Status Same-Sex Marriages in the UK - Case Study Example

Same Sex Marriages The United Kingdom recognises all marriages that have been legally conducted abroad. However, it does not accord the same status as marriage, to same sex marriages that have been conducted legally in some other country. The proponents of same sex marriages accuse the UK of wilful discrimination against people who undergo a same sex marriage (Shoffman, 2006). The UK as a democratic society has to ensure that each and every individual is treated equally before the law. The advocates of same sex marriage argue that civil partnerships do not denote equality. They assert that the UK is practicing gender apartheid. Thus, the law relating to heterosexual marriages differs from the law relating to homosexual marriages, in the United Kingdom. The UK enacted the Civil Partnership Act to provide legality to the relationship between same sex couples. This Act served to encourage many homosexuals to demand a legalisation of same sex marriages. English Law does not recognise marriage between members of the same sex. Such marriages have been legalised in countries like Canada (Conaghan, 2007). Marriage between members of the same sex has been designated as civil partnerships in the UK. This legal stance of the UK, with regard to same sex marriages was challenged in Wilkinson v Kitzinger, which proved to be a futile attempt. Wilkinson and Kitzinger were not willing to allow their marriage to be recognised as civil partnership in the UK. They brought a lawsuit, stating that civil partnership did not provide them with the status accorded to heterosexual couples. Their case was the first to challenge the provisions of the Civil Partnership Act. They invoked the Human Rights Act in their defence and contended that the HRA provided the same recognition to same sex partnerships as it did to heterosexual partnerships (Matrix barrister takes stand on same-sex marriage recognition, 7 March 2005, P 17). Some legal commentators were of the opinion that the HRA did not apply to the Wilkinson’s case and that it should not be provided recognition that was equivalent to what was provided in respect of opposite sex marriages. Civil partnerships are not regarded universally, as being equal to marriages; and do not enjoy the same status as heterosexual marriages. Therefore, couples in same sex marriages are likely to feel denigrated for having been offered an inferior option to marriage. As such, proponents of same sex relationships often demand the provision of legal recognition to their status (Evans, January 20, 2006, P. 4). The petitioners in Wilkinson had applied for the legal recognition of their marriage in the UK under Section 5 of the Family Law Act 1986. Section 11 of the Matrimonial Causes Act 1973 states that marriage between two persons of the same sex is null and void. Subsequently, section 215 of the Civil Partnership Act 2004, states that same sex marriages that had transpired abroad are to be considered, only as civil partnerships (Culley). The petitioner moved the court to declare her marital status, in respect of Celia Kitzinger. She had married Celia in British Columbia in August 2003. This petition was rejected by the High Court on the grounds that same – sex marriages were treated as civil partnerships under the legislation of the United Kingdom; despite being considered to be legally valid marriages, under Canadian law (Wilkinson v. Kitzinger). As such, English Law does not recognise homosexual marriages. The supporters of the lesbian movement criticised the UK’s refusal to recognise such marriages, and held it be similar to the racial segregation that was practiced in the US in the past (Muir, June 7, 2006, P. 12). The Civil Partnership Act provides all inclusive rights to same sex couples, whose partnership had been registered in the United Kingdom. Nevertheless, it is incapable of being interpreted in accordance with the Convention rights. A superficial view leads to the conclusion that it would be quite difficult to envisage partnership rights in similar terms in the UK. Such a conclusion is supported by the absence of a written constitution and general theory of conventionally well-established legislation (Bamforth, 2007, P133). This renders the Civil Partnership Act 2004 akin to any other piece of legislation. However, a constitutional perspective has been incorporated due to the Human Rights Act 1998; which amalgamates the Article 14 provisions regarding non discrimination, especially in respect of sexual orientation, of the Convention rights, into national law. Section 3 of the Human Rights Act 1998, requires any piece of legislation to conform to the Convention laws (Bamforth, 2007). The petitioners in this case, contended that the prohibition of same sex marriage violated the provisions of