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25 April 2014

New guidance on the Marriage (Same-Sex Couples) Act

New guidance on the Marriage (Same-Sex Couples) Act

New guidance on the 'marriage' of same-sex couples was published by the Equality and Human Rights Commission in March. Five separate documents cover the range of public life sectors affected by the change to the law. There is also a separate Q&A document. The guidance draws heavily on the input and recommendations of an advisory working group which included the Evangelical Alliance.

In July 2013, the Marriage (Same-Sex Couples) Act received parliamentary approval. This Act redefines the law relating to marriage by making the 'marriage' of same-sex couples legal in England and Wales. At the same time the Act sought to protect religious freedom.

The Commission, as part of its statutory remit under the Equality Act 2010, has produced guidance to explain the equality and human rights implications of this legislation. The guidance covers five main areas: the law; public authorities; the workplace and service delivery; religious organisations; and school education.

The guidance aims at offering clear, factual, and easily understandable information about the Act for employers, service providers, schools and religious institutions so that individuals and institutions can understand their rights and responsibilities.

The Commission has also produced a quick guide on the Marriage (Same-Sex Couples) Act 2013 to explain the key impacts of the legislation, particularly in terms of equality and human rights, by means of answers to key questions.

In the main, the guidance has received a positive reception and the Alliance itself considers it to be a useful resource to be read alongside its own web based resource which has been endorsed by the Department for Culture, Media and Sport. The Commission guidance naturally goes into much greater detail. 

One area of concern raised by the Alliance with the Commission has to do with the role of chaplains, which also has implications for the services and employment sector generally. The Workplace and Service Delivery guidance states that it is permissible to ask chaplains for their views on same-sex 'marriage' at recruitment stage. The Alliance considers this is not helpful and is surely unnecessary. While it would be illegal to turn down a candidate because of their views on same-sex 'marriage' this process could easily be used to filter out candidates. We would prefer that the question was not asked and actually suggesting it is an option in the guidelines could afford a green light to those with a restrictive agenda. 

In response, the Commission's view is that the critical issue has to do with what purpose such a question is directed and whether that is legitimate. If the question is posed to probe whether work duties and/or services will be provided equally in conformity with the law, then in their view it is legitimate to ask the question as a starting point to probe that particular concern.

The Commission insists that they do not presume (and similarly employers/service providers should not in practice presume) that a person who opposes 'marriage' between same-sex couples will be unable to act in conformity with equality law. However, they recognise that employers and service providers will also need to take all reasonably practicable steps to ensure conformity with equality law in order to fulfil their own legal obligations.

If the question is posed in order to sift out candidates purely and simply because they personally disagree with or oppose 'marriage' between same-sex couples, the Commission insists that such an approach does not follow the letter and spirit of the law or their guidance and as such it is very likely to be unlawful. They confirm that they will be considering a range of options to secure compliance, including proportionate enforcement action where appropriate. 

With regard to chaplains themselves it is important to ensure that the Commission's guidance is not abused. The guidance is not saying that it would be lawful to turn down a person for a job as a chaplain because they hold traditional views about marriage. To do that would actually be unlawful. Rather, the Commission believes that it is legitimate for an employer to consider whether or not a candidate, if successful, would discriminate against service users. In our view it is unlikely that there would be any circumstances where a chaplain would ever need to discriminate against service users other than in the case of conducting marriages (from which they are exempted anyway).

Perhaps one of the most encouraging aspects of the Commission's guidance relates to schools and education which is set out in a clear and balanced way. The Commission makes it clear that:

  • "No school, or individual teacher, is under a duty to support, promote or endorse marriage of same sex couples."
  • "Teachers, other school staff, governors, parents and pupils are all free to hold whatever personal views they choose on marriage of same sex couples, including a view that marriage should only be between a man and a woman. The government recognises that the belief that marriage can only be between a man and a woman is a belief worthy of respect in a democratic society."
  • "Schools with a religious character can continue to deliver sex and relationship education in accordance with their particular religious doctrines or ethos. They must do so in a sensitive, reasonable, respectful and balanced way."

We hope that this guidance will effectively help protect children, teachers and parents who believe in traditional marriage. Guidance produced by the Coalition for Marriage also highlights why teachers should not be forced to endorse the redefinition of marriage in the classroom and emphasises that schools should deal with this controversial issue in a balanced and sensitive way.[1]

While there are always aspects with which to take issue, on the whole the Alliance is happy that the Commission has listened to advice and has certainly tried to get things right and present the law in a balanced way. All Christian organisations and Christians employed in the public and private sectors should familiarise themselves with this guidance to avoid the possibility of provoking unnecessary legal conflicts.

Don Horrocks, head of public affairs, Evangelical Alliance.

[1] The Alliance was a founding member of the Coalition for Marriage (C4M). Although, following the passing of the law, we are no longer officially members of the coalition we do remain supportive of it. The public policy work of the Alliance will continue to expose the inconstancy of the legal changes brought by redefining marriage in order to secure protections for those who continue to see marriage as a lifelong union between a man and a woman. We will also work closely with C4M when necessary.