Civil Partnerships Opened to Everyone (UKSC)
On 27 June 2018, the UK Supreme Court ruled unanimously, in the case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary), that the unavailability of civil partnerships to heterosexual couples was incompatible with Article 14 of the European Convention on Human Rights read in conjunction with Article 8. The Civil Partnership Act 2004 was introduced by the Labour Government to offer some form of formalised unions to homosexual couples at the time when British society was not ready for ‘gay marriage.’ Since it was designed to introduce formal relationships akin to marriage, the Act expressly applied to same-sex couples only as heterosexual couples could enter into actual marriage instead. This rationale was justified so long as same-sex couples could not marry. But this changed with the introduction of the Marriage (Same Sex Couples) Act 2013. Since then, homosexual couples have been able to choose between civil partnership and actual marriage while heterosexual couples could only marry. This has been challenged as a form of direct discrimination based on sexual orientation contrary to Article 14 of the Convention as applied by virtue of Article 8. Now the UK Supreme Court held that the need to “wait and evaluate” before enacting any reform, an argument the Government put forward to justify the discrimination, does not, in this case, constitute a legitimate aim under the Convention as this is not an instance of a discrimination with a long tradition which is only gradually becoming unacceptable but rather a novel issue whose discriminatory nature was apparent as soon as it was introduced (paras. 42-43). At the end, the Court did not hesitate to issue a declaration of incompatibility explaining that absent any legitimate aim, deference to a parliamentary process is not justified (paras. 54-57). The ruling goes a step further than the hitherto jurisprudence of the European Court of Human Rights which held in 2013, in the case of Vallianatos v Greece (App. Nos.: 29381/09 and 32684/09), that the availability of civil partnerships to heterosexual couples only violated Article 14 of the Convention read in conjunction with Article 8 because homosexual couples were not in a ‘comparable situation’ as they could neither marry nor enter into civil unions while heterosexual couples could do both (paras. 78-79). The same, however, could not be said about the situation of heterosexual couples in the United Kingdom. Moreover, the European Court of Human Rights ruled, in April 2018, in the case of Ratzenbock and Seydl v Austria (App. No.: 28475/12), that the unavailability of civil partnerships to heterosexual couples did not violate the Convention given that they could enter into marriage while same-sex couples could not. The Court was of the opinion that “the institutions of marriage and the registered partnership are essentially complementary in Austrian law.” (para. 40) – the same state of affairs one could observed in the UK between 2004 and 2013 but not since then. Accordingly, the judgment of the UK Supreme Court appears to have been built on the existing jurisprudence of the European Court of Human Rights while shrinking any deference to the legislature within the presumed margin of appreciation. Now it is only a matter of time before Parliament amended the Civil Partnership Act to remedy the injustice.