Article 8 of the ECHR. This piece of legislation provides a right to respect for private and family life to every individual. Moreover, Article 12 ECHR provides a right to every individual to marry in accordance with that person’s domestic legislation (Culley). Article 8 of the ECHR specifies the right to respect for family life and privacy; Article 12 describes the right to marry and raise a family, by eligible men and women; and Article 14 states that the Convention rights are to be secured without any discrimination on the basis of sex, ethnicity, language, religion, colour, birth, national origin or political opinion. As such, the ECtHR has been extremely circumspect, whilst according protection to the rights of people in non – traditional marriages (Kukura, Winter 2006). Each and every human rights instrument supports the notion of protecting the family. However, international law has failed to provide an unambiguous and precise definition of family or family life. In order to circumvent this dearth of consistency, it would be appropriate to interpret family, as per the human rights law; on the basis of the persons included or excluded from the protection accorded by such law. As such, the enactment of the 2004 Act was to provide and enforce the rights, benefits and advantages provided to heterosexual marriages, to same sex relationships. This Act eliminates the legal and social disadvantages experienced by homosexual couples. Moreover, the petitioners argued that the UK had breached Article 14 ECHR. This Article prohibits unjustified discrimination against individuals. Therefore, the petitioners sought a declaration of incompatibility with the ECHR from the court. The petitioner argued that marriage was a traditional and social institution that constituted the zenith, in the context of committed relationships (Culley). They argued that this categorisation had resulted in a sense of estrangement and exclusion from meaningful participation in society, which consequently deprived them of full citizenship. They further contended that prohibiting them to access the social and traditional institution of marriage on the basis of sexual orientation was fundamentally unjust. Such a prohibition would be tantamount to segregation on the basis of race, nationality or religion. This argument was refuted by the Law Lord who held that principal objective of the Act was to provide rights to same – sex partnerships that were analogous to the rights provided in heterosexual marriages. Moreover, English Law recognised the right of homosexual couples to be close, loving and enjoy a monogamous relationship (Same-sex marriage abroad is civil partnership here, August 21, 2006, Pg. 45). In other words, these couples were provided with all the benefits enjoyed by married couples. Moreover, his Lordship opined that the application of discriminatory treatment for different relationships was legally appropriate and legitimate. Such discriminatory treatment had two dimensions associated with it. First, it aimed to provide formal recognition to relationships between same – sex couples. These homosexual relationships had all the characteristics and features of a heterosexual marriage, with the exception of producing children. Second, the institution of marriage was to be the sole preserve of a union between two members of the opposite sex (Same-sex marriage abroad is civil partnership here, August 21, 2006, Pg. 45). However, Sir Mark Potter interpreted the provisions of Articles 8, 12, and 14 ECHR in the light of the traditional concept of the family; which he described as natural, normative and worthwhile. English law provides certain definitions and principles with regard to the family. However, these concepts are alien to the precepts of the European Court of Human Rights. Therefore, an inconsistency arises in English law, because reliance on the provisions of the ECHR requires even a same sex family to be regarded as legitimate (Harding, 2007, p223-234). Sir Mark Potter while taking into account the human rights aspects of the case, under the provisions of Article 8, 12 and 14 of the ECHR; promoted the ideology of the traditional family and opined that this concept was natural and desirable. He also recognised these elements of a traditional family that best ensure the procreation and proper upbringing of children. In his opinion, these traditional family elements were best protected by the traditional concept of marriage (Culley). Therefore, the prohibition of same sex marriage was justified, because such proscription would be to the immense benefit of the traditional family principle of providing the best possible environment for procreation of children and their upbringing. This argument is prima facie untenable and biased. Accordingly, the Law Lord was of the opinion that interpreting