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Scottish government launches gay marriage consultation

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  1. Tim Hopkins 2 Sep 2011, 1:19pm

    Needless to say, the Equality Network strongly welcomes this consultation, and the Scottish Govt’s statement that their initial view is to support the introduction of same-sex marriage.

    We would encourage everyone with an interest in Scotland to respond to the consultation. The closing date for responses is Dec 9th.

    1. billlywingart@gmail.com 5 Sep 2011, 7:32am

      wonderful Soon my country the USA will be the last or next to last westernized nation to have marriage equality or even national civil unions

      Of course we were the next to last before brazil (the last) to end formalized slavery.

      And that took a war that despite primitive weapons killed 600.000/ We only had 400,000 killed in WWII.

      But once the USA comes around there is no stopping gay equality anywhere except in bigot laden afria, Islamic nations, and some of the former soviet states.

  2. Tim Hopkins 2 Sep 2011, 1:30pm

    Quotes from the consultation paper:

    3.11 The [Scottish] Government’s initial view is that marriage should be open to both same sex couples and opposite sex couples. This view is grounded in our commitment to equality, and our support for stable and committed relationships.

    3.45 Marriages registered in Scotland are recognised in other parts of the UK …

    3.46 The Scottish Government will discuss with the UK Government the mutual recognition of same-sex marriage in the law of different parts of the UK.

    3.50: If Scotland should introduce same sex marriage, the Scottish Government would intend to recognise overseas same sex marriages as marriages in Scots law, in the same way as we recognise overseas opposite sex marriages as marriages.

    3.23 The [Scottish] Government does not consider that religious bodies should be obliged to solemnise same sex marriage against their will.

  3. Tim Hopkins 2 Sep 2011, 1:41pm

    The consultation paper points out (paragraphs 3.14 – 3.18) that the current proposal in England appears to be to allow only CIVIL same sex marriages, and not to allow any religious body to conduct same sex marriages.

    The consultation paper asks whether that is OK, or whether (paragraph 3.19) those religious bodies that wish to conduct same sex marriages should be allowed to do so.

    Needless to say, the Equality Network supports the latter option.

    1. Tim, I think the Scottish government misunderstood the meaning of the UK statement (which was poorly phrased).

      ‘Marriage’ often means the status, not the ceremony. In British law (unlike in continental law), certain religions have the privilege of granting the legal status of marriage, also known as civil marriage, through religious wedding ceremonies.

      If the UK Equalities Office understands UK law (not a certainty!) then when they discuss ‘equal civil marriage’, that includes the right to have that civil marriage created through either a civil (non-religious) wedding, or a religious wedding – just like an opposite-sex couple.

      Religious marriage, on the other hand, means that a particular religious tradition considers your marriage religiously valid. Neither the UK or Scottish governments would be likely to legislate on this point.

      So legislating on civil marriage only should include the right to get that status through a church wedding. But the SNP is right to clarify this.

      1. Tim Hopkins 2 Sep 2011, 3:20pm

        Ah I see. In Scotland, the terminology in the marriage legislation is different. “Civil marriage” is a marriage solemnised by a registrar, and “religious marriage” is a marriage solemnised by a religious or humanist celebrant.

        So perhaps it’s not surprising that there may have been a misunderstanding. I certainly hope that the UK Govt intends to consult on allowing religious celebrants, as well as registrars, to do same-sex marriages in England and Wales.

        1. The 1977 Act is certainly worded in such a way that the Scottish government’s comment is entirely sensible.

          Time will tell if the Scottish government is correct in their reading of the UK government’s tea leaves. Let us hope not.

          Either way, good for the SNP for making sure that religious weddings/marriages will be a legal path to same-sex marriage as recognised by civil law.

  4. Tim Hopkins 2 Sep 2011, 2:06pm

    There is another crucial quote in the consultation paper, for trans people:

    3.42 If Scotland should move to introduce same sex marriage, then, in future, there would be no need in law for transgender people to divorce before obtaining the full gender recognition certificate. The marriage could just continue.

