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LAST WEEK, THE Court of Appeal in England and Wales narrowly upheld a law barring an opposite-sex couple from entering into a civil partnership. A civil partnership in the UK is a registered union identical in almost all respects to marriage, but open only to same sex couples.
The plaintiffs – Rebecca Steinfeld and her partner Charles Keidan – highlighted that while same-sex couples in England and Wales, have, since 2014, been able to opt for either a civil partnership or a marriage, an opposite-sex couple cannot have a civil partnership, only a marriage.
The couple claimed that this amounted to discrimination in relation to their family life, in breach of the European Convention on Human Rights.
By a majority of two to one, the Court of Appeal ruled against them. The decision nonetheless suggests that this difference of treatment will eventually have to be eliminated.
Patriarchal institution
Ms Steinfeld and Mr Keidan believe that marriage is a union with patriarchal roots and a history that does not fit with their egalitarian and secular understanding of modern relationships. As a matter of conscience, they would prefer a civil partnership, but they would only have this option if they were of the same sex.
The European Convention of Human Rights (ECHR) precludes unjustified discrimination on grounds of sex or sexual orientation in connection with a person’s family or private life.
For instance, in Vallianatos v Greece, the European Court of Human Rights found that laws that excluded same-sex couples from civil unions in Greece breached the Convention, though the Convention does not require states to extend marriage to same-sex couples.
The English High Court nonetheless rejected the couple’s claim
Two of the three Court of Appeal judges also ruled in the UK Government’s favour, though a third decided that the discrimination was unjustified.
The majority in the Court of Appeal concluded that the Government was entitled to adopt a “wait and see” approach, and should be given some time to evaluate the options before deciding whether to extend civil partnership or close it down to all new entrants.
The majority agreed that the Government is entitled to continue monitoring trends in the take-up of civil partnership amongst same-sex couples, and the potential demand among opposite-sex couples, before deciding whether it is worth the time and expense involved in extending it.
For the time being, therefore, the difference of treatment served a legitimate aim, and was proportionate and lawful.
While this represents a temporary reprieve for the Government, it cannot indefinitely maintain this difference of treatment. As Lord Justice Beatson commented:
…the discrimination in the present arrangements with one legal regime for different-sex couples but two legal regimes for same-sex couples will ultimately be unsustainable.
At best, the Government has bought some time
This, however, does not mean that the UK Parliament will eventually have to extend civil partnership to opposite-sex couples in England and Wales. Parliament could just as easily (and lawfully) equalise downwards as well as up.
One option is to prevent same-sex couples from forming new civil partnerships (as has happened in Ireland). Ironically, this would eliminate the current difference of treatment, though in a manner that would limit the options for all unmarried couples.
Admittedly, the rights and obligations attached to civil partnership and marriage are almost identical. One might reasonably ask: why maintain two separate regimes that have more or less the same legal effects?
While some same-sex couples in England and Wales still opt for civil partnership, marriage far outstrips civil partnerships in popularity amongst same-sex couples in that jurisdiction.
A 2014 report suggests that a large majority of unmarried heterosexuals, if given the choice, would favour marriage over civil partnership, though a not insignificant minority would prefer civil partnership.
Some merit in offering an alternative to marriage
Although there is no excuse for confining it solely to gay couples. While marriage is now an egalitarian institution, it has a dubious history (particularly in its treatment of women).
It is easy to see why some couples would prefer a more modern, baggage-free, and secular form of civil recognition.
The decision has little relevance for Ireland. As in the UK, an Irish civil partnership is exclusively a same-sex union. After the 2015 marriage referendum, however, the Oireachtas opted to prevent the creation of new civil partnerships.
The Irish situation
The Irish Government reasoned that leaving civil partnership open would undermine the constitutional protection afforded to marriage, as a civil partnership option would potentially “compete with” marriage.
Existing civil partners keep their rights, but no new civil partnerships are permitted. Some other jurisdictions have taken a similar approach, barring new civil unions once same-sex marriage became available, though others (such as the Isle of Man) allow civil unions for both gay and straight couples.
It remains to be seen what approach England and Wales will eventually take, though it is clear the current difference of treatment cannot be maintained indefinitely.
Dr Fergus Ryan is a senior lecturer in law at Maynooth University, Co Kildare, and is the author of a text on Civil Partnership law in Ireland.
