Registration of Civil Partnerships, Same Sex Marriage: Consultation Analysis

5 Other views relating to religious civil partnership

5.1 At Questions 2 to 9, 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.

Question 2

Do you think that the proposals in England and Wales on registration of civil partnership in religious premises would be appropriate for Scotland?

5.2 The bar on civil partnerships being registered in religious premises was removed for England and Wales in 2010. The UK Government introduced regulations in early 2012 (following consultation in 2011) so that civil partnerships can be registered in religious premises in England and Wales. The UK Government has emphasised that the measure is entirely voluntary, with each faith group free to decide whether they wish to allow their premises to be used for civil partnership registrations. Question 2 asked respondents to consider whether the proposals for England and Wales would also be appropriate for Scotland. The overall balance of opinion on the appropriateness of these arrangements for Scotland is set out in Table 6 below.

Table 6 Responses to Question 2

	All Respondents
	N	%
Yes	887	11%
No	4,743	59%
Don't Know	2,460	30%
Total	8,090	100%

Potential maximum respondents = 10,707

Note: percentages may not sum to 100% due to rounding

5.3 Only a small proportion of respondents (just over 1 in 10 that answered the question) agreed that the arrangements proposed for England and Wales would be appropriate for Scotland, whilst the majority (just under 6 in 10) did not. Around 1 in 3 respondents did not know or did not have a view, with a number of those going on to suggest that they had insufficient understanding of the proposals to allow them to make an informed comment.

5.4 Respondents that felt the English and Welsh proposals would have merit for Scotland did so for a variety of reasons, although tended to make only limited comments. The points made in support included that the proposals would promote equality and increase individual freedom and choice. Some respondents were also of the view that the whole of the UK should operate to the same set of arrangements, although more considered that Scotland had always done things differently and that if the proposals are progressed, the approach taken should reflect the country's particular legal tradition relating to marriage.

5.5 Of those that did not agree that the proposals for England and Wales would be acceptable, many simply restated their opposition to civil partnerships in any shape or form, whilst a number restated their objection to there being any connection between religion and civil partnerships, including through the use of religious premises. As at Question 1, there were concerns that the clear distinction between civil partnership and marriage would be lost, and also that the proposals would force religious bodies and those of faith to have some connection to something they cannot in all conscience agree with.

5.6 A number of respondents also questioned what would be achieved by holding a civil ceremony within a religious building, other than allowing same sex couples to have access to a greater choice of venues for their civil partnership. Some of these respondents questioned whether the benefits that would result for same sex couples warranted the concern that was being caused to some religious bodies and some people of faith.

5.7 Others who were more supportive towards to the idea of religious civil partnerships also questioned the rationale behind the proposed arrangements for England and Wales, although from the perspective that they do not go far enough. A number of respondents were of the view that the absence of a religious element to the ceremony itself meant that little would be achieved, and that the changes would not address the fundamental problem some same sex couples face - namely that they wish to have their union registered through a ceremony that reflects their faith. The continuing lack of equity between the arrangements for opposite and same sex couples was also raised. In particular, a small number of respondents suggested that, as with a opposite sex marriage, there should be no absolute requirement for a registrar to be present at the registration of a same sex union.

5.8 Finally, a small number of respondents were of the view that the proposed arrangements for England and Wales would be procedurally unworkable in Scotland, and might also be unworkable in England and Wales. The points raised here were principally in relation to the governance structures for independent churches, with potential problems highlighted including the constitutional independence of individual churches meaning the 'consent' requirement would not be workable.

Question 3

Do you agree with allowing religious celebrants to register civil partnerships in religious premises?

Question 4

Do you agree with allowing religious celebrants to register civil partnerships in other places agreed between the celebrant and the couple?

5.9 The consultation then went on to ask respondents whether they agreed with allowing religious celebrants to register civil partnerships in religious premises and then in other places agreed between the celebrant and the couple. The overall balance of opinion at Questions 3 and 4 is set out in Table 7 below. These questions have been reported together as many respondents referred back to their comments at Question 3 as their only comment at Question 4.

