Critically evaluate English laws approach to the issue of marriages between persons of the same sex.

Same sex marriages have long been a controversial and problematic area of the law. Academic discussions of the issue are often further muddled up by different definitions of marriage which form the basis of each piece of writing. Any definition of marriage, however, risks becoming outdated very quickly, because values held by each generation are necessarily different. Just as the Hyde v Hyde description of marriage 1 should be understood as a defence2 rather than a definition, the legal conception of marriage should not be constrained in any way by a single definition of universal application. Therefore, while readers are encouraged to explore definitions of marriage as provided for by common law, the Marriage Acts and other relevant statutes, this essay will explore English laws approach to same sex marriages with a focus on how English law actually deals with marriage. A short, historical and social account of law and homosexuality will be given to elucidate English marriage laws approach to the issue of same sex marriages.

Historical development Half a century ago saw the UKs first move towards lesbian, gay, bisexual and transgender equality in the decriminalisation of homosexual acts. Afterwards, equality in the ages of consent to homosexual and heterosexual relations was achieved, as well as measures tackling discrimination on the basis of sexual orientation or gender identity in the workplace.

Hyde v Hyde (1866) L. R. 1 P. & D. 130 at 133 describes marriage as the voluntary union for life of one man and one woman, to the exclusion of all others. 2 Probert, R. (2007). Hyde v Hyde: defining or defending marriage? Child and Family Law Quarterly, p. 322. Page | 1

The decriminalisation of buggery3 was prompted at a time when homosexuality was believed to be on the increase and prostitution on the streets was equally becoming more visible and large-scale. A report, which came to be known as the Wolfenden Report of 1957, was published by the Departmental Committee on Homosexual Offences and Prostitution, and recommended that homosexual behaviour between consenting adults in private4 cease to be a criminal offence. Earlier, the committee had found evidence5 that the administration of the law by the police and the courts was so haphazard that the law would have been brought into disrepute if no action were taken6. The recommendation was finally realised in the Sexual Offences Act 1967. Ever since, the gay and lesbian community has become much more proactive in society, establishing interest groups and community churches. Freed from the fear of prosecution, they sought justification for equal treatment by the law in the legal consequences it imposes on homosexual behaviour generally.

The Human Rights Act The incorporation of the European Convention on Human Rights into domestic law 7 has also assisted the gays and lesbians claims for better rights, which are largely premised on Articles 8 (Right to respect for private and family life) 8 , 12 (Right to marry) and 14 (Prohibition of discrimination). Crucially, these Articles now form a significant part of

Sodomy between homosexuals was punished as buggery, a crime punishable by hanging under the Buggery Act of 1533. Buggery remained a capital offence until the passing of the Offences Against the Person Act of 1861, under which convicted persons would only be liable to a maximum life sentence in prison. 4 Wolfenden Report, para 62. 5 See the table reproduced in PG Richards, Parliament and Conscience (1970) 67 for evidence of the uneven and spasmodic character of police energy in this field. 6 Wolfenden, Turning Points: the Memoirs of Lord Wolfenden (1976). 7 Through the Human Rights Act 1998. 8 See the case of Smith and Grady v UK (2000) 29 EHRLR 493, which paved the way for discrimination on the basis of sexual orientation in the workplace to be prohibited by law. Page | 2

English law and necessarily affect English laws approach to any controversial legal issue such as same sex marriage. See, for example, the decision of Sutherland v UK9 in the European Court of Human Rights. As a result, the government introduced amendments 10 to the Sexual Offences Act 2003 to bring the age of consent to homosexual relations down to 16 (the age of consent for heterosexual relations). The following quote from the Supreme Court of South Africa 11 will serve to illustrate the strength of the human rights case then: The last quarter of the 20th century saw a dramatic increase in organised gay and lesbian social and political movements in Britainaccompanied by the systematic assertion, through legal strategies and challenges, of (their) rights to dignity and to full and equal citizenship. The rights discourse is shifting, with formalism giving way to emphasis on claims of substantive equality. Case developments 12 in that period further reflected an increasing judicial acceptance of homosexual relations and occasionally these individuals were able to have legal rights akin to those of cohabitating or married heterosexual couples upheld in court. The legal recognition of same sex partnerships or even same sex marriages became a possibility, as the subject matter changes from state non-intervention of private acts to state circumscription of public behaviour. Disputes coming to court became concerned more with the laws approach towards homosexual relationships rather than homosexual individuals.

