European Court case launched for Equal Love

But formal filing of Court application postponed

Lord Lester QC keynote speaker at Equal Love launch

Four gay couples and four straight couples today announced their intention to file a joint application to the European Court of Human Rights, in a bid to overturn the twin bans on gay civil marriages and heterosexual civil partnerships. They want both institutions opened up to all couples, without discrimination based on sexual orientation.

“The formal filing of the application to the European Court of Human Rights was postponed after Camden register office inadvertently failed, at the last moment, to provide a valid letter of rejection to one of the heterosexual couples who were refused a civil partnership. Such a letter is required evidence, in order to demonstrate to the European Court that the couple suffered discrimination based on their sexual orientation,” said human rights campaigner Peter Tatchell, coordinator of the Equal Love campaign, which is organising the legal challenge.

Mr Tatchell opened this morning’s European Court case launch news confernce:

“This postponement is frustrating. It has delayed the formal application but it will not prevent it. Once we have the final letter of refusal, we will go ahead with the application, probably in the second week of January,” he said.

Mr Tatchell told the news conference: “Banning black couples from getting married would provoke national and international condemnation. The prohibition on gay marriages is equally outrageous.”

The full text of Peter Tatchell’s opening speech follows below

The formal launch of the European Court challenge took place in the Great Hall at King’s College London this morning, Tuesday 21 December – the fifth anniversary of the first civil partnership ceremonies in England.

This launch was followed by the Equal Love conference, chaired by Lord Lester QC, who inspired the Civil Partnership Act in 2004.

See these photos of today’s European Court case launch:
http://www.flickr.com/photos/outrage/sets/72157625520746245/
These photos are free to use, without charge, but please credit the photographer.

Professor Robert Wintemute of Kings College School of Law was a lead speaker at today’s launch. He is legal advisor to the Equal Love campaign, and the author of the submission to the European Court of Human Rights.

“This legal challenge is a milestone. It is the first time in the world that there has been a simultaneous legal challenge to the dual prohibitions on same-sex marriages and different-sex civil partnerships. Previous court cases have focussed on one ban or the other. We are challenging both,” said Professor Wintemute.

“Banning same-sex marriage and different-sex civil partnerships violates Articles 8, 12 and 14 of the European Convention on Human Rights.

“It’s discriminatory and offensive, like having separate drinking fountains or beaches for different racial groups. The only function of the twin bans is to mark lesbian and gay people as socially and legally inferior to heterosexual people.

“I am confident that we have a good chance of persuading the European Court of Human Rights that the UK’s system of segregating couples into two ’separate but equal’ legal institutions violates the European Convention,” he said.

Professor Wintemute explained in advance of the launch the legal basis of the application to the European Court of Human Rights. See his arguments at the end of this news release

The other speakers at the news conference were Rev Sharon Ferguson, Chief Executive of the Lesbian and Gay Christian Movement, and her partner Franka Strietzel, on behalf of the four same-sex couples; and Katherine Doyle and Thomas Freeman, on behalf of the four different-sex couples.

The conference that followed was chaired and addressed by Lord Anthony Lester of Herne Hill QC, author of the private member’s bill that inspired the Civil Partnership Act 2004. He was followed by Professor Anne Barlow, Professor of Family Law and Policy, University of Exeter; Rev. Carla Grosch-Miller, Minister, St. Columba’s United Reformed Church, Oxford; Professor Cees van Dam, Visiting Professor, School of Law, Kings College London; Canon Giles Goddard, Priest in charge, St. John’s Church (Church of England), Waterloo, London; and Liberal Democrat policy-maker and former MP, Evan Harris.

Background information

Segregation of couples in UK law, based on sexual orientation:

  • Matrimonial Causes Act 1973, s. 11: “A marriage … shall be void [if] … the parties are not respectively male and female …”
  • Civil Partnership Act 2004, s. 3(1): “Two people are not eligible to register as civil partners … if they are not of the same sex …”

Countries, provinces and states with marriage for same-sex and different-sex couples:

  • 17 – Argentina, Belgium, Canada, Iceland, Netherlands, Norway, Portugal, South Africa, Spain, Sweden, USA (Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, District of Columbia), Mexico (Federal District)

Countries, provinces and states with civil partnership for same-sex and different-sex couples:

  • 11 – Australia (Australian Capital Territory, New South Wales, Tasmania, Victoria), Canada (Québec), Netherlands, New Zealand, South Africa, USA (Illinois, Nevada, District of Columbia)

Countries, provinces and states with both marriages and civil partnerships open to both gay and heterosexual couples ie. “Equal Love”:

  • 3 – Canada (Québec), Netherlands, South Africa

The full text of Peter Tatchell’s opening speech to the Equal Love conference at Kings College London on Tuesday 21 December:

“Welcome to Kings College London, to this historic bid to end sexual orientation discrimination in civil marriage and civil partnership law.