Table 7 Responses to Questions 3 and 4

	Question 3		Question 4
	N	%	N	%
Yes	1,339	13%	1,681	18%
No	8,702	86%	6,105	67%
Don't Know	124	1%	1,312	14%
Total	10,165	100%	9,098	100%

Potential maximum respondents = 10,707

Note: percentages may not sum to 100% due to rounding

5.10 A majority of respondents agreed with neither proposition, although opinion was more mixed when it came to allowing religious celebrants to register civil partnerships in places other than religious premises. Of the two proposals, this was also the one on which respondents were more likely to be undecided.

5.11 Irrespective of the location, many respondents again restated their opposition to any religious component to civil partnerships. The majority of those that objected to a ceremony being held in religious premises also objected to a ceremony being conducted by a religious celebrant in any other location. This was principally because the religious celebrant would still be, and would be seen to be, a representative of their faith group or denomination.

5.12 Those in favour also tended to approach these questions from much the same positions as they had put forward at Questions 1 and 2, and supported proposals as part of a general direction of travel towards there being no difference in the arrangements for same sex and opposite sex couple unions.

5.13 A small number of respondents from both sides of the debate supported celebrants only being allowed to register civil partnerships outwith religious premises. For those generally opposed to religious civil partnerships, this had the advantage of at least ensuring that the ceremonies did not take place within religious premises. For those broadly in favour of religious civil partnerships, this option at least allowed celebrants that were willing to conduct such ceremonies the opportunity to do so without coming into open conflict with the religious body to which they belonged.

5.14 A number of those that supported religious celebrants being allowed to register civil partnerships acknowledged that, beyond those from the small number of religious bodies that are in support of the proposals, few religious celebrants were likely to want to do so. Most were of the view that no pressure should be placed on these celebrants and that no-one should be forced to conduct a ceremony that was contrary to their beliefs. Many of those opposed to the proposals were also concerned about either celebrants or their religious body coming under pressure to conduct religious civil partnerships. These concerns were similar to those around 'pushing at an open door' that were discussed in paragraphs 4.9-4.10.

Question 5

Do you agree that religious bodies should not be required to register civil partnerships?

5.15 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. The first of these questions to arise was Question 5, and the overall results are set out in Table 8 below^[24].

Table 8 Responses to Question 5

	All Respondents
	N	%
Yes	23,232	94%
No	885	4%
Don't Know	568	2%
Total	24,685	100%

Potential maximum respondents = 25,350

Note: percentages may not sum to 100% due to rounding

5.16 Almost all of the respondents that answered this question agreed that religious bodies should not be required to register civil partnerships. In fact a small number of respondents, including some of the main religious bodies that submitted a response, were somewhat puzzled by the use of 'required' within the question, particularly since they are under no obligation to undertake marriage ceremonies, but rather choose so to do. Even the suggestion that different arrangements might apply to religious civil partnership was seen as strange.

5.17 The separation of religious bodies and the State (generally referred to as the Church and State) was seen as important by some, and maintaining this separation meant that religious bodies must remain free to choose which ceremonies they conduct. For many of those that supported or opposed religious civil partnerships, upholding freedom of belief and conscience was critically important. Many respondents simply felt that the State could not, and should not, force religious bodies to agree to something they considered to be fundamentally wrong.

5.18 Some respondents were also concerned that if anyone did try to force religious bodies to act in a way they believed to be wrong, tensions would simply increase and positions become even more polarised. A few respondents went on to suggest that absolutely nothing would be achieved by placing religious bodies in such a difficult position and it could be extremely counter-productive, especially if the more liberal elements of religious bodies were put in a position of being forced to take sides.

5.19 Some on both sides of the debate also doubted that same sex couples would want to have a civil partnership ceremony under the auspices of a religious body that does not believe their civil partnership ceremony should have a religious element and may well consider that their relationship itself is wrong. A number of respondents commented that a civil partnership is supposed to be a joyous celebration but this was unlikely to be achieved within a negative environment.