(1998) EHRLR 117. The White Paper Protecting the Public, Strengthening Protection against sex offenders and reforming the law on sexual matters, Cm 5668, 2002. 11 Per Hon. Justice E. Cameron, In: Wintemute, R. and Andens, M. (2001). Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law. Oxford and Portland, Oregon: Hart Publishing, foreword. 12 For example, Ghaidan v Godin-Mendoza (2004) 2 AC 557, Weatherley v Weatherley (1947) AC 628, Baxter v Baxter (1948) AC 274.
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The House of Lords in Ghaidan v Godin-Mendoza 13 held that same sex couples living as husband and wife in a long-term homosexual relationship may succeed to one anothers estate under the Rent Acts. This decision came in the same year as the controversial Civil Partnership Act (CPA)14.

The current law English legislation as it stands today does not recognise marriage between persons of the same sex. Section 11 of the Matrimonial Causes Act 15 stipulates that a marriage is void if the parties are not respectively male and female. This unambiguous section reflects the common law rule16. Lord Hope in Bellinger v Bellinger17 further observed that: In any event, problems of great complexity would be involved if recognition were to be given to same sex marriages. They must be left to Parliament. I do not think (judges) can solve the problem judicially by section 3(1) of the 1998 Act18. Sections 21419 and 215 of the CPA also provide for the general rule that validly registered overseas same sex marriages20 could only be regarded as civil partnerships in the UK. Common law adopts the same approach to the issue. The case of Wilkinson v Kitzinger21 involved two lesbians entering into a legal and valid form of marriage in British
13 14

Ibid. Civil Partnership Act 2004. 15 Matrimonial Causes Act 1973. 16 Wilkinson at [128]. 17 (2003) UKHL 21. 18 Section 3(1) states that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. 19 Section 214(c)(ii) addresses same sex marriages conducted overseas in so far as the effect of entering into it is that the parties are treated as married. 20 Note that almost 2 percent of all married people in the UK in mid-2009 had married abroad, and statistics seem to indicate that the proportion has increased consistently in recent years. Page | 4

Columbia. Upon their return to England where they were ordinarily domiciled, they sought a court declaration that the marriage is valid under English law or alternatively that a declaration of incompatibility22 be granted. The High Court dismissed the petition and held that their marriage being an overseas relationship should be treated as a civil partnership under the CPA, since their capacity to marry was governed by English law. Moreover, where domestic law has clear provision for the issue as in Wilkinson member states have a margin of appreciation not to oblige domestic courts to interpret Convention rights in light of European jurisprudence 23. Articles 8, 12 and 14 were discussed in the judgment and the court held that none of them were breached. Looking at Article 12 alone first, the wording seems quite clear that the right to marry under the Article is intended to refer to a traditional marriage: men and women of marriageable age have the right to marry and found a family and cases24 have reached the same conclusion. As regards Article 8 (the right to respect for private and family life) considered independently, Strasbourg jurisprudence has always been reluctant to extend the scope of family life to same sex partners 25. Moreover, the position in English law that a same sex couple is capable of constituting a family is independent from the autonomous 26 concept of family life in the Convention, which has a universal meaning across the Council of Europe. Finally, the court in Wilkinson was unable to find a breach of Article 14 because it only regards discrimination with respect to a right or freedom guaranteed by the Convention, and could not be applied independently. However, it may be helpful to note that, the Equality
21 22

(2006) EWHC 2022 (Fam). Section 4(2), HRA. In this connection, it should be noted that Lord Steyn in the House of Lords in Ghaidan v Godin-Mendoza (Ibid) cautioned that this provision should be a measure of last resort. 23 Section 2, HRA. 24 Rees v UK (1986) 9 E.H.R.R. 56 at [49]; Sheffield and Horsham v UK (1998) 27 E.H.R.R. 163 at [66]. 25 In the House of Lords decision of M v Secretary of State for Work and Pensions [2006] 2 W.L.R. 637, Lord Nicholls observed that established case law in the European Court of Human Rights in Strasbourg has always not embrace same sex partners in its concept of family life. 26 Wilkinson v Kitzinger (see n. 19) per Sir Mark Potter at [71]. Page | 5

Act 2010 which replaced all existing anti-discrimination laws27 with a single Act, provides additional statutory protection to civil partners today, with an underlying rationale to enlist the support and compliance of all citizens in achieving equality for gay men and lesbians28. In particular, an amendment to the 2010 Act has made it possible for civil partnerships to take place on religious premises. This has been criticised for blurring the difference between civil partnership and marriage in practice29.

