Conscience and the same-sex marriage debate

The Scottish Government's decision to delay further any announcement of its intentions regarding the legalisation of same-sex marriage was certainly an anticlimax, after the expectation of a decision had built up. Probably it also means that the route to legislation is not as clear as ministers appear to have assumed at the outset of the process.

It is not easy to work out where the correct view lies, given the various legal opinions now expressed in relation to who would be obliged to go against their beliefs, and in what way, if legalisation takes place against the background of the general law as it stands. The Human Rights Convention in itself does not appear to be the problem; the question rather is the effect of the UK's Equality Act 2010 and whether it requires to be amended in order to enable the Scottish Government to carry out its pledge that churches with a doctrinal objection to same-sex marriage will not be forced to accept it.

One might have thought that such considerations would have been addressed at an earlier stage, rather than dumped on a hastily convened cabinet committee at this point. The fact that several senior ministers have been deputed to serve on it suggests that some significant issues remain to be resolved.

If so, it is only right that all necessary steps should be taken to avoid unintended consequences for those with a faith objection, if legalisation is to take place. The European Court of Human Rights having ruled that recognition of "marriage" as such for same-sex couples is not essential for compliance with the Convention, freedom of religion and conscience – which is a Convention right – should not be prejudiced if a parliament chooses to make that recognition.

Supporters of reform often appear to assume that their opponents are motivated only by prejudice. Against that, some of the comments made on the other side do rather invite the charge, whatever the intention behind them. I blogged once before on a better way to conduct the debate, with recognition for the sensitivities involved as shown by the Scottish Human Rights Commission. The respect agenda is one that deserves a higher priority than has been shown to date.

Finally, I do agree with the Government that this is not the subject for a referendum. It is, and should be seen as, an issue of conscience for the individual, and that is incompatible with the parliamentary vote being decided by popular poll. As with assisted dying, MSPs must be free to take their own position, and answer to their electorates accordingly.