Registration of Civil Partnerships, Same Sex Marriage: Consultation Analysis

EXECUTIVE SUMMARY

Background

1. On 2^nd September 2011 the Justice Directorate of the Scottish Government launched a public consultation on the possibility of allowing religious ceremonies for civil partnerships and the possible introduction of same sex marriage.

2. Under the Marriage (Scotland) Act 1977, any two persons may marry in Scotland as long as they meet six key requirements, one of which is that they are not of the same sex. Marriage can take place through either a religious or a civil ceremony. Civil partnerships were established in the United Kingdom in 2004 and allow same sex couples to obtain legal recognition of their relationship. The responsibilities and rights of civil partners are very similar to those for married couples, although in Scotland civil partnership ceremonies may not take place in religious premises and the partnership can only be registered by a civil registrar.

The Consultation process and who responded

3. The aim of the consultation was to seek views on the proposed changes. The Scottish Government's consultation paper set out 20 questions: 9 relating to civil partnership, 10 relating to the same sex marriage proposals and a final question asking for further views.

4. The Scottish Government consultation response form set out all of the 20 consultation questions. A number of other organisations or groups also developed their own amended or abridged versions of the consultation form, produced postcards or arranged petitions. All responses received, in whatever format, were analysed with an overall aim of identifying key issues and ensuring that the full range and depth of views was represented.

5. A total of 77,508 responses were received, with all but 375 being submitted by individual members of the public. Of the 375 responses submitted by groups, the majority were made by bodies or organisations with a clear religious connection. Responses were also received from a number of groups and organisations working in the third sector, some of which had clear religious affiliations whereas others did not. These 'Other' groups included a number of Lesbian, Gay, Bisexual and Transgender (LGBT) and equality focused campaign or support groups.

6. The majority of responses (62,608 or 81%) were submitted by people living in Scotland, although many were received from people living in other parts of the UK (13,741 or 18%). Only a small number of responses (1,128 or 1%) were received from outwith the UK altogether.

Views on the proposed introduction of religious civil partnership

7. The first nine questions within the consultation paper asked about the possibility of changing the law to allow civil partnerships to be registered through religious ceremonies and then sought views on some of the possible arrangements that could be put in place.

8. Of the 44,801 respondents that answered the question, 52% did not agree that legislation should be changed so that civil partnerships could be registered through religious ceremonies. Reasons given for opposing the introduction of religious civil partnership included the following:

• Partnership relationships should only be between one man and one woman;
• Civil partnerships were always designed to be a purely civil - and hence secular - arrangement and were expressly set up to be separate to and distinct from marriage;
• Although the current proposals are permissive - essentially that religious bodies would be able rather than required to conduct religious civil partnerships - permissive proposals could quickly change to demand certain action; and
• That the current arrangements offer all the necessary legal protections to same sex couples.

9. Among the 39% that did agree that legislation should be changed, reasons given for supporting the introduction of religious civil partnership included the following:

• Gay and lesbian people may hold sincere religious convictions and the proposed changes would allow them to have an important event such as the registering of a civil partnership registered through a ceremony reflecting their faith; and
• There should be equality in relationships, and Scotland should move towards a situation in which there are not same sex or opposite sex legislative arrangements, but simply civil partnership or marriage.

Other views relating to religious civil partnership

10. The consultation moved on to consider a number of specific issues of relevance if any proposals on religious civil partnership were to be taken forward, including whether the proposals for England and Wales (which would allow civil partnerships to be registered on religious premises) would be appropriate for Scotland. The majority of respondents (59% of those that answered this question) thought they would not.

11. The majority also disagreed with allowing religious celebrants to register civil partnerships in religious buildings and with allowing religious celebrants to register civil partnerships in other places agreed between the celebrant and the couple. Reasons given included that the religious celebrant would still be, and would be seen to be, a representative of their faith group or denomination. Reasons given by those in favour included support for standardising the arrangements for same sex and opposite sex couple unions.

12. Although respondents tended to be polarised at many of the questions, when the focus was on requiring, as opposed to allowing, religious celebrants or bodies to undertake civil partnership (and indeed same sex marriage) ceremonies there was a high degree of consensus, with 94% of the respondents that answered agreeing that religious bodies should not be required to register civil partnerships. Reasons given included the critical importance of upholding freedom of belief and conscience and that the State could not, and should not, force religious bodies to do something they consider to be wrong.

