by Erin Culley, Department of Law, University of Greenwich 
The creation of the civil partnership was a clear compromise between the need to recognise a formalised relationship between same-sex couples while still acknowledging the protests of those against the creation of gay marriage. Many were thrilled with the symbolic step taken by Parliament, whereas others were appalled at the creation of a new institution rather than simply permitting same-sex couples access into the institution of marriage. This was the subject of the challenge to the High Court in the case of Wilkinson v Kitzinger  1 FLR 296, where it was argued that the creation of a similar but different institution for same-sex couples was discriminatory and conflicted with the European Convention on Human Rights. This article criticises the decision of Sir Mark Potter, who ruled that though it can be seen as discriminatory, such discrimination is justified on the legitimate ground of the protection of family life. It is argued in this paper that the justifications put forward have no legitimate basis and that the decision was erroneous and was based on a culturally conditioned heterosexual predisposition.
KEYWORDS: Civil partnership, marriage, discrimination, same-sex, sexual orientation, human rights.
In recent years, several countries – the Netherlands, Belgium, Spain, Canada and South Africa – have legislated to permit same-sex marriages. While the law of England and Wales does not allow such marriages, the Civil Partnership Act 2004 has created a legally recognised relationship for same-sex couples, the civil partnership. Apart from minor differences which will be discussed later, there are no noteworthy legal differences between a civil partnership and a marriage. However, in 2006, a same-sex couple challenged its compatibility with the European Convention on Human Rights (ECHR) in the case of Wilkinson v Kitzinger  EWHC 2022 (Fam),  1 FLR 296. This decision will be critically analysed in the light of recent decisions of other common law jurisdictions, which have found prohibitions on same-sex marriages discriminatory. While it is acknowledged that the common law decisions are based on different constitutional models to those of the UK, they prove to be a useful source of comparison on the issue of discrimination, particularly as they are some of the only cases that have directly discussed the issue of same-sex marriage.
Before examining the judgment, we shall explain briefly the role of Parliament and the courts in ensuring compatibility with the ECHR. Prior to the Human Rights Act 1998, challenges to the compatibility of domestic laws were made to the European Court of Human Rights (ECtHR). Challenges may now be made directly to domestic courts. The courts have a duty under s.3 to read all legislation in line with the Convention, if possible, something described by Lord Steyn as the ‘lynch-pin’ of the legislative scheme, its purpose being to ‘bring [Convention] rights home’. (Ghaidan v Godin-Mendoza  UKHL 30 at para. 42). As a ‘last resort’, if ‘reading down’ is not possible, a declaration of incompatibility must be made under s.4 (Ibid. at para 46). This declaration is not binding on Parliament, but changes will usually be made to bring the provisions in-line with the Convention to prevent a challenge to the ECtHR.
The petitioners in Wilkinson v Kitzinger were legally married in Canada and sought a declaration of validity under s.5 of the Family Law Act 1986. However, according to s.11 of the Matrimonial Causes Act 1973, a marriage is void if it is between two persons of the same sex. Furthermore, s.215 of the Civil Partnership Act 2004 provides that any same-sex marriage entered into abroad shall be regarded as a civil partnership rather than a marriage. The petitioners argued that the prohibition on same-sex marriage breached Article 8 of the Convention, which gives every person the right to respect for their private and family life, and Article 12, which provides that every man and woman has the right to marry according to their national laws. Furthermore, they argued a breach of Article 14, which prohibits unjustified discrimination. If the provisions could not be ‘read down,’ the petitioners sought a declaration of incompatibility. The decisions regarding Articles 8 and 12 alone will be discussed here before we commence an analysis of whether the prohibition is unjustly discriminatory under Article 14.
The rights protected within Article 8 are read disjunctively. Sir Mark Potter noted that ‘private life’ has been given a wide interpretation by the ECtHR to include the right to establish relationships (Niemietz v Germany (1992) 16 EHRR 97) and that sexual orientation is one of the ‘most intimate aspects’ of one’s private life (Dudgeon v UK (1982) 4 EHRR 149). Therefore, same-sex relationships came within ‘private life’ and deserved respect (para 68). However, this did not extend to place a positive obligation on the State to recognise same-sex marriages (para 54). Same-sex relationships had been accorded respect through the creation of a formal legal partnership recognising their commitment to each other, so no further steps were required. By prohibiting same-sex marriages, the petitioner’s private life had not been interfered with as her behaviour had not been ‘criminalised, threatened or humiliated’ (paras 85 and 88, on the authority of M v Secretary of State for Work and Pensions  2 WLR 638, hereinafter ‘M v Secretary of State’).
