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UK gay marriage challenge goes to European Court

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  1. My understanding of how the European Court of HUman Rights works is that you have to exhaust all legal avenues in your own country first.

  2. Good news.

    If the Tories want to avoid a costly court case they will life the ban on marriage equality and civil partnership equality.

    And if the Labour Party want to restore their destroyed reputation among the gay population then they will stop bleating about civil partnership apartheid as if it is something to be proud of. Instead they wiill recognise it as the homophobic compromise that it was. And they will annouce they support equality.

    And we are still waiting for Ben Summerskill to resign as head of Stonewall for his homophobic opposition to marriage equality. If he does not resign then Stonewall need to disband as they are no longer necessary or welcome to represent our community.

  3. Jock S. Trap 31 Jan 2011, 2:12pm

    Well here’s hoping for a positive outcome!!

  4. It’s exciting to think of the consequences if this case is won, as it will set a precedent for Europe. It’s equally scary to think about the consequences of losing.

  5. Peter Tatchell 31 Jan 2011, 2:21pm

    In reply to Noel:
    No, we don’t have to exhaust domestic remedies first, as the European Court has previously ruled that the UK does not have an adequate domestic remedies procedure ie. Parliament can choose to ignore Supreme Court rulings bought under the Human Rights Act.

    See Professor Robert Wintemute:

    “Even if we were to win in a UK court, the Human Rights Act 1998 only allows a UK court to make a ‘declaration of incompatibility’, if the court deems legislation to be discriminatory. The Matrimonial Causes Act 1973 states that the parties to a marriage must be male and female. The Civil Partnership Act 2004 stipulates that the parties to a civil partnership must be of the same sex. A ‘declaration of incompatibility’ is not legally binding, so the UK Government is free to ignore it. Even if the declaration is made by the UK Supreme Court, the UK Government is able to say: ‘We’ll wait to hear what the European Court of Human Rights has to say.’ This limit on the powers of UK courts under the Human Rights Act 1998 is a defect in the UK’s legal protection of human rights. Because of this defect, the European Court of Human Rights confirmed in 2008 that a ‘declaration of incompatibility’ is not an effective remedy, and does not have to be exhausted before making an application to the Court against the UK Government.”

  6. 1. Civil Partnerships are NOT legally inferior. They are not even legally different (in the UK at least). They are 100% to marriage in all rights and responsibilities. Socially, some may consider them inferior or different, but in all public aspects they must be treated the same as marriage. I am not defending the separate by equal layout of CP/marriages in the UK, I’m just stating a fact that this gay press here often muddles.

    2. The ECtHR has ruled on many similar cases stating the gays don’t have the right to marriage and that a state can offer substitute procedures to guarantee that they don’t face discrimination.

    3. The ruling, whether good or bad, should have implications for all of Europe, but it wont. The ECtHR ruled that age of consent laws being higher for gays are illegal, yet Gibraltar and Greece ignore these rulings. It also ruled that banning gays from the Army is illegal, get again Greece ignores this ruling. I know the EU is separate from the CoE/ECtHR, but it usually forces it’s states to abide by the court’s rulings. However it somehow forgets to enforce these rulings, and no1 in Greece or Gibraltar has as of yet challenged their countries to enforce them.

  7. Thanks Peter. Here in Ireland a lesbian couple (Ann Louise Gilligan and Katherine Zappone) have committed a small fortune going through the process here (i.e. High Court, Supreme Court etc.) and AFAIK are now in Europe with it.

    We have the same situation here in Ireland insofar as Civil Partnerships are only available to same-sex couples and I’ve been telling GLEN and whoever else that this law will have to be challenged by both straight and same-sex couples.

    We here in Ireland will be following your progress with interest – best of luck!!

  8. Can someone explain if or why this case has not gone to the House of Lords or the Supreme Court, and what the outcome was (provide links if possible to official documents) if it did?

  9. I’m of the impression that Pension issues and Infidelity issues and Religious restriction issue are just three things that differentiat Civil Partnerships from Marriage. Therefore Civil Partnership is not the same as Marriage although it is very similar and a good start. Can anyone name any other differences in the two laws?

