage legislation includes clear and robust laws that a religious body can only conduct same-sex marriages if it first opts in by applying to do so to the General Registrar. Unless and until the Kirk chooses to do that, through its own decision-making systems, none of its ministers will be legally able to conduct same-sex marriages, even if they individually want to. Equality law is being amended at the same time to eliminate any possibility of legal challenge to any religious body that chooses not to conduct same-sex marriages.
Article 9 of the European Convention on Human Rights, the right to religious freedom, provides further protection. All public bodies in Scotland, including the Scottish Government, and the courts in interpreting Scottish legislation, are bound by the Convention. They cannot place any requirement on a religious body to conduct same-sex marriages against the doctrine of that body, because that would breach article 9.
Unsurprisingly, in 12 years of legal same-sex marriage in our European neighbour countries, who are also bound by the Convention, no religious body has ever been placed under any such obligation.
Religious freedom should apply to both to religious bodies that oppose same-sex marriage, and to religious bodies that support it. There are several religious bodies in Scotland waiting to start same-sex marriages, once the legislation passes. But the Kirk can rest assured that it will be free to choose, in its own way and in its own time – whether that be a decade or a century after the bill passes, or never – whether and when to introduce same-sex marriage.
30 Bernard Street,