US Supreme Court opens door to marriage equality, UK coming next

Kris Perry kisses Sandy StierHollingsworth v Perry - No. 12–144 – Read judgment

United States v Windsor - No. 12–307 – Read judgment

In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.

The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.

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Myths and Realities about Equal Marriage

gay_marriage_cake_300The Marriage (Same Sex Couples) Bill is back before Parliament today for the “Report Stage”. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.

I have written a new article for the New Statesman on some of the myths and realities surrounding the debate - you can read it here. It’s all a bit complicated, as you might expect.

Our previous coverage is linked to below. Hopefully, party politics won’t end up derailing this important bill. As the New Yorker recently predicted:

One day, not long from now, it will be hard to remember what worried people so much about gay and lesbian couples committing themselves to marriage.

Equal marriage on the way as Bill published

gaycouple“Marriage of same sex couples is lawful”, begins the Government’s new Equal Marriage Bill, which will, amongst other things, make it legal for gay couples to marry in both civil and religious ceremonies.

Religious communities will not be forced to conduct ceremonies, but will be able to ‘opt-in’ to the new system. However, Church of England communities will not be permitted to opt in even if they want to. The progress Bill can be tracked here – the next reading is in the House of Commons on 5 February. The Bill is summarised as follows:

A Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes.

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Same-Sex Marriage, Child Protection and Extraordinary Rendition – The Human Rights Roundup

gaycoupleWelcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

Same-sex marriage continued to dominate the news this week, with the Church making its views known on the government’s proposals.  Meanwhile, the Supreme Court has been making delicate decisions about the rights of young persons to anonymity in proceedings relating to allegations of abuse.  It would not be a newsworthy week were there not some reference to prisoner voting, and this week the UK was given a pre-emptive warning by the Council of Europe on the matter.  Finally, commentators have been anticipating the imminent publication of the findings of the Commission on a Bill of Rights.

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More Leveson, Channel Islands Homosexuality and Gay Marriage – The Human Rights Roundup

Douglas-Isle-of-Man-001Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

Commentary on the Leveson report is again dominating the blogosphere this week – and once again, there is some discussion on whether the UK should maintain a relationship with Strasbourg. Gay marriage is also back in the news. However, we also have some “new” news, covering such diverse topics as homosexuality in the Channel Islands, “indie lawyers” and legal aid. A quick reminder: tomorrow (Monday 10 December) is Human Rights Day. We will be hosting a guest post which you can read in the morning.

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The conservative case for gay marriage

The current debate on legalising gay marriage was sparked by one of the more memorable speeches of this Government, when Prime Minister David Cameron saidI don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.” 

What has been missing from the debate since that speech has been a convincing, measured discussion from the political right on what he meant. Until now, that is. Today the Policy Exchange, a leading conservative think tank thank, has published What’s In A Name? Is there a case for equal marriage? Don’t be fooled by the question mark in the title. This report represents the best and most carefully considered case for equal marriage from a conservative (with a small ‘c’) perspective so far.

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Church of England’s argument against gay marriage is without foundation – Paul Johnson

At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.

What exactly is canon law and how does it relate to marriage?

Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.

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Will the European Court force churches to perform gay marriages?

The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns that “it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights”

The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.

Let’s consider the argument. The Church puts a number of propositions. First,

It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.

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Should gay marriage be legalised?

The Government has begun its consultation on whether the ban on marriage between people of the same sex should be removed. As suggested by the consultation’s title - Equal civil marriage consultation - the Government is only proposing to remove the ban on civil gay marriage.

The consultation document makes clear that it is “limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnised“. In other words, religious institutions will not be forced to allow same-sex marriages on their premises. And moreover, perhaps in order to dodge some of the controversy which has erupted in recent weeks, there are no plans to allow same-sex marriage to take place on religious premises at all. So even religious denominations which support same-sex marriage in principle will not be allowed to conduct the ceremonies on religious premises.

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Archbishop on warpath

Dr John Sentamu, the Archbishop of York, has thrown  a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is.  “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.

Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to  “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.

In a secular society, the participation of clerics in the  House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint.  The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does,  we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered. Continue reading

Gay marriage on the way… but not quite yet

In his Conservative Party Conference speech the Prime Minister David Cameron signalled his strong support for the legalisation of gay marriage. He said:

Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.

We have covered the slow progress towards legalised gay marriage in a number of posts since this blog launched in March 2010: see the links below. Where are we up to now?

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Will churches really be sued for not allowing civil partnerships?

On 17 February the Home Secretary announced that the government was moving ahead with changes to the Civil Partnership Act 2004 which would allow the registration of civil partnerships to take place in religious premises.

While welcomed by many, some have voiced concerns that permission will inevitably become coercion. They fear that religious organisations may face legal action if they refuse to facilitate civil partnership ceremonies, a claim the Government denies. But will they?

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European states will not be forced to allow gay marriage

Schalk and Kopf v. Austria (application no. 30141/04) – Read judgment / press release / press release 2

The European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria. The effect of the decision is to make the court’s rejection of the same-sex couple’s claim final.

The decision means that the European Court of Human Rights will not force states to allow same-sex couples to marry, for now at least. This has a potential bearing on the UK, where a number of same-sex and heterosexual couples are currently bringing claims against UK laws which permit civil partnerships for same-sex couples but prevents them from marrying.

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Gay marriage rules to be challenged, but courts may say decision is Parliament’s

Campaigners are seeking to challenge the rules against gay marriages and straight civil partnerships in the UK.

If they succeed then this would resolve the somewhat jumbled present position, where gay couples can form civil partnerships – which look almost exactly like marriages but aren’t – whereas straight couples are barred from doing the same.

As I posted here, the legalisation  of gay marriage may be close at hand, and campaigners have chosen Reverend Sharon Ferguson and Franka Strietzel’s impending marriage application as one of eight test-cases to push through the final barrier for same-sex couples.

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Little chance of US-style gay marriage ruling here

A Federal court in California has struck down a ban on gay marriage in the state, marking the first step on a path to a United States Supreme Court decision on the issue. A similar decision is unlikely here, however, given a recent European Court of Human Rights ruling on gay marriage. Ultimately, only Parliament is likely to bring about a change to the law in the UK.

The decision in Perry v Schwarzenegger has been widely reported and can be downloaded here. U.S. District Judge Vaughn R. Walker found that California’s ‘Proposition 8′, approved by voters in 2008, was unconstitutional. SCOTUSBlog explain the reasoning:

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