A number of views have been expressed that 'marriage' between two heterosexual couples is not the same as a 'homosexual liaison'.

      The ECHR are adopted a more understanding approach to the issue of ‘sexual orientation approach’. This may result in a more sympathetic conclusion to Karner v. Austria. Here the ECHR had to decide, for the first time, whether the convention requires that legislation providing rights to unmarried heterosexuals should confer identical benefits to same sex couples. The case concerned succession to private tenancy, available under the relevant Austrian legislation to heterosexual couples, but not to gay and lesbian partners. The ECHR has ruled that the case can proceed on alleged grounds of ‘sexual orientation discrimination’. But the result of this case is yet to be determined. If the ECHR considers the issue of whether the applicant has a ‘family life’, the distinction between the protection offered to heterosexuals (in A v. Bulgaria the ECHR held that family life exists between cohabiting unmarried heterosexuals) and same sex partners may well provide the Court with an opportunity to revise the reasoning laid down by the old Commission in Simpson v. UK.

Very few people think that homosexual couples should a have a right to marry, and others have concerns that ‘gay marriage’ would undermine the unique position of marriage in society; ‘Marriage is a unique and natural relationship which provides the best foundation for the brining up of children in a healthy and balanced way and the best foundation therefore for society as a whole. To in any way give the indication that there are other relationships, which are in any way, comparable to this unique relationship is deeply misleading and confusing to our society. Legislation which provides the same rights in law to gay couples will send out the strong signal that gay and heterosexual relationship are on an equal footing’.

    Initially the ECHR held that the right to marry under Article 12 of the Convention refers ‘to the traditional marriage between persons of opposite biological sex’ – Rees v. UK. Furthermore, the ECHR held that there was no wide view of what marriage is and so each country is given a ‘margin of appreciation’ to decide how it understands marriage. Therefore Britain is entitled to limit marriage to deny transsexuals the right to marry opposite to their new sex. However, the ECHR did say that the interpretation of Article 12 may change in due course as the European Convention ‘has always to be interpreted and applied in the light of current circumstances’. Even in the light of this comment, the same case law continued to be reiterated in 1990 in Cossey v. UK and later in 1998 in Sheffield and Horsham v. UK.

    However two cases were recently heard by the ECHR concerning the rights of post-operative male to female transsexuals – I v. United Kingdom and Goodwin v. United Kingdom. In Goodwin v. United, here the applicant was a post operative male to female transsexual who was unable to change a number of official government records which listed her as male. She was consequently treated as male for the purposes of social security, national insurance, and pension and retirement age. It was held that the failure of relevant domestic law to recognise her post operative gender was a breach of their right to ‘private life’ under Article 8 and their ‘right to marry’ under Article 12 of the European Convention on Human Rights. As a result of this decision the United Kingdom has to recognise the new gender, accept the consequences and ensure that all other laws are suitably adapted.

Thus, could this lead one to argue that same sex couples have the right to marry under Article 12? It seems unlikely to be the case. Robert Wintermute contends that ‘although the English text of Article 12 grants this right to ‘men and women’ it does not say that a man can only marry a woman or that a woman can only marry a man’.

Further, he contends ‘it is likely that, at some point in the future, the Court will be willing to accept this argument, in keeping with its ‘living instrument’ approach to interpreting the convention’. 

     However, Charlotte McCafferty contends that ‘there must be limits, however, to the flexibility that can be allowed, otherwise there would come a point when too much flexibility would cause the Article to be interpreted in a way that strays too far from the text’ 

This brings us back to the purposes of the legal institution of marriage. The courts may consider that the main purpose of protecting marriage is to protect the right to find a family.

  It may be arguable that when only one European country has decided on a same sex marriage case, it is unlikely that the ECHR will contend that not allowing same sex marriage is a violation of Article 12, as ‘the absence of the European Consensus’ would almost certainly be fatal’. However, if a sufficient number of countries followed the lead of the Netherlands and introduce same sex marriage, it is possible that future interpretation of Article 12 may give same sex partners the right to marry.

