(Sept. 14, 2018) On June 27, 2018, the Supreme Court of the United Kingdom issued a declaration that “sections 1 and 3 of [the Civil Partnership Act 2004, (CPA)], to the extent that they preclude a different sex couple from entering into a civil partnership, are incompatible with article 14 of [the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)] taken in conjunction with article 8 of the Convention.” (Steinfeld and Keidan, R (on the Application of) v. Secretary of State for International Development (in Substitution for the Home Secretary and the Education Secretary)  UKSC 32, para. 62, BAILII website; CPA 2004, §§ 1 & 3, UK legislation.gov website; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, arts. 8 & 14, Nov. 1950, ETS 5, European Court of Human Rights website.) The declaration places significant pressure on the government to amend or repeal the incompatible sections of the CPA 2004 in order to provide equal opportunity under the law for both same-sex and different-sex couples to become civil partners.
Prior to 2013, the only route for same-sex couples to have their relationship acknowledged before the law was by registering as civil partners in accordance with section 1 of the CPA. (CPA 2004, § 1.) The institution of marriage was reserved purely for heterosexual couples. After the passage of the Marriage (Same Sex Couples) Act 2013 (MSSCA), however, the ability to get legally married was extended to same-sex couples. (MSSCA 2013, legislation.gov website.) This, however, did not lead to the amendment or repeal of the CPA, as a result of which, same-sex couples were faced with a choice about whether they wanted to have their relationships legally recognized through marriage or civil partnership.
As pointed out by the plaintiffs in the recent case, the same choice does not exist for heterosexual couples. The CPA defines a civil partnership as “a relationship between two people of the same sex” (CPA 2004, § 1), meaning that a heterosexual couple must get married in order for their relationship to be legally recognized. The plaintiffs, however, did not wish to get married because of the “patriarchal nature” of the institution of marriage, but did want the legal protections that come from having one’s relationship formally recognized, such as property rights if one partner dies. (Cecilia Lei, U.K. Supreme Court Rules It’s Unfair to Offer Civil Unions Only to Same-Sex Couples, NATIONAL PUBLIC RADIO (June 27, 2018).)
Lord Kerr, in writing the judgment, noted that,
[w]hen Parliament enacted MSSCA it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though, we were told, it was recognised at that time that this would bring about an inequality of treatment between same sex partners and those of different sexes and that this inequality was based on the difference of sexual orientation of the two groups. (Steinfeld and Keidan,  UKSC 32, para. 7.)
The government argued that it delayed deciding one way or the other—either abolishing or extending civil partnerships to all couples—because it wished “to wait for a time until further hard evidence was available to enable it to take a considered view as to what to do.” (Id. para. 33.) However, Kerr dismissed this approach as indicative of, “at best, an attitude of some insouciance.” (Id.) Kerr also went on to explain that he did not find that the government had a legitimate aim for infringing on the human rights of heterosexual couples because the legislative goal of extending the period for information gathering “cannot be characterised as a legitimate aim” (id. para. 42); there was a readily available, less intrusive method for achieving the required goal that the government could, and should, have used (id. para. 50); and finally, even if one allowed the government’s aim to be legitimate, a fair balance had not been struck between the rights of the discriminated and the interests of the community that the government claimed to represent (id. paras. 51–52).
Prepared by Ben Hills, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist.