Euro judges: gay marriage isn’t a human right. But churches could end up being forced to do gay weddings

Mar 22, 2012

Judges at the European Court of Human Rights have ruled, not for the first time, that gay marriage isn’t a right under the European Convention. Yet the Government’s promise that gay weddings won’t be forced on churches, synagogues or mosques may turn out to be a promise they can’t keep.

The European ruling relates to an adoption case brought by a lesbian couple against the French Government. Gay marriage is not legal in France, and the lesbian couple say that is a barrier to them being able to jointly adopt a child. But the European Court says it is for each member state to decide for itself whether to redefine marriage.

It confirms an earlier ruling, handed down in 2010, that related to a gay couple who wanted to force Austria to allow gay marriage. The court said the wording of the European Convention on Human Rights relating to marriage specifically uses the phrase “men and women”, and that the wording appears to be “deliberate”.

However, if a member state decides to allow gay marriage, but treats homosexual married couples differently from heterosexual married couples, such rulings from Strasbourg leave the door open to potential challenge under European human rights law.

So, if the UK Government introduces gay marriage but bans gay couples from getting married in a church while allowing heterosexual couples to do so, the UK Government could find itself taken to the European Court of Human Rights. The Government has repeatedly promised that churches won’t be forced to perform gay weddings, but a future ruling of the European Court could leave that promise in tatters.

The Convention also requires nation states to protect religious freedom and allows for a “margin of appreciation” for each nation to resolve the clash of competing rights. Legal exemptions to general principles of law are part and parcel of living in a democratic society that respects differences. It is something that the European Court has long recognised and is reluctant to interfere with, but you wouldn’t want to rely on it. The European Court is constantly engaged in reinterpreting the fundamental rights which are so broadly asserted in the Convention.

It’s not just European human rights laws that are a threat. According to reports, Church of England lawyers believe the Equality Act 2010, passed by our own Parliament, could force churches to perform gay weddings – or get out of performing weddings all together.

The bottom line is this: the Government – no matter how sincere it may be – cannot offer a cast-iron guarantee that churches won’t be forced to perform gay weddings. It’s simply a promise they cannot keep.

One thing is perhaps more certain. If the government redefines marriage, someone, somewhere is going to be hauled off to court (European or domestic) for their stance on traditional marriage.