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UK

High Court Decision on Same Sex Marriage: Background To Our Legal Challenge

 

By Sue Wilkinson and Celia Kitzinger
 

Report

Full official text of the High Court judgement

Sue Wilkinson and Celia Kitzinger were ordered by the High Court to pay £25,000 ($47,000 or €37,000) towards the UK Government's costs.  This is in addition to their own costs.

If you would like to make a contribution, please send a cheque to: Equal Marriage Rights, PO Box 486, Clifford House, 7-9 Clifford Street, York YO1 9RA.  Cheques should be made payable to  "Equal Marriage Rights"

 

 



 

 
■ Sue Wilkinson (left) and Celia Kitzinger face the Press after having their legal application dismissed by the High Court in London.
(photo: Outrage!)
 

[Note:  This was written prior to the judgement in the High Court in London today]

We are a lesbian couple and we’ve been together for 16 years.  We’re British citizens, and have lived in England for most of our lives.  Our home is currently in Yorkshire.  We’re both university professors: Celia at the University of York and Sue at Loughborough University.

From 2002-2004, Sue was living and working in Vancouver, Canada, as a visiting professor at Simon Fraser University.  This appointment coincided with the historic period when the courts (first in Ontario, then in British Columbia) opened up marriage to same-sex couples.

Same-sex marriage is now legal at federal level across Canada.

On 26 August 2003, at a civil ceremony in a flower-decked conservatory in Yaletown, Vancouver, we made our vows: “With this ring, as a symbol of my love and commitment, I call on those present to witness that I Celia/Sue do take you Sue/Celia to be my lawful wedded wife, to have and to hold, from this day forward, through all our life together”.

The marriage commissioner declared: “upon the authority vested in me by the Province of British Columbia, I now declare you wife and wife”.

The decision to marry was an affirmation of our love and our commitment to each other.  Being granted full social equality through marriage was of profound symbolic importance to us.  Especially for Celia, who first came out as lesbian as a teenager more than thirty years ago, when homosexuality was still treated as a psychiatric illness, and prejudice and discrimination against lesbians and gay men was taken for granted, this marked a huge advance in social justice: “I never expected to have the opportunity to marry someone I loved”.

Our marriage also provided a practical, one-step solution to many of the problems of sustaining a relationship across international boundaries (immigration, healthcare provision, wills, power of attorney, and so on), as Celia was still living and working in England.

In Canada, as in Belgium, the Netherlands and Spain (as well as the US state of Massachusetts), marriage is legally available to any two people regardless of gender and sexuality.  In the UK, by contrast, the government has recently confirmed that it has no plans to open up marriage to same-sex couples.

For the first two years of our marriage, our relationship had no legal recognition at all in our home country – unlike the marriage of any heterosexual couple married overseas, which would automatically have been recognised in Britain.

Then, in December 2005, with the implementation of the new Civil Partnership Act (CPA), our marriage was automatically – without our consent, and against our wishes – converted by the state into a civil partnership.  The CPA says that same-sex couples who legally marry in countries where it is possible for them to do so “are to be treated as having formed a civil partnership” (CPA, para. 215).

Civil partnerships are an enormously important step forward for lesbian and gay rights.  They make a huge practical difference to our ability to protect our loved ones and mark the beginning of a new era of acceptance for non-heterosexual family forms.  But civil partnership is a different institution from marriage – a separate institution for same-sex couples only, while marriage is reserved for different-sex couples only.  This maintains a symbolic separation of lesbians and gay men from ‘normal’ society, sending out the inescapable message that our relationships are not worthy of recognition through marriage.  This discrimination is demeaning and unjust.  Separate is not equal.

Our case is fundamentally about equality.  We simply want to be treated the same way as any heterosexual couple who marries abroad – to have our valid Canadian marriage recognised as a marriage in our home country.

With the support of the national human rights organization, Liberty, we went to the High Court in early June 2006 to seek a declaration of the validity of our marriage – as a marriage, not as a civil partnership – under Section 55 of the Family Law Act 1986.  Our lawyers argued that any failure to recognise the validity of our marriage constitutes a breach of our rights under the European Convention on Human Rights (incorporated into UK domestic law by the Human Rights Act 1988).  They argued specifically that it breaches Article 8 (right to respect for private and family life), Article12 (right to marry), and Article 14 (prohibition of discrimination), taken together with Article 8 and/or 12.

The High Court judge who has considered the case said in his interim ruling (handed down on 12 April 2006): “I consider that there is sufficient material available for an argument based on principle ... that the requirement of the Civil Partnership Act that a marriage between same-sex partners abroad must, on registration, be treated as a civil partnership and not a marriage, is on the face of it discriminatory on the grounds of sexual orientation” (Wilkinson v. Kitzinger, Her Majesty’s Attorney-General & The Lord Chancellor).

Winning our case could establish that the human rights to respect for private and family life and to marry apply equally to lesbians and gay men – not just to heterosexuals.

This is an important challenge to a legal system that has never yet extended either the right to respect for private and family life nor the right to marry to same-sex couples.  Although our case calls for the government’s recognition of our valid overseas marriage, it has far-reaching implications for lesbian and gay equality and human rights more generally across Europe.

LINK

Sue and Celia's website
Liberty website

Full official text of the High Court judgement

 

 

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Posted: 31 July 2006 at 20:00 (UK time)

 

 

 

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