S 1(1) Civil Partnership Act 2004 stipulates that only a same-sex couple may conclude a civil partnership: “A civil partnership is a relationship between two people of the same sex…”. In June 2014 the Government published the results of its second consultation on the future of civil partnership: Civil Partnership Review (England and Wales) – Report on Conclusions. After considering the responses to that consultation, “[g]iven the lack of consensus, the Government said that it would not be making any changes (at present)” . Rebecca Steinfeld and Charles Keidan, however, feel very differently; and they resorted to judicial review after being refused permission to register a civil partnership at Chelsea Town Hall registry office: “The registrar was very sympathetic but confirmed we were of the opposite sex and said consequently she could not provide a civil partnership”.
In Steinfeld & Anor v The Secretary of State for Education  EWHC 128 (Admin), the claimants sought a declaration that, as a result of the enactment of the Marriage (Same Sex Couples) Act 2013, the bar in the Civil Partnership Act 2004 on opposite-sex couples registering as civil partners had become incompatible with Article 14 ECHR (discrimination) taken in conjunction with Article 8 (respect for private and family life). Their claim for a declaration of incompatibility was unsuccessful.
Karon Monaghan QC contended for the claimants that, without the ability to enter into a civil partnership, they would be forced to marry against their consciences in order to obtain the protections and privileges that legal recognition of their relationship would provide and to which they claimed they were entitled . It was not contended that the UK “had a legal obligation to make available to them an institution which will recognise their relationship but to which they do not have the same ideological objections as marriage” but it was argued that the UK could no longer lawfully exclude them from civil partnership by reason of their sexual orientation.
The Marriage (Same Sex Couples) Act 2013 permitted same-sex couples to marry and civil partners to convert their relationship into marriage and the provisions of the Civil Partnership Act that precluded opposite-sex couples from registering as civil partners had therefore become incompatible with Article 14 ECHR (discrimination) in conjunction with Article 8 (respect for private and family life) . The reason for the alleged incompatibility was that same-sex couples now had a choice as to how they went about acquiring formal recognition of their relationship by the state, while opposite-sex couples had not .
It was not claimed that, prior to the enactment of the 2013 Act, it would have been unlawful to deny a same-sex couple the right to marry: that issue had been decided in Wilkinson v Kitzinger & Anor (No 2)  EWHC 2022 (Fam), in which a same-sex couple lawfully married in Canada were unsuccessful in their claim that the provisions of the Matrimonial Causes Act 1973 and the Civil Partnership Act that treated their Canadian marriage as a civil partnership infringed Article 14 read with Article 8 . However, Ms Monaghan submitted that restrictions that had been lawful when enacted had in consequence of 2013 Act become unlawful: in short
“… that having chosen to create the status of civil partners, and then having subsequently chosen to allow same-sex couples to marry, it became incumbent on the UK to treat opposite-sex couples equally by allowing them to become civil partners’ .
The Government had held two consultations on the future of civil partnerships:
“… the effect of the Claimants’ case is that the Government was not entitled to wait and see what practical impact the 2013 Act has upon civil partnerships. They contend that it could not extend marriage to same sex couples without, at the same time, extending civil partnership to opposite sex couples” .
For the Government, Daniel Squires submitted that the claimants’ case was significantly weaker than that of the same-sex couple in Wilkinson: they could not argue that marriage was not universally recognised or regarded as of lesser value than a civil partnership. If there had been no interference with the claimant’s Article 8 rights in Wilkinson then, a fortiori, there could be no such interference in the present case .
Andrews J noted that the claimants felt it
“unfair that a route to state recognition of their relationship which is open to a same-sex couple with exactly the same deeply held objections to marriage as theirs remains unavailable to them simply because they are heterosexual, despite the fact that same-sex couples who wish to marry can now do so” .
However, unfairness did not necessarily mean incompatibility with the Convention; and the difference in treatment did not necessarily constitute discrimination under Article 14 taken with Article 8. Nor did the matter necessarily fall within the Court’s supervisory powers “rather than being a matter of social policy for a democratically-elected Government to address” .
