Category: Article 12 | Right to Marry / Found Family
15 March 2012 by Adam Wagner
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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10 October 2011 by Adam Wagner
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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29 March 2011 by Guest Contributor
The relationship between the expression of religious beliefs and practice and equality law is a fraught one, and particular difficulty has been experienced in the matter of the application of the law outlawing discrimination.
Equality law, as currently interpreted, treats the six prohibited grounds of discrimination – age, disability, race, religion, sex (including transgender status) and sexual orientation – as being of equal weight and standing; there is no hierarchy among these grounds.
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24 February 2011 by Matthew Flinn
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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4 January 2011 by Adam Wagner
Quila & Ors v Secretary of State for the Home Department & Ors [2010] EWCA Civ 1482 – Read judgment
A key part of the government’s strategy to combat forced marriages, preventing people under the age of 21 from entering the country to marry, has been heavily criticised by the Court of Appeal.
The decision shows that even policies which pursue a legitimate and laudable aim must still be a proportionate to the problem they seek to address, or risk breaching the human rights of those affected. But it also highlights how difficult it is to set effective policies to combat hazardous arrangements which can involve rape, child abuse and domestic violence, and affect thousands of UK residents annually.
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16 December 2010 by Rosalind English
O’Donoghue and Others v. the United Kingdom(application no. 34848/07):
The government’s system for preventing sham marriages as an entry ploy for immigrants breached the right to marry and was discriminatory – read judgment.
By the time this case was lodged the Certificate of Approval Scheme had been much diluted by a series of amendments, but even so the Court found itself to be “gravely concerned” with the policy. This, along with the surprisingly lenient approach to the applicants’ failure to exhaust local remedies, suggests that the Court was anxious to address what it sees as endemic problems in the UK’s border control policy. If states want to use impediments to marriage as an entry deterrent, it says, then they must face being rapped with the Article 12 stick.
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30 November 2010 by Adam Wagner
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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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.
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5 August 2010 by Adam Wagner
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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21 July 2010 by Adam Wagner
The deputy leader of the Liberal Democrats has said that gay couples are likely to gain full rights to marriage under the current Parliament. This would represent a revolution for gay rights, but there is still a long way to go before same-sex couples achieve full rights to marriage as they are arguably entitled to under human rights law.
Simon Hughes MP has told Yoost.com, a question and answer website, that Liberal Democrat MPs would be consulted on the rights of gay couples. He said “I don’t know the answer because we haven’t had the discussion“, but that
I see absolutely no reason why we shouldn’t all be able to support what Nick Clegg said, which is that it would be appropriate in Britain in 2010-11 for there to be the ability to have civil marriage for straight people and gay people equally.
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9 July 2010 by Rosalind English
In two recent but separate developments, homosexuals fleeing persecution have been granted a lower threshold for refugee status and the Strasbourg Court has rejected a complaint by a same sex couple that Austria was in violation of the Convention for not granting them the right to marry.
We posted earlier on the case of HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010), in which the Supreme Court ruled as unlawful the government’s policy of sending refugees back to their home countries because they could avoid persecution if they acted discreetly.
There are two questions raised by this judgment and its implications. One concerns the extraterritorial reach of rights observed by signatory states to the Refugee and Human Rights Conventions. The second is the sheer practical difficulty of examining the veracity of a persecution claim based on these particular grounds.
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17 March 2010 by Adam Wagner
Baroness Deech, the Chair of the Bar Standards Board, has given the second lecture in her series on family law at Gresham College. In this lecture she questions whether the current law of marriage is compatible with human rights law. In particular, homosexual couples cannot legally marry, and hetrosexual couples are disbarred from entering civil partnerships. She said:
“Since [the] acceptance and recognition [of gay rights] has grown, advanced by the Human Rights Act 1998 and the Equality Bill 2010. Gay couples may adopt children (Adoption and Children Act 2002); they have access to fertility services and full parentage of donor conceived children (Human Fertilisation and Embryology Act 2008). Same sex childless couples are deemed to be a “family” for the purpose of succeeding a deceased partner to a tenancy (Fitzpatrick v Sterling Housing Association [1998] Ch.304). This trend culminated in the legislative establishment of civil partnerships in the Civil Partnership Act 2004, creating a union almost identical to, but not marriage.”
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