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Always said in the eyes of the state shouldn’t all marriages be civil…
It’s then up to people of any particular religion/faith to conduct a marriage as they see fit and in their own customs not to supersede the rights and conditions of their state sanctioned civil marriage. Separation of church and state would seem to mandate such an arrangement.
Drew
That is exactly how it is.
A civil marriage is a state marriage.
In a church wedding you have a religious ceremony but sign the registry which is the state marriage.
This topic is about something completely different which is civil partnerships.
Civil partnerships were sold by the state as a means of financial protection to unmarried mothers who may be living in their partners house and have no income of their own. As well as the same sex aspect.
Civil partnerships were never offered to unmarried mothers, you’re thinking of rights for cohabiting couples. Civil partnership was a temporary stop-gap until marriage equality was achieved
I thought the option of civil partnership was gone. Was under the impression that after the marriage equality referendum and the passing of marriage equality through the Dail that it was abolished. But sure if it is still there as an option. Why not open it up to everyone. Not everyone wants to get married and if a couple wish to choose a lesser option fine by me.
Is a registry office ceremony not a civil arrangement? I don’t get the difference.
@Thomas Maher:
It is, in Ireland but remains in the UK, which gives Fergus the opportunity to virtue signal.
The rights are deminished under a civil union. Hence the fight for “equality”. If somebody wants watered-down right, off yesterday go and enjoy.
If we give civil partnerships to straight people next thing you know they’ll be having civil partnerships with their pets.
Straight couples should not be allowed to get civil partnerships.
I have nothing AGAINST straight couples, but Civil partnerships are about Daddy and Daddy (or Mammy and Mammy). Allowing straight couples access to them would change the very definition of them. They have ALWAYS required 2 people of the same sex.
@mursim: So now the gays have more choices than straight people.Thats not equality.Seems to me gay people just wanted a way to destroy the very definition of marriage and change the concept of family.for their own selfish ends.
Lololol. Well done Mursim. I see what u did there.
Non-Straight couples should never have been allowed to get married as defined in every culture for thousands of years. So lets have a referendum to do away with the sexes no more male or female! Or from next year lets decide that white is black and black is white!
@Warthog: And here, ladies and gentlemen, you can see the nonsensical babbling of an old man who’s lost track of what year it is and can’t find his slippers.
@Carl Nolan:
hahahaha – Well Carl as to babbling it sure looks like there are 3 fingers pointing back at you! Of course a typical ” Alt-Lefty” response in playing the man instead of the ball and not wanting to understanding others’ perspectives because they don’t agree with yours. My point of view on this I might add, has nothing at all to do with equality, but it has everything to do with calling a spade a spade. For your bird brain I will explain that the word “marriage” should refers to a man & woman. Whereas “Same Sex Marriage” should refer to the obvious. Both are totally different types of union/events & should be defined by the word or phrase as such without any inequality inherent in that definition. Now why don’t you head on back to your safe space and your mother’s apron strings. Your immaturity becomes you.
The word marriage up until now has only being referred to as man and woman for approximately the past 1600 years when the church first started to oppress and persecute gay people. Prior to that the sex of the person’s within a marriage was irrelevant. It’s true definition has now returned. Care to explain what the difference is between marriage and marriage. Remember religious marriage doesn’t have legal recognition. A marriage only becomes legal upon the singing of the register which is the same event regardless of the sex of those within a marriage.
@Warthog: The reason I “played the man and not the ball” is because the entire nation already had this debate in the run up to the referendum and we determined you are in the shrinking minority.
I no longer feel the need to pander to nonsense arguments against marriage equality such as “it’s always been this way” and that allowing gay people to marry is like voting to decide “white is black and black is white”.
We all know them.
They are your brothers
your sisters
your fathers
your mothers
your first cousins
your second cousins
your aunts
your uncles.
Straight people.
Give them their rights.
@Emmet O’Keeffe: You have the right to remain silent. Please exercise it.
You have to be a minority in this country before your views are considered. I’d like a civil partnership with my girlfriend of 20 years but we’re stuck with marriage. It would be nice to have legal recognition of our relationship and me some rights to my kids.
A farmer on my coal round bought a bull, a young one. Turned out he was gay. You should hear him giving out, I told him he can’t sell him without ALERTING the buyer.
You cannot be a family without marriage which is something that should have been addressed but was ignored. Just like when the Childrens Referendum was held, we enshrined the constitutionality of the families of some children but not others. Hardly equal.
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