5.20 Finally, whilst the very considerable majority of respondents agreed that religious bodies should not be required to register civil partnerships, a small proportion of respondents took a different view. These respondents generally felt that by allowing religious bodies to opt out of the proposed arrangements, the State would be facilitating and, arguably, even encouraging discrimination against LGBT people. Some also commented that very few religious bodies would be likely to offer civil partnership if it were voluntary, and hence little, if anything, would be achieved by making the change. A small number of respondents suggested that whilst religious bodies should not be able to operate a blanket opt out, individual celebrants should still be in a position to decline to officiate at same sex ceremonies.

Question 6

Do you consider that religious celebrants should not be allowed to register civil partnerships if their religious body has decided against registering civil partnerships?

Question 7

Do you agree that individual religious celebrants should not be required to register civil partnerships?

5.21 The consultation next asked whether religious celebrants should not be allowed to register civil partnerships if their religious body has decided against registering civil partnerships and then whether individual religious celebrants should not be required to register civil partnership. Again, these two questions were often linked by respondents, and hence have been reported accordingly. Please note that Questions 6 and 7 were included on the amended form through which the majority of those broadly opposed to the proposals submitted their response, but were not included in the form used by the majority of those who broadly supported the proposals. The overall balance of opinion is set out in Table 9 below.

Table 9 Responses to Questions 6 and 7

	Question 6		Question 7
	N	%	N	%
Yes	19,842	87%	20,106	89%
No	1,910	8%	1,214	5%
Don't Know	1,186	5%	1,208	5%
Total	22,938	100%	22,528	100%

Potential maximum respondents = 23,774

Note: Percentages may not sum to 100% due to rounding.

5.22 The majority of respondents that answered this question felt that individual celebrants should not be allowed to register civil partnerships if their religious body had decided against doing so. Similarly the majority felt that individual celebrants should not be required to register civil partnerships.

5.23 Freedom of choice and conscience once again emerged as a central theme; many respondents who made a comment suggested that the freedom of the religious body to make a collective decision not to register civil partnerships must be respected by all its individual celebrants as well as the wider community. However, respondents were equally clear that individual celebrants should have the right to act according to their own conscience. There were particular concerns that Scotland should not become the kind of country in which people are persecuted because of their faith and that the country's long-standing tradition of tolerance and freedom of worship should be respected.

5.24 Many respondents made an explicit assumption that Christian organisations which are true to their faith would decide not to register civil partnerships, and that the same would apply to religious celebrants. In other words, that there would be no conflict between the two if they were both following principles laid down in the Bible. Whilst many respondents were clear that religious celebrants should conform to the decision made by their religious body, this was dependent on the religious body having made what they saw as the correct decision - in other words having decided not to register civil partnerships. If the religious body had decided to register civil partnerships - and hence had made what some respondents were clear would be an incorrect decision - most of these respondents suggested that individual celebrants would be required by conscience to disobey their religious body.

5.25 Many others made the point that religious celebrants are employed by their religious body, and that in no other sphere would it be considered acceptable for an employee to expressly disobey instructions given to them by the people paying their salary. A number of respondents commented that celebrants should have been fully aware of the beliefs of their religious body when they took on their role and should remain faithful to those beliefs.

5.26 Similarly, some others commented that their licence to act as a celebrant is not bestowed on them simply as individuals, but because they are a representative of their religious body. Some felt, therefore, that if they are not able to conform to the teachings of that body, they should resign their position and join a group whose doctrines they do feel able to uphold. To do otherwise would not only create internal tensions, but would also give an impression of disunity to those outwith the religious body, and a number of respondents felt it was important for religious bodies to send a clear, straightforward message to the rest of Scottish society on this issue. A number of respondents were of the view that the standing of religious bodies would be undermined if they did otherwise.