What the Civil Partnership Act 2004 entails and reasons for its enactment The CPA established the legal status of civil partnership an equivalent of marriage for persons of the same sex. It has expressly been denied that it is a form of gay marriage by government spokespersons and legislators: same sex marriage isa contradiction in terms30. The underlying concept is rather that civil partnerships are separate but equal and parallel but different31 from marriage in the traditional sense, being an analogous regime to accord homosexuals equal respect and to place them firmly in the civil sphere of our national life 32. There are two prominent schools of thought to this equality doctrine. Advocates for same sex marriage argue that since almost all rights and obligations a married couple has under the law apply equally to civil partners, there is little justification for creating a different and free-standing regime for same sex unions with possible implications of inferiority. An opposite view would be that as a matter of objective fact and common understandingand

27 28

Including the Sex Discrimination Act 1986, c. 59. As described above as the state circumscription of public behaviour. 29 See article by Deech, R. (2010) Civil Partnership, Family Law, May, 468. 30 Per Lord Filkin, then Minister of State in Department for Constitutional Affairs. 31 Mrs. Jacqui Smith, Government spokesperson and Deputy Minister for Women and equality. Official Report, House of Commons, 12 October 2004, volume 425, col 174. 32 Ibid. Page | 6

under the present definition of marriage in English law the two are indeed different33. Parliament has not regarded civil partnership as a form of marriage, not only because there are significant though few differences in terms of rights and obligations between the two institutions, but also because the discrimination against same sex partners which arises from that distinction has a legitimate, reasonable and proportionate objective to it. Before I give my arguments for the latter view, a brief explanation of the reasons for the enactment of the CPA would be appropriate. Firstly, it has to do with the lack of legal protection for gay men and lesbians engaging in long-term, exclusive and committed relationships. These same sex couples may be cohabitating, with children34, and leading lives involving the full spectrum of duties and responsibilities characteristic of a marriage. Before 2004, same sex couples had no legal rights and obligations whatsoever and their informal relationships remained entirely outside regulation by law. The CPA encouraged stability and faithfulness in these equally loving same sex relationships upon registration of their relationship. Another possible explanation of why Parliament preferred civil partnership to same sex marriage was the argument that if same sex marriage were recognised by law, then the traditional institution of marriage would be disruptively redefined 35 , if not completely undermined. This also had to do with arguments of morality: doing so would go against Christian principles which have become embedded in English marriage law as well as the majority of the multitude of religions in the UK. To this day, 25 bishops sit as Lords

33 34

Wilkinson, at [121]. In this connection, section 144(4) of the Adoption and Children Act 2002 as amended by section 79(12) of the CPA provides that, same sex couples are allowed to adopt children on the same basis as couples of different sexes. 35 For example, natural law takes the view that marriage is a collective good which should be promoted as a way for individuals to achieve personal autonomy. This public good view of marriage also functions to stabilise families and society. Page | 7

Spiritual36 in the House of Lords by virtue of their ecclesiastical role within the established church, the Church of England. While their primary concern is ecclesiastical matters, they also influence37 and retain law-making38 powers in Parliament. Returning to the two main schools of thoughts, I believe the case for same sex marriage fails in two main ways: (i) in terms of inequality and discrimination, and (ii) morals, religions and Church of England.

The case for same sex marriage: the inequality and discrimination argument The inequality criticism fails because it doesnt adequately address the crucially different nature of civil partnership and marriage which is not apparent from the almost identical legal treatment accorded to the two. The inequality argument therefore fails to justify the progression towards legal recognition of same sex marriage in the UK. Firstly, the CPA effectively accords all the rights, responsibilities, benefits and advantages of civil marriage to same sex relationships save for the name39 this removed the legal, social and economic disadvantages suffered by homosexuals who wished to enter into a formal, long term relationship. After the CPA, only a few theoretical differences between civil partnership and marriage remain, including the absence of marriage vows in civil partnership preliminaries, the removal of bigamy and adultery offences to prevent implication that civil partnerships necessarily involve sexual relations and that civil partnerships are in essence non-religious