As Wright (2006: 249) argues, if all the rights and responsibilities of marriage are enjoyed within a civil partnership, it is only the public element, i.e. public perception, which has been interfered with rather than interfering with the private element. Therefore, Sir Mark Potter’s analysis would seem correct.
Regarding the ‘family life’ limb of Article 8, attention was drawn to the case of Estevez v Spain (ECtHR, 10 May 2001), in which the State’s failure to give a surviving same-sex partner an allowance available to a surviving spouse was held not to be within the ambit of family life. Further, as there was little common ground on this issue amongst contracting states, the margin of appreciation should be wide. This case was approved in M v Secretary of State. Sir Mark Potter concluded that a childless same-sex relationship is not protected within the term ‘family life’ so there was no breach of Article 8 (paras 85-88).
Kirby identifies that:
the President’s view of what constitutes “family” is one which sits uneasily with the great variety of real families […] that exist in the UK (Kirby, 2007: 415)
While there has been to date no recognition by the ECtHR that a childless same-sex couple constitutes ‘family life’, neither has there been any decision that they would not. (M v Secretary of State at para. 112 per Baroness Hale). The Convention is a ‘living instrument’ (Tyrer v UK (1978) 2 EHRR 138) to be interpreted in the light of ‘present-day conditions.’ (Marckx v Belgium (1979) 2 EHRR 330). Therefore, Lord Mance has suggested that if the question were raised in contemporary circumstances, the ECtHR may find this situation to come within family life (M v Secretary of State at para. 152). However, in the absence of such a decision by the Strasbourg court, the decision of Sir Mark Potter, whilst restrictive, is legally sound. Member states are free to interpret the Convention more widely than the Strasbourg court but they are under no duty to do so. (R (Ullah) v Special Adjudicator  2 AC 323 at para. 20 per Lord Bingham). Sir Mark Potter can be criticised for his failure to take proactive steps to reflect the changes in society’s acceptance of same-sex couples as constituting a family, but he cannot be criticised for his strict application of Strasbourg jurisprudence.
It was further argued by the petitioner that by prohibiting same-sex marriage, the right to marry under Article 12 was breached. The case of Rees v UK (1986) 9 EHRR 56 held that ‘marry’ within Article 12 refers to the traditional marriage between opposite biological sexes. The biological element was held too restrictive in Goodwin v UK  ECHR 16 and marriage was widened to include post-operative transsexuals. However, Sir Mark Potter was of the opinion that the ECtHR had not wished to take more than an incremental step in widening the definition (para. 61). Therefore, there was no breach of Article 12 by prohibiting marriage between same-sex couples.
Should we not have marriage for the twenty-first century reflecting twenty-first century values and not those of a time when the church exercised a far stronger hold? (Crompton, 2004: 889).
There are many ways in which Article 12 could have been interpreted to reflect the modern changes in society. Murphy suggests that ‘men and women’ could simply refer to the fact that the parties must be adults rather than referring to their opposite sexes (Murphy, 2004: 253). Alternatively, it could be argued that while the right is given to both men and women, they do not have to marry each other. However, the ECtHR has consistently ruled that the concept of marriage within Article 12 refers to marriage between a man and a woman (Rees v UK supra). In N v Secretary of State for the Home Department  2 AC 296 it was commented that ‘it is for the Strasbourg Court, not for us, to decide whether its case law is out of touch with modern conditions’ (para. 25). Member states may choose to interpret the provisions more widely but are under no duty to do so. Once again, while Sir Mark Potter is open to criticism for his failure to take proactive steps to recognise changes in society’s views by widening the interpretation of marriage, he cannot be criticised for his application of the Strasbourg jurisprudence.
Having analysed the decision relating to Articles 8 and 12 alone, we have concluded that while the interpretations were narrow, they were legally sound based on the Strasbourg jurisprudence. We shall now move on to analyse the argument of discrimination under Article 14. Article 14 does not stand alone. It will only operate if it is within the ambit of another Convention Article. Discrimination on the grounds of sexual orientation has been held to come within the discrimination prohibited by Article 14 (Salgueiro da Silva Mouta v Portugal (2001) 31 EHRR 47). In determining whether there has been a breach of Article 14, courts must ask whether the facts fall within the ambit of one or more convention rights, whether there was a difference in treatment between those in an analogous position and whether this discrimination could be justified (Wandsworth London Borough Council v Michelak  1 WLR 617). However, while these questions are a useful tool, there is a ‘considerable overlap.’ (Ghaidan v Godin-Mendoza  UKHL 30 at para. 134 per Baroness Hale).