  5. Thanks goodness the LibDems have promised marraige in E&W by 2015

  6. Jennie Kermode 2 Sep 2011, 3:11pm

    I fear the battle has been lost on language use here, but I do wish people would make the effort to say “same sex marriage” rather than gay marriage, and to talk about “mixed sex couples” rather than “heterosexual couples”, etc. Even that doesn’t cover all the bases when it comes to trans people, but at least it doesn’t completely elide the existence of bisexual people.

    1. Agree on that Jennie! It is the case that ‘gay marriage’ as a term is another instance of the erasure of lesbians in discourse, and same-sex marriage seems a compromise term until we get to a point where it is just ‘marriage’.

      (Of course heterosexual marriage *is* same-sex marriage, as they’re both heterosexuals… except for Tory MPs… when it is a gay marriage ;> …the naughty friday fairy made me do it!)

    2. Tim Hopkins 2 Sep 2011, 3:23pm

      I’m glad to say that the Scottish Govt’s consultation paper uses “same sex marriage” throughout. And “opposite sex couples”, which is not as preferable as “mixed sex couples” because opposite sex implies a binary gender divide, although so does the law of course.

  7. As an outsider to all this, I wonder how/if the law on marriage in Scotland is different to England and Wales, i.e. on what premise can Scotland do this as a ‘solo run’? Is it a devolution thing or legal specificities? It is a welcome development, but I wondered if anyone can briefly clarify this point for me. Thanks.

    1. Charles Gormley 2 Sep 2011, 3:53pm

      The law on marriage is essentially the same in Scotland, with he exception that 16 year olds do not require parental permission as is the case in the rest in England and Wales. Family law is a devolved competency, meaning that the Scottish Parliament is able to legislate on it as it chooses, as long as the legislation complies with the Human Rights Act – all Acts of the Scottish Parliament have to comply with the HRA, unlike UK Parliament legislation which can conflict with the HRA if Parliament chooses.

  8. This is a good start but past time needed , you just go ahead and do what is right for equal rights, these are your children and grandchildren, futures and all of you will have some gay grandchildren and some gay children, and you love them and with them their every happiness, you dont let religions of anykind especially heterosexual hate religions run anything their hate gangs you hear from and listen to people and organizations trying to turn this nation around from wrongful abuses of people like abraham lincoln, mistreating people and their families, standing for love and kindess is a must for a positve and humanity tomorrow, people should be sick of hatred and prejudice and all the evil and harm and trouble it causes, it has no rights , but to a jail cell, where it belongs , for the evils it has inacted , you have to be better people than in history evils and move beyond they wickedness of others, and wish other goodwill as long as they are not harming others, wish them happiness

    1. Commanderthor 2 Sep 2011, 4:59pm

      carrie, i do not know exactly why nobody else said this but could you bloody use bloody full bloody stops, because it is difficult to read and you do not use capital for the first letter in words for the sentence begining

      1. But Thor, you didn’t use capital letters. And there was no full stop at the end of your very, very long sentence. And beginning was spelt incorrectly. Leave Carrie alone, I enjoy her lack of punctuation. It shows her passion.

        1. Commanderthor 2 Sep 2011, 5:56pm

          I rest my case.

  9. A consultation on equality? What a laugh. If you don’t agree with same sex marriage you’re a homophobe. Why consult? The question should just be ‘are you homophobic’?
    Didn’t the tories say they were going to have a consultation? They’ve not even got that far yet. I hope Scotland shows England that they are better people than the English and allows gay marriage before England does. How embarrassing for the tories and the English.

  10. A very positive move by the SNP Government, doing what they promised they would do and making their position supportive of same-sex marriage.

  11. And if Scotland legalises same-sex marriage for gay couples, those marriages won’t be recognised as such in England if the latter hasn’t also made it legal. They will still be downgraded to CPs until there is a change in the law, if any.

