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

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2. An attempt of analysing our approach to marriage is to ask ourselves how many of the same principle might apply to gay and lesbian relationships. A number of views have been expressed that ‘marriage’ between two heterosexual couples is not the same as a ‘homosexual liaison’.

“As a Baptist Minister, I cannot see how gay relationships can possibly be equated to marriage. Marriage is a unique institution because it allows for the possibility of children being conceived and nurtured. In marriage, a man and a woman makes an exclusive commitment to each other. Whilst I recognise that this does not always work out in practice, no comparable situations can ever apply to homosexual couples”

 The question of same-sex marriage is relatively new on the Family law agenda in this country.

 Until the Sexual Offences (Amendment) Act 1957, sexual intercourse between males was a criminal offence. Complaints that such law violated the right to respect for private life under Article 8 of the European Convention on Human Rights were routinely found inadmissible during the 1950s and 1960s. However, things started changing in the 1970s by the Court of Appeal decision in 1981, that the total prohibition in Northern Ireland was a breach of Article 8(1) which could not be justified under Article 8(2) as “necessary in a democratic society” either for the protection of morals or the rights and freedoms of others.

  But that does not mean that same-sex couples have to be accorded the same rights and duties as married or unmarried opposite sex couples. The freedom gained from the interference with one’s “private life” is one thing; giving it the same respect as is due to one’s “family life” under the Convention is another.

     So far the European Commission on Human Rights has not recognised that the relationship of a same-sex couple as constitutes their “family life”.


      In Simpson v UK a woman faced eviction from her house following the death of her lesbian partner, the deceased being the only legal tenant of the house. Under national legislation the court grants a succession right to the person who lived together as ‘husband and wife’, but the Court of Appeal interpreted this phrase as meaning ‘unmarried different sex partner’. The Commission concluded that the applicant did not have a ‘family life’ with her deceased partner. The appellant’s strongest argument was that she had suffered discrimination in relation to her ‘home’, in contradiction of Articles 8 and 14 ‘for no other reason that she was of the wrong sex’. The Commission accepted that she had been treated differently but they found an objective and reasonable justification for such treatment, concluding that it was not ‘discrimination’ because ‘the family (to which the relationship of heterosexual unmarried couples can be assimilated) merits special protection in society and [the Commission] sees no reason why a [government] should not afford particular assistance to families.

  In Roosli v. Germany the Commission merely adopted the same reasoning as that in Simpson. The Commission found no reasoning to depart from Simpson, having regard to the German courts reasoning: ‘Views on marriage and family had changed in society and justified the extension of the [statutory terms ‘family member’] to [unmarried] heterosexual couples. However, homosexual or lesbian couples were not similarly accepted in society’.

Furthermore, the European Court of Justice has adopted a conservative approach in interpreting European Community law in recent cases on lesbian and gay rights. In Grant v. South West Trains the court had to consider whether the extension of employee travel concessions to unmarried heterosexual partners, but not to unmarried homosexual partners, constituted discrimination on grounds of sex under Article 119 of the EC Treaty and Article 1 of the Directive 75/117/EEC. The ECJ pointed out that since the rule applied equally to male and female employees it was not discriminatory on grounds of sex narrowly understood. Further, the Court concluded that ‘in the present state of law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages and stable relationship outside marriage between persons of opposite sex’.

   The judgement shown by the Commission are surprisingly harsh. However, the ECHR appears not to adopt as harsh an approach as the Commission when considering other forms of ‘sexual orientation discrimination. In Salgueiro da Silva Mouta v. Portugal, Salguerio (a gay father) challenged a ruling before the ECHR, arguing that the Court of Appeal violated the convention by refusing to award custody of his daughter solely because of his ‘sexual orientation’. The ECHR held that the Court of Appeal has created ‘a difference of treatment between [the fathers] and [the] mother, which was based on [the father’s] ‘sexual orientation’ and was therefore a breach of Article 14.

      In ADT v. UK a British man had his home searched by police officers. The search revealed video tapes containing footage of A.D.T and up to four other men engaging in consensual oral sex and mutual masturbation in his home. A.D.T was charged and convicted of gross indecency between men. Although the Sexual Offences Act 1967 had abolished the criminal bans on private sexual conduct between consenting adult men, the Act treated as non private any such conduct, including consensual sexual acts in a private residence, in which ‘more than two persons take part are present’. No such restrictions were imposed on heterosexual or lesbian acts. A.D.T challenged both his conviction and the statute itself before the ECHR. The court had no trouble in finding a violation of Article 8 (private life) and did not even find it necessary to consider the fact that statutes discriminated on the basis of ‘sexual orientation’, by not applying the same rule to male-female or female-female activity.

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      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 ...

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