Regarding the first question as to whether the facts fall within the ambit of one or more of the Convention rights, Lord Nicholls states that:
the more seriously and directly the discriminatory provision or conduct impinges upon the values underlying the particular substantive Article, the more readily it will be regarded as within the ambit of that Article’ (M v Secretary of State for Work and Pensions at para. 14 per Lord Nicholls)
The petitioner submitted that by denying same-sex couples the right to marry the person of their choice, this accords a lack of respect for their sexual orientation which is an aspect of their private life within the ambit of Article 8. Wintemute explains that whenever a person has to choose between their sexual orientation (an aspect of their private life) and an opportunity (marriage), it comes within the ambit of their Article 8 right to respect for private life (Wintemute, 1997).
Sir Mark Potter was not prepared to accept the argument that the provisions came ‘within the ambit’ of Article 8 as he did not wish to give the provision:
an artificially extended interpretation so that virtually any social policy measure which has a link to a person’s personal life is brought within the Convention’s protection (para. 106).
It would seem odd that Sir Mark Potter refers to marriage as comparable to ‘virtually any social policy measure’, having previously emphasised the symbolic nature of marriage. It is arguable, therefore, that his decision that this was not within the ambit of Article 8 was overly restrictive. Alternatively, it may be that the ECtHR would find this to be within the margin of appreciation as it such a sensitive issue. However, in relation to Article 12, Sir Mark Potter was prepared to find that by legislating on the issue of same-sex marriage where the state was under no positive obligation to do so, the state brought the provisions within the ambit of Article 12 (Petrovic v Austria (2001) 33 EHRR 14; see also Ghaidan v Godin-Mendoza  UKHL 30).
Having now answered the first question, that of whether the facts fall within the ambit of one or more convention rights, we now move to consider the second and third: whether there was a difference in treatment between those in an analogous position, and whether this discrimination could be justified. The petitioner argued that while the legal implications of a civil partnership were virtually identical to marriage within England and Wales, one might face problems when travelling to other countries, as a civil partnership is not globally recognised so treatment may vary. In addition, the petitioner argued that while the legal effect of a civil partnership is virtually identical to that of marriage, in reality, an intangible benefit is denied, namely ‘access to a deeply meaningful institution’ (para. 100 citing Halpern v Canada (Attorney General) (2002) CanLII 427949 (on S.C.D.C)).
Sir Mark Potter was prepared to find that a difference in treatment had been suffered by persons in an analogous position (para. 111). However, on the third question of whether such a difference in treatment could be justified, he held that it could be, for the protection of the traditional family (following the decision in Karner v Austria (2003) 38 EHRR 528). As the only difference in treatment was the symbolic effect of the distinction rather than any notable legal differences, the distinction was considered proportionate in achieving that aim (para. 112).
The decision concerning Article 14 has received the most criticism. Bamforth questions why such little weight was attached to the symbolic differences between marriage and civil partnership as they had been given such weight by the petitioner (Bamforth, 2007a). There are many ways in which it could be said that a civil partnership is symbolically different to a marriage. One example is that while the legal consequences of a civil partnership are virtually identical to marriage, the slight differences may have a symbolic effect. One difference is that while the facts for proving the grounds for dissolution are identical to divorce, adultery has been omitted. Further, the ground of non-consummation for nullity is not present. While these omissions are minor in practice, Cretney (2006) believes that they may indicate that a civil partnership is to be regarded as merely a legal status rather than a method of recognising an intimate familial relationship. He suggests that it could even be abused as a ‘tax haven’ between friends.
Another legal difference regards the presumption of parenthood. Under s.28(2) of the Human Fertilisation and Embryology Act 1990, a husband is regarded as the legal father of a child obtained through assisted reproduction. This is based on a historical presumption of legitimacy rather than any biological link to the child, as a donor’s sperm was used. Similarly, this will apply to an unmarried heterosexual partner under s.28(3). However, under the current law, a civil partner will not benefit from these provisions. This distinction is to be revised by the Human Fertilisation and Embryology Bill so that the same-sex partner of a woman receiving treatment at a licensed clinic will be regarded as a legal parent. However, taking the law in its current state, there remains a distinction, which may have symbolic effect.
