Will the ECHR Require the Church of England to Recognize Gay Marriage?

by Julian Ku

I haven’t been following this issue at all, but I found this discussion on the possible ramifications of a UK gay marriage law fascinating.The Church of England has put out a paper suggesting (among other things) that any UK law that does not guarantee the right to religious solemnization of gay marriage would violate the ECHR’s equality guarantee. I don’t know if the Church is right about this, but it certainly sounds plausible. And it is an interesting argument that strengthens the Church’s opposition to a UK gay marriage law: Don’t pass this domestic law because an international law will require us to amend it beyond what we would all otherwise agree to.


4 Responses

  1. “Plausible”??? The ECtHR rejected SSM only recently in Schalk and Kopf v. Austria (Cf. http://en.wikipedia.org/wiki/Schalk_and_Kopf_v._Austria). And on the off chance that the Strasbourg judges misunderstand this whole established church mess, they’re more likely to insist on a continental full separation between religious and civil marriages than on churches performing same-sex wedding ceremonies.

  2. Hi, as I understand the Church’s argument, the ECtHR wouldn’t require a state to impose SSM, but if a state decided to do so, the general equality guarantee of the ECHR would kick in and call into question the failure of a state to require equal treatment of SSM, even in a religious context.  

  3. I got that that was where you were going, but I figured I’d start by covering the basics, i.e. Schalk and Kopf. Beyond that, the idea that the Court would require a country to force religious organisations to hold wedding ceremonies for same-sex couples is beyond absurd, and completely ignores the fact that in the majority of European countries (but not in England, as outlined in the paper), Church weddings have no legal effect whatsoever. Outside countries with an established church, the law generally doesn’t care what you and your priest do on a Sunday, regardless of whether a pretty white dress is involved. The law does, however, provide a strong and explicit guarantee of religious freedom (it’s in art. 9 ECHR, in case our English friends want to look it up). So no, never gonna happen.

    Of course, none of this would be much of an issue if it wasn’t for the fact that the CoE is constantly trying to strike a balance between the moderate Brits and Americans among its flock on the one hand, and the African burn-them-gays wingnuts on the other side. Without that problem, the CoE could simply let saner legal minds prevail.

  4. A useful review of the Church’s arguments by Adam Wagner is here.
    Their main argument seems to be that as the state church in England (not the rest of the UK) they are required to marry anyone resident in a parish who asks to be married in their local church. But this is not true as they are not required to marry divorced persons due to their religious objections. Not even Prince Charles.

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