Letter to Daily Mail from Prof Alan Bensted, Emeritus Professor of Law, Emeritus Pro-Vice Chancellor, St Briavels, Glos
I have no particular view on same-sex marriage, but can offer some lawyerly observations.
Many lawyers would support the Church of England's interpretation of the recent European Court of Human Rights (ECHR) case of Gas & Dubois v. France, which offers the prospect that to turn away a same-sex couple from a religious marriage, once a state has granted the right to same-sex civil marriage, will be discriminatory.
Same-sex marriage isn't a human right under Article 8 of the Convention, but once a state has legislated to give it equal standing with heterosexual marriage, then a human right is created.
The Home Secretary would he been made aware of this, but the Home Office has continued to cling to the earlier ECHR case, Schalk & Kopf v. Austria.
More seriously, there may be a constitutional crisis developing between the Queen's role as Supreme Governor of the Church of England and her role as a constitutional monarch, by which she must give her Royal Assent to Parliamentary Bills. Can she assent to a Bill for same-sex marriage knowing it might lead to the dis-establishment of the Church of England?
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