Equality campaigners across Scotland were quietly confident on Tuesday. It had been widely expected that the SNP Government would at least allow equality in civil marriage if not religious. After all, the measure had already secured the support of a majority of MSPs and the Equality and Human Rights Commission report suggest sthat it has the support of over 60% of Scots. The Government's plans have, however, attracted vocal opposition from some religious organisations.
However, the Government announced that it was delaying the decision and setting up a Cabinet Committee to "further examine some particular issues of detail". A final decision would be made by the end of this month. I wrote then that there were some crumbs of comfort to be taken, most notably that Deputy First Minister Nicola Sturgeon, who has expressed her personal support for equal marriage, was in charge of this committee.
The BBC reported yesterday, though, that a leaked email from a civil servant suggested that legislation would not be forthcoming unless the UK wide Equality Act of 2010 was amended.
We would not introduce a bill into the Scottish Parliament until we had reached agreement with the UK government on the types of amendment that might be needed to the Equality Act 2010
Apparently they want to give protect the rights of free speech to opponents of equal marriage and ensure no action could be taken against celebrants who refuse to marry same sex couples.
Cardinal Keith O'Brien has variously called same sex marriage similar to legalising slavery, promising an "unprecedented backlash" if the Government allows it. He's called it a grotesque subversion and said that:
The empirical evidence is clear, same-sex relationships are demonstrably harmful to the medical, emotional and spiritual wellbeing of those involved, no compassionate society should ever enact legislation to facilitate or promote such relationships, we have failed those who struggle with same-sex attraction.
The fact that he has been able to make these robust and, let's be honest, offensive, comments without legal consequence amply demonstrates that the law on free speech gives opponents all the protection they need.
In terms of the protection of celebrants, Schedule 23 of the Equality Act 2010 outlines when it's possible for religious organisations to discriminate against LGBT people including.
The organisation does not contravene Part 3, 4 or 7, so far as relating to religion or belief or sexual orientation, only by restricting—
(a) membership of the organisation;
(b) participation in activities undertaken by the organisation or on its behalf or under its auspices;
Marriage rites clearly come under sub paragraph (b). LGBT people are routinely refused full membership of churches but no legal action has ever been taken. This shows that the Equality Act issue is a large dose of red herring.
Why, though, would the SNP raise it? Well, any discussion and subsequent amendment to the Equality Act could delay legislation beyond the referendum on independence. The former leader of the SNP Gordon Wilson last year expressed the view that allowing equal marriage could alienate people considering voting for independence. One of the SNP's major donors, bus tycoon Brian Souter, funded the campaign against the repeal of Clause 2A (the Scottish version of Clause 28). It's understandable that some people might feel that bringing the Equality Act into play has a strong whiff of expediency about it.
Scottish Liberal Democrat Leader Willie Rennie said that politics must not get in the way of delivering equal marriage:
I want an assurance that the Scottish Government’s demands on the Equality Act are not them putting up a straw man to appease opponents of equal marriage. I share the view that no-one should be forced to conduct same-sex marriages.
But if changes to the Equality Act are shown to be unnecessary I hope the Scottish Government will accept that fact, and move quickly to deliver equal marriage. Politics must not get in the way of equality for people in Scotland.
I really hope that the Government will put its energies into delivering full equality. If they do so, they will have cross party support. They will not have to face the vocal minority of opponents alone.