On 12th September, giving evidence to the Scottish Parliament Equal Opportunities Committee on the marriage bill, the representative of the Church of Scotland, Rev Alan Hamilton, told MSPs that the Church is considering pulling out of providing marriages for mixed-sex couples, because of the bill. He claimed that the Church would otherwise be at risk of legal action forcing them to do same-sex marriages.
Later that day, the Church issued a press release seeming to (in part) backtrack on that statement, but the press have largely reported Rev Hamilton’s statement to MSPs, and not the later press release.
In fact, the Scottish same-sex marriage legislation includes clear and robust laws that a religious body can only conduct same-sex marriages if it first opts in by applying to the Registrar General. Unless and until the Church of Scotland chooses to do that, through its own decision-making processes, none of its ministers will be legally able to conduct same-sex marriages, even if they individually want to. Equality law is being amended at the same time to eliminate any possibility of legal challenge to any religious body that chooses not to conduct same-sex marriages.
Article 9 of the European Convention on Human Rights, the right to religious freedom, provides further protection. All public bodies in Scotland, including the Scottish Government, and the courts in interpreting Scottish legislation, are bound by the Convention. They could not place any requirement on a religious body to conduct same-sex marriages against the doctrine of that body, because that would breach article 9. Unsurprisingly, in 12 years of legal same-sex marriage in our European neighbour countries, who are also bound by the Convention, no religious body has ever been forced to conduct same-sex marriage.
In the Equality Network’s view, religious freedom should apply both to religious bodies that oppose same-sex marriage, and to religious bodies that support it. There are several religious bodies in Scotland waiting to start same-sex marriages, once the legislation passes. But the Church of Scotland can rest assured that it will be free to choose, in its own way and in its own time – whether that be a decade or a century after the bill passes, or never – whether and when to introduce same-sex marriage.