Marriage equality in Scotland

This week, the Scottish Government published the Marriage and Civil Partnership (Scotland) Bill, which, if enacted, will extend the right to marry to same-sex couples in Scotland. I thought I’d mention it, since the UK (i.e., English) media seem to have virtually overlooked it. It’s slightly odd, really: that they all regarded this week’s news about same-sex marriage in the USA to be of major importance, and worthy of in-depth reporting and analysis, but regarded news about same-sex marriage in Scotland to be so trivial it’s not worth mentioning. I mean, it’s almost like they think an event in a foreign country is more important than one that directly affects their fellow citizens in another of the home nations, or something. Perish the thought…

Anyway, let’s turn to more substantial matters. I’m not a lawyer, and this is not an easy Bill for non-experts to read. It’s one of those that mainly consists of instructions to amend other statutes, with a lot of

in subsection (2), for “or (b)” substitute “, (b), (ba) or (bb)”

type gobbledegook as a result. But from what I can tell, these are the headlines:

  • both religious and secular marriages between people of the same sex will be permitted.

  • any ‘religious or belief body’ that wants to conduct same-sex weddings will be allowed to do so.

  • the right of any such body not to perform same-sex weddings is explicitly guaranteed on the face of the Bill.

  • the right of an individual member of any such body not to perform same-sex weddings, even where the body as a whole has opted to do so, is also explicitly guaranteed on the face of the Bill.

  • civil partnerships are retained for same-sex couples, but not extended to different-sex couples, and religious ceremonies are allowed for CPs.

  • existing civil partnerships which were registered in Scotland can be converted to marriages with the consent of both parties, and the commencement of the marriage will be backdated to the commencement of the CP.

  • where one or both parties to a Scottish marriage or civil partnership legally change their sex, the marriage/ CP can be preserved with the consent of both parties.

  • the definition of adultery in same-sex marriages is left open (‘adultery has the same meaning as it has in relation to marriage between persons of different sexes’), but adultery is still not grounds for dissolution of a civil partnership.

  • ‘incurable impotence’ is retained as grounds for annulment of opposite-sex marriages, but is not extended to same-sex marriages.

The Bill seems to create a number of new anomalies:

  • when it comes to adultery, a same-sex couple who convert their existing civil partnership to a marriage will be treated differently to a couple who do not, even if the adultery is discovered to have taken place before conversion occurred. (Remember that, after conversion, the marriage will be treated in law as having begun when the CP was first registered, and that adultery is not grounds for dissolution of a CP.)

  • since the Bill allows for the preservation of existing civil partnerships where one party changes their legal sex, some different-sex CPs will be permitted, even as the majority of different-sex couples are excluded from CPs.

  • the retention of impotence as grounds for annulment in different- but not same-sex marriages means there is a distinction in law between the two categories of marriage. Clearly, impotence cannot apply in marriages where neither party has a penis, but it’s not clear why it cannot apply in marriages where both do. In fact, the emphasis on penises and their functionality is curiously specific, even in conventional heterosexual marriages – why is ‘incurable infertility’ in a wife not grounds for annulment as well? All in all, I can’t see why they didn’t just take the opportunity to get rid of a curiously outdated, even offensive, provision.

The Bill also seems to create some new uncertainties:

  • amongst straight people, the narrow definition of adultery (cheating with a member of the opposite sex), and the broad definition (the act of cheating itself) are synonymous, but amongst lesbians and gay men they are not, and amongst bi people they are not necessarily so. By leaving the definition of adultery in same-sex marriages open, the Bill essentially leaves it to the courts to decide which of the two definitions to apply. This means that, when and if the Bill is enacted, no-one will know what the definition of adultery in same-sex marriages is. The English equal marriage Bill has attracted criticism for excluding same-sex sexual activity from its definition of adultery, but at least people in Wales and England know where they stand.

  • part 4 of the Bill appears to grant the Scottish government very broad powers in relation to the renewal of Scottish marriages/ civil partnerships affected by the legal sex change process – up to and including the right to issue regulations that have the effect of varying any enacted law that relates to this issue. This seems to raise the possibility that, subject to appropriate regulations being issued, couples who were previously required to divorce and then register a civil partnership (and vice versa) when one or both of them changed their legal sex might be permitted to renew their original marriage or civil partnership. This would have the effect of backdating the commencement of their formal relationship, and of avoiding a serious injustice in the English & Welsh equal marriage Bill. But because this is not spelled out on the face of the Bill, it is impossible to know whether or not the Scottish government have any intention of issuing such regulations.