  10. de Villiers 31 Jan 2011, 3:08pm

    I would have thought they would go through the English courts.

    From that which I have read, it is unclear as to whether a declaration of incompatibility is a sufficient remedy.

    However, it also appears that the declaration is the last step. Before that, it seems that an Englis court is required to consider whether the statutes can be construed as compatible with the Convention – to the point of making read a certain way or to insert words into the enactment so as to make it compatible.

    If the English courts are not given this opportunity to read the legislation or alter the interpretation of the legislation in order to be compatible then there is the possibility that the European Court of Human Rights will reject the petition.

  11. Julian Ferguson 31 Jan 2011, 3:38pm

    These legal challenges are utterly and completely pointless. Why? Because the European Court of Human Rights has already ruled that under Article 12 and 14 of the Convention, states do not have to grant the right to marry to gay couples.

    The ruling in question is Schalk and Kopf v. Austria (22/11/2010). Paragraph 53 is of particular interest: “Article 12 enshrined the traditional concept of marriage as being between a man and a woman. The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950.”

    Furthermore, it concluded that in the absence of a consensus on this matter (only 6 out of the 47 member states of the Council of Europe grant the right to marry to same-sex couples), it should not move ahead on this issue until a consensus started to emerge.

    Basically, it’s up to Parliament to legislate on this so if we want this change, we need to put pressure on them to get the law changed. The Lib Dems are committed to equal marriage, so let’s hope they can get it sorted!

    Full ECtHR judgement: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=870457&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

    Guardian article on this judgment: http://www.guardian.co.uk/law/2010/jun/24/european-court-of-human-rights-civil-partnerships

  12. “The Equal Love campaign, led by gay rights activist Peter Tatchell….”

    Well that instantly eradicates and small vestige of sympathy I may have had for this cause.

  13. Tim Hopkins 31 Jan 2011, 3:51pm

    Carlos is right. Adultery is not a ground for dissolution of CP, but it is a ground for divorce. (Sexual infidelity can however be a basis for dissolution of CP, under the ‘unreasonable behaviour’ ground)

    A CP cannot be annulled in England and Wales on grounds of non-consummation, unlike a marriage. In Scotland, a CP cannot be annulled on grounds of permanent and incurable impotency, unlike a marriage.

    In Scotland, a wife is exempt from being charged with the crimes of reset (handling stolen goods) if the goods were stolen by her husband, and harbouring a fugitive from justice if the fugitive is her husband. There is no similar rule for CP.

    More importantly, CPs cannot be legally solemnised by religious or humanist celebrants in a religious or humanist ceremony, only by registrars in a civil ceremony. Marriage of course can be legally done by religious celebrants and, in Scotland, humanist celebrants.

    And finally, the amounts paid out for survivor’s pensions for a CP whose partner has died can be less than for a married person – it depends on the pension scheme.

    The other really big problem with the law in the UK with the segregation of marriage and CP is the rule that trans people have to divorce before they can get gender recognition.

  14. Jessica Geen 31 Jan 2011, 3:55pm

    For more detail about the case from Prof Wintemute, see here:

    Q&A: The Equal Love campaign’s legal case

    Editor.

  15. Hodge Podge 31 Jan 2011, 4:08pm

    While this is great for publicity, I wonder if UKIP anti-EU types will just feel bitter if we were to win.

  16. So why has there been deafening silence from Summerskill. I check StonewallUK’s website daily. I see NOTHING in regard to marriage equality. Why? If Peter Tatchell wins and I hope he does, it will prove how useless StonewallUK will have become.

  17. The ONLY reason CP legislation was created was to avoid granting marriage equality to same sex couples.

    This whole court case would be unncessary if Callmedave legislated for marriage and CP equality.

    However considering how disgustingly bigotted and homophobic the Tories remaiin, this court case is a good initiative.

    It also serves as a reminder to the Labour Party that their initiative of CP’s was a step in the right direction. But it is still homophobic discrimination.

