Anthony Lester & Alison Hayes. Peace Review. Volume 17, Issue 2/3. April-September 2005.
As we write this article, something remarkable is happening in the United Kingdom. A government Act that will allow same‐sex couples to formally register their partnerships and to take advantage of a set of rights and responsibilities that mirror civil marriage has successfully completed its passage through Parliament. We will examine recent developments in sexual orientation equality globally and the passage of the Civil Partnership Act.
The Act is a major milestone in the long march toward legal equality and the equal protection of the law for homosexual men and women. Some earlier milestones include legal recognition of the offense of male rape in 1994, equalizing the age of sexual consent with heterosexual couples in 2001, and the recognition of homophobic assault as a “hate crime” in 2003. But the United Kingdom has lagged behind other European and Commonwealth countries, which have protected the dignity of committed, monogamous, loving relationships, regardless of a couple’s sexual orientation. Belgium, the Netherlands, Spain, and Canada have legalized same‐sex marriage. Denmark, Finland, France, Germany, Iceland, Norway, Sweden, Switzerland, California, Hawaii, and New Jersey provide most of the rights and responsibilities of same‐sex marriage but use a different label.
Progress is not so advanced in many parts of the world, however. In some countries, homosexuality is still punishable by the death penalty. According to Amnesty International, “at least 70 countries in the world have entered the 21st century with law on their statute books prohibiting same‐sex relations.”
Extending marriage to same‐sex couples has given rise to passionate and divisive debates in the United States. The debate has been raging since November 2003 when a majority of the Supreme Judicial Court of Massachusetts ruled that it was inconsistent with the Massachusetts constitution to ban same‐sex marriages, rather than to legislate for civil union or civil partnership. The heat generated by the Massachusetts decision and its aftermath led President George W. Bush to turn it into a populist issue in his election campaign, in the hope of collecting social conservative votes. Exit polls from the recent U.S. elections showed that “moral values” outweighed terrorism, Iraq, and the economy for Republican voters. Senator John Kerry said that he opposed gay marriage but did not favor a constitutional ban. George W. Bush’s use of the gay marriage issue helped him gather crucial votes in several Midwestern states, particularly among religious conservatives who voted for anti-gay marriage State laws.
President Bush has so far been defeated by the Senate in his attempts to amend the U.S. Constitution to define marriage as a union between a man and a woman: however, on November 2, 2004, voters in 11 U.S. states rejected the legalization of gay marriage. The question was put to referendums in these 11 states after the Massachusetts Supreme Court ruled in 2003, as already noted, that the state could not bar gay marriage, and San Francisco allowed nearly 4,000 gay unions before being halted by the California Supreme Court. That Court ruled that the legislation and a voter‐approved measure defined marriage as a union between a man and woman. It did not, however, consider whether California’s Constitution would permit a same‐sex marriage, which is still open to debate, and may therefore follow Massachusetts’ example.
Why does recognizing the legitimacy of same‐sex relationships, either through a civil partnership scheme or same‐sex marriage, arouse such strong reactions? Arguments range from the ethical to the religious, and even to warnings that it will lead to the breakdown of society.
Some hold an implacable belief that homosexuality is morally wrong, and therefore should not be sanctioned by law. This often correlates with holding a religious belief that homosexuality is sinful. It is difficult to argue with this dogmatically prejudiced belief, but fortunately, Halman in 2001 did a European Values Study, which showed numbers rejecting this view are steadily growing within most religions. In the United Kingdom for example, the Civil Partnership Act has enjoyed the support of several religious groups, for example the Grace Catholic Church, the Metropolitan Community Church, the Bishop of Oxford, the Bishop of Peterborough and the Lesbian and Gay Christian Movement, some of whom argue that civil partnerships do not go far enough and that only religious gay marriage is satisfactory. In any event, religious groups must not be allowed to shape the laws of our modern secular society.
Others claim that it is in the best interests of a child to be brought up by one woman and one man. There is no reliable statistical or biological evidence in support of this proposition. In the United Kingdom, same‐sex couples can now adopt children and gain parental responsibility for them; therefore same‐sex marriage or a civil partnership scheme should appeal to thinking conservatives and faith organizations because it will promote the best environment for raising children by encouraging fidelity and emotional and financial stability.