13. The consultation also asked whether religious celebrants should be allowed to register civil partnerships if their religious body has decided against doing so. The majority of respondents that answered this question felt they should not. Further comments made included that individual celebrants had a duty to conform to the decisions made by the religious body they represent and should leave that body if they do not feel able to do so. The appropriate relationship between the State and religious bodies was also raised and it was suggested that it is not the role of the State to enact legislation that would have the potential to promote disunity within faith groups.

14. Finally, in relationship to religious civil partnership, respondents were asked if they felt there was a need for legislative provision to ensure that the premises of religious bodies could not be used for civil partnership ceremonies against their wishes. A majority thought provision was required, with those that opposed the introduction of religious civil partnership tending to consider specific legislation to be necessary, and those that supported religious civil partnership tending to think it unnecessary. Further comments made included that specific legislation must be put in place to protect those that own and manage religious premises from challenge under equality legislation. The contrasting position was that current legislative provision is sufficient and that ownership of premises already gives religious bodies control over what takes place on those premises.

Views on the proposed introduction of same sex marriage

15. The first question on same sex marriage asked respondents whether they agreed that the law in Scotland should be changed to allow same sex marriage. As the first and most fundamental question about same sex marriage, this question was included within all the amended forms, prepared letters, postcards and petitions received, and hence received the largest number of responses across all the consultation questions. The number of comments received was also high, with many respondents making their most substantive, or in some cases only, comment at this question.

16. Across all respondents, a clear majority (67%) opposed changing the law to allow same sex marriage. However, there were differences in the balance of opinion when respondents' country of residence was taken into account. The route through which a response was submitted was also a factor. Key points to note are:

• Although the majority of respondents living in Scotland were against the proposals, the proportion opposed was lower than for all respondents. A very high proportion of respondents living in other parts of the UK did not support the introduction of same sex marriage in Scotland;
• A very substantial majority of those that submitted a postcard or signed a petition were in opposition; and
• Those that responded through a form were evenly split.

17. Reasons given for opposing the introduction of same sex marriage included that:

• Marriage is, and has always been, between one man and one woman. This included an understanding of marriage as a lifelong, monogamous, heterosexual relationship designed for procreation and instituted by God;
• No government had the right, or indeed could, redefine something that is universally understood within Scotland and beyond;
• The introduction of same sex marriage could equate to a fundamental attack on freedom of belief and conscience, particularly if any religious group or celebrant were forced to undertake ceremonies;
• For some, freedom of belief and conscience would be threatened if same sex marriage is legalised, irrespective of whether anyone or any religious group was required to be involved in any way;
• When the civil partnership legislation was being prepared it was indicated that marriage would continue to be between a man and a woman and the current proposals go against the assurances that were given at that time; and
• The introduction of same sex marriage would be representative of a wider secularisation of society and a move away from the Christian values on which Scotland was built. There were associated concerns about the impact any changes could have on Scottish society more widely and particularly about the impact on children.

18. Reasons given for supporting the introduction of same sex marriage included that:

• Scotland, as a forward-thinking country, should stand up for the fundamental principle of equality regardless of sexual orientation. Not to take action to equalise the arrangements between opposite and same sex couples could be seen as tantamount to state-sponsored discrimination;
• The very simple human desire to marry the person that you love and to make a public and binding commitment to a life partner in front of family and friends should be recognised;
• Someone of faith from the LGBT community is entitled to freedom of religion and belief and should not be prevented from having such a significant life event as a lifelong partnership solemnised within their faith;
• A civil partnership may be seen as a second-best alternative that does not come with the same significance for individuals and society as marriage. This may have an impact on the way society treats people from the LGBT community and contribute to a perception that people within the LGBT community are second-class citizens with lesser entitlements; and
• The introduction of same sex marriage would make a positive contribution towards ending discrimination faced by transgender people.

Other views relating to same sex marriage

19. The remaining questions (with the exception of Question 20) asked for respondents' views on a number of specific issues of relevance if any proposals on same sex marriage were to be taken forward.

20. As with religious civil partnership, a much greater degree of consensus emerged between those supporting and opposing same sex marriage once questions moved on to consider whether religious bodies or celebrants should be required rather than allowed to undertake same sex marriages. A clear majority of respondents thought that no element of compulsion should be put in place, with further comments often focusing on respecting freedom of belief and conscience and ensuring that no religious body or individual celebrant could be required to act in a way that is contrary to their faith. An alternative position was that the State should not put in place opt-out clauses and there were concerns that little would be achieved if opt-out clauses were put in place. The assumption here was that only a small number of religious bodies and few celebrants would agree to conduct same sex marriages.