5.27 Overall, many respondents were clear that individual celebrants should respect the decision made by the leaders of their religious body and some also suggested that obedience to those in authority is part of the Christian tradition. However, there was also recognition from some religious body respondents that individual members of their Church may hold different views to that of the leadership. A small number of respondents commented that not all denominations have an authority-based hierarchy which they saw as implied by some of the consultation questions, but rather may have no central decision-making structures - in other words, celebrants are not accountable to the religious body but to their own congregation.

5.28 Beyond the issue of the relationship between individual celebrants and their religious body, many respondents were clear that it is not the role of the State to interfere in the way religious bodies organise and run themselves, and it is certainly not the role of the State to enact legislation that would have the potential to promote disunity and dissent within faith groups. A number of respondents suggested this might actually be the intention of the Scottish Government in bringing forward these proposals, and that promoting faction and disharmony within religious bodies would contribute to part of a wider agenda to secularise Scottish society.

5.29 Although in a minority, there were those that disagreed with the proposals at Questions 6 and 7. Those that thought celebrants should be able to register civil partnerships if their religious body had decided against tended to focus on promoting the individual freedom of conscience and belief of the celebrant, rather than the religious body more widely. Many of those that thought celebrants should be required to register civil partnerships if a change in the law was made felt this was the best way to ensure there is positive change and that religious civil partnership ceremonies are actually made available.

Question 8

Which of the options do you favour to ensure that religious celebrants do not have to register civil partnerships against their will?

5.30 The consultation paper proposed two possible options for ensuring that, if they were to be introduced, religious celebrants would not have to register civil partnerships against their will. The options were as follows:

• Option 1 would be to extend the existing authorisations of celebrants under the Marriage (Scotland) Act 1977 for opposite sex marriage so that the same celebrants would automatically have the ability to register civil partnerships. It would be made clear that religious bodies and celebrants who did not wish to register civil partnerships would not be required to do so; and
• Option 2 would be to set up a new procedure, separate to that for the solemnisation of opposite sex marriage, under which all religious bodies who wished to register civil partnerships could advise the Registrar General which celebrants they would like to be authorised to register civil partnerships. It would be made clear that it would not be discriminatory to decide against seeking approval to register civil partnerships.

5.31 Respondents' preferences are set out in Table 10 below, and then in Table 11 have been cross-tabulated according to whether they agreed with the introduction of religious civil partnership or not (Question 1). To set these responses in context, some respondents reported that they had been unable to find the options at all within the consultation paper, whilst others were unable to access the options whilst completing their response form and hence were commenting from memory.

Table 10 Response to Question 8

	All Respondents
	N	%
Option 1	885	10%
Option 2	4,641	54%
Neither	3,124	36%
Total	8,650	100%

Potential maximum respondents = 10,707

Note: percentages may not sum to 100% due to rounding

Table 11* Option preferred by view on introduction of religious civil partnership

	Support religious civil partnership		Oppose religious civil partnership		Don't know
	N	%	N	%	N	%
Option 1	605	57%	257	3%	15	22%
Option 2	139	13%	4,461	60%	21	31%
Neither	319	30%	2,755	37%	32	47%
Total	1,063	100%	7,473	100%	68	100%

Potential maximum respondents = 10,707

Note: percentages may not sum to 100% due to rounding

*The number of respondents here is lower than at Table 10 because of the loss of those respondents that did not answer Question 1.

5.32 A small majority of those that answered this question expressed their preference for Option 2, although many others opted for neither alternative and only a small proportion preferred Option 1. Those that support the introduction of religious civil partnership tended to prefer Option 1, whilst those that opposed its introduction tended to prefer Option 2. Only a very small proportion of those that opposed the introduction of religious civil partnership favoured Option 1.

5.33 It was also the case that in their further comments, a number of those that had stated a preference for Option 2 made it very clear that they had done so only because they saw it as the least worst option. In essence, some respondents were saying that although they would very much prefer not to see the introduction of religious civil partnership, if it is introduced Option 2 is the slightly more tolerable of the two sets of arrangements proposed. Many of those that had selected 'Neither' as their answer also made a similar point in their further comments.

