A British court ruled on July 31 that a Canadian same-sex marriage between citizens of the United Kingdom need not be recognized as a marriage by the British government. Ruling on a petition by Susan Wilkinson and Celia Kitzinger, married in British Columbia in 2003, Sir Mark Potter, the president of the Family Division of the High Court in London, concluded his decision was valid under both ordinary principles of international law and the European Convention on Human Rights.
Potter’s decision could be appealed to the Court of Appeal, and from there to the Law Committee of the House of Lords, England’s highest appellate court. Further relief might be sought from the European Court of Human Rights.
As Potter explained, the ordinary principles of private international law would dictate that both Canadian and British law play a role. The formalities of marriage would be determined by reference to the law where the marriage took place—Canada. However, the question whether the couple had the capacity to marry is determined by the law of their domicile, in this case the United Kingdom. Since British statutory law makes clear that marriage is reserved for opposite-sex couples, Potter ruled, the Wilkinson-Kitzinger marriage would not be recognized.
The Civil Partnership Act, passed by Prime Minister Tony Blair’s Labour government, took effect last December. Under its terms, the Wilkinson-Kitzinger Canadian marriage is recognized in England as a civil partnership, not a marriage. The only tangible differences between the two are that civil partnerships must be take place in a civil ceremony (marriage can be performed by clergy licensed to do so) and are declared in law not to be marriages.
Wilkinson and Kitzinger argued that the “separate but equal” result of relegating their marriage to a civil partnership would violate their rights under the European Convention on Human Rights, which has been construed to ban sexual orientation discrimination and to require respect for private life. The U.K. recently extended transsexuals the right to marry in the gender in which they live their lives as a result of a European Court of Human Rights ruling.
But Potter rejected the view that his ruling is inconsistent with Britain’s obligations under the Convention. In applying the requirements of the Convention to national laws, the European Court has followed the consensus of the signatory countries. On issues where there is a significant difference among those countries, Potter argued, the Court is unlikely to impose an interpretation followed by only a minority. Only three countries bound by the Convention—the Netherlands, Belgium, and Spain—allow same-sex couples to marry, with many others extending rights to same-sex couples through alternative legal structures, in many cases less comprehensive than what Britain has done.
“It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or ‘nuclear family’) in which both maternal and paternal influences are available in respect of their nurture and upbringing,” he wrote.
In other words, Potter seems to be taking a page from the book written by Judge Robert Smith of the New York Court of Appeals or Justice Barbara Madsen of the Washington Supreme Court. It’s all about the children—at least those in households headed by heterosexual couples.
Potter suggested that the passage of the Civil Partnership Act proved that same-sex relationships were not branded as inferior to opposite-sex relationship by British law, and to the extent that there remains any discrimination, “such discrimination has a legitimate aim, is reasonable and proportionate, and falls within the margin of appreciation accorded to Convention States.”
Although the case can be appealed, news reports immediately following the decision suggested that Wilkinson and Kitzinger might not have the resources to do so, having already been taxed a substantial sum for the government’s cost of the litigation as the losing parties.