Crompton (2004: 888) argues that by creating a separate institution for same-sex couples, regardless of the fact of whether the rights enjoyed are identical, the message portrayed is that same-sex relationships are less valued than opposite-sex relationships and that for true equality, same-sex couples should be permitted to marry. Bamforth (2007) questions Crompton’s analogy that ‘different cannot be equal.’ However, he points out that the fact that Crompton acknowledges that the legal consequences of a civil partnership are virtually identical to marriage but still has issue with the distinction, highlights how much symbolic importance she attaches to the difference in institution.
In her statement (paras 5-9), the petitioner spoke of marriage as ‘society’s fundamental social institution for recognising the couple relationship’ and that it represents the ‘highest form of recognition for a committed relationship’. She said that to have her Canadian marriage reduced to a civil partnership would be a ‘consolation prize’ and would be ‘offensive and demeaning’ leading to a ‘sense of alienation and marginalisation’ so that she feels she would be ‘deprived of full citizenship.‘ It was argued that to prohibit access to this symbolic institution based on sexual orientation would be as ‘fundamentally unjust’ as to do so ‘on the basis of their race, ethnicity and nationality, religion or political beliefs.’ However, Potter simply stated that the views of the petitioner were not the views of every other gay or lesbian person (para. 116).
This is surprising given the amount of weight attached to the symbolic state of marriage by the courts in other common law jurisdictions. In the Canadian case of Halpern v Canada (Attorney General) (2002) CanLII 427949 (on S.C.D.C), attention was drawn to the feelings of self respect and self worth associated with marriage: ‘the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage.’
Similar views were held by the Massachusetts court in Hilary Goodridge v Department of Health 798 N.E. 2d 941 (Mass 2003) (Supreme Court of Massachusetts 2003) and South African court in Minister of Home Affairs v Fourie (1) SA 524 (CC) (Constitutional Court of South Africa, 2005):
the capacity to choose to get married enhances the liberty, the autonomy and the dignity of a couple committed for life to each other. It offers them the option of entering an honourable and profound estate that is adorned with legal and social recognition, rewarded with many privileges and secured by many automatic obligations (para. 16).
While these jurisdictions did not offer an alternative to marriage like the civil partnership, it demonstrates that the petitioner in Wilkinson v Kitzinger was not alone in the amount of importance she attached to the symbolic status of marriage. Rainscourt comments that:
whilst this may only be a linguistic difference [between marriage and a civil partnership], this couple chose to marry and enjoy all the social recognition which accompanies that state, and […] this should not be denied them (2006: 152).
In addition to criticism of Sir Mark Potter’s failure to attach adequate weight to the symbolic differences, his methods of justification for the difference in treatment have also been questioned. The case of Karner v Austria (2003) 38 EHRR 14 states that if there is a difference in treatment based on grounds of sexual orientation, particularly serious justification is required. Although in principle, protection of the family in the traditional sense is a ‘weighty and legitimate aim,’ it is necessary to identify which element of the traditional family is being protected (Ghaidan v Godin-Mendoza  UKHL 30). Sir Mark Potter identified these as the protection of the traditional family as the most ‘desirable form in which to create and bring up children’ and the protection of ‘marriage in the traditional sense.' (para. 118). These will be considered in turn.
While it cannot be disputed that many marriages involve procreation, this is not its only purpose.
It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine quo non of civil marriage (Hilary Goodridge v Department of Health 798 N.E. 2d 941 (Mass 2003) (Supreme Court of Massachusetts 2003)).
Procreation is not a prerequisite of marriage (Goodwin v UK  ECHR 16). Heterosexuals are not prohibited from marrying simply due to infertility or impotence. Further, same-sex couples can become parents through artificial insemination, intercourse with a third party or adoption. It is not a condition that any child of the family is biologically linked to both parties as this may often be the case following infidelity or artificial reproduction. Therefore, the inability to conceive a child naturally, which is biologically linked to both partners, cannot be grounds for denying same-sex marriage. Further, by permitting same-sex couples to marry, heterosexual couples would not cease to reproduce (Halpern v Canada (Attorney General) (2002) CanLII 427949 (on S.C.D.C)). Therefore, justifying the prohibition of same-sex marriage for the purpose of ensuring procreation has no logical basis.
Regarding the argument that an opposite-sex environment is the best environment in which to bring up a child, there has been no conclusive evidence to support this view. In fact, research has concluded that there are no negative effects on the development of children with same-sex parents (Tasker, 2007). Further, Parliament now permits same-sex couples to adopt so cannot argue that they do not make good parents. Therefore, any argument based on this ground would appear unfounded (on this point see also Halpern v Canada para. 121).
