Scotland's gay marriage bill published, with more freedoms for celebrants

The bill to legalise same sex marriages in Scotland has now been published, and while it has arrived later than hoped and expected, Holyrood will introduce a more open, flexible regime than the new equal marriage laws in England and Wales.

The Scottish Marriage and Civil Partnership (Scotland) bill, released on Thursday morning, will not introduce the stringent "quadruple lock" that English and Welsh religious bodies have won. 

The Westminster legislation explicitly bans the Anglican Church of England and Church in Wales from offering same sex ceremonies; the Scottish legislation has no such measure.

It asks religious bodies and faiths to "opt in" to the new legislation, effectively making it the default position that religious bodies are not required to offer gay and lesbian ceremonies.

The Holyrood and Westminster measures offer very similar protections, however, for individual celebrants and ministers who are in churches and faith groups which have accepted same sex marriages but, on individual faith grounds, do not wish to officiate at them.

The Scottish government has won agreement from the UK government for an amendment to the Equalities Act which will give those individuals full legal protection against prosecution, for refusing to conduct a gay marriage ceremony.

And in Scotland, the tradition of having more liberal rules on who can officiate at a marriage – to include humanist celebrants and Muslim clerics for instance, has been extended to allow humanists to officiate in lesbian and gay marriages. 

This is an obvious step: humanist marriages are now the third most popular in Scotland, recently overtaking Catholic marriage ceremonies.

(Unlike humanists, there is minimal chance Muslim clerics will want that power; like orthodox Catholicism, Islam takes a very traditional stance on homosexuality. The Church of Scotland, while publicly sceptical and critical, is seen as more nuanced on the issue; after last month's vote by the General Assembly to allow congregations to opt in to selecting gay ministers, some observers suspect in a few years, the Kirk will accept same sex marriages too.)

Alex Neil, the Scottish health secretary, said:

A marriage is about love, not gender. And that is the guiding principle at the heart of this bill.

At the same time, we also want to protect freedom of speech and religion, and that's what the bill sets out to do. That is why it will be up to the religious body or individual celebrant to decide if they want to perform same sex marriages and there will be no obligation to opt in.

And, said Tom French, coordinator of the Equality Network, the Holyrood bill will protect married transgender people who want to stay in a pre gender change marriage from having to get a divorce, and then remarry their partner under the new legislation.

Faith groups which oppose gay marriage remain opposed despite Neil's promise of protections. Gordon MacDonald, from Scotland for Marriage, disputes arguments that marriage is required for full equality – the civil partnership system is enough.

He told BBC Radio Scotland's Good Morning Scotland programme:

It is not an issue of equality because of the legal rights of marriage now given to same-sex couples with civil partnerships - is it is not a matter of equality at all...
Even if ministers of religion themselves can opt out, it doesn't mean that church buildings won't be used for this purpose against the wishes of their congregation.

For the Equality Network, the umbrella campaign which has pushed hardest for the legislation, it's something of a birthday present. The group is celebrating the fifth anniversary of their equal marriage campaign this week.
French said:

We hope that our MSPs will stand by the values of equality and social justice that the Scottish parliament was founded on and vote to pass this bill with the strong majority it deserves.

Thirty-three years ago Scotland finally decriminalised homosexuality, today the large majority of Scots agree that it's time lesbian, gay, bisexual and transgender were granted full equality under the law.

With the equal opportunities committee now taking written evidence, Holyrood has started the formal procedures for considering the bill. It is some months later than Nicola Sturgeon, the deputy first minister who championed the legislation, had wanted. 

When it was first unveiled, Sturgeon hoped Holyrood would – like the smoking ban – be the first UK legislature to recognise gay and lesbian marriage.

But its progress has stalled, delayed in part by the record number of consultation responses, but also by the Scottish government's decision to hold a second consultation. 

By volume most responses were opposed to gay marriage - 64% of the 62,000 responses were against it, but most of those were generated by postcard and internet petition campaigns by religious groups; of the individual submissions on the Scottish government website, the vote was 65% in favour - a finding broadly in line with opinion polls. 

There were signs of significant nerves within Alex Salmond's administration when it confronted the intense hostility of the Catholic church in particular.

Meanwhile, David Cameron's Tory led coalition has nipped in first, passing the English and Welsh measures earlier this month against vociferous internal opposition and defeating a wrecking amendment in the Lords. 

So, while equal marriages are likely to be available next year in England and Wales, they won't be until 2015 in Scotland.

Gay rights and equalities groups are delighted the Scottish government has seen this through, but there are regrets about the delay, mixed with pragmatism. Better the bill is secure and well-drafted, than rushed and flawed, says French. 

It remains to be seen how many of Holyrood's 128 eligible MSPs vote for the legislation, but there is now a heavy majority of MSPs in favour of equal marriage.

The Equality Network's monitoring shows that 89 MSPs, from all parties, will vote for the bill, while only 11 have so far declared their opposition. 

Of the 29 MSPs so far undeclared, some junior ministers are expected to vote against.

French said:

When we first started out, we had a handful of people saying that they supported same sex marriage. We would like to get this done as quickly as possible but it's important we get it right. Whether it's a few months here or a few months there really, for history, a delay isn't going to matter.

He also wanted all MSPs to have an entirely free vote, and to feel they had had enough time to study the proposals before voting:

People should be allowed to vote however they want on this. We would go further than that: we would encourage people to vote with their heart and their conscience even if they vote against it.

We want at the end of this, a clean process, where we get a big majority and an honest majority. I don't want the opponents of same sex marriage to turn around and say people were bullied or pressured to vote for it when they didn't want it.

Colin McFarlane, of the gay rights group Stonewall, said:

I'm delighted that the bill is finally in the parliament; it's now up to parliament to get on with making it a reality. We're taking nothing for granted until it's passed.

In Northern Ireland, however, hopes of same sex marriages are now dead. Stormont voted earlier this week against enact the UK parliament's legislation in the province, after Unionist parties earlier this year voted to defeat a gay marriage equity bill. 

Instead, Northern Ireland will treat same sex marriages as civil partnerships.