Same-Sex Marriage – a Fundamental Human Right

The Marriage (Same Sex Couples) Bill 2012-13 was introduced in the House of Commons in January 2013. The Bill is intended to make provision for the marriage of same sex couples in England and Wales as well as provisions about gender change by married persons and civil partners. If passed, it would allow same-sex couples to get married in both civil and religious ceremonies, where a religious institution has formally consented. The Church of England will be banned from offering same-sex marriages because of their strongly stated opinion. The Bill has led to much debate but was approved by the House of Commons on second reading on 5 February 2013 by a 225 vote margin.

At present, eleven countries allow full marriage rights to same-sex couples and legislation is going through the parliaments of a number of other countries in a similar manner to the UK. In the United States, nine states (and the District of Columbia) permit same-sex marriages.

A number of UK polls have demonstrated that a majority are in favour of gay marriage. These include a 2004 Gallup poll, a 2008 ICM Research poll, a 2009 Populous poll and the 2012 YouGov survey.

Arguments against the legislation have included the fact that the Civil Partnership Act already allows same-sex couples the same rights and legal benefits of marriage as heterosexual couples. Legal arguments include the point that Article 16(1) of the Universal Declaration of Human Rights (drafted in 1948) affirms that marriage is between a man and a woman. 

It is a basic principle of human rights that all citizens should be treated equally before the law. Some theorists suggest that a mere extension of the law would result in formal equality without effecting any substantive change. Kitzinger and Wilkinson note that although the Civil Partnership Act offers all the benefits and responsibilities of marriage, the difference in name functions to achieve a separation from that institution.

In relation to Article 9 of the European Charter of Fundamental Rights of the EU, the European Court of Human Rights noted that the article, which makes reference to the right to marry in gender neutral terms, is “meant to be broader in scope than the corresponding articles in other human rights instruments.” However, the Court also observed that Article 9 “leaves the decision whether or not to allow same-sex marriage to the States.”

On 20 February 2013, the Equality and Human Rights Commission analysed the Bill with reference to the Human Rights Act 1998 and the Equality Act 2010. It notes that there is no reason why employees under the latter legislation should not remain free to express their views on same-sex marriages without sanction. It will not require anyone to promote views about same-sex marriage which they do not support.

Introducing the Bill, Maria Miller argued that the European Convention on Human Rights “guarantees the right to freedom of religion – a direct challenge to critics who claim that the commitment to equality under the ECHR can be used in European courts to force ministers to conduct marriages for gay couples when the Bill becomes law.”

The Equality and Human Rights Commission states that a legal challenge by a couple to attempt to force a religious institution to officiate a same-sex union would be likely to fail under the religious protections included in Article 9 of the Human Rights Act 1998.

The evidence suggests that although certain features of heterosexual marriage will remain unique to them, loving and faithful partnerships between opposite-sex and same-sex couples can be spiritually enriching as well as a source of joy and comfort to all couples. 

Since 2001, eleven countries have legalised same-sex marriage while many other countries have published, or are preparing to publish, legislation to the same effect. Same-sex marriage is a right that is becoming increasingly established in the 21st century and there appear to be few, if any, reasonable legal arguments that would prevent implementation of the legislation.