   The main source of increased equality for same sex couples in Europe will come from the national legislatures and courts, especially now that it is possible for the European Convention on Human Rights to be enforced in British Courts (following the enactment of the HRA 1998). Thus, ‘courts must now interpret all Acts of Parliament, if possible in a way that avoids sexual orientation discriminating violating Article 8 (private life) and 14 (discrimination) of the European Convention on Human Rights’.

The recent case of Ghaidan v. Mendoza, is an excellent illustration of this. Mendoza alleged that to grant a statutory tenancy to the survivor of a heterosexual relationship when the survivor of a homosexual relationship was entitled to the less beneficial assured tenancy amounted to discrimination on the grounds of ‘sexual orientation’. The issue before the court was whether the facts of the case fell within the ambit of Article 8 (respect for home and private life) and Article 14 (discrimination) of the Human Rights Act 1998 and whether the different treatment of survivors of heterosexual relationships and survivors gay relationship had an objective and reasonable justification.

    It held that there was not a breach of Article 8 and although, as Buxton LJ stated, ‘an uninformed reading of the bare words of that provision might suggest that a complainant had to establish an actual breach of another article of the Convention before he could rely on article 14, it would appear that even the most tenuous link with another provision in the Convention will suffice for Article 14 to enter into play’. Further, when considering whether sexual orientation discrimination was within the bounds of Article 14, Buxton LJ stated ‘Looking at the question in 2002, it seems to me that there can only be one answer. Sexual orientation is now clearly recognised as an impermissible ground of discrimination’. Further, Keene LJ stated ‘I do not accept that an objective and reasonable justification for discrimination has been made’. It was clear that Sch.1.para 2 of the 1977 Rent Act infringed Article 14 and that the breach could be remedied by construing the words ‘as his or her wife or husband’ in Schedule 1 paragraph 2 as if they meant ‘as if they were his or her wife or husband’.  The decision seems to imply that the courts are moving away from the argument that the words are ‘gender specific’- Fitzpatrick v. Sterling. Hence same sex couples can now argue that the words should be read ‘as if they were his or her wife or husband’ with regards to a number of other statutes which use these supposedly gender specific words when defining either a spouse or cohabitation, e.g. The Inheritance (PFFAD) Act 1975. In this way the law is beginning to recognise that gay and lesbian relationships can have a family character. But the courts have had trouble including them within the term ‘family’ when it appears in legislation without a definition. This is perhaps not alarming, since Parliament has banned local authorities from promoting the teaching ‘of the acceptability of homosexuality as a pretended family relationship’. Thus, homosexual couples have not been counted as family member.

But English law is beginning to recognise these relationships, not so much in their own right, but as an example of a type of relationship which may warrant the grant of a family law remedy. Two proposals for legislation introducing Registered Partnerships have been recently discussed in Parliament. The Relationship (Civil Registration) Bill was introduced in 2001 and The Civil Partnership Bill in 2002. The bills are broadly similar, in that they seek to introduce a system of partnership registration for same sex and opposite sex couples which will confer additional legal rights.

  In terms of content, the Civil Partnership Bill prescribes how the partnership registration will operate in detail. In contrast, the Registration (Civil Registration) Bill makes reference to current legislation, extending it to include registered partners.

Each Bill stipulates that certain conditions must be met in order to register the partnership. The CP Bill contains the exact procedure for registration of a relationship. In contrast the R (CR) Bill does not prescribe such a detailed procedure.

     The CP Bill provides that both parties must be over eighteen, not already married or a registered partner, or a close relative. Furthermore, the parties must have lived together in the same household for six months. Its is important to consider the first and last of these conditions.

