Beyond Gender: A Perspective on Same-Sex Marriage
This is same sex marriage essay that will outline and examine the way in which the law regarding same sex marriage is involved in societal changes in England and Wales. Over the years we have seen almost what some people would describe as a revolution and change of people’s attitude towards GLBT individuals. Until recently same sex marriage was illegal in England and wales, however this changed in 2013. This was reformed and today we have a legal recognition of same sex marriage. The marriage act 2013, which allows same sex marriage in England and Wales to take place, was passed by the UK parliament in July 2013 and it came into force on the 13th of March 2014. The first ever same sex marriage in England and wales took place on 29th of March 2014.
The same sex couple Act has made the marriage of same sex couples lawful in England and wales it is also protecting and promoting religious freedom. The UK government believes that opening up marriage to all couples will demonstrates society’s respect for each individual regardless of their sexual orientation. Which is making our society fairer and more inclusive for all its members. This change has strengthened marriages and ensured that it stayed as an essential building block of modern society. Couples who get married in a different country under foreign law are now recognised as being married in England and Wales.
The same sex couple Act 2013 does numerous of things to protect same sex couple individuals, the act enables them to marry in civil ceremonies, ensures those religious organisations which wish to do so can opt in to marry same sex couples according to their rites, it protects religious organisations and their representatives from successful legal challenge if they do not wish to marry same sex couples, it enables civil partners to convert their partnership to a marriage if they wish to do so and finally enables individuals to change their legal gender without having to end their marriage. The act requires some reviews to consider three issues, which are whether belief organisations should be able to conduct legally valid marriage ceremonies, the operations and future of civil Partnership Act 2004 in England and Wales and the relevant differences in survivor benefits offered by occupational pension schemes.
The Margin for appreciation isn’t an answer to the gay marriage debate. It is a massive issue and an important issue because Homophobia or the impulse towards intolerance of GLBT people is well documented in Europe - that is why I decided to write same sex marriage argumentative essay. The issue remains of importance because we have recent legislation from 2013 and also recent case laws, the judgement in the case of Schalk v Kopf has allowed the European Court of Human Rights contracting states a wide margin of appreciation on both their legislation and judicial supervision of status on the basis that ‘there is no Europe consensus regarding same sex marriage’. The margin of appreciation is defined as ‘latitude of deference or error… at which international supervision should give way to a state party’s discretion in enacting or enforcing its law.
If we allow a wide margin of appreciation, this could lead to homosexuals being dangerously exposed to discriminatory legislation and judicial supervision of statutes. As the ECHR through use of doctrine of margin of appreciation does not examine the reasons behind why the ECHR contracting states have refused to sanction gay marriage. There is also a big issue regarding same sex marriage internationally because there is a range of approaches with writers commenting on many different family law structures from ‘traditionalist’ to ‘modernist’. Eleven countries recognise gay marriage, from which seven of these are within the ECHR contracting states, whilst internationally a further 23 recognise some form of same sex partnership. This is an issue for gay couples because of the demand of globalisation so for example if a same sex couple move from one different jurisdiction to another one, they could possibly move to a jurisdiction which doesn’t acknowledge same sex marriage so I would therefore argue that this issue is on a world-wide level.
The topic also can be described as why same sex marriage should be legalized essay anf the case of Wilkinson v Kitzinger concerned the first same sex partnership couple in the UK. They got married under the British Colombia law in Canada and this was at the time where although we had civil partnership in England and wales, we still hadn’t moved to recognise same sex marriage, so the two lesbians wanted their same sex Canadian marriage to be recognised as a marriage in England and Wales at a time before we legalised same sex marriage. This quote shows how important it was for those campaigning “I want to be able to refer to Celia as my wife and have that immediate and un-problematically understood as meaning that she is my life-partner with all the connotations and social consequences that using the term ‘wife’ or ‘husband’ has for a heterosexual couple. I want our marriage to be recognised institutionally by banks insurance companies, the tax office, and so on…” in her view whilst civil partnership was only opened to same sex couples, she saw that as a consolation prize, she saw it as offensive and demining. They wanted their same sex marriage to be recognised and if it was not then it would have contravened article 12. Alternatively, it was argued that the common law should be developed so as to recognise the marriage. In Sue’s Wilkinson’s witness statement, she stated that “Marriage is a basic social institution and exclusion from it, whether om grounds of race or ethnicity, gender, religion, nationality or sexual orientation, means being deprived of a full citizenship…”
At the time this Canadian same sex marriage was only recognised as a civil partnership, it wasn’t recognised as a same sex marriage. In the Bellinger case, references were made on how “marriage was seen as an institution or relationship deeply embedded in the religious and social culture of this country. It is deeply embedded as a relationship between 2 persons of opposite sex”. This quote is quite interesting from law and society perspective because it shows how quickly the law regarding same sex marriage has changed.
The Civil Partnership Act 2004 gave same sex relationships all the rights, responsibilities, benefits and advantages of civil marriage to the extent that by reason of that distinction it had been discriminated against same-sex partners, that discrimination had a legitimate aim, it was reasonable, proportionate and it fell within the margin of appreciation accorded to convention states.