“This bid for equality is championed by the Equal Love campaign, supported by the LGBT human rights group OutRage! and by the Peter Tatchell Human Rights Fund.

“Today, we announce that eight couples – four gay and four heterosexual – will file an application in the European Court of Human Rights to overturn the twin bans on same-sex civil marriages and opposite-sex civil partnerships.

“This day, the 21 December, is the fifth anniversary of the first civil partnership ceremonies in England – a breakthrough moment in legal equality and social acceptance for same-sex couples.

“Now it is time to go one step further by overturning the ban on gay civil marriages (ie. marriages in register offices).

“Some same-sex couples do not want marriage. They are happy with civil partnerships. We respect their feelings. But other lesbian and gay couples would like to get married. It is the universally recognised system of love and commitment.

“We sympathise with heterosexual couples who don’t like the patriarchal history of marriage and the idea of being called husband and wife. They would rather have a civil partnership instead. They see it as more modern and equal. The law should give them that option.

“Over the last two months, four same-sex couples were refused marriage licenses at register offices in Greenwich, Northampton and Petersfield. During the same period, four heterosexual couples were turned away when they applied for civil partnerships in Islington, Camden, Bristol and Aldershot.

“All eight couples have requested letters of refusal from their register offices. We intend to use these rejection letters as evidence of discrimination, to challenge the exclusion of gay couples from civil marriage and the denial of civil partnerships to straight couples. Since there is no difference in the rights and responsibilities involved in gay civil marriages and heterosexual civil partnerships, there is no justification for having two mutually exclusive and discriminatory systems.

“Banning black couples from getting married would provoke uproar. The prohibition on gay marriages should arouse similar outrage.

“The ban on same-sex civil marriages and opposite-sex civil partnerships is a form of sexual apartheid – one law for gay couples and another law for heterosexual partners. Two wrongs don’t make a right.

“In a democratic society, we should all be equal before the law.

“Everyone should have a choice, either a civil marriage or a civil partnership, whichever they prefer. The current laws deny couples choice and discriminate on the grounds of sexual orientation. This is what we are challenging in the European Court of Human Rights.

“We had intended to file the joint application to the European Court today. We expected that all register offices would have provided the eight couples with their letters of rejection by yesterday afternoon. These letters are the formal evidence of sexual orientation discrimination that we need to present to the European Court.

“Unfortunately, for reasons beyond our control, not all the letters of refusal have arrived. It is therefore necessary for us to postpone the formal filing of the application. This will now take place in January – and you will be notified.

“We apologise, but hope you understand that the incomplete portfolio of rejection letters makes it impossible for us to submit our application to the European Court of Human Rights today.

“But we will proceed, at a later date. This will not stop the case going forward. The Equal Love campaign continues,” said Mr Tatchell.

Professor Robert Wintemute explains the legal basis of the application to the European Court of Human Rights:

1. Why and how we are able to take the Equal Love legal case direct to the European Court of Human Rights, without first exhausting the UK courts

“We have decided to take our case directly to the European Court of Human Rights for two reasons,” said Professor Robert Wintemute.

“First, anyone challenging discriminatory legislation under the Human Rights Act 1998 has to worry that losing could mean being ordered to pay the UK Government’s legal costs. This happened in 2006 to a lesbian couple, Susan Wilkinson and Celia Kitzinger, when they tried to have their lawful Canadian marriage recognised as a marriage in the UK. Our government would only recognise it as a civil partnership. Their case was rejected by a High Court judge, who ordered them to pay the UK Government £25,000 in legal costs. They could not afford to appeal the decision. In contrast, individuals who lose in the European Court of Human Rights do not have to pay the UK Government’s legal costs. The eight couples bringing this joint legal action are not well off and are not in a position to take the risk of a potentially huge legal bill.

“Second, even if we were to win in a UK court, the Human Rights Act 1998 only allows a UK court to make a ‘declaration of incompatibility’, if the court deems legislation to be discriminatory. The Matrimonial Causes Act 1973 states that the parties to a marriage must be male and female. The Civil Partnership Act 2004 stipulates that the parties to a civil partnership must be of the same sex. A ‘declaration of incompatibility’ is not legally binding, so the UK Government is free to ignore it. Even if the declaration is made by the UK Supreme Court, the UK Government is able to say: ‘We’ll wait to hear what the European Court of Human Rights has to say.’ This limit on the powers of UK courts under the Human Rights Act 1998 is a defect in the UK’s legal protection of human rights. Because of this defect, the European Court of Human Rights confirmed in 2008 that a ‘declaration of incompatibility’ is not an effective remedy, and does not have to be exhausted before making an application to the Court against the UK Government.”

