The third and fourth proposed changes therefore smack of overkill, especially since the role of religious groups in civil partnerships is different from that in relation to marriage. Indeed, paragraph 40 of the ‘Next Steps’ paper states that ‘as there is no Canon law of the Church of England or Church in Wales that would be affected by the civil partnership changes, there is no need for any protections relating to that law’. This misses the point a little. It is not a question of there not being any religious law on the matter or indeed any religious law which is part of the law of the land on the matter. The issue is that it is not a commonly recognised legal right to have civil partnerships solemnised in these two churches (as it is for marriages). On the surface, this creates the seemingly odd situation where there is a legal prohibition of the solemnisation of same sex marriage in these two Anglican churches but no such prohibition on civil partnerships. However, this anomaly is explained by the assumed legal duty upon these churches to solemnise marriages. This does mean that the Anglican churches may find themselves lobbied to conduct civil partnerships.
This all means that the protections proposed will afford religious organisations similar protection for conducting civil partnerships as they have for religious marriage, except in the case of the Anglican churches which will have no special treatment in relation to civil partnerships. The intention is clearly for these provisions to apply to opposite and same sex civil partnerships. That means that the religious protections concerning same sex civil partnerships will increase. Yet, no suggestion is made, let alone no evidence given, to suggest that the current protections in the Civil Partnership Act 2004 are inadequate. Rather, the cause of the change seems to be a lack of clarity about the different roles that religious groups play in relation to civil partnerships rather than marriage. This means that a familiar but an overly cautious ‘everything but the kitchen sink’ approach is yet again being taken.
The ‘Religious Protections’ chapter concludes by recognising the judgment in Ladele v London Borough of Islington [2009] EWCA (Civ) 1357 stating that ‘these protections will not apply to civil partnership registrars. They perform a secular function’ (para 41). It further clarifies that ‘a handful of religious ministers are also designated as civil partnership registrars, and when they are performing this secular function they will not be able to refuse on faith or belief grounds’. This perpetuates a distinction between a religious ceremony and a civil legal act of registration. It may well be time to refashion outmoded marriage laws in order to insist upon such a neat distinction there.
Indeed, although there is nothing fundamentally unsound in the ‘Religious Protections’ section, it does include a number of confusions and inconsistencies that will be perpetuated if these next steps are taken. There seems to be a lack of clarity as to the role that religious groups have in civil partnerships rather than marriage. This has meant that the same sex marriage provisions are now being replicated rather than the same sex civil partnership provisions without any explanation or justification. Harmonisation of the laws on adult relationships is badly needed. The current law on marriage distinguishes between different religions and indeed gives special treatment to places of religious worship. Calls for humanist ceremonies to be legally recognised and concerns about unregistered Islamic marriages show that the current law is not fit for purpose. As Sharon Thompson and I argue, there is a pressing need for comprehensive reform of adult relationships, particularly the formalities required and cohabitation rights. As I have noted elsewhere, the recent announcement of a review of the Law Commission into weddings law is welcome but the varied and various piecemeal reforms underscore the need for a comprehensive harmonisation and reform programme.