In considering the second justification, the protection of ‘traditional marriage,’ the first question must be why the marriage to be protected is ‘heterosexual.’ One argument is that marriage was traditionally a religious institution. However, as the courts stated in Minister of Home Affairs v Fourie, while many see a religious dimension to marriage ‘this is not something that the law is concerned with.’
A second argument is that marriage has traditionally always been between a man and a woman so this tradition should continue. The argument that marriage ‘just is heterosexual because it always has been’ was strongly rejected in Halpern v Canada as it side-steps the issue. Allen identifies that:
the fact that marriage has not included same-sex couples in the past does not explain why that cannot be so now anymore than anti-miscegenation laws that prevented interracial couples from marrying justified continuation of those laws (1996: 619).
Murphy suggests that:
a major cause of the current tendency to give Article 12 a heterosexist interpretation is the fact that it is being read through culturally conditioned heterosexist eyes (2004: 253).
It may be argued that by altering the composition of marriage, the cultural meaning of marriage will be lost. However, Norrie points out that the same argument could equally have been argued in favour of prohibitions against inter-racial marriage (Norrie, 2003), which the majority now recognise as wrong. He suggests that ‘traditional marriage is, in reality, an ever-evolving beast.’ Discrimination should not be preserved simply on the grounds that it has ‘always been that way.’ We now recognise that views held in the past are wrong by today’s standards. Therefore, there does not seem to be any justification for retaining marriage as a purely heterosexual institution simply based on its previous cultural meaning.
Even if the protection of heterosexual marriage was a legitimate aim, as Baroness Hale identifies:
no-one has yet explained how failing to recognise the relationships of people whose sexual orientation means that they are unable or strongly unwilling to marry is necessary for the purpose of protecting or encouraging the marriage of people who are quite capable of marrying if they wish to do so (M v Secretary of State).
A heterosexual person would not choose to marry a person of the same sex just because such marriages were permitted, because their sexual orientation dictates that they would want to marry someone of the opposite sex. Therefore, the prohibition of same-sex marriage will not achieve the aim of protecting heterosexual marriage, as it will not reduce the numbers of heterosexuals who marry. In fact, Toerien and Williams (2003) identify that some heterosexual couples may actually be opposed to marriage because of the exclusion of same-sex couples. Therefore, if same-sex marriages were permitted, it may even have a positive effect on the numbers of heterosexual marriages.
Further, even if the prohibition of same-sex marriage did have an effect on traditional marriage, how can such discrimination be proportionate in the pursuance of that aim? Sir Mark Potter considered the discrimination proportionate as the differences in treatment were merely symbolic rather than being any notable legal differences (para. 116). However, as identified in the Canadian case of Egan v Canada  2 S.C.R. 513:
official state recognition of the legitimacy and acceptance in society of a particular type of status or relationship may be of greater value and importance to those affected than any pecuniary gain.
By creating a legally equivalent but symbolically lesser institution for same-sex couples, Parliament has legitimised and even strengthened the discrimination between same-sex couples and heterosexuals. To have their state deny them of one of its fundamental institutions simply cannot be proportionate to the aim of protecting the 'culturally conditioned heterosexist' ideal (Murphy, 2004: 253) of the ‘traditional family,’ which no longer reflects the realities or values of modern society.
It has been concluded that the argument that the prohibition of same-sex marriage is justified for the protection of the traditional family as the best environment for the creation and rearing of children, has no merit. Further, it has been argued that ‘traditional marriage’ should not be regarded as purely heterosexual, any more than it should be regarded as purely mono-racial and that even if this aim were legitimate, the legalisation of same-sex marriage would have no effect on its continued existence. Furthermore, formal state recognition of the symbolic differences between a heterosexual relationship and a same-sex relationship cannot be regarded as proportionate to the pursuance of such aims, simply because the difference in treatment is symbolic rather than legal.
Crompton (2004) asks, ‘is this the lingering smell of homophobia?’ It would appear that in disproving the merit of the justifications put forward by Sir Mark Potter, the only remaining explanation for the prohibition of same-sex marriage is a continuing resistance to divert from the 'culturally conditioned heterosexist' view (Murphy, 2004: 253) that marriage can only ever be a heterosexual institution, which has no justification. For this reason, it is respectfully submitted that Sir Mark Potter erred in finding that the discrimination was justified and should have issued a declaration of incompatibility under s.4 of the Human Rights Act 1998 as the provisions appear to breach Article 14 when read in conjunction with Article 12.
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