36

The system of religious leaders sitting as Lords Spiritual in the Upper House was introduced in the 14th century. Senior clergymen have historically been part of the House of Lords, see e.g. Clergy Act 1661. 37 They are thought to bring a religious ethos to the secular process of law (Source: BBC). 38 In the form of delegated legislation (Church Measures) such as Church of England Marriage Measure 2008. 39 Bamforth, N. (2007). The benefits of marriage in all but name? Same-sex couples and the Civil Partnership Act 2004. Child and Family Law Quarterly, p. 133. Page | 8

unions (though this last point is much weakened following the aforementioned amendment to the Equality Act 2010 allowing civil partnerships to be conducted on religious premises). In practice, these distinctions have been necessary to properly address the practical differences in the nature of the two regimes, an example being the inability of same sex couples to procreate children. To allow same sex couples to marry carries the risk of assimilating same sex unions into the system of marriage. This, in effect, might create discrimination on the basis of sexual orientation in that same sex couples would be compelled to conform to heterosexual norms because they are judged in terms of heterosexual married couples40. This assimilationist argument implies the compromise of gay and lesbian lifestyles. The law will not develop to reflect the needs and aspirations of same sex couples when these differ from that of opposite-sex couples. While civil partners may be said to be stigmatised without the option of entering into a civil marriage, similarly, heterosexual couples do not have the freedom to enter into a civil partnership. More importantly, because the two regimes are effectively identical, there is little justification for registered civil partners to argue for the right to marry on the grounds that marriage offers better benefits and more rights.

The case against same sex marriage: the morals, religions and Church of England argument Since time immemorial, Christianity has unceasingly had a strong influence on English law-making. As a result, to this day, Christian morality based on a traditional Christian conception of marriage41 continues to underlie various developments in family law.

40

See Lee, M. (2010). Equality, Dignity and Same-Sex Marriage: a rights disagreement in democratic societies. Boston: Martinus Nijhoff Publishers, Chapter 1. 41 Put simply, a Christian understanding of marriage includes the expectation that it is a permanent, faithful, voluntarily entered and sexual relationship between one man and one woman. It is considered to be the best context for the conception and nurturing of children. Page | 9

The CPA itself, while attempting to remove any religious connotations on civil partnership, was nevertheless intentionally deplete of any implication that civil partners do engage in a sexual relationship. For example, there is no equivalent of the marriage law provision for annulment on grounds of non-consummation. While there is nothing in ecclesiastical law specifically prohibiting people entering into a civil partnership or being sexually active within such a partnership42, the influence of the Church of England could be seen in the fact that it maintains the only religious organisation in the whole of UK with formal representation in the House of Lords. As long as the bishops continue to serve in the House of Lords, the opponent argument that tradition and religious doctrines are not decisive on questions of secular law reform unconvincing.
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remains

Conclusion Despite a global movement towards legal recognition of same sex relationships with seven European countries legalising same sex marriage44 we should be careful not to rush into legislation too hurriedly without consideration of the unique legal history of this nation. While such legislation might align the law more closely with social norms and international trends, every development in English law should be made incrementally against a backdrop of English legal traditions. Seeing that the Liberal Democrats have just passed a conference

42

Humphreys, J. (2005). The Civil Partnership Act 2004, same-sex marriage and the Church of England. Ecclesiastical Law Journal, p. 289. 43 Bamforth, N. Same sex partnerships and arguments of justice, In: Wintemute, R. and Andens, M. (2001). Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law. Oxford and Portland, Oregon: Hart Publishing. 44 Including the Netherlands, Belgium, Iceland, Norway, Protugal, Spain and Sweden. Page | 10

motion calling on discriminatory barriers45 to equal marriage rights to be removed, it is possible that the UK government might introduce legislation to allow for civil marriage between same sex couples before the next general election 46 . Now would perhaps be the perfect time for us to let the civil partnership regime play out further in English courts so that a better comparison between the legal recognition of same sex partnerships and same sex marriages could be conducted in the near future.