    Uh Oh, exactly right. We will NEVER have full equality until the marriage law changes. It’s an absolute disgrace that England has delayed the consultation and Scotland hasn’t. The government didn’t even have the common courtesy to explain its reason for so doing. Now I know why I never voted for a Tory. If it weren’t for the Liberal Democrats, there would be NO consultation, delayed or otherwise. The Tories, just like Labour, do NOTHING voluntarily in our favour unless they’re dragged kicking and screaming under EU directives. It was the same with allowing us to serve openly in the military and for CPs. Neither were voluntary and without prodding. If the Tory party has changed so much, why hasn’t Cameron declared support for it.

    1. Tim Hopkins 2 Sep 2011, 6:54pm

      Robert, re your first paragraph: that’s not at all clear. The Scottish Government consultation paper makes the point that marriages in one part of the UK are recognised as marriages in all parts of the UK (even though the law is different). For example, 16 and 17 year olds can marry (or get a CP) in Scotland without parental permission, but require parental permission in England and Wales.

      The consultation paper says that the Scottish Govt will discuss with the UK Govt whether that could also apply to Scottish same-sex marriages. If it did, they would be recognised as marriages in England & Wales, and English couples could visit Scotland to get married (just as English 16 year olds can visit Scotland to get married wthout parental permission).

  12. It was reported on Reporting Scotland tonight that assuming the consultation is favourable there won’t be a bill before 2013. I really cannot see why it should take that long. I’ll be making that point in my response to the consultation. I hope others do too.

    Nicola Sturgeon also made a curious comment (possibly a slip) on Reporting Scotland too, that no minister of religion or ‘individual’ would be forced to officiate same-sex marriages. The latter stipulation seems to imply civil registrars could have an opt out, which of course is not the case with civil partnerships at present, where civil celebrants are required to officiate. I think we need clarity on this point.

    Moreover, although the consensus seems to be there should be a specific opt out for religious celebrants I am unclear as to why this should be the case. Why are religions being offered on a plate the right to discriminate in the provision of a civil package of rights and responsibilities?

    1. Charles Gormley 2 Sep 2011, 8:36pm

      As far as I am aware, there is no current compulsion on any religious organisation to perform a wedding for a hetrosexual couple – i.e. they can refuse on any grounds they see fit – morality, lack of attendance at church etc etc. I don’t see why we would want to suddenly force them to marry us against their will – really, would you want your marriage to be officiated over by someone because the law has forced them to do so?

    2. Currently in the UK (unlike in the US), only two categories of person can celebrate marriages: registrars employed by the state and ministers of specified religions. Non-religious individual celebrants are not licensed to conduct legal weddings.

      The Scottish proposal is that there should be a double religious exemption from anti-discrimination legislation – both for the religion as a whole, and for any individual minister (2.26-2.30). Hence, if, say, the Unitarians agree to permit same-sex marriages, an individual Unitarian minister would be able to refuse to conduct a wedding without being sued.

      There would be NO exemption for civil registrars, to whom anti-discrimination law would continue to apply.

      A problem MIGHT arise in future if non-religious celebrants were ever to be licensed. The Scottish government should clarify that this exemption exists for religious celebrants, and would not carry over to independent non-religious celebrants, should these ever be permitted.

      1. Actually Charles religions are compelled to perform certain kinds of marriages. They couldn’t refuse to perform an inter-racial marriage for example, despite the fact racism has (indeed still does) feature as part of some religious doctrines. Therefore religious prejudice is arguably being privileged. Whether I would want my marriage to be officiated by someone who is against them is irrelevant legally. We brought about anti-discrimination laws in the provision of goods and services because we decided it was wrong for people to suffer the indignity of being refused a good or service because of their sexuality. Marriage licensing is a service. If religious organisations are not prepared to provide them on an equal basis there is a strong case, as with adoption agencies, that they should not provide them at all. Why should the law apply to adoption, bed and breakfasts, civil partnerships and not marriage? It’s an unexplained inconsistency rallied to somewhat blindly.