Opponents also state that it will undermine the traditional institution of marriage. This is premised on the belief that it is demeaning to allow same‐sex couples to enter into the heterosexual preserve of marriage, as same‐sex couples have a less worthy or even “pretend” relationship. Evidence from the experience of Scandinavian countries that have pioneered giving marriage‐like status to same‐sex couples shows that heterosexual couples in those countries have not changed their marriage behavior but that marriage rates have remained stable or have actually increased (see M. V. Lee Badgett’ at www.igliss.org). Similarly, the number of couples having children outside of marriage has not increased at a faster rate after the introduction of same‐sex partnerships. Same‐sex marriage and civil partnership schemes arguably strengthen heterosexual marriage by recognizing and legitimizing the importance of committed relationships in society.
Still others argue that improving the legislation relating to siblings, caregivers, and cohabiting couples is more urgent. This argument surfaced repeatedly during the debate in the House of Lords and led to the wrecking amendment that we discuss later. Cohabitation laws do need to be improved, but these are beyond the scope of the Act, which is to remedy the current inequality that same‐sex couples can neither choose to marry their partner nor legally regulate their relationships.
Why does the United Kingdom need a Civil Partnership Act? It has now become widely accepted that it is both logically and morally indefensible to prevent same‐sex couples from having legal recognition of their relationships. Responses to Civil Partnership, a framework for the legal recognition of same‐sex couples, showed that 83 percent of respondents supported the principle behind a civil partnership scheme.
The Act seeks to give effect to a basic human right guaranteed by the European Convention on Human Rights and the Human Rights Act of 1998—to be treated equally without discrimination in one’s private life. International human rights law does not yet require that the ban on same‐sex marriages be lifted. But it is established in the case‐law of the European Convention on Human Rights (the Convention) that a difference in treatment based on sexual orientation is covered by Article 14 (which guarantees enjoyment of the other rights without discrimination on any ground), and that where sexual orientation is the ground for different treatment, there is a need for particularly weighty justification.
The House of Lords recently considered the implications of these developments under the Human Rights Act 1998, in the landmark case of Mendoza. The Law Lords decided that the phrase in the Rent Act “living together as husband and wife,” in relation to succeeding to a statutory tenancy on the death of a partner, must be interpreted to include same‐sex couples in order to be compatible with Convention rights. They found that since same‐sex couples can have exactly the same sort of interdependent relationship that heterosexuals can, they should be treated in a comparable way. The Law Lords pointed out that affording heterosexual couples more favorable treatment did not serve the aim of protecting the family or encouraging stable relationships. Excluding same‐sex couples from the protection given to the security of tenure of heterosexual couples failed to serve any legitimate aim and was incompatible with Article 14. It is strongly arguable that continuing to define marriage as a relationship “between man and wife” will soon be held to be in conflict with the Convention.
As Justice Ackermann noted, same‐sex partners are as capable as heterosexual spouses “of forming intimate, permanent, committed, monogamous, loyal and enduring relationships, of furnishing emotional and spiritual support; and of providing physical care, financial support and assistance in running the common household.” Justice Ackermann also rightly observed that the message of the denial of equal rights to same‐sex as to opposite‐sex partners “is that gays and lesbians lack the inherent humanity to have their families … respected or protected. It serves in addition to perpetuate and reinforce existing prejudices and stereotypes.”
There has been a lot of debate as to whether a new civil partnership system is sufficient to achieve equality with heterosexual couples or whether the government should have simply opened up marriage to same‐sex couples. We believe that the approach of “equality of rights first and equality of status later” is a pragmatic approach to achieve full equality.
The Act will relieve hardship in key areas such as rights in relation to communal property, exemption from inheritance tax on a shared property, and the right to be treated as next of kin by state agencies, for example, in the event of the illness or death of a partner. The Act gained Royal Assent in November 2004, and it will be brought fully into force by December 2005.
