20 February 2014
Informal shared use of religious buildings
Last October the government launched a consultation on draft regulations regarding the process for using shared religious buildings for marriage of same sex couples in England and Wales under the Marriage (Same Sex Couples) Act 2013. On 23 January the Ministry of Justice published its response to the consultation in the light of responses it received, including from the Evangelical Alliance and those member churches that decided to submit their views.
Churches enter into either formal or informal arrangements for sharing religious buildings. If there is a formal sharing arrangement (usually involving a legal contract) the relevant governing authorities of each of the sharing churches must give separate written consent to the use of a shared building for the solemnization of marriages of same sex couples. Accordingly, if one partner church refuses to give consent registration cannot take place (see the Alliance's FAQs on same sex marriage).
However, matters are less clear where sharing arrangements are informal. The recent consultation therefore specifically addressed proposals for the legal handling of such ad hoc sharing arrangements. In establishing the consultation process the government specified that its overriding aim with regard to shared buildings was to strike a fair balance between protecting religious freedoms of groups who do not wish to solemnize marriages of same sex couples and those who do.
Three key objectives were set out for the proposed regulations within such a framework:
- The need to
ensure that the regulations do not undermine the overriding principle
established by the 2013 Act that no religious organisation should be compelled
to conduct marriages of same sex couples.
- The need to
ensure that whilst all of the religious organisations sharing a building
must consent to the building they share being registeredfor marriages
of same sex couples to take place, this consent does not of itself require any
of the organisations to opt in to conduct same sex marriages unless they wish
to do so.
- The need to ensure that where possible, religious organisations are able to come to reasonable agreements among themselves about the registration of the building they share. However, the government also wants to ensure that a sharing religious organisation that does wish to conduct marriages of same sex couples is not prevented from doing so by an effective veto from a religious organisation that makes limited and/or minimal use of the building.
The main outcomes of the consultation are as follows:
- According to the Ministry of Justice most respondents supported the general principle that as far as possible procedures and regulations to be applied to informally shared buildings should be aligned with those buildings subject to formal agreements under the Sharing of Church Buildings Act 1969.
- The majority of respondents felt that the governing authorities of all the relevant sharing religious groups should have to give their consent to the registration of a building to solemnize marriages of same sex couples. The government agrees.
- A majority of respondents opposed the suggested concept of, and criteria for, a 'qualifying sharing church'. They argued that all religious groups that share a building should have to give consent to the registration of the building. Nevertheless, the government says that it continues to believe that it would be unfair for one group that makes only occasional and minimal use of the building for purposes other than public religious worship to be able to block an application for registration that all the other sharing groups who use the building on a much more extensive basis may wish to make (or be prepared to consent to). As a consequence, the final regulations will, notwithstanding opposition, introduce the concept of a 'qualifying sharing church'. Qualification will therefore be necessary for a group to be able to block a proposal for holding same sex ceremonies in a building. In respect of the actual criteria,the government has decided that holding at least two meetings a month in the building is reasonable for religious groups to qualify.
- Most respondents agreed that there needed to be appropriate safeguards in place to protect against any abuse of the cancellation process. The majority agreed that it would be wrong for a sharing church to be able to make a cancellation application and have it granted without the proprietor or trustee being aware of this. Most respondents accepted that there needed to be a minimum period of notice for a cancellation in order to safeguard the rights of couples so that marriages were not cancelled at short or no notice because an organisation had decided to cancel its registration. The introduction of a three month notice period which would allow the proprietor or trustee to check whether the authority bringing forward a cancellation application was entitled to do so has accordingly been retained.
- In respect of the cancellation process relating to registration of informally shared buildings, there was general support for the proposal that any relevant governing authority among the sharing groups should be able to apply to cancel the registration of the building to solemnize marriages of same sex couples. All relevant governing authorities will be required to give consent to the registration of the shared building to solemnize a marriage by a couple of the same sex therefore, in conformity with the 1969 Act, it is deemed appropriate that each relevant governing authority should be able to withdraw its consent and be able to cancel a registration.
- The government believes it is right that it should be made clear which sharing churches are able to solemnize marriages of same sex couples. Regulation 8(4) describes the process for application, which requires the application to be accompanied by written consent from the governing authority of the group applying to register. Regulation 8 (4) will now also include a reference to the fact that written consent from other groups wishing to solemnize marriages of same sex couples should also accompany the application. It should be noted that the Jewish religion and the Society of Friends already have special provisions that have been in place since 1753 and do not have to register buildings to solemnize marriages.
- There was some opposition to the proposal for a qualifying period before a sharing group can make an application to cancel the registration. The government thinks it would be unfair that a newly joining sharing church should be able undermine established arrangements by entering into a sharing arrangement with a church which is already able to solemnize marriages of same sex couples in the registered building and making an immediate application to cancel that building's registration. A minimum qualifying period to protect the interests of existing sharing groups who do wish to continue solemnising marriages of same sex couples will therefore apply. Accordingly, newly joining sharing churches will not be able to apply to cancel the registration until they have used the building for two years.
- Where the building ceases to be shared the building will remain registered for marriage of same sex couples provided that the remaining sharing church that continues to use the building was previously able to conduct marriages of same sex couples in the building. If the remaining church has not previously consented to solemnizing marriages of same sex couples, the registration must be cancelled.
- Where a new religious group joins an existing informal sharing arrangement, buildings will continue to be registered to solemnize marriages of same sex couples subject to confirmation that the new sharing religious group gives consent.
A revised draft of the Marriage of Same Sex Couples (Registration of Shared Buildings) Regulations 2014 will be produced for consideration by Parliament in debates in both the House of Commons and the House of Lords. It is intended that the regulations will come into force in the early part of 2014 so that shared buildings can be registered to solemnize marriages of same sex couples if the qualifying sharing religious groups agree.
In December, the Department for Culture Media and Sport announced that the first same sex weddings will take place on Saturday 29 March 2014.