        1. Charles Gormley 3 Sep 2011, 6:59pm

          I don’t think a marriage is a ‘service’ in the way you describe it. If it is, then all church services are ‘services’ by your definition and churches would be unable to refuse to hire their halls out to gay organisations. There is a general exception where the service provider is a religious organisations providing goods, facilities or services on a non-commercial basis and discrimination is necessary in order to comply with the doctrine of the organisation and to avoid conflict with the belief of a significant number of followers. This exception is not applicable where the organisation is in receipt of public money to perform its functions (as in adoption where there is no allowable exceptions).

        2. Charles Gormley 3 Sep 2011, 7:30pm

          And also, I don’t think banning nearly every religious organisation in the UK (and it would be almost every religion) from officiating at any wedding because they won’t perform same sex marriage is going to keep public opinion in our corner.

      2. atalanta, I don’t agree that it’s clear that there will no exemption for civil registrars. And in Scotland religious celebrants actually ironically include the non-religious licensed Humanist celebrants. Although I find it hard to believe a Humanist could be homophobic they would presumably enjoy a religious right to discriminate. I am inclined to think that Nicola Sturgeon perhaps misspoke when mentioning ‘individuals’ being exempt from compulsion. However I also wonder if she was suggesting that civil registrars in Scotland will have a conscience opt out. Remember marriage is a matter of Scots Law, unlike civil partnerships which was a piece of UK legislation introduced on behalf of the Scottish Parliament at its behest. While the courts have deemed that the law demands civil registrars cannot be exempt from performing civil partnerships, this was an English ruling and its applicability to Scotland for either civil partnerships or civil/religious marriages is untested and unclear.

      3. Tim Hopkins 3 Sep 2011, 4:03pm

        atalanta, In Scotland, Humanists are authorised to solemnise marriages, but this is, confusingly, under the legislation for “religious marriage”. The Humanist Society of Scotland are one of the bodies strongly supporting same sex marriage and want to conduct them. Humanists are the 3rd biggest marriage provider in Scotland, after civil registrars and the Church of Scotland.

        The exemption in the anti-discrimimation law, which is reserved to Westminster, applies to bodies with a religious ethos. Humanists would need to go to court to establish whether that applied to them, but of course they would not do that over same sex marriage, as they support it.

        1. Tim Hopkins 3 Sep 2011, 4:14pm

          A, as far as we know the Scottish Govt is not suggesting that civil registrars should have an opt-out written into the legislation. As para 3.40 of the consultation document says, the current system is working well for civil partnerships, and there is no reason it would not work well for same sex marriage.

          Not all registrars are approved to do the full set of marriage, CP, births and deaths, so there are some registrars that do not do CPs. Equality law requires that every local authority provide a CP (and, in future, same sex civil marriage) service that is as good as their mixed-sex marriage service. How they manage the provision of that service, and which registrars they use, is up to them. Some councils have all their registrars set up to do CPs; some don’t.

          The Equality Network has already made representations to the Govt that there must not be a right to opt out for registrars – that would undermine equality law. Registrars in Scotland are not asking for such a right.

  13. Tim Hopkins, and currently, British couples getting married outside the UK still do NOT have their marriages recognised as such. They are downgraded to CPs which they aren’t of course in any way shape or form.

    I fail to see how if Scotland passed a same-sex marriage bill tomorrow for example and England hadn’t, you mean to say England would recognise those marriages as marriages and not CPs? I’m not so sure about that.

    1. Tim Hopkins 2 Sep 2011, 8:46pm

      I’m not saying it will happen; I’m just saying it’s what the Scottish Govt consultation paper suggests, including that they’ll discuss that with the Uk Govt.

      1. Craig Nelson 2 Sep 2011, 10:10pm

        It would be interesting to see. Of course I sincerely hope the rest of the UK adopts a similar approach to marriage equality and it could all come into force at about the same time to avoid confusion.

        However there is already a strong case to recognise all marriages carried out elsewhere.

