Any future contract type marriages would have to be registered in some way of course, since the deal is you enter into this prescribed relationship in exchange for various tax and family law benefits!

Lazarus – I’m not sure the ritual part of it is necessarily an attraction for everyone and might even put some folk off. And, it would still be available for religious and non-religious alike, but without any restrictions on what form it took. The State should stick to financial and other legal incentives to encourage marriage – if that’s what it wants to do. Religious bodies can encourage or exhort the flock using other means.

Re: state approved religions carrying out social policy – I am of the view that such a relationship is bad news for the Church (and probably society as well). Strict separation should be constitutionally guaranteed.

So far the headcount on my idea is 2 opposed (1 catholic and 1 atheist) and 0 in favour. I’m doing better on the facebook page – just waiting for a tie-breaker from a cat!

And on your comment ‘I don’t think that it’s a good idea to have the State approving religions for carrying out state social policy’, I’d completely disagree! The churches are, from the State’s point of view, one of those ‘small platoons’ that bind us together: supporting them in their function of encouraging responsible child rearing which benefits us all is precisely what the State should be doing.

It’s unfortunate that a minority (like your friend Jen) don’t benefit from the “two for the price of one” deal that most of us get, but surely the solution is to extend that deal, not abolish it. Do you know whether her church had applied for its ministers to be authorised to conduct weddings? Not all religious bodies make that choice, after all.

Can you provide legal authority for the contention that a marriage is not legal unless consummated? If that were so, I would agree with you; but I don’t believe it is. I have recently been involved in a debate about gay marriage with some Church of England folk, and learned that Doon Sooth a marriage is voidable on the grounds of non-consummation. The issue was that HMG doesn’t appear to have considered what “consummation” would mean in a same-sex marriage context. However, I have no knowledge of such a rule in Scotland. Impotence is indeed a ground (in fact the only ground) which makes a marriage voidable, but I don’t believe consummation (or lack thereof) has any legal significance, other than as one of an infinite variety of things that could establish that “the pursuer cannot reasonably be expected to cohabit with the defender” (Divorce (S) Act 1976, s1(2)(b)) and therefore be a ground for divorce. Can you enlighten me?

You say that people have a choice to have their legally effective ceremony in religious premises. However, that’s only if you happen to belong to a religion which is approved for such purposes by the state. My friend Jen got married a few years back, but because her Church was a small groovy one, and not a big institutional one, she had to do the signing the papers bit the day before and the big Church wedding the next day. I don’t think that it’s a good idea to have the State approving religions for carrying out state social policy.

I’d prefer a simply contractual agreement for the legalities – which can be a short and sweet as you like. Then complete freedom to celebrate the marriage in whatever venue or fashion you like (without the need for State approval).

As for the State sticking to the bits it needs to – it insists that a wedding be consummated to be legal! I’d say that oversteps the boundaries by quite a bit!!

Those are my views, but I appreciate not everybody’s. Any other viewpoints?

As far as I can see, the state does stick to the bits it needs to. That’s why there are no religious trappings at civil ceremonies. Do you perhaps mean that religions should stick to the bits that are important to them, namely solemnising a union in the eyes of God/gods/godesses, and that the power to create legally binding unions should be reserved to secular registrars alone?

My point is that separating the two aspects (legal and spiritual) of religious ceremonies, and forcing people who want a religious marriage to go through both, will only be a hindrance. If the point of the exercise is to increase people’s freedom to have a marriage that’s appropriate for them, why would we take away a choice they currently have, namely to have their legally effective ceremony in religious premises or secular premises?

Furthermore, I don’t think it will appease the anti-gay-marriage campaigners a jot. So its only perceived advantage would not (I think) actually be achieved.

The thing is that “marriage” isn’t just one thing. Yes, there is a religious heritage – but not solely that. Biblically, it included multiple wives (plus several concubines on the side) and in more recent history it has been essentially a property transaction.

My marriage is something to do with my notions of romantic love, something to do with my Christian beliefs and something to do with being a context for my kids to grow up in. But that’s just me …

And isn’t that the point? The State should stick to the bits which it needs to – the property and family law consequences. That may be sufficient for some – others may want a party, or a ceremony (with or without cake). For some a blessing or public commitment may be fine, without the need for a legal contract.

Might avoid the whole thing becoming some kind of turf war, and all that unpleasantness, no?

I can also provide an ideological objection and an academic objection, if such be your preference. (1) It accepts as correct the view that marriage as it now is belongs to religions, as though they had invented it and it didn’t predate all religions now existing. (2) If the legal ceremony is seen as meaningless by the couple, and the religious ceremony is seen as meaningless by the law, then have the couple actually consented to marry at the necessary moment?

It’s a nice distinction and probably doesn’t sit very easily with a modern, multi-cultural Scotland. However, the Court of Session did declare it’s own interference with matters spiritual to be ultra vires – on the basis that Parliament had not conferred and did not have jurisdiction to do so.

I agree that things being what they are, future judges may not take the same view esp. if the Scottish Parliament had purported to legislate on the matter, but that would be contrary to the decision in Logan. Logan was not that long ago, and it’s not as if the courts have been shy about criticising the SP! Who knows?

My own view is that the Church of Scotland’s independence in these matters was not conferred by the Treaty of Union any more than it was by the 1921 Act. It is an independent (God-given, if you like) jurisdiction – recognised by the Courts and Parliament, but not dependent on that jurisdiction. You may regard that as a fiction – but so are all legal jurisdictions ultimately. For the time being at least, it is the accepted status quo. An attempt to change it would potentially see a return to the schisms and protests of yesteryear, but then perhaps the Kirk will ultimately schism by itself or be so weak that no-one will care any more?

At p1232, counsel for the respondent submitted “If the Church were to [interpret the Articles] in an unacceptable way, the only sanction was that the recognition of the Church’s position might be withdrawn by Parliament”. Granted, he wasn’t the judge, but his arguments were upheld.

Can it really be imagined that, if Parliament enacted that the Court of Session should henceforth exercise its supervisory jurisdiction over the Church in matters spiritual, the Court would contradict this and declare such an Act to be ultra vires?

(P.S. any thoughts on my post above about Act of Union and the Act of Settlement?)