Last night I saw some gloating on my time line that Labour may be offering a free vote on the plan to allow religions the option to offer, if they want, equal marriage.  Meaning that the Quakers and the Liberal Jewish communities would be able to offer gay couples a religious marriage should they so wish.  A move by David Cameron that was very wise and not only considered the religious freedoms of those opposed but also those in favour of it. 

The arguments made against this by the conservative Christians who thought this was wrong and evil, were along the lines that such a decision would allow a challenge in the European Court of Human Rights and subsequently all churches would then have to offer equal marriage even if they didn’t want to. 

Now I have thought about this and in reality it is a laughable argument, and would never have happened.  That’s not to say a challenge wouldn’t have happened but that any such challenge wouldn’t have been successful.  Because looking at the jurisprudence of the ECtHR, their main concern with discrimination cases is the use of blanket bans on things.  Such as votes for prisoners, the inability for transgender people to change their birth certificates, the previous disparity in age of consent for gay people and so on. 

So a law which allowed religions to offer, at their discretion, marriage to everyone would not have violated the convention and so such a case would have been defeated.  Thus respecting the views of those who didn’t want to offer same sex marriage.

However and this is where it gets interesting, if marriage equality is passed and it will.  Then with what is in effect a blanket ban on all religions from being able to offer it will be challenged in the ECtHR.  But under this challenge the courts will find that such a ban is in violation of people’s rights, in that there will be direct discrimination between heterosexual and homosexual couples. 

Now there are two fancy ways that this could happen, a challenge in the UK courts would allow the Judge to issue an order of incapability which then would give the relevant Minister of State to issue secondary legislation allowing for religious marriage equality.  Or it could go all the way to the ECtHR who could equally say that the UK Government was in violation of the convention, and give them a time period to propose a change before they start awarding compensation.

Now I suggest that those people who oppose religions that wish to offer this to think carefully about this situation, as any challenge to the law would take 3 or maybe 4 years from it receiving Royal Assent.  Do you want what is on offer which means that there is some flexibility in which churches can offer it, or do you want the possibility of say a Labour Government ran by the two Ed’s removing all restrictions to churches and effectively forcing it on your church?  Just something to think about on this chilly winters day. 


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