Firstly, the fact that Lord Lester has stipulated that parties must be eighteen is questionable. Two heterosexual people can marry with their parent’s consent at the age of sixteen, so why cannot two people register their partnership at the same age with the same parental approval? It is possible to conclude that this is because sexual activities between two men below the age of 18 had been illegal. The reason for this discriminatory age of consent for sexual activity between consenting same sex couples and consenting heterosexual partners was based on the theory that the young in society are in need from protection and corrupting influences. As Home Secretary, Sir David Maxwell-Fyffe contended in 1953; ‘Homosexuals, in general are exhibitionist and proselytisers and a danger to others, especially to the young’. However the age of consent has now been equalised by the Sexual Offences Amendment Act 2000.

The CP Bill stipulates that parties must have lived together for six months prior to registration. This seems to discriminate against same sex couples; a heterosexual couple can meet today and marry tomorrow and thus be immediately entitled to all of the rights and benefits obtained by such a union.

The R (CR) Bill does not stipulate that the parties must have lived together before registration can occur. Furthermore, this Bill provides conditions for eligibility by incorporating the existing statutory restrictions which apply to marriage prescribed by the Marriage Act 1949. Section 2 of The Marriage Act 1949 provides that two people can marry at the age of sixteen with their parents’ consent. This infers that respondent’s adultery, the respondent’s desertion, two years separation with the respondents consent to the divorce, the respondent’s behaviour, and five years separation.

However, there are advantages and disadvantages to each of these Bills. Elizabeth Cooke argues that; ‘Jane Griffith’s Bill appears not to say enough- will simply slotting cohabitants into spousal provisions actually work? It treats the partners, for the purposes specified, exactly like spouses and will therefore appeal only to those who would like to get married but cannot- that is, some, but not all, same sex couple (not all, in the sense that not all such couples actually want marriage-replica status). It will not attract those who choose not to marry precisely because they do not want the legal trapping of marriage’. She also argues that; ‘Lord Lester’s Bill gives the registered partnership the dignity of its own, individually drafted identity’.

For those who do not want a replica status to marriage this Bill does not provide it. Indeed in some instances same sex couples would remain disadvantaged under this Bill.

Of the two Bills it seems that the CP Bill has the greater chance of success, the reasoning being given by Cooke that; ‘Jane Griffiths’ Bill sweeps away much of the legal distinction between marriage and cohabitation, and such a legislative sea-change will not be acceptable to Parliament without more time to debate’. 

In July 2002 The Law Society published Cohabitation: ‘The Case for Clear law’, containing proposals for the reform of the law as it affects those who cohabit outside marriage. The Law Society supports the restriction of partnership registration to same sex relationship. Their view is that same sex couples, who under the present law have no opportunity to marry, should be offered a form of registration for their relationship to give them rights similar to that of marriage. Further, where registration does not take place they should have the benefit of rights being proposed in their paper for heterosexual cohabitants, i.e. rights relating to succession, and property rights in the event of relationship breakdowns. Whilst heterosexual couples are afforded more legal rights than same sex couples, they are still disadvantaged and are in need of more protection. Comments by Lord Lester was made on this matter, stating: ‘it is excellent news for gay couples, but I hope the Government will also provide a framework for legal protection for all unmarried couples in long term relationships, as has been done in other countries’. 

    Also Peter Tatchell (a Gay Rights campaigner) stated that; ‘Cohabiting heterosexuals also lack legal recognition and protection. This is grave injustice. I hope the Government will amend its proposals to ensure legal rights for all unwed couples, gay or heterosexual. Similarly some people have felt that civil partnership registration should be open opposite-sex couples; ‘My only regret is that (the proposal) don’t include provision to include heterosexual couples within the partnership framework, and that the proposals don’t propose marriage option for those same-sex couples who might wish that option’

Thus, the introduction of a registered civil partnership to same sex couple is a suitable way of achieving equality in this country. If the couple prefer not to have rights and obligations similar to that of marriage, they do not have to register their partnership, as this is not forced upon them. As Stuart Bridge commented ‘it can be argued that providing for partnership registration respects the autonomy of the parties to decide for themselves whether they wish legal consequences to flow from their relationship – they do not involve the imposition of status on relationships against the parties wishes’.

