Kirk warns ministers face legal challenge for refusing to wed gay couples

THE Church of Scotland has issued a fresh warning that ministers could be sued for refusing to wed gay couples.

In a report due to be considered by the church’s General Assembly next month, officials have warned the organisation could be “vulnerable to legal challenge” due to possible discrimination under the European Convention of Human Rights.

The report by the Church’s Legal Questions Committee (LQC) says: “The scheme enables bodies, such as the Church of Scotland, and individual celebrants to be authorised to conduct different-sex marriages while at the same time refraining from seeking authorisation to conduct same-sex marriages.

“This legal structure may be argued to be discriminatory contrary to Articles 12 and 14 of the European Convention on Human Rights.”

There are discussions the Church could potentially pull out of solemnising all marriages, but the report argues that this would “rob ministers of one significant and evangelical opportunity” as marriages are an “important aspect of their ministry”.

Concerns were also raised that any legal challenges could cause financial and reputational damages to the Church and any individual ministers involved if a case was upheld.

Legislation for same-sex marriage came into force in December, which the Scottish Government says protects those who do not wish to conduct ceremonies.

But the LQC argues that if a legal challenge to the scheme was successful it would be repealed and likely replaced with a system where those who wish to carry out different-sex marriages must also oversee same-sex marriages. The report adds: “It might mean the exclusion of churches which are unwilling to instruct their clergy to conduct same-sex marriages from an important part of the life of the nation.” A recent Scottish Social Attitudes Survey showed 68 per cent of people supported same-sex marriages.

The Kirk’s policy is opposition to gay marriage and would have to change its rules to give ministers and deacons the choice to conduct ceremonies.

The LQC report concludes: “The Church and Society Council recognises the important social and pastoral role played by ministers and deacons in rela- tion to marriages, and welcomes the commitment of the Scottish Government in seeking to maintain that role in changed circumstances.”

A Scottish Government spokesman said: “We have established a robust legal framework so that the position of religious bodies who do not wish to take part in same-sex marriage is fully respected.”

When MSPs voted last year to give gay couples the right to marry, it was one of Holyrood’s finest hours. A remarkable and profound social and cultural reform was voted through resoundingly and, last Hogmanay, the first couples duly took up the right to marry.

However, the change in the law has not ended the controversy over the issue. Social attitude surveys show an extraordinary turnaround in how Scots feel about gay marriage, with a majority now supporting it, but some groups are still opposed to the change, mostly on religious grounds.

It was right that the legislation should acknowledge these objections and a sensible compromise position was reached that balanced the right of gay couples to be married with freedom of conscience for religious groups.

Crucially, the legislation specifically stated that religious groups would not be compelled to perform gay marriages and, even if a church was in favour of doing so, individual celebrants with a personal objection to gay marriage would be free to opt out. This was fair and respectful towards churches and other religious groups who, on the basis of their faith, define marriage as between a man and woman.

However, even this legal protection does not appear to have assuaged the fears of the Church of Scotland which, in a new report, has raised the concern that ministers could be sued for refusing to marry gay couples.

The report by the Legal Questions Committee warns that the church could be vulnerable to legal challenge on the grounds of discrimination under Articles 12 and 14 of the European Convention of Human Rights, which protect the right to marry and prohibit discrimination on the grounds of sexual orientation.

The fact that the report also discusses the possibility of the church avoiding being forced to perform gay marriages under the European Convention by pulling out of marriages altogether is a measure of how profound the Kirk’s concerns are. But it is unlikely that the European Convention could ever be used in this way, not least because Article 9 protects the freedom to practise and observe religious belief.

Religious groups in the UK have also been specifically protected from legal action by an amendment to the Equality Act 2010, which means a church could not be sued for discrimination in the way B&B owners Peter and Hazelmary Bull were when they turned away a gay couple from their establishment in Cornwall.

As a spokesman for the Scottish Government put it: “The UK and Scottish Governments worked together to amend the Equality Act to make it clear refusing to marry a same-sex couple is not a breach of equality requirements.”

This legal framework was absolutely the right compromise in a difficult situation and there is no reason why it should not prove to be robust. It is perfectly natural that the Church of Scotland should remain anxious about such a fundamental change to society’s norms, but it should also realise that everything has been done to accommodate it.

Under the legislation, gay couples who wish to do so are finally able to marry in the way that heterosexual couples can. But ministers in the Church of Scotland and other religious celebrants with a deeply held objection to gay marriage can also feel secure in the knowledge that they will not be compelled to act against their faith.