    As for Stonewall – well they are a worthless group who represent their corporate donors. They cannot even claim to represent their tiny number of members. They are a spent force and really should disband (the fact that Ben Summerskill still leads them illustrates the utter contempt in which Stonewall holds the LGBT community).

  18. It is stupid to take this to the European Court of Human Rights. It should be taken to the British courts.

  19. stonewall are better at having pointless dinners/awards than representing equality for the lgbt community.How dare they claim to work for us when they don’t support marraige equality. sumerskill may be ecstatic with the crumbs off the table i’m not. I don’t want a civil partner( sounds like getting a dog license) i want a spouse.

  20. I find it funny that lots of people venture opinions about what should have been done differently when Dr Wintermute who’s certainly knowledgable in his field explains clearly the reasons why this course of action has been chosen and the expected outcome on the initiative’s website. 

    Obviously we all have opinions but it’s fair to assume that the legal advisors for the case will have looked into the options available and chosen what in their expert opinion was the most likely to succeed. 

    Does anyone know what the timeframe is expected to be for this? I know these things can be awfully long.

  21. Shame the Greens (caroline lucas) and the lib dems aren’t asking more questions in parliament or better still why aren’t they in the process of launching a private bill for marriage equality…

    I thought that lab , although, they had’nt officially adopted a marriage equality policy, were in full support of it. In addition we’re told the Tories have changed and we are constantly cited that they now have more gays in their party than any other party….what effect that is supposed to have, heavens knows!

    Why do we really need to go thru this court case in the first place, there should be by now some political movement on the subject…but still nothing, we can’t even get the reglious CPs sorted out after 1 year!!!

    It’s interesting when I spoke to my straight nephew about this he was still under the impression that the gay orgs didn’t think marriage was a priority and we were still happy with CPs …who can blame him, there is so little media attention on it and as far as I know BS has done nothing to push it forward….I suspect the majority of the public don’t even know we want marriage equality…

  22. Tim Hopkins 1 Feb 2011, 6:15am

    Val it could be years. The Austrian equal marriage case of Schalk & Kopf was submitted to the European Court of Human Rights on 5th August 2004, and the judgment was issued on 24th June 2010!

    As Robert Wintemute’s own comments indicate, a key purpose of taking the Equal Love case is to put pressure on the UK Govt and Parliament to legislate for equality.

  23. any thoughts on how long this process will take? are we talking years before they’ll even look at the case?

  24. Thanks, Tim.

  25. John, I totally agree. The fact that the Tory party may have more gay members than the other two doesn’t mean a thing. There are many gay tories who don’t want full marriage equality and I daresay there are a few in both Labour and the Liberal Democrats. Forget about Summerskill, he’s nowhere on the radar. In fact, I predict that StonewallUK won’t play any role. Summerskill’s reversal is nothing more than window dressing. As the old saying goes, action speaks louder than words. That goes for Clegg, Miliband and Cameron although I doubt if Cameron will support it. When he said he’d consider it, that’s code for doing nothing. Nothing more than a political ploy to get more gay votes and some gay voters fell for it. I always thought in a true democracy, rights are expanded, not contracted.

    Without Peter Tatchell, marriage equality wouldn’t even be a reality or a subject for discussion, he is the one who put it on the map. How I wish he were in charge of StonewallUK, its clear Summerskill doesn’t have any mult-tasking skills, unlike Peter.

  26. this is an interesting one..

    http://www.starobserver.com.au/news/2011/02/01/marriage-call-at-united-nations/43141

    MARRIAGE CALL AT UNITED NATIONS

    “…..These included a recommendation from New Zealand that Australia make legislation covering discrimination on the basis of sexual orientation “a high priority”, while Norway recommended Australia amend the Marriage Act to allow same-sex couples to marry.”

    Perhaps Norway can make the same recommendation to the UK!!!!!!

  27. “The LibDems are committed to equal marriage” Julian. Like they’re committed to abolishing tuition fees and not raising VAT?

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