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Opinion & Analysis

Good news, but…

by David Hughes

Gibraltar’s Parliament has voted to introduce marriage equality. That is undoubtedly a positive step. The sky has not fallen in, no doubt to the disappointment of that poor-man’s Peter Hitchens double-act, Charles Gomez & Eric Ellul, who had forecast all sorts of calamity if gay people were granted equality.

But maybe Charles and Eric were right. Maybe the sky hasn’t fallen in because the legislation denies gay people true equality. Because, as Elliot Phillips, Roy Clinton and Marlene Hassan Nahon bravely pointed out in Parliament, the law contains an objectionable and unconstitutional opt-out for deputy registrars, allowing them to refuse to conduct marriage ceremonies for gay people if they object.

There is nothing wrong – in fact, there would be everything right – with administrative arrangements that sort to avoid conscientious objectors having to conduct same-sex ceremonies. But the law isn’t about sensible personnel management. It seeks to give conshies an enforceable right to discriminate against gay people.

The constitution is clear. The right not to suffer discrimination is free standing, and protects gay people. It bans any law that is discriminatory in itself or in its effect, and discriminatory treatment by any person performing a public function. Although there are limits on this right, none of them are relevant to this issue. For anyone who wants to check, it’s section 14.

If the opt-out causes, for example, a ceremony to be postponed or delayed because of the unavailability of a deputy registrar who doesn’t object to equal marriage, the couple concerned will have suffered unconstitutional discrimination. They will be able to sue, and they may well do so.

The right to freedom of conscience, on the other hand, can be limited to protect the rights and freedoms of others. For anoraks, it’s section 9 of the constitution.

So the balancing act between the freedom of gay people to live without official discrimination on the one hand, and the right of hypothetical (one hopes) deputy registrars not to marry people who happen not to share their religious beliefs, has already been struck in the constitution, and struck in exactly the opposite way to how the majority in Parliament has voted.

It is to be hoped that the courts will never get the chance to confirm that I am right. Far better that this unconstitutional right to discriminate never cause any inconvenience, never postpone or sour the day of any happy couple.

But that should not stop this law from being recognise for what it is: a step on the road to equality for gay people on the Rock, but only a step. On the same day that gay Llanitos see Parliament allow them to marry, they see the same Parliament – with some principled dissenters – vote to allow deputy registrars to discriminate against them.

Why should people whose religious beliefs may cause them to object to divorced people marrying not be permitted to object to performing those ceremonies too? But no such objection is provided for, and gay couples are singled out as being worthy of discrimination. Why should civil servants be permitted to object to doing their jobs, simply because those for whom they do them do not live according to that particular civil servant’s religious beliefs? And why, on the journey to equality, does there so often have to be a “but”?