British gay marriage safeguards may not work, experts say

Thu Dec 13, 2012 1:09pm EST
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By Tom Heneghan, Religion Editor

(Reuters) - Britain looks set to legalize same-sex marriages in the next year or two but legal safeguards it will add to protect the Church of England from having to conduct them may not survive the expected court challenges to them.

Presenting the government's proposals on Tuesday, Culture Secretary Maria Miller promised that a "quadruple lock" of legal safeguards would bar any judge from forcing the Church to perform the gay nuptials that its leadership opposes.

"The chance of a successful legal challenge through domestic or European courts is negligible" under a bill being drawn up, she told parliament, calling the planned safeguards "iron-clad".

Legal experts are not so sure. English courts should uphold the law, but the European Court on Human Rights (ECHR) - the Strasbourg tribunal where Europeans can appeal verdicts by their domestic courts - could override a national ruling.

"Whatever the law says, the court has the jurisdiction to overturn it," said Gregor Puppinck, director general of the European Center for Law and Justice (ECLJ) in Strasbourg that focuses on defending religious rights.

In two cases in recent years, the ECHR found no right to same-sex marriage in the European Convention on Human Rights and rejected appeals by gay couples to overrule national laws restricting marriage to a man and a woman.

"I think there is no possibility (of overturning the government's plan) at present," York University sociologist Paul Johnson said, referring to those rulings.

"I think it would be protected under freedom of religion and conscience," said Johnson, who studies the relationship between law, human rights and sexual orientation.   Continued...