The Act’s predecessor was the Lester Private Member’s Bill introduced in 2002. The Bill made the status of registered civil partnership available to heterosexual couples as well as to same‐sex couples. Under the present Bill, heterosexual couples cannot enter into a civil partnership. The Law Commission for England and Wales had failed to address this issue as one of family law rather than of property law, and its protracted study led to no useful conclusion. The government is running an awareness campaign to dispel the myth of “common law marriage,” and to highlight the lack of legal protection for heterosexual cohabitants who choose not to get married. We hope that cohabitation law will soon be improved by a Cohabitation Bill, which is currently being drafted.
The Act has been widely welcomed, although it has encountered some obstacles in its passage through Parliament. The Act faced determined opposition from the Conservative Party within the House of Lords as well as from some Northern Irish Peers. A wrecking amendment was made in the House of Lords, which would have allowed certain groups of relatives to register as civil partners, provided that they were both over 30 years old and had lived together for a continuous period of 12 years. They could have been of the same‐sex or opposite‐sex. The amendment was widely condemned, most notably by the Parliamentary Joint Committee on Human Rights (a Parliamentary scrutiny body set up to examine each Bill presented to Parliament for compatibility with the human rights obligations by which the United Kingdom is bound).
The government overturned this amendment when the Act reached the House of Commons. There is no doubt the cohabitation laws do need to be improved, but this Act was not the correct vehicle by which to do so. The status of civil partnership, being akin to civil marriage, is completely inappropriate for these wider groups. Fortunately this was accepted by the majority of the House of Lords when the Act returned to them, and the second attempt to wreck it was defeated.
One Northern Ireland Unionist peer, Lord McGinnis, argued passionately against extending the civil partnership scheme to Northern Ireland. He claimed that it was a devolved matter that had to be considered by the Northern Ireland Assembly and could not be legislated for by Westminster. He also asserted that there was no need for such an Act in Northern Ireland because there are few same‐sex couples and that its residents would not welcome it. The emotive language used during debates revealed that this objection camouflaged root‐and‐branch opposition to the whole purpose of the Act. In a brilliant rebuttal, his fellow Northern Irishman, Lord Alderdice, explained that the strength of human rights is that they transcend local communities and national states,
[The Bill] is about human rights—not Northern Irish rights, not Irish rights, not European rights. Human rights are rights that people have by dint of being born as human beings. The strength of human rights is that they transcend local communities and national states and that those who abuse human rights should not be able to find sanctuary behind national boundaries. … It seems to me to be a fundamental human right to be able to choose the person with whom you wish to spend your life and with whom you wish to have a real bond … It does not matter how large the majority is against or how small the minority that is satisfied.
One of the few flaws in the Act, as initially drafted, concerned survivor pensions. The Bill perpetuated unfair discrimination against the survivors of civil partnerships by allowing pension schemes to base survivor pension provision on service from the date of enactment of the bill, whereas a married surviving partner will receive a pension calculated on the whole length of his/her service. The government argued that schemes could not afford to provide equality to civil partners. Yet gays and lesbians have always paid the same level of pension contributions as heterosexuals, and indeed have been subsidizing heterosexual survivor pensions, as they have never been entitled to benefits for their same‐sex partners. In addition, as it is theoretically possible that all scheme members may leave a spouse, actuaries base assumptions on high levels of marriage, in order to defend schemes against this outcome.
No allowance was made by the government for the fact that a proportion of scheme members will have same‐sex partners who have not been able to claim these benefits. Fortunately, an amendment tabled by the Liberal Democrat party succeeded in backdating survivor pension rights for civil partners to the beginning of the 1988-89 fiscal year. This was when the right to a survivor’s pension was extended to widowers, when previously only widows qualified for the pension. The amendment therefore puts surviving civil partners in the same position as widowers.
The Civil Partnership Act is most welcome as long overdue reform to provide a legal framework of basic rights and responsibilities for same‐sex couples. There is a pressing need around the world to catch up with the progressive legislation elsewhere in Europe and the Commonwealth that celebrates and protects the essential dignity of loving and committed same‐sex relationships, and of those who enter into them. Encouraging couples to live together in stable and enduring partnerships will benefit those couples, their children, and society as a whole.