Gay sex between men in English law was first outlawed in 1533 and continued to be illegal under the Offences Against the Person Act 1861. So therefore, consent was not a defence. The age of consent for gay sex was 21 instead of it being 16 and it was only decriminalised in 1967 but even then, there was still issues since the age of consent was 21 for gay couples and not 16 like the heterosexual couple. It wasn’t until 1993 in the Republic of Ireland for gay sex to be decriminalised, which just shows that not so long ago, gay sex was classed as an illegal offence. Before same sex marriage got legalised, the equality network argued that civil partnership was made specifically to deny same sex couples to have access to marriage and what they stated was that Civil Partnership was only seen as a second-class status. We also have the developing doctrine of ‘comparative constitutionalism’ and they can see judgement from the European Court of Human Rights have been referred to by Judges in the United states constitutional courts, where they were deciding cases regarding GLBT rights. An example for this is the US Landmark case Lawrence and Texas which concerned legalisation of gay sex in America, so it continued to be a big symbolical issue for GLBT groups.
The case of Smith and Grady was about people of same sex couples serving in the military, at the time, gay individuals were not allowed to serve in the military, they were subject to investigations into their sexual orientation and subsequently were dismissed from the arm forces on the grounds of their homosexuality. The European court of Human Rights has had a look at this case and the UK government made an argument that yes Article 8, the right to a private and family life was being interfered with. They argued that this was necessary in the armed forces because of concerns about national security and protection of the public order. The UK courts found that there is no substantive evidence which states that the Applicant’s sexual orientation affected the performance of their functions in any way and in fact the European Court considered that the whole position had been set up because of the negative attitude of heterosexual personnel towards gay individuals. The interference of Article 8 was found so therefore there was a violation of article 8. This was seen to be especially grave because of the way the authority conducted the investigation.
The decision in Schalk and Kopt, this was about a gay couple who alleged that they were discriminated against because they didn’t have the possibility to get married. At the time of this case back in 2010, Austria had allowed same sex partners to get themselves into civil partnerships, but their civil partnership did not allow any parental rights. Individuals were campaigning for rights to have same sex marriage. The European Court of Human Rights took a very different approach and instead they looked at comparative laws, so basically, they looked at what other countries in Europe were doing at the time and they also looked at the charter of Fundamental Rights of the European Union. The court got influenced by a lot of things, such as the actual wording of the European Convention on Human Rights and particularly the fact that Article 12 grants the right to marry to ‘men and women’.
There have been developments for GBTQ people since now the European Court of Human Rights have brought out some articles to protect GBLT individuals. Article 8, the right to respect for private and family life, this gives them the right to be respected and to have a family regardless of their sexual orientation. Article 12 gives them the right to marry, men and women of marriageable age have the right to marry and to find a family, according to the national laws governing the exercise of this right. Article 14 gives the prohibition and discrimination, the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion. National or racial origin, association with a national minority, property, birth or other status.
The differences between Civil Partnership and marriage continues to exist. An example for this is in Civil Partnership, Adultery isn’t a grant for a divorce. This stems from the fact of legal difficulties in being able to define what is meant by ‘adultery’ and how that would take place between couples of the same sex. When civil partnership was introduced and currently remains the same that’s not open to partners of opposite sex. Following the case of Steinfeld v Secretary of state for international development the supreme court meant that declaration of incompatibility stating the fact it is not opened for heterosexual couples breaches The Human Rights Act, mostly Article 14 regarding freedom from discrimination. Initially in 2004 when the Civil Partnership Act was enacted, it had a religious sanction which meant that civil partnership had to have a civil ceremony. In due course that got reformed to allow religious groups to opt out under s200 of the Equality Act 2010. Another difference is by very existence separate but equal.
There has been a massive change in society and in the law regarding same sex marriage over a very short period of time in England and wales. In 2004, it was shown that society wasn’t ready to recognise same sex marriage. Following a consultation process, 53% were in favour to recognising same sex marriage but there still remains a quadruple locking place which protects religious organisations. Currently civil partnership remains only opened to same sex couples. In the Steinfeld case, it showed a heterosexual couple successful before going to the supreme court in their battle for civil partnership.
There are 15 countries in Europe which has recognitions for same sex marriage and many other countries have civil partnerships. However, there are also a lot of countries who do not recognise any form of civil partnership. There is no right to same sex marriage at the European court of Human Right level but in the case of Oliari v Italy, the European court of Human Right has stated that certain socially acceptable conditions are met where social conditions recognise civil partnership on same sex couples, there has to be some legal recognition on same sex couple relationships but not marriage.
As expressed in this same sex marriage opinion essay, same sex couples have the power and rights to make a decision on how they want to live their life without any religious, political or an opinion from another individual. Whichever they chose whether that’s getting married or to be in a civil partnership should be allowed by society without any sort of discrimination being made against their choices in life. There has been a big revolution on society’s attitude towards accepting same sex marriage to go ahead without being judged. The majority of the population in society supports same sex marriages, however a couple years ago it was illegal and also society did not accept same sex marriage and treated same sex couple differently, however now we have a legal recognition for same sex marriages, and it was a good thing to see how quickly the law changed and also how society has developed.
References
- Frances Hamilton, ‘Why the Margin of Appreciation Is Not the Answer to The Gay Marriage Debate’ [2013] (1). pp. 47-57
- Wilkinson v Kitzinger [2006] UKFD 7, [2006] 1, U.K.R.R 295
- Chalk and another v Austria [2010] 53 E..H.R.R. 20