Article 12 of the ECHR, in a manner that was contrary to the meaning attached to it at the time of the formation of the Convention would be inappropriate (Same-sex marriage abroad is civil partnership here, August 21, 2006, Pg. 45). As per Potter the interpretation of Article 12 ECHR, desired by the petitioner, would be contrary to the extant approach in most of the Member States. In areas of social, political and religious issues, the European Court of Human Rights or ECtHR displays a reluctance to overrule national practices or traditional approaches. Within the European Union, the different Member States follow different traditions (Same-sex marriage abroad is civil partnership here, August 21, 2006, Pg. 45). Thus, the approach of Member States to such issues is consequently at variance with each other, and there is a lack of uniformity. The UK is a signatory to the ECHR. Therefore, the national courts of the UK and the Acts of the Parliament have to be in accordance with the provisions of the Convention (Culley). On numerous occasions, the domestic legislation of the UK had been challenged for its compatibility with the ECHR. However, it is incumbent upon the National courts of the UK to interpret the provisions of the national law, in accordance with the provisions of the Convention, and this constitutes the gist of Section 3(1) of the Human Rights Act 1998 (Crown copyright 2002 - 2008, 1998). Moreover, in the UK, the jurisprudence relating to human rights is dependent on the decisions of the European Court of Human Rights or ECtHR. However, the rights and responsibilities claimed by homosexuals tend to test the extent to which the traditional laws of the UK have to be modified, in order to conform to the decision of the ECtHR (Harding, 2007). In this highly contentious legal environment, the decision in Wilkinson v Kitzinger served to bring to the forefront, a number of issues regarding the rights of homosexuals. This decision generated considerable debate about the advantage or disadvantage of employing marriage to control interpersonal relationships. The Civil Partnership Act was challenged in Wilkinson v Kitzinger, wherein the petitioner held it to be in violation of the provisions of the ECHR. The decision in this case resulted in wide spread discussions among homosexual couples, who argued that countries that follow common law had recognised same sex marriages. The decision in this case was felt to be discriminatory. However, it is to be understood that the decisions in those countries were on account of different constitutional models. Formerly, same sex marriages were illegal in the United Kingdom. However, some changes were effected to the law, in this area, in December 2005. These changes have permitted civil partnerships, which grant rights and duties to the couples in such partnerships. The couples in these arrangements, including same – sex couples; are provided with rights that are equivalent to those provided to married couples (Jeffries, 10 June 2006, P 25). Lord Steyn in the Ghaidan v Godin-Mendoza case had commented that section 3 of the Human Rights Act 1998 was central to the legislative scheme. He was of this opinion, because this section enabled petitioners to bring pressure to bear upon the courts to enforce the rights provided by the Convention. Moreover, the courts can deviate from Convention provisions; only by making a declaration of incompatibility with domestic legislation, under section 4 of the Human Rights Act 1998 (Ghaidan v Godin-Mendoza). In this case the House of Lords decided that same sex partners should be treated similar to heterosexual partners. However, such declaration is not binding upon Parliament. Nevertheless, it has been the usual course for Parliament to implement modifications to domestic law, in order to give force to the Convention rights. This move is aimed at preventing lawsuits being filed before the European Court of Human Rights. A similar judgment was passed by a South African court. In Minister of Home Affairs v Fourie, it was held that the power to choose to marry increases the liberty of the couple. Moreover, such capacity enhances their autonomy and dignity to lead a committed life in that marriage. The capacity to marry provides them with an opportunity to enter an honourable and profound domain (Minister of Home Affairs v Fourie). This situation would provide them with legal and social recognition. It would also impose some obligations on the couple, while bestowing certain privileges upon them. The decision in Karner v Austria demonstrates that there should not be any divergence in treatment that is based on sexual orientation. Any such discrepancy requires serious and adequate justification (Karner v Austria). Therefore, in the absence of proper justification, sexual orientation cannot be a determining