        If there was a lag or delay I think it is literally unthinkable for marriages carried out within the UK not to be recognised and this would need to be addressed pending the rest of the UK ‘catching up’. Of course the best thing to do would be for all parts of the UK to proceed at (more or less) the same time.

  14. God bless their brave hearts.

  15. Tim, my gut feeling is if things happen the way I described, London won’t be recognising them as marriages right away pending any change to the law in the UK with its own bill. If anything, it might impact Westminster in such a way that it will have no choice but to pass a marriage equality law in England. Westminster has between September 23 and December 21 to begin its own consultation.

  16. Why would it take a full year after ending the consultation to introduce a bill in favour of marriage equality? Surely it can be done sooner? What does the Equality Network think about the potential 2013 date?

    1. Tim Hopkins 2 Sep 2011, 11:27pm

      We want the Scottish Govt to decide it’s detailed policy position as soon as possible after the consultation results are analysed. That analysis should be done by March 2012. Once the detailed policy is decided after that, which will I imagine require some weeks, drafting of the bill should be instructed.

      It is fairly typical in Scotland for the Govt to then publicly consult on the detailed draft bill, and the Govt have said they intend to do that. We will be disappointed if the draft bill is not completed and published by Sept 2012 at the latest. But a further consultation on the draft means that the bill couldn’t be introduced in the Parliament till into 2013.

  17. A move in the right direction!

  18. Good luck Scotland , I’m impressed and I’m jealous that you have a LGBT org and govt that are serious..

    I don’t feel we have neither in Eng and Wales and sadly my CP will still be a CP in Scot and down here in Eng. It’s difficult to get very excited, there’s no push by anyone for marriage equality , no publicity, nothing…epetitions on marriage equality have little support and now the eptition to ban SS marriage in Eng and Wales has left the PT petition way behind.

    Nothing tells me that we want marriage down here and it’s hard to get very excited about the whole business..

  19. john, exactly right. the epetition banning same-sex marriage in England and Wales will be taken seriously by the Tories of course who will probably defer to them. They’ll come up with any excuse not to pass marriage equality to pacify the religious nutters their party kow-tows to. Consultations mean bloody nothing and don’t guarantee anything either. If they were serious about it and seriously interested in full equality, they’d have done something about it by now, at least make it official party policy but they haven’t, and they won’t. If Labour followed the Greens and the Liberal Democrats by adopting it as official policy then we’d probably see a different situation. The Tories would then be hard-pressed to oppose it. Not one Tory MP has declared support for it, not even one of their openly gay MPs. At least Ed Miliband has although his party has to get on board and soon. If that were to happen, Cameron would lose what little gay support he has.

  20. And don’t be surprised if the consultation is delayed yet again or if it ever takes place. They have between September 23 and December 21 to begin. I’m not hopeful about any of it. The political will just isn’t there.

  21. @Tim Hopkins, how do you guys at the Equality Network feel about the public consultation? If the 61% favouring equality last time are anything to go by, we shouldn’t have to worry about the outcome of the consultation next year, but it strikes me as offensive that our civil rights are to be put up for a public vote.

    1. Tim Hopkins 5 Sep 2011, 9:14am

      Clearly the idea that 51% of the public could vote away equal rights for a minority is offensive – exactly the issue that the big federal court case in California over Prop 8 is about. But as you say, the majority in SCotland support equal marriage, so we should be OK from that point of view. The main opposition is likely to come from the Catholic Church allied with some of the smaller churches.

      The legislative process in Scotland is very consultative. Consultation cannot be avoided: even an individual MSP could not introduce a Member’s Bill for equal marriage without a compulsory public consultation first that is required by the Scottish Parliament’s standing orders.

      1. Quick question for you, Tim? I am in the middle of responding to the consultation, which is rather time-consuming, but of course happy to do it. As I live in England, will my answers be taken into account? Or is the consultation just for Scottish residents? Thanks.

  22. I live in England and have no connection with Scotland. Could I take part in the consultation?

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