Andrews J concluded that Article 8 was not engaged:
“Whilst their views are of course to be afforded respect, it is their choice not to avail themselves of the means of state recognition that is open to them. The state has fulfilled its obligations under the Convention by making a means of formal recognition of their relationship available. The denial of a further means of formal recognition which is open to same-sex couples, does not amount to unlawful state interference with the Claimants’ right to family life or private life, any more than the denial of marriage to same-sex couples did prior to the enactment of the 2013 Act” [36: emphasis added]
“The alleged interference by the state with their right to private life by denying them the right to enter a civil partnership is even more tenuous. There is no evidence that they are subjected to humiliation, derogatory treatment, or any other lack of respect for their private lives on grounds of their heterosexual orientation by reason of the withholding of the status of civil partners from them .
The only obstacle to the Claimants obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience. That was the case both before and after the enactment of the 2013 Act. Whilst their views are of course to be afforded respect, it is their choice not to avail themselves of the means of state recognition that is open to them. The state has fulfilled its obligations under the Convention by making a means of formal recognition of their relationship available. The denial of a further means of formal recognition which is open to same-sex couples, does not amount to unlawful state interference with the Claimants’ right to family life or private life, any more than the denial of marriage to same-sex couples did prior to the enactment of the 2013 Act. There is no lack of respect afforded to any specific aspect of the Claimants’ private or family life on account of their orientation as a heterosexual couple. Thus the statutory restrictions complained of do not impinge upon the core values under either limb of Art 8 to the degree necessary to entitle the Claimants to rely upon Art 14. The link between the measures complained of, and their right to enjoy their family and private life, is a tenuous one” [39: emphasis added].
As to the Strasbourg jurisprudence – especially Schalk and Kopf v Austria  ECHR 218 and Vallianatos & Ors v Greece  ECHR 1110 – it did not address “… the situation where at all material times an available form of state recognition of the relationship exists, but the couple concerned do not wish to avail themselves of it” ; and since the Council of Europe states that give legal recognition to same-sex couples were still in a minority, the matter was within states’ margin of appreciation .
But Andrews J held that even if she were wrong about that and Article 8 read together with Article 14 was engaged, maintaining the difference in treatment between same-sex and opposite-sex couples in the short term was still objectively justified:
“By deciding to wait until it is in a better position to evaluate the impact of the 2013 Act on civil partnerships before taking any legislative steps, against a background where there is no consensus either domestically or within Europe as to the appropriate course to take, the Government is acting well within the ambit of discretion afforded to it with regard to the regulation of social matters. There is no lack of respect afforded to any specific aspect of the Claimants’ private or family life on account of their orientation as a heterosexual couple” .
The judgment seems pretty conclusive; however, Adam Wagner argues on the UK Human Rights Blog that “Even if it is not a breach of human rights to refuse opposite sex couples the right to have civil partnerships, that doesn’t mean it is fair or right.” For what my opinion is worth, I agree with him – and in the interests of transparency I should add that I donated to the couple’s crowdfunding appeal.
But a further thought occurs. As noted above, Andrews J pointed out that “The only obstacle to the Claimants obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience” [39: emphasis added]. In short, the couple “… have deep-rooted and genuine ideological objections to the institution of marriage, based upon what they consider to be its historically patriarchal nature” . Their claim was argued in terms of Article 8 taken together with Article 14: but is there also an issue under Article 9 (thought, conscience and religion)?
There is no mention of Article 9 in the judgment: presumably their legal team, no doubt for good reason, did not feel that it was worth raising the point at this stage. But given that Andrews J adverted to the issue of conscience, might it be worth pursuing in any appeal? Are “deep-rooted and genuine ideological objections to the institution of marriage” any less cogent, serious and worthy of respect in a democratic society than an equally deep-rooted ideological objection to fox-hunting and hare-coursing? – for which see Hashman v Milton Park (Dorset) Ltd t/a Orchard Park  ET/3105555/2009.
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Why is this sort of thing being determined in a court, rather than in Parliament, whose members are at elected, and at least in theory are responsible to the people?
Because Rebecca Steinfeld and Charles Keidan sought a declaration that, in light of the enactment of the Marriage (Same Sex Couples) Act, the provision of the Civil Partnership Act that restricts civil partnership to persons of the same sex had become incompatible with their rights under the ECHR. That’s a question for the courts to rule on, not for Parliament.
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