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

1 November 2010 by Adam Wagner

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.

At present, same-sex couples can form a civil partnership which has most of the features of marriage, but they cannot be officially married. The Equal Love campaign, launched by Peter Tatchel and OutRage!, has chosen four gay and four straight couples to fight both the ban on marriage for same-sex couples and also the ban on hetrosexual couples forming civil partnerships.

It is difficult to justify the current imbalance of rights, which arises from compromise rather than principle. The 2004 civil partnerships legislation effectively gave same-sex couples the same rights as heterosexual couples in respect of property, tax and pensions. But the legislation fell short of providing full marriage rights, mainly as a compromise to religious authorities, some of which were opposed to the reforms.

The legal challenge will presumably come by way of judicial review. If the courts entertain the issue, it may well reach the Supreme Court as this is clearly a matter of public importance. However, the court may ultimately say – with some justification – that this is a decision for parliament rather than for them. The Supreme Court will be wary of making pronouncements on complex and controversial social issues given the trouble its United States equivalent has had over issues such as abortion.

From a human rights perspective, the European Court of Human Rights has recently rejected an argument that Austria’s refusal to grant same-sex marriages represented a breach of their human rights. The decision in Schalk and Kopf v. Austria was expressly supported by the previous government. So the UK courts would have an effectively blank canvas (that is, with no supportive European authority) on which to decide the case. And, unlike in the US, even if campaigners win in the Supreme Court, this will not automatically lead to any change in the law. The most they can hope for is a declaration that current marriage laws are incompatible with the European Convention on Human Rights or a (non-binding) order ‘quashing’ the rules.

Tactically speaking, campaigners will be looking to the United States where a Federal court in California recently 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. In that case, the applicants relied not just on principle but also an elaborate evidence-based analysis of the sociological status of gay marriage. This allowed the judge to find that “The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage“. I suggested at the time that such an approach may not work here, but it is certainly worth a try, and would answer some of the likely reservations from the courts that whilst they can rule on legal principle, only Parliament has a proper view of the will of the people.

Despite the controversy surrounding it, the Civil Partnership legislation has been operating for 5 years without any public outcry. In fact, a decent majority appear to support full gay marriage. This suggests that the UK is probably ready for an upgrade to full marriage equality. The courts may ultimately say that this decision must come from Parliament. Nevertheless, the campaigners will be hoping that the publicity surrounding the test cases will push the government into action.

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