2. The key points and arguments of the Equal Love legal case

“Our case is that the combination of the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 creates a system that segregates couples into two separate legal institutions, with different names but identical rights and responsibilities. The segregation of couples is based on their sexual orientations: same-sex couples are excluded from marriage, and different-sex couples are excluded from civil partnership. Under Article 14 of the European Convention on Human Rights, all differences in treatment affecting other Convention rights – in this case the rights to marry in Article 12 and to respect for family life in Article 8 – must have an ‘objective and reasonable justification’. The European Court of Human Rights has said that differences in treatment based on sexual orientation ‘require particularly serious reasons by way of justification’, like differences in treatment based on race, religion or sex. The only apparent reason for maintaining the system of segregation is to use the law to mark same-sex couples as socially and legally inferior, and different-sex couples as socially and legally superior. Same-sex couples are excluded from marriage, which is the universal system for legally recognising a loving, committed, sexual relationship between two adults. This legal segregation is similar to having separate beaches and drinking fountains for white and black people, as existed in South Africa under apartheid. It is comparable to having a system of marriage for Christians and civil partnership for non-Christians.”

3. Why previous ECHR rulings against same-sex marriage might not apply in our case

“On 24 June 2010, the European Court of Human Rights issued its first judgment in a case in which a same-sex couple was seeking the right to marry. The Court found no violation of the European Convention on Human Rights in the case of two men, Horst Schalk and Johan Kopf, who were seeking the right to marry in Austria. Although the Court ruled that Article 12 of the Convention did not yet impose an obligation on European governments to allow same-sex couples to marry, the Court changed its interpretation of Article 12, saying that it ‘would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex’. When more Council of Europe countries than the current 7 (out of 47) allow same-sex couples to marry, the Court will be willing to consider ordering all of them to do so. The number European countries that allow same-sex marriage increased from three in 2005 to seven in 2010, and could double again while this case is pending. Same-sex marriage bills are currently being considered by the parliaments in Luxembourg and Slovenia, and a bill is expected soon in Finland. With a change of government, Denmark and France may follow suit.

In our case, we are not asking the Court to order Italy, Poland, Russia, Turkey, Ukraine and 35 other Council of Europe member states to allow same-sex couples to marry. Some countries in continental Europe, like Austria, do not want to allow same-sex couples to marry, because they are not ready to allow them to adopt children jointly, or to grant lesbian couples access to donor insemination. But this is not the situation in the UK. In 2002, same-sex couples in England and Wales were granted the right to adopt children jointly. In 2004, they won the right to register a civil partnership and acquire all of the rights of married different-sex couples, except in relation to assisted reproduction. In 2008, they achieved full equality in relation to assisted reproduction, including donor insemination. We are asking the Court to require the UK Government to explain why, after taking these politically difficult decisions voluntarily, and having gone so far to ensure equality between marriage and civil partnerships, the UK should be allowed to withhold access to marriage from same-sex couples, and access to civil partnership from different-sex couples. Given that UK marriages and civil partnerships confer identical rights and responsibilities, the UK government will have to justify to the European Court its maintenance of two different institutions that discriminate based on sexual orientation.

“We will draw on the EU Court of Justice’s requirement of consistency, set out in its Maruko judgment in 2008. The EU Court ruled that it was up to Germany to decide whether or not to have a registered partnership law for same-sex couples, and how many rights to grant registered same-sex partners. But once Germany decided voluntarily to pass a registered partnership law, and to put registered same-sex partners ‘in a situation comparable to that of spouses’, Germany could not exclude them from survivor’s benefits under employment-related pension plans that fell within the scope of EU anti-discrimination law. EU freedom of movement law also requires consistency with regard to the immigration rights of same-sex partners who are not EU citizens, ‘if the legislation of the host Member State treats registered partnerships as equivalent to marriage’.

“Our case is essentially that the European Convention on Human Rights, read in conjunction with developments in European Union law, imposes an obligation of consistency on European governments that voluntarily create an institution like civil partnership, and then grant same-sex civil partners all of the rights of different-sex spouses.

The European Court of Human Rights should, as a matter of consistency and for the avoidance of pettiness, require the UK and other countries in the same position, like Denmark, to take the final step and grant access to the institution of marriage. Anyone who has attended a civil partnership ceremony, and seen how similar it is to a marriage ceremony, knows how extraordinarily petty it is for the UK Government to say that a same-sex couple can have all the rights and responsibilities of marriage through an institution with a different name (civil partnership) but cannot have access to the word and institution of marriage.

4. Our assessment of the chances of success

“I am confident that we have a good chance of persuading the European Court of Human Rights that the UK’s system of segregating couples into two ’separate but equal’ legal institutions violates the Convention. I would predict that same-sex couples will be granted access to marriage in the UK and that this will be because the UK Government will eventually accept that they cannot defend the current discriminatory system. The UK Government should settle the case, and voluntarily introduce a bill in the UK Parliament, so that the European Court of Human Rights does not have to issue a judgment. This bill should simply repeal the twin bans on same-sex marriage and different-sex civil partnership, and give every couple, different-sex or same-sex, a choice of marriage or civil partnership, as in the Netherlands, Quebec and South Africa. This bill would bring ‘Equal Love’ to the UK,” said Professor Wintemute.