5.34 Respondents who considered Option 2 as preferable generally did so because they felt it would result in registration being seen as the exception rather than the rule, and that by extension, this would offer greater protections to religious celebrants. Some respondents that opposed the introduction of religious civil partnership were of the view that Option 1 would be open to particular challenge under equality legislation, with some also suggesting that lobbying is already underway to remove any safeguards that the legislation would currently offer.

5.35 Concerns around challenges under equality legislation led many to call for explicit, additional protections being put in place through amendment of the current equality legislation. However, others were concerned that the necessary powers have not been devolved to the Scottish Government and hence any assurances made in Scotland would be dependent on the co-operation of the UK Government which, even if promised, could not be guaranteed.

5.36 The relatively small number of respondents that preferred Option 1 and made additional comments generally saw Option 1 as the simpler alternative and also the option that was most likely to promote equality and a common and consistent set of arrangements, irrespective of whether for opposite or same sex couples.

5.37 The few alternative suggestions that were made tended to focus on placing the onus on those who wish to conduct civil partnership ceremonies to register to do so. It was also suggested that within Option 2, there should be a facility which would allow religious bodies the ability to opt in or out collectively and, by extension, manage matters relating to religious civil partnership on the same collective basis as they may do marriage. It was also suggested that both options were overly simplified solutions to an extremely complex situation and, in particular, that they did not reflect the complexity and diversity of the governance and management arrangements in place across Scotland's religious bodies. Furthermore, some respondents thought that religious bodies that are UK-wide would face problems if the arrangements in Scotland were different to those for the rest of the UK.

Question 9

Religious bodies may not wish their premises to be used to register civil partnerships. Do you agree that no legislative provision is required to ensure religious premises cannot be used against the wishes of the relevant religious body?

5.38 The final question about religious civil partnerships asked respondents 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. This was another of the questions that was included on the amended form through which the majority of those broadly opposed to the proposals submitted their response, but that was not included in the amended form used by the majority of those who broadly supported the proposals.

5.39 This question, along with the equivalent question about same sex marriage (Question 18), was considered particularly confusing, and many respondents commented on the use of the double negative. However, basic 'internal logic' checks (using other key answers given but particularly comments made) would suggest that the majority of respondents did negotiate the question successfully. Results are presented in Table 12 below.

Table 12 Response to Question 9

	All Respondents
	N	%
Yes	6,560	29%
No	13,074	58%
Don't Know	2,844	13%
Total	22,478	100%

Potential maximum respondents = 23,774

Note: percentages may not sum to 100% due to rounding

5.40 A majority of respondents did not agree that no legislative provision was required - in other words, a majority thought provision was required. Although respondents that opposed the introduction of religious civil partnership tended to consider specific legislation to be necessary, and those that supported religious civil partnership tended to think it unnecessary, the relationship between respondents' answers at Question 9 and other questions (such as Question 1) was less direct than at many other questions^[25]. Given that many people's comments at Question 9 focused on their understanding of the property law, rather than the 'rights and wrongs' of civil partnership, this is perhaps unsurprising. Indeed, a number of respondents acknowledged that these were potentially complex issues which they felt were best left to the legal profession.

5.41 Those that made further comments tended to approach this issue from one of two basic positions. Some simply considered that 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. These respondents included religious bodies that either broadly supported or broadly opposed the introduction of religious civil partnership.

5.42 However, many of those that commented thought that specific, legislation must be put in place to protect those that own and manage religious premises from challenge under equality legislation. A number of potential complexities that would need to be taken into account when framing such legislation were suggested, including the many different models for sharing premises both between different religious groups and between religious and non-religious groups. A small number of respondents also questioned where, within any religious body's hierarchy, the decision about whether the premises could be used would rest, while others commented that not all religious bodies have hierarchical structures and that any legislation would need to take this into account.