Pride is celebrated this weekend in London, New York and – most especially – San Francisco where, even as I write, same sex couples are being married after the ruling of the US Supreme Court on Proposition 8. Appropriately, Kris Perry, one of the litigants before the Court was the first to be wed. Matthew Flinn has already posted on this and the Court decision on the Defence of Marriage Act.
It is irresistible to take stock at moments such as these.
France is celebrating its first same sex marriages, Uruguay and New Zealand are close on its tail and the Bill to effect the same in England and Wales should confront its final hurdle on 15 July.
While the Paris, Marche des Fiertes will attract hundreds of thousands of people this weekend and Marseilles hosts Euro Pride a few weeks later, it is interesting to muse why it is that same sex marriage has stirred up such titanic passions on one side of La Manche rather than the other.
In the abstract it is not obvious why such a reform was so difficult in France, the home of universal human rights as opposed to Britain the originator of section 28.
Opinion polls show that support for same sex marriage in France is actually somewhat higher than in the UK. What is controversial in France is that the legislation also introduced adoption by same sex couples. This had already been the subject of an unsuccessful challenge in the ECHR in Gas and Dubois v France (2012) (application no 25951/07).
In England and Wales, by contrast and unusually by international standards, adoption by same sex couples had been legalized in the Adoption and Children Act 2002 (Belgium – one of the pioneers of same sex marriage – did not legalise adoption by same sex couples for some years after gay marriage). The debate at that time was fierce but unlike in France, it did not unite the right but divided it. It left a scar and within two years, the then leader of the Conservative Party, Michael Howard, in his “British Dream” speech, lent his support to the recognition of same sex partnerships. It is interesting to think how much his close political ally, one David Cameron, played a part in that.
The consequence was that the UK enacted Civil Partnerships based on the model of Vermont which gave equivalent legal rights to registered same sex couples as those who were married (this was a more far-reaching scheme than the French pacte civil de solidarité or PACS but excluded heterosexuals).
The election of the Socialist Francois Hollande in France and David Cameron at the head of a centre right coalition in the UK both saw commitments to enact same sex marriage. In England and Wales, the fact that the Civil Partnership Act was so far-reaching has meant that what was being proposed was largely symbolic. By contrast in France, the national assembly was actually reshaping family law.
High politics have also played their part. Whereas in France the opposition used the legislation as an opportunity to undermine the new President, in the UK the principal opposition parties (Labour and the Nationalists in Scotland and Wales) were supportive and constructive with the opposition being confined to a rump on the right. It is arguable that, as with The Netherlands, the presence of Liberals in government was significant (gay marriage was enacted in The Netherlands by a Purple Coalition of two Liberal parties and Labour). However, those close to all the relevant players would indicate that Theresa May played a decisive role in pressing ahead with the change – determined to demonstrate that the Conservatives have socially liberal credentials and banish the “nasty party” stain left by section 28.
The legal profession has not been left untouched by those changes. One could only guess what Lord Hailsham would have made of the appointment this year of Sir Terence Etherton as Chancellor of the High Court and the elevation last month of Sir Adrian Fulford to the Court of Appeal.
There were very few lesbian and gay firms in those days. Finding a sympathetic solicitor for a client could be tricky. Now lesbian led firms like Goodman Ray bestride the City and dominate the law reports. At the Bar, the recent election of Philip Marshall QC as joint head of 1 King’s Bench Walk only emphasises how lesbians and gay men are now part of the leadership of the profession.
There are however some clouds on the horizon. Proposals to remove the right of recipients of criminal legal aid to choose their representatives threatens to undermine some of what has been achieved (see the post by Jim Duffy). If you are a lesbian or gay person in trouble, wouldn’t you want to know that the solicitor you were turning to for advice was sympathetic?
The other problem is proposed restrictions on bringing proceedings such as the recently suggested changes on judicial review and the introduction of disproportionate fees in Employment Tribunals (discussed by Lauren Godfrey here) that are likely to be a harbinger of such charges elsewhere in the Courts and Tribunal system. LGBT may find that whilst their rights are not enacted in law they may struggle increasingly to exercise them.
Let’s just hope it doesn’t rain on the parade in London, San Francisco or Paris.
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