factor in decisions. The decision in Wilkinson v Kitzinger was at variance to the decisions in other common law jurisdictions, which had accorded legal recognition to same – sex marriages. For instance, in Halpern v Canada (Attorney General), the court gave much importance to the feelings of self respect and self worth, in the context of marriage. In that case, it was held that same sex couples should not be denied access to the social institution of marriage; which would be a violation of their dignity and self respect (Halpern v Canada (Attorney General)). In Hilary Goodridge v Department of Health, the Massachusetts court supported similar views (Hilary Goodridge v Department of Health). The proponents of same sex marriage have vehemently argued that it is not correct to accord a lower status to marriages that take place between members of the opposite sex. Such measures would be equivalent to enjoining purely mono racial marriages. Moreover, if protection of children and their welfare is a legitimate aim under the traditional family concept, then the recognition and legalisation of same sex marriages could in no conceivable manner impede or influence such legitimate aims (Culley). These traditional family objectives can subsist even after same sex marriages are legalised. Several countries have recognised same sex marriages and provided them with a legal status. The Netherlands, Belgium, Spain, Canada and South Africa have enacted legislation that permits same sex marriages. However, the UK and Wales have not accorded such legitimacy to same sex marriages (Culley). According to some legal luminaries, the legal recognition provided for the marriage like status of homosexual relationships in England and Wales, Scotland and Northern Ireland would be adequate for satisfying the requirements of the European equality injunction (McNamara, 2007, P128). As such, the status of civil partnerships in the United Kingdom would suffice to satisfy the equality principle of the European Union. The concept of civil partnership as an alternative to marriage, is absent, in many common law jurisdictions. This demonstrates that these jurisdictions have attached the same importance to homosexual marriages as heterosexual marriages. These jurisdictions have provided the same legal recognition to homosexual marriages as heterosexual marriages. The decision in Wilkinson v Kitzinger, with regard to Article 14 ECHR was criticised by many academicians and feminist groups. Although, the petitioner had based her argument on this Article, the presiding judge had deemed it fit to ignore the purport of this important piece of legislation. Moreover, he had dismally failed to attach sufficient importance to the differences between heterosexual marriages and civil partnerships (Bamforth, 2007, P133). There are several symbolic differences between same sex marriages and civil partnerships. Although, the legal consequences for both these systems are almost similar; there persist some subtle differences. For instance, the persons staying together in the relationship can call for a separation in both cases. However, the grounds for such separation differ, in as much as, adultery has not been made a ground in civil partnerships, whereas it is a ground for divorce in marriage (Culley). Moreover, non consummation of the relationship is not a ground for dissolution in civil partnership, whereas it constitutes a ground for divorce in marriage. These and other factors illustrate the fact that civil partnerships are merely legal structures, which are bereft of familial relationship between the partners. Some people have even contended that civil partnerships have been misused by friends to evade taxes (Culley). The concept of parenthood is absent in same – sex marriages. Section 28(2) of the Human Fertilisation and Embryology Act 1990, states that the husband is the legal father of the children obtained through assisted reproduction. This stipulation is founded on the historical assumption of legitimacy and not on any biological connection of the parent to the child. It is to be borne in mind that in assisted reproduction the sperm of a donor is used. In civil partnership arrangements, these legal principles do not provide any benefits or advantages to the partners (Crompton, 2004, P 888). In order to make one of the partners a parent of the child obtained from in vitro reproduction, the law has to be amended. This is one of the disadvantages inherent in the relationship of civil partnership. In the United Kingdom, it is the common perception of the populace that same sex couples can never receive the value and respect that is accorded to heterosexual couples. Legislation and bestowal of benefits cannot change this self evident truth. (Crompton, 2004, P 888). As such, the UK refused to recognise same sex