21. As with regard to religious civil partnerships, a majority of those that answered the related question considered that religious celebrants should not be allowed to solemnise same sex marriages if their religious body has decided against solemnising same sex marriage. Further comments made included that the right for a religious body to make a collective decision not to solemnise same sex marriages must be respected by all its individual celebrants and that the licence to act as a celebrant is not bestowed on celebrants simply as individuals, but because they are representatives of their religious body.

22. Again echoing the balance of opinion in relation to religious civil partnerships, a majority of the respondents that answered the question considered there was a need for legislative provision to ensure that the premises of religious bodies could not be used for same sex marriage ceremonies against their wishes. Further comments made included that:

• These are complex issues, and will require careful scrutiny from those with the necessary legal skills and understanding;
• The current legislative provision is sufficient and that ownership of premises already gives religious bodies control over what is permitted to take place on those premises; and
• Specific, water-tight legislation must be put in place to protect those that own and manage religious premises from challenge under equality legislation.

23. The penultimate question in the consultation paper effectively spanned the two issues of same sex marriage and civil partnership by asking respondents whether civil partnership should remain available if same sex marriage is introduced. The majority of those that answered this question did believe that civil partnership should remain available, although the reasons why people thought so were many and varied and appeared influenced by, but not determined by, their views on the key questions on the introduction of religious civil partnership or same sex marriage. Further comments included that:

• Civil partnership should be retained as a clear and very distinct alternative which would highlight the difference between civil partnership as originally envisaged and any same sex marriage arrangements that might be put in place;
• Some couples might well prefer a clearly civil, secular option, particularly if they do not have a faith and see even civil marriage as something that has developed out of religious conventions; and
• Civil partnership for opposite sex couples should be introduced.

Other issues

24. Respondents also had the opportunity to register any further comments they wished to make and were asked specifically for views on a range of issues, including the potential implications of the proposals for transgender people and possible transitional arrangements. Specific comments on these issues included that:

• People from the transgender community should have the same basic rights to marry (or stay married to) the person they love as anyone else and the introduction of same sex marriage could help avoid the need for a married transgender person to divorce in order to have their acquired gender legally recognised through a gender recognition certificate; and
• The focus of any transitional arrangements should be on keeping things as simple and straightforward as possible - for example through a straightforward change of status from civil partnership to marriage if both parties were in agreement.

25. Other comments made often restated views given elsewhere within the respondents' consultation submission, although there were some further issues raised. These included that:

• The potential total cost of the proposed changes to the UK, including if opposite sex civil partnerships were to be introduced, could be as high as £5 billion to the UK over a 10 year period;
• The proposals fail to take account of the right for Scotland's religious communities to worship freely and within the tenets of their faith;
• The consultation paper specifically, and the proposals more widely, appeared to give no consideration to the best interests of Scotland's children and future generations; and
• The proposed introduction of same sex marriage would be of such fundamental significance to the future of Scottish society that it would be appropriate to call a referendum and ask Scotland's people to decide.

Overall

26. As noted earlier, the majority of the individuals and groups that responded to the consultation were very firmly on one side of the debate or the other - few, if any, respondents had mixed views and the considerable majority either supported both propositions or strongly opposed both. Nevertheless, some respondents did try to see the alternative point of view and sought areas where compromise might be possible.

27. It was when considering whether any legislation should allow rather than require religious bodies to be involved that consensus did emerge and there were very few respondents who considered that religious bodies or celebrants should be required to undertake ceremonies which they were not comfortable with. Although approaching the basic proposals from very different starting points, many respondents were united in their insistence that Scotland must remain a country in which freedom of religious conscience is treated with the utmost respect.

Analysis and Reporting

28. The main focus of the report is on qualitative data, reflecting the nature of the material received. Quantitative analysis has been undertaken for the parts of each question where respondents were asked to agree or disagree with proposals. It is less appropriate to focus on quantitative material for a number of reasons, including that:

• Not all of the respondents addressed the questions specifically, nor did they all do so using the standard form.
• Respondents covered similar issues at different points on the response form.
• Some responses were submitted on behalf of organisations and represented the views of a number of respondents. It would be impossible to identify the actual number of individuals represented by a response.
• The consultation process involved "opting in" and cannot be seen to be representative.