N.B. I am not either a lawyer or legally qualified – this is my layman’s understanding of the law in Scotland. It may be inaccurate – it is certainly limited in scope. As always, I am happy to be corrected on fact and challenged on opinion.
THE LAW AS IT STANDS IN SCOTLAND
Any two persons, regardless of their place or country of origin can be married in Scotland providing both persons are at least 16 years of age on the day of the marriage.
They must meet other conditions, as follows
They must not be related to each another in a way which would prevent their marrying – the laws of consanguinity (blood relationship) and affinity (restricted non-blood relationships, including by marriage, civil partnership or adoption). The affinity relationships in some cases are permitted if both parties are 21 or over, subject to some qualifications.
Additional restrictions on affinity relationships
The parties must be unmarried and if previously married, must produce documentary evidence that the previous marriage has been ended by death, divorce or annulment.
They must be capable of understanding the nature of a marriage ceremony and of consenting to marriage.
The marriage must be regarded as valid in any foreign country to which either party belongs.
They must not be of the same sex.
TYPES OF MARRIAGE IN SCOTLAND
There are two ways in Scotland in which people may be married in Scotland -
by a religious ceremony
by a civil ceremony
A religious marriage, whether Christian or non-Christian, may be solemnised only by a minister, clergyman, pastor, priest or the other person entitled to do so under the Marriage (Scotland) Act 1977.
A civil marriage may be solemnised only by a registrar or an assistant registrar who has been authorised by the Registrar General for that purpose.
WHERE WE’RE AT RIGHT NOW
The law as it stands requires a couple, who must be a man and a woman, to proceed as follows if they want to marry -
1. Each of the parties must complete and submit a marriage notice, together with required documents and a fee to the Registrar of the district in which the marriage will take place. This must be done at least 15 days before the date of the marriage, but four weeks is customary – and safer – and if either party was married before, the period is six weeks. This is a legal requirement, not a religious requirement.
2. Both parties don’t have to personally hand in the marriage notice at the Registrar’s office, but at least one may be asked to attend, either to finalise arrangements for a civil marriage or in the case of a religious marriage or other belief system, to collect the marriage schedule. These are legal requirements, not religious requirements.
3. The parties then have the marriage solemnised, either by a civil ceremony or by someone representing their belief system, and this may be in a church. The law specifies who may legally solemnise a religious marriage. These are legal requirements, not religious requirements.
A marriage solemnised by someone representing a belief system or religion, perhaps in a church, is both a legal ceremony and a religious ceremony. The religious ceremony only has validity insofar as it follows the law – the law makes no distinction between belief systems or religions, nor does it make any moral judgments, other than to specify the minimum legal requirements.
Any religious or belief system that claimed as a tenet of their faith, with Divine authority, something as part of the ceremony that conflicted with the law would not be able to legally solemnise a marriage. The law does not recognise Divine Authority or a Divine Lawgiver, or Holy Books or writings, or ancient traditions, for the good and sufficient reason that religions and beliefs systems have no consensus on the Divine intention, and often sharply – and sometime lethally – differ on matters of doctrine. There is no Divine Supreme Court that supersedes the law.
There is no requirement under the law for the parties to a marriage to bear children, or to have an intent to bear children.
There is no legal obligation on any church, or minister of religion to solemnise a marriage. There is no discrimination legislation that imposes such a requirement. There is no intent to create or enforce such a law.
WHAT IS BEING PROPOSED?
A proposal is being made that the provision under law that only a man and woman may marry legally be amended to permit two persons of the same sex to marry and to have that marriage solemnised.
There is no proposal to require a religion, church, minister of religion or a belief system to solemnise a marriage of two persons of the same sex, even if they meet every specified legal requirement.
It is also proposed that if a church, religion, minister of religion or belief system agrees voluntarily to marry a couple of the same sex, that such a ceremony be regarded as legal solemnisation of the marriage at law.
WHAT IS THE NATURE OF THE OPPOSITION TO THESE PROPOSALS?
Opinion on the proposed law differs between and within churches, religious groups and faiths and belief system, and ministers of religion on the desirability of such a change.
Those opposing it argue from one or more of the following standpoints -
1. Divine authority, i.e. God as revealed through holy books and as interpreted by ministers of religion or individuals within sects, defines marriage as being between a man and a woman.
(So does the law at the moment. This reflects a mixture of tradition and the influence of religion on law and political systems throughout history.)
2. A prime purpose of marriage is the intent to produce children. (Stated as a religious belief, this relies on either religious tradition or an interpretation of the will of God, neither of which can be reflected in law in modern time. Stated as a historical tradition and the values of a society, it is undoubtedly true that many laws reflect such factors. But societies change, evolve, and their laws change with them
3. The legalisation of marriage between those of the same sex legitimises homosexual acts forbidden by religious belief, with various authorities quoted for this, all of them religious and none of them legal. (This ignores the fact that homosexual acts, once illegal, have been legal for many years. It is therefore nonsense to suggest that it ‘legitimises’ what is already legal.)
4. The legalisation of marriage between those of the same sex will in some way encourage homosexual behaviour. (This nonsense is on a par with homophobic beliefs that homosexuality is some kind of acquired perversion, contagious, and one that can be reversed or controlled by exhortation, prohibition and legislation.)
5. Legalisation of gay marriage, and the use of the term marriage for gay civil partnerships threatens the fabric of society. (Well, it certainly challenges old, entrenched beliefs and prejudices, just as the ending of slavery, rights for women, rights for children, disabled rights, the right of free speech, general enfranchisement, etc. challenged them. It’s called progress towards human rights and the ending of the dark night of superstition and dogma.)
But a legal and societal function of marriage as a civil contract undoubtedly is to protect children when they result from a marriage. It has also been very much about property rights and rights to rule, as even a superficial knowledge of Scottish and British history reveals, with the shameless manipulation of infants and children in dynastic disputes and quarrels over kinship, primogeniture, affinity, matriarchal inheritance, etc. In relatively recent history, it was to protect children from the social stigma of illegitimacy, and its legal consequences. This aspect has evolved and changed radically as society changed, and is virtually irrelevant now.
Lets face it, as well as being homophobic, the churches are trying to protect their rights to control the mechanics of marriage because it is one of the cornerstones of their power. They have never been very happy about civil marriages with no church ceremony involved, and they have similar views over baptism in a church and the legal registration of births. (I was once told by otherwise nice reasonable people and clerics that children who were not baptised “were no better than animals …”)
The present opposition to the legalisation of gay marriage is in direct lineal descent from organised religion’s resistance to just about every advance in human thought and extension of human rights under law to women, to children, to minorities, to ethnic groups. Of course, there have always been members of faiths, and individuals within faiths who have displayed great courage and great humanity in supporting such movements towards a recognition of our common humanity, and indeed who have led some of the great liberating movements.
Let Alex Salmond and the broad majority of the Scottish National Party, the Scottish Government, the Scottish Parliament and our elected representatives stand clear and firm for this change, and resist the pressures of some of the churches to bend the law of the land and our democracy to their undemocratic will by threats. Contrary to the rabble-rousing, the fabric of society will be strengthened, not weakened by this move towards justice and equality under law.