BIBLIOGRAPHY

45

BBC article titled Lib Dems call for end to barriers to gay marriage by Gavin Stamp, political reporter of BBC News, Liverpool. 21 September 2010. At <http://www.bbc.co.uk/news/uk-politics-11380751>. 46 Statement made by Simon Hughes, the deputy leader of the Liberal Democrats party. See Kirkup, James (19 July 2010), Gay couples will get equal right to marry. Daily Telegraph (London: Telegraph Media Group). Page | 11

Books Cretney, S. (2006). Same Sex Relationships: From Odious Crime to Gay Marriage. Oxford: Oxford University Press. Diduck, A. (2008). Marriage and Cohabitation. England, USA: Ashgate Publishing. Lee, M. (2010). Equality, Dignity and Same-Sex Marriage: a rights disagreement in democratic societies. Boston: Martinus Nijhoff Publishers. McLean, I. and Linsley, B. (2004). The Church of England and the State: Reforming establishment for a multi-faith Britain. Amersham, Bucks: The New Politics Network. Rhode, D. and Sanger, C. (2005). Gender and Rights from the International Library of Essays on Rights series. England, USA: Ashgate Publishing. Sachs, A. (2009). The Strange Alchemy of Life and Law. Oxford: Oxford University Press. Wintemute, R. and Andens, M. (2001). Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law. Oxford and Portland, Oregon: Hart Publishing. Wolfenden, Turning Points: the Memoirs of Lord Wolfenden (1976).

Journal Articles Bamforth, N. (2007). The benefits of marriage in all but name? Same-sex couples and the Civil Partnership Act 2004. Child and Family Law Quarterly, p. 133. Deech, R. (2010). Civil Partnership. Family Law, p.468. Fairclough, A. (2002). Ecclesiastical Law and the Church of England. Historic Churches. Houghton, L. (2000). Same-sex marriage: a perfectionist liberal justification. UCL Jurisprudence Review, p. 301. Humphreys, J. (2005). The Civil Partnership Act 2004, same-sex marriage and the Church of England. Ecclesiastical Law Journal, p. 289. Rainscourt, K. (2006). The limitations of the Civil Partnership Act 2004: an analysis of crossborder recognition of same sex marriage. Civil Justice Quarterly, p. 150.
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Cases Baxter v Baxter (1948) AC 274 Bellinger v Bellinger(2003) UKHL 21 Ghaidan v Godin-Mendoza (2006) EWHC 2022 (Fam) Goodwin v UK [2002] I.R.L.R. 664 Hyde v Hyde (1866) L. R. 1 P. & D. 130 M v Secretary of State for Work and Pensions [2006] 2 W.L.R. 637 PB v Austria [2010] 29 B.H.R.C. 74 Rees v UK (1986) 9 E.H.R.R. 56 Sheffield and Horsham v UK (1998) 27 E.H.R.R. 163 Smith and Grady v UK (2000) 29 EHRLR 493 Sutherland v UK (1998) EHRLR 117 Weatherley v Weatherley (1947) AC 628 Halpern et al. v Attorney General of Canada et al. (Court of Appeal for Ontario, 2003) Hillary Goodridge and ors v Department of Public Health and anor (Supreme Judicial Court of Massachusetts, 2003) (The Goodridge case) Lawrence et al. v Texas (United States Supreme Court, 2003) Minister of Home Affairs and Director-General of Home Affairs v Fourie and Bonthuys et al. (Constitutional Court of South Africa, 2005) (The Fourie case) Legislation Adoption and Children Act 2002 Buggery Act 1533 Civil Partnership Act 2004 Clergy Act 1661 Equality Act 2010 Gender Recognition Act 2004
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Human Rights Act 1998 Marriage Act 1949 Matrimonial Causes Act 1973 Offences Against the Person Act 1861 Rent Acts Sex Discrimination Act 1986 Sexual Offences Act 1967 Sexual Offences Act 2003 Employment Equality (Sexual Orientation) (Religious or Belief) (Amendment) Regulations 2007/2269

Other Publications / Reports BBC article titled Lib Dems call for end to barriers to gay marriage by Gavin Stamp, political reporter of BBC News, Liverpool. 21 September 2010. At

<http://www.bbc.co.uk/news/uk-politics-11380751>. Government Equalities Office Factsheet, Working for Lesbian, Gay, Bisexual and Transgender Equality, June 2010. Joloza, T., Evans, J. and OBrien, R. (2010). Office for National Statistics, Measuring Sexual Identity: An Evaluation Report. Surrey: Crown Copyright (OPSI). Kirkup, James (19 July 2010), Gay couples will get equal right to marry. Daily Telegraph (London: Telegraph Media Group). Official Report, House of Commons, 12 October 2004, volume 425, col 174. The White Paper Protecting the Public, Strengthening Protection against sex offenders and reforming the law on sexual matters, Cm 5668, 2002.

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