Therefore it seems that by registering under the CR is the closest a gay couple will be able to resemble marriage in the UK.

Conclusion

Despite everything, marriage itself is still greatly valued. Couples want a rite of passage, a public announcement of their commitment; or perhaps claim their undying love to one another? These symbolic functions could be just as important for gay couples. There is, however, nothing to stop anyone from devising their own ceremonies for this purpose. In fact, there is reason to believe that some heterosexual couples deliberately go through marriage ceremonies which they regard as binding but which are not recognised in English law so that they can avoid the consequences of marriage. This brings one to question, what value does marriage hold today?

The legal ceremony need only become available to gay couples if the legal consequences of marriage are also wanted or needed. It may be that, rather than wishing to contract into a legal relationship designed with heterosexual couples in mind, many would prefer to devise their own.

    The ultimate issue remains as to how far the law should go in imposing its own theories of the right to arrange and re-arrange ones intimate relationships. It cannot rely entirely on what the couple themselves choose their relationship to be. It has never done so in marriage and the reason for this can apply just as much to other relationships.

Married couples are now allowed a great deal of freedom to arrange their own affairs in the way they want while they are still together, and when things go wrong, we try to prevent them doing too much damage to one another and their children. We also try to enforce their financial responsibilities to one another and to their children and both the present and future divorce laws give them some reason to stop for thoughts about their own and their children’s future.

  So in practice, there is no real reason why a similar combination of choice and responsibility should not be adopted in homosexual relationships in order to promote certainty in a relationship, whether it is in marriage or a relationship.

Moreover, in today’s contemporary society, liberal minded individuals are not going to stand for laws which return to the inequalities of the past and surely they are not going to get married unless they want to do so. But for certain, they will have relationships outside marriage if they want to do so. A proportion of these will be same-sex relationships, regardless of whether others like it or not. Whether this is accepted on a legal or moral basis makes no difference at all and many have made it clear that the gay marriages were compatible with their religious beliefs.

“As a Church of England priest, I warmly and wholeheartedly endorse the proposals for Civil Partnership registration for lesbian and gay couples. Justice for all is one of the central Christian teachings, and at the heart of the Bible. Lesbian and gay people who have made a commitment in a relationship deserve the same rights and benefits as heterosexual couples who marry"

Thus if one agrees with the statement made by Lords Nicholls in Bellinger v. Bellinger abiding by marriage as a union between two member of the opposite sex, we may lose the chance of creating a legal environment in which term ‘family life’ can be extended to foster homosexual marriages and cease to continue to flourish and develop into the future, regardless of one sexual orientation.

[3.998 words]

Bibliography

Bridge Stuart, The Property Rights of Cohabitants, where do we go from here? Family Law Journal 32 (743).

Cooke Elizabeth, Registered Partnerships-coming soon? [March 2002] Family Law Journal

Cohabitation: The Case for Clear Law 2002, pg 1. The Law Society

Herring J, Family Law [2001]

McCafferty C ‘Gays, Transsexuals and the Right to Marry’. May [2002] Family Law

Research Paper 02/17 the Registered (CR) Bill and the Civil Partnership Bill

Responses to Civil Partnership, A framework for the legal recognition of same sex couples. Nov. 2003

Selfe & Burke, Perspectives on sex crime and society. 2nd Ed.

Wintermute Robert and Andenaes Mads, ‘Legal Recognition of Same-sex partnership’ 2001

Wintermute Robert, ‘Lesbians, Gays and Human Rights’, New Law Journal; 13/10/2000.

Website:

Helfer, LR. Sexual Orientation and the European Court of Human Rights: New Activism or Cautious incremenation? ()

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