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

Abstract

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 Steinfeld and Keidan 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 consider immutability or flexibility in meaning of particular status relationships – both civil partnership and marriage. 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 and another (No 2), particularly in light of the ECHR’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 in the transformation of the meaning of marriage by the modernising role for civil marriage.

Keywords: ss1 and 3(1)(a) Civil Partnership Act 2004, civil partnership, Articles 8 and 14 European Convention on Human Rights, Marriage (Same Sex Couples) Act 2013, discrimination, Wilkinson v Kitzinger and another (No 2) [2006] EWHC 2022 (Fam)