LAST WEEK, THE Court of Appeal in England and Wales narrowly upheld a law barring an opposite-sex couple from entering into a civil partnership. A civil partnership in the UK is a registered union identical in almost all respects to marriage, but open only to same sex couples.

The plaintiffs – Rebecca Steinfeld and her partner Charles Keidan – highlighted that while same-sex couples in England and Wales, have, since 2014, been able to opt for either a civil partnership or a marriage, an opposite-sex couple cannot have a civil partnership, only a marriage.

The couple claimed that this amounted to discrimination in relation to their family life, in breach of the European Convention on Human Rights.

By a majority of two to one, the Court of Appeal ruled against them. The decision nonetheless suggests that this difference of treatment will eventually have to be eliminated.

Patriarchal institution

Ms Steinfeld and Mr Keidan believe that marriage is a union with patriarchal roots and a history that does not fit with their egalitarian and secular understanding of modern relationships. As a matter of conscience, they would prefer a civil partnership, but they would only have this option if they were of the same sex.

The European Convention of Human Rights (ECHR) precludes unjustified discrimination on grounds of sex or sexual orientation in connection with a person’s family or private life.

For instance, in Vallianatos v Greece, the European Court of Human Rights found that laws that excluded same-sex couples from civil unions in Greece breached the Convention, though the Convention does not require states to extend marriage to same-sex couples.

The English High Court nonetheless rejected the couple’s claim

Two of the three Court of Appeal judges also ruled in the UK Government’s favour, though a third decided that the discrimination was unjustified.

The majority in the Court of Appeal concluded that the Government was entitled to adopt a “wait and see” approach, and should be given some time to evaluate the options before deciding whether to extend civil partnership or close it down to all new entrants.

The majority agreed that the Government is entitled to continue monitoring trends in the take-up of civil partnership amongst same-sex couples, and the potential demand among opposite-sex couples, before deciding whether it is worth the time and expense involved in extending it.

For the time being, therefore, the difference of treatment served a legitimate aim, and was proportionate and lawful.

While this represents a temporary reprieve for the Government, it cannot indefinitely maintain this difference of treatment. As Lord Justice Beatson commented:

…the discrimination in the present arrangements with one legal regime for different-sex couples but two legal regimes for same-sex couples will ultimately be unsustainable.

At best, the Government has bought some time

Shutterstock / Claudiophotography Shutterstock / Claudiophotography / Claudiophotography

This, however, does not mean that the UK Parliament will eventually have to extend civil partnership to opposite-sex couples in England and Wales. Parliament could just as easily (and lawfully) equalise downwards as well as up.

One option is to prevent same-sex couples from forming new civil partnerships (as has happened in Ireland). Ironically, this would eliminate the current difference of treatment, though in a manner that would limit the options for all unmarried couples.

Admittedly, the rights and obligations attached to civil partnership and marriage are almost identical. One might reasonably ask: why maintain two separate regimes that have more or less the same legal effects?

While some same-sex couples in England and Wales still opt for civil partnership, marriage far outstrips civil partnerships in popularity amongst same-sex couples in that jurisdiction.

A 2014 report suggests that a large majority of unmarried heterosexuals, if given the choice, would favour marriage over civil partnership, though a not insignificant minority would prefer civil partnership.

Some merit in offering an alternative to marriage

Although there is no excuse for confining it solely to gay couples. While marriage is now an egalitarian institution, it has a dubious history (particularly in its treatment of women).

It is easy to see why some couples would prefer a more modern, baggage-free, and secular form of civil recognition.

The decision has little relevance for Ireland. As in the UK, an Irish civil partnership is exclusively a same-sex union. After the 2015 marriage referendum, however, the Oireachtas opted to prevent the creation of new civil partnerships.

The Irish situation 

The Irish Government reasoned that leaving civil partnership open would undermine the constitutional protection afforded to marriage, as a civil partnership option would potentially “compete with” marriage.

Existing civil partners keep their rights, but no new civil partnerships are permitted. Some other jurisdictions have taken a similar approach, barring new civil unions once same-sex marriage became available, though others (such as the Isle of Man) allow civil unions for both gay and straight couples.

It remains to be seen what approach England and Wales will eventually take, though it is clear the current difference of treatment cannot be maintained indefinitely.

Dr Fergus Ryan is a senior lecturer in law at Maynooth University, Co Kildare, and is the author of a text on Civil Partnership law in Ireland.

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