Sticking with its application to trans people, the Bill offers little to people who have a non-binary gender identity (i.e., to people who are neither male nor female). Alongside references to marriages between persons of the same sex, the Bill refers throughout to marriages ‘between persons of different sexes’. On the face of it this is a more inclusive definition than ‘persons of opposite sex’, and seems to raise the possibility of genders beyond the familiar two being recognised within the Bill. However, the insistence that the term spouse means ‘in the case of a marriage between persons of different sexes, a wife in relation to her husband or a husband in relation to his wife’ – while the more neutral definition, ‘one of the parties to the marriage in relation to the other’, is explicitly reserved for ‘marriage between persons of the same sex’ – makes it clear that the Bill still conceives of gender in strictly binary terms.

So far as I can tell, people who are neither male nor female will still have to misrepresent themselves if they wish to marry, and endure the crassly inappropriate “this man/ this woman” language during their weddings. The only advance I can see in the Bill is that those non-binary people who appear, in the mistaken interpretation of the law, to be in a supposed same-sex relationship will no longer be prevented from marrying altogether, but that’s pretty cold comfort. Those of us who campaign for equal marriage must recognise that, even when laws such as this have been enacted, full equality – the freedom for every couple to marry, irrespective of gender, and without having to misrepresent themselves – will still not have been achieved.

These caveats aside – and they’re big caveats, especially the last – the Bill seems reasonably good to me. It’s clearly been drafted by someone with a sound grasp of the terms of the political debate that are likely to surround it. In particular, opening the Bill with the list of relatives who will be prevented from marrying each other should be an effective tactic for scotching the “what’s to stop me marrying my son?” scaremongering that some of the opponents of equality like to engage in. In a similar way, writing the very strong protections offered to religious bodies and individuals directly onto the face of the Bill should prove an effective way of addressing the “churches/ priests will be forced to marry gay couples” scaremongering.

It’s perhaps a shame that the Scottish Government have gone quite so far in respect of this last. The proposal to amend equality law to specifically assert that a gay-positive church cannot fire a minister for refusing to conduct same-sex weddings means that a specific right to discriminate will for the first time have been enshrined in anti-discrimination legislation. I understand the reasoning behind it – and wholeheartedly approve of the intention to protect individual freedom of conscience – but it still seems a shame. Existing laws already offer very strong protection to the exercise of religious freedoms, and it’s pretty obvious that requiring a person to perform a religious rite against their religious convictions would represent a gross violation of their freedom of conscience, and thus would be prohibited under both the Human Rights Act and the European Convention on Human Rights. Additional protections really aren’t required – especially since the last of those two (the ECHR) automatically trumps every other piece of legislation, whether it is enacted at a Scottish, UK-wide, or pan-European level.

But this is, as I mentioned earlier, a political move. It has little to do with anything substantive, and much to do with silencing predictable arguments against marriage equality before they are made – or, more charitably, offering up-front reassurance to people who have specific concerns. The great irony is that these efforts are probably less necessary now than they were when they were conceived. The anti-equality movement in Scotland has been thrown into disarray by the resignation of its leading figure, Cardinal Keith O’Brien of the Catholic church, following revelations that he had subjected several young men under his pastoral care to sexual assaults over a number of years. The likelihood is that, in this situation, they would have been unable to mount a coherent campaign, and that these concerted attempts to head it off at the pass are therefore unnecessary.

Marriage equality – the freedom for every couple to marry, irrespective of gender – is the wave of the future, and enjoys very broad support among the public, in Scotland and elsewhere. There’s a general recognition that the opponents of equality have their own, private reasons for their hysterical resistance to change, and an equally general recognition that their scaremongering tactics are precisely that. The days when legislators were required to address their invented, pseudo-concerns as though they were legitimate are fast coming to an end.

After years of assuming that they would be carefully attended to, the bigots are unexpectedly finding that they no longer hold sway. We’ll defend their right to hold and express their bigotry, of course – that goes without saying, it’s the sine qua non of the tolerance that secularism fosters in its adherents – but we no longer take them seriously. Soon enough this Bill (with its repeated clauses which begin ‘for the avoidance of doubt’, and spell out why a particular instance of scaremongering is ill-founded) will seem like an artefact from the ancient past.

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