The curious case of civil partnership: the extension of marriage to same-sex couples and the status-altering consequences of a wait-and-see approach

Journal article

In this article I argue that, if civil partnership is to persist and marriage remain unchanged, civil partnership must be extended to include opposite-sex couples. I develop my case through an analysis of Andrews J's decision in the High Court in R (Steinfeld) v Secretary of State for Education. Firstly, I demonstrate why it matters whether any specific discrimination claim is equality-based or liberty-based. Secondly, I suggest the immutability or flexibility in meaning of particular status relationships – both civil partnership and marriage – assumed by each side in Steinfeld. Thirdly, to determine the correctness of the decision in Steinfeld, I examine the ongoing relevance and value of the High Court's earlier decision in Wilkinson v Kitzinger (No 2), particularly in light of the European Convention's developing jurisprudence. Fourthly, given its notable absence from Andrews J's judgment, I consider the significance of the nature and justifiability of the public interest in status relationships. I conclude that, whilst an equality-based discrimination claim demands that entitlement to enter into civil partnership be extended to opposite-sex couples, a liberty-based perspective reveals that revisiting the meaning of civil marriage may yet justify denying demands for extending entitlement to entry into civil partnership. Preferring the equality-based approach depends on seeing it as justifiable for the courts, not Parliament, to pursue reform here. Favouring the liberty-based view turns on believing that the meaning of marriage has been transformed by the modernising role for civil marriage.

Authors: Ferguson, L

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Jordan Publishing
• Journal: Child and Family Law Quarterly
• Volume: 28
• Issue: 4
• Pages: 347-364
• Publication date: 2016-11-01
• Acceptance date: 2016-10-04
• ISSN: 1742-6618
• Keywords: discrimination; marriage; civil partnership