marriages that had taken place abroad. Thus, the UK transgressed its commitment to treat its citizens equally and without any discrimination. Specifically, the UK had accorded its recognition to heterosexual marriages conducted in Canada, but it had refused to accord such recognition to homosexual marriages conducted there. It had indulged in this inequitable act on the pretext that the concept of traditional marriage would be compromised. Consequently, homosexual couples in the United Kingdom are accorded a lower status in comparison with heterosexual couples. The UK provides the status of civil partnership to same sex marriages. The relationship between the couple in same sex marriage is that of a civil partnership relationship. The introduction of civil partnerships in the United Kingdom proved to be a major development in the context of gay and lesbian rights. It constitutes the first step towards engendering acceptance of same sex families in the United Kingdom. However, civil partnership can never attain the status of marriage. Despite according some rights and benefits, civil partnership does not fully prevent the exclusion of homosexual persons from normal society. This pernicious categorisation represents a symbolic separation of these two classes. Furthermore, such classification, only serves to convince society that the civil partners enjoy a relationship that is not worthy of recognition. Thus, the civil partnership institution generates discrimination towards the people in these arrangements. Such discrimination is unjust and unwarranted in any democratic society. Separation should never connote inequality. Several common law nations have legalised same sex marriages. Unfortunately, the English law, Vis – a – Vis homosexual marriages, has proved to be conservative and unimaginative. As such the decision in Wilkinson v Kitzinger proved to be discriminatory, in comparison to the decision in other common law jurisdictions. Bibliography Bamforth, N. (2007, P133). The benefits of marriage in all but name? Same - Sex couples and the Civil Partnership Act 2004. Child and Family Law Quarterly , 19(2). Conaghan, J. (2007). Teaching From The Left: A Conference At Harvard Law School: Part I: Legal Education: The Left: In Memoriam? New York University Review of Law & Social Change , 31: 455 . Crompton, L. (2004, P 888). Civil Partnership Bill 2004: The Illusion ofEquality. Family Law , 34. Crown copyright 2002 - 2008. (1998, November 9). Human Rights Act 1998. London, United Kingdom: Her Majesty's Stationery Office. Culley, E. (n.d.). Justified Discrimination? A Critical analysis of the decision in Wilkinson v Kitizinger (2007) 1 FLR 296. Retrieved March 21, 2009, from http://www2.warwick.ac.uk/fac/soc/sociology/rsw/undergrad/cetl/ejournal/issues/volume1issue2/culley/ Evans, M. (January 20, 2006, P. 4). All part of legal recognition. Birmingham Post . Ghaidan v Godin-Mendoza, (2004) UKHL 30 . Halpern v Canada (Attorney General), (2002) CanLII 427949 (on S.C.D.C). Harding, R. (2007). Sir Mark Potter and the Protection Of The Traditional Family: Why Same Sex Marriage Is (Still) A Feminist Issue. Feminist Legal Studies , 15:223–234 . Harding, R. (2007, p223-234). Sir Mark Potter And The Protection Of The Traditional Family: Why Same Sex Marriage Is (Still) A Feminist Issue. Feminist Legal Studies , Vol. 15 Issue 2, (AN 25277766). Hilary Goodridge v Department of Health, 798 N.E. 2d 941 (Mass 2003) (Supreme Court of Massachusetts 2003) . Jeffries, S. (10 June 2006, P 25). Interview: Mrs & Mrs: The high court has reserved judgment over a lesbian couple seeking British recognition of their marriage. But the two wives remain wedded to the cause. The Guardian (London) . Karner v Austria, (2003) 38 EHRR 14 . Kukura, E. (Winter 2006). Finding Family: Considering the Recognition of Same-Sex Families in International Human Rights Law and the European Court of Human Rights. Human Rights Brief , Vol. 13, Iss. 17, Pp.18 – 19. Matrix barrister takes stand on same-sex marriage recognition. (7 March 2005, P 17). The Lawyer . McNamara, L. (2007, P128). Human Rights Controversies: The Impact of Legal Form. Routledge, ISBN 190438532X, 9781904385325. Minister of Home Affairs v Fourie, (1) SA 524 (CC) (Constitutional Court of South Africa, 2005). Muir, H. (June 7, 2006, P. 12). UK ban on lesbian marriage likened to racial segregation: High court challenge by couple married in Canada: Relationship downgraded to civil partnership. The Guardian (London) . Same-sex marriage abroad is civil partnership here. ( August 21, 2006, Pg. 45). The Times (London) . Shoffman, M. (2006, June 5). Lesbian couple seek UK gay marriage rights. Retrieved March 21, 2009, from http://www.pinknews.co.uk/news/articles/2005-1651.html Wilkinson v. Kitzinger, (2006) E.W.H.C. (Fam.) 2022; (2006) H.R.L.R 36. Read More