The Equality and Human Rights Commission Scotland today launched a new report calling for access to equal marriage for same sex couples in Scotland. The report is a result of a symposium recently held by the Commission to investigate perceived barriers to equal marriage and suggest ways forward for legislators.
Scotland currently has a segregated family law system in which marriage is available only to mixed-sex couples, and civil partnership only to same-sex couples.
In England and Wales, the UK Government has announced public consultations on proposals to hold civil partnerships on religious premises and to open up civil marriage to same-sex couples and civil partnership to mixed-sex couples. However, because marriage and civil partnership are devolved issues, these proposals apply to England and Wales only.
The report calls upon the Scottish Government to consider these disparities and to take steps to bring about equal access to marriage in Scotland. The evidence and research contained within the report aims to inform their deliberations.
Current legislation in Scotland discriminates against same-sex couples and transgender people and this, as the report outlines, has significant detrimental impacts:
- Same-sex couples cannot involve their faith in the process for formalising their relationships.
- Transgender people are required to divorce if they wish to gain full gender recognition, as the law does not allow same-sex marriage or a mixed-sex civil partnership.
- Evidence suggests that civil partnerships are seen as having less value and status than marriage.
- Same sex couples do not have the same choices as mixed sex couples
However, it is not just discrimination that provides a powerful case for change – growing public and political support also gives a useful context for delivering it. The report highlights that:
- Polls in Scotland show that 53% of people supported same-sex marriage in 2006, and that this figure had grown to 62% in 2009. Progress towards equal access to marriage in Scotland and the UK has been steady since 2003
- Support is more marked within younger age groups and therefore likely to continue to grow as the population regenerates
- In all of the major religious denominations in Scotland, a majority are supportive of same-sex relationships and marriage
- Evidence also shows a clear majority of voters across all the main political parties in Scotland support same-sex marriage
- Put to a vote, almost 70% of participants at the symposium favoured the option of both marriage and civil partnerships being available for all
The report presents a series of recommendations for making equal access to marriage a reality while also taking into consideration possible religious implications. Recommendations include:
- In order to uphold religious freedom for all, an opt-out ‘conscience clause’ is proposed for religious bodies and celebrants not wishing to perform same-sex marriages
- In order to ensure the widest choice, civil partnership should be retained and legislation should be introduced to allow same-sex couples to marry
- Following the election in May 2011 an Equal Access to Marriage (Scotland) Bill should be brought before the Scottish Parliament that would allow same-sex marriage in Scotland
- If the Scottish Government fails to introduce legislation to allow same sex couples to marry, the possibility of (a) a Committee Bill or (b) a Member’s Bill should be explored.
- The Scottish Government should work with the Westminster Government to ensure a mechanism is in place that means a transgender person living in Scotland does not have to divorce, or end their civil partnership, to gain full gender recognition.
The report says that marriage has traditionally contained a religious element which has been central to the institution. As a result religious opinion is often central to the debate surrounding same-sex marriage. However, evidence from the Scottish Social Attitudes Surveys shows that in all of the major denominations in Scotland there is a clear majority supportive of same-sex relationships and marriage.
Two aspects of religious freedom are explored in the report. On the one hand there are those who feel celebrants would be unable to act in accordance with their faith if same-sex marriage was made legal. On the other hand there are same-sex couples of faith who are excluded from involving that faith in the formalisation of their union.
The report recommends that the law requires to change in order to increase religious freedoms and allow same-sex couples to commit to their relationships in a religious ceremony. Any change in the law should include a ‘conscience clause’ which gives those churches and celebrants who do not wish to carry out same-sex marriage the ability to opt out.
A somewhat unexpected finding was that a clear majority in each denomination felt there was nothing wrong with same-sex relationships or marriage with Catholics the most accepting of both same-sex relations and marriage, highlighting the distance between the views of the various church leaderships and their congregations. The evidence shows that views within and across congregations and church bodies are diverse, and no one viewpoint should be taken as ‘religious opinion’, because “the vocal are not necessarily the numerous”.
This raises the question of whose religious freedom is more important – those who fear being denied the choice to act in accordance with their faith, or those who are currently excluded from doing so?
In an increasingly secular society, and a society where a growing majority, within both religious and secular communities, see nothing wrong with homosexuality, it must be considered whether the views of a minority should be allowed to restrict the freedom of others, both the faithful and secular, to act according to their own world views.