Restricting civil partnerships to same-sex couples is, for the time being, a proportionate interference with article 8 rights

February 21, 2017

Since the coming into force of the Marriage (Same-Sex Couples) Act 2013, same-sex couples have had two options open to them to create legal status for their relationship: a civil partnership or a marriage. Heterosexual couples, however, do not have the option of entering into a civil partnership. This difference in treatment is a hangover from the legislative history of securing legal status for same-sex couples, which began with the Civil Partnership Act 2004.

What then are the options for heterosexual couples who are genuinely ideologically opposed to marriage? Cohabitation agreements do not provide for the same legal security as marriage. If they want the rights and legal security associated with marriage their only option available to them is to swallow their principles and get married. This was not an option for the appellants, Rebecca Steinfeld and Charles Keiden, whose ideological opposition to marriage and their wish to become heterosexual civil partners, has taken them to the Court of Appeal.

The appellants commenced judicial review proceedings after their request to be made civil partners was refused by a registry office. They claimed that the inability of different-sex couples to enter into a civil partnership was incompatible with their rights under articles 8 and 14 of the European Convention on Human Rights (ECHR). They could not simply “get married” because they had, what was found by Andrews J at first instance, to be “deep-rooted and genuine ideological objections to the institution of marriage, based upon what they consider to be its historically patriarchal nature”.

Their application was dismissed. Andrews J held that the prohibition on different-sex civil partnerships did not fall within the “ambit” of article 8. The appellants could marry and thus enter into a legal relationship according full protection to all the core values of article 8. She concluded:

“This is not a case where [the appellants] cannot achieve formal state recognition of their relationship, with all the rights, benefits and protections that flow from such recognition: on the contrary it is open to them to obtain that recognition by getting married.”

She also held that any interference with their private life was even more tenuous as there was no evidence that they were subjected to humiliation, derogatory treatment or any other lack of respect for their private lives. “The only obstacle to [the appellants] obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience.”

All three members of the Court of Appeal disagreed with that analysis. Following a wide-ranging review of Strasbourg and domestic case law, the Court unanimously held that article 8 was engaged and that it was not necessary for them to point to any humiliation, derogatory treatment or lack of respect for that to be the case. They also unanimously agreed that the prohibition on different sex civil partnerships was, prima facie discriminatory. The decision on this issue is helpfully summarized by Briggs LJ:

“To my mind the essence of the difference in treatment which engages Article 14 is not that all same-sex couples have two ways of obtaining state recognition of their relationship, whereas all difference sex couples have only one, although that is of course true. Both ways confer substantially the same benefits…The fact that different-sex couples can only obtain them by one route does not of itself infringe their human rights on the grounds of differential treatment, any more than those of a disabled person in a wheel-chair who can only access a building by a ramp whereas the able-bodied person can use the ramp or an adjacent staircase.

The significant difference in treatment arises from the act that there is a special group of couples for whom marriage is simply not an available alternative, because of their sincerely held view that marriage has not escaped its supposedly patriarchal origins…That special group includes both same-sex couples and different- sex couples. The same-sex couples can still obtain state recognition of their relationship by civil partnership. The different-sex couples cannot obtain state recognition of their relationship at all.

Thus within the special group of those for whom marriage is simply not an option, there is differential treatment on the grounds of sexual orientation because only the same-sex couples within the group can obtain any form of state recognition of their relationship, with all the very important social and economic (including fiscal) advantages which that brings. This is why, in my view, the “can marry” argument is misconceived.”

However by majority (Beatson and Briggs LLJ, Arden LJ dissenting) the Court of Appeal found that the interference with article 8 was proportionate. The Secretary of State had not set out a deliberate policy of narrowing the options for heterosexual couples; the current situation was born of the legislative history relating to same-sex partnerships. Following the legalisation of same-sex marriage, the Secretary of State’s approach had been to “wait and evaluate” and to collage evidence on the impact of same-sex marriage on the numbers of civil partnerships, in order to decide whether to eliminate, phase out or widen access to civil partnerships. That policy was justified.

It is unlikely that this decision will be the end of the matter.