Scotland: Legal experts agree that a legal challenge against churches over equal marriage is unlikely

PinkNews logo on pink background with rainbow corners.

Legal experts have responded to suggestions that churches which opt out of performing same-sex marriages will face legal challenges, to say that they are unlikely to face lawsuits on human rights grounds.

The Scottish Parliament held its first evidence session on the Marriage and Civil Partnership (Scotland) Bill two weeks ago.

The inquiry into the Bill is being undertaken by the Scottish Parliament’s Equal Opportunities Committee who will hear evidence from a wide range of stakeholders in the coming weeks, before making recommendations to the Scottish Parliament on whether to proceed with the Bill and, if so, in what form.

Religious organisations have voiced concerns that churches could be forced to marry same-sex couples against their wishes, if the Marriage and Civil Partnership (Scotland) Bill, is signed into law, reports the Scotsman.

Legal experts have said attempts to challenge the right to opt-out for the Church of Scotland under the European Convention on Human Rights are unlikely to be unsuccessful.

Speaking to the Holyrood’s Equal Opportunities Committee, Alan O’Neill QC said: “I never like to say a human rights challenge won’t be successful.”

“There is a difference, it has to be said, constitutionally between England and Scotland in terms of the relationship between the Church of England and its effective position as it used to be the department of marriage for the English state.

“There are arguments to the effect that the Church of England is a public authority when it carries out marriage functions because it has a duty in law to marry someone, no matter their faith, within their parish boundaries.

“That is not a matter of church law, it’s a matter of common law of England and backed up by the statutes that created the Reformation.

“In Scotland we have a different relationship between the church and state. The Church of Scotland has never been a department of the state as we have always had this Calvinist notion of a separation of church and state, and marriage law has a completely separate history.”

He continued: “So I think the arguments which are more plausible within the English situation are less likely to have as much sway in relation to Scotland.

“At the time of the Reformation it was the king, or the monarch, who decided what the church would be and it was subordinate to it. The Scottish Reformation was different because it was against state authority and against the wishes of the reigning monarch at the time, Mary Queen of Scots.”

Lynn Welsh, legal chief at the Equality and Human Rights Commission, said: “We believe the opt-in will work and will not be open to human rights challenge. Obviously someone could challenge it but we don’t think they would be successful.”

Kelly Kollman, senior lecturer in politics at University of Glasgow, said: “There has been controversies in other countries but these have died out relatively quickly, and I know of no case where they have been forced to do same-sex marriages.

“In Scandinavian countries most churches have opted in but they do allow people to opt out. But my understanding is that has worked relatively well.”

Last month, The Free Church of Scotland, who are opposed to equal marriage, called on the Scottish Government to include a conscience clause giving greater protections to celebrants who disagree with marrying same-sex couples.

Earlier this week in a press statement, the Church of Scotland said there were no plans for it to stop conducting marriages, in clarification of an earlier release which seemed to suggest that it would.