.Legal Reports & Analysis of our case. .Law.&.homosexuality across.Europe. .Case law referred to.

Legal Background

The case was heard in the Family Division of the High Court of Justice  on 6-8 June 2006.  It was listed as Wilkinson v. Kitzinger and Her Majesty's Attorney General and the Lord Chancellor (Case No. FD05D04600). The legal structure in the Family Court means that, although we are bringing this case as a couple, technically one of us is the Petitioner (Wilkinson) and the other is the First Respondent (Kitzinger).  The Attorney General is the Second Respondent and the Lord Chancellor the Intervener.   Both the Second Respondent and the Intervener opposed the petition for a declaration that our marriage is valid under the law of England and Wales (under section 55 of the Family Law Act 1986).  For an overview of the case see the article in The Lawyer in .Matrix.barrister takes.stand on same-sex marriage recognition..

The 'skeleton arguments' are the outlines of the arguments presented in court. The .Petitioner's.argument. (presented by .Karon.Monaghan.) claims 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). It argues specifically that it breaches Article 8 (right to respect for private and family life), Article 12 (right to marry), and Article 14 (prohibition of discrimination), taken together with Article 8 and/or 12. "Laws which prohibit  persons from marrying those with whom they enjoy adult and intimate love, subject  only  to  very  narrow   public  policy  considerations (like  close  degrees  of   consanguinity),  are  utterly  antithetical  to  human   rights  values  and  respect  for  human dignity." (para. 55; see especially paragraphs 91-95).

The .Intervener's.argument.  (presented by .Helen.Mountfield.) claims  that there is no lack of respect for our family life (as protected by Article 8), since same-sex relationships are not within the scope of the Article; that Article 12 does not give same-sex couples the right to marry; and that there is no discrimination under Article 14, because civil partnerships are available to same-sex couples.  (See especially paragraphs 10a, 24, 31, 35 and 58).

In a complex case like this it is usual for judgement to be reserved.  It is likely that judgement will be handed down towards the end of July 2006.


Legal Reports and Analysis of our case



Law and homosexuality across Europe

For more information about the situation on family and marriage rights for same-sex couples across Europe see the home page of  .Dr..Kees.Waaldijk., a research fellow specialising in the field of law & homosexuality, based in the Faculty of Law at Leiden University in the Netherlands.


Some of the case law referred to in the skeleton arguments in our case

.Plessy v Ferguson. (1896)
The US Supreme Court ruled that segregation could be legally enforced so long as the facilities for blacks were equal to those for whites.
In 1890 the State of Louisiana had passed a law that required "equal but separate" accommodations for blacks and whites on railroads, including separate railway cars. Several black and white citizens in New Orleans formed an association dedicated to the repeal of that law. In 1892, Homer Plessy, who had one black great-grandparent and was therefore classified as an ‘octoroon black’ in the language of the day, purchased a first-class ticket and took a seat in the white section. He was asked to leave the white section and sit instead in the ‘blacks only’ section. When he refused he was arrested. Eventually the case made its way to the US Supreme Court, where Plessy’s lawyer argued that the Louisiana railroad segregation law implied the inferiority of blacks. The court rejected Plessy’s argument that segregation fostered any inferiority of black people, holding that the law merely separated the races as a matter of social policy. Justice Brown, reporting the majority opinion of the court, said: "We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." The case provided the impetus for further segregation laws throughout the USA. In January 1897, Homer Plessy pleaded guilty and paid a $25 fine.

.Brown v Board of Education. (1954)
The landmark case in the US Supreme Court that finally dismantled the legal basis for the "separate but equal" doctrine enshrined in Plessy, ordered an end to school segregation, and was a catalyst in launching the modern Civil Rights Movement.
As early as 1849 African Americans had filed suits against an educational system that mandated separate schools for white and black children, but courts ruled that equality of treatment was accorded as long as schools for the two races were provided with substantially equal facilities with respect to buildings, curricula, qualifications, salaries of teachers, and other ‘tangible’ factors. The case is named after Oliver Brown, whose daughter, Linda, was compelled to attend a segregated black school far further from her home than the segregated white school at which she had been refused enrollment. He was one of nearly 200 plaintiffs from five states who were part of the NAACP (National Association for the Advancement of Colored People) cases brought before the Supreme Court. The court unanimously decided that "Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities even though the physical facilities and other ‘tangible’ factors may be equal. [...] In the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.’

.Loving v Virginia. (1967)
In June 1958, Mildred Jeter (a black woman) and Richard Loving (a white man) committed a felony under state law because, after exchanging wedding vows in the District of Columbia, they lived together as husband and wife in Caroline County, Virginia. Doing so violated the state's anti-miscegenation law, The Racial Integrity Act, which prohibited any white person ... to marry any save a[nother] white person." A Virginia statute of the time automatically voided all marriages between "a white person and a colored person" without any judicial proceeding. According to a Virginia judge

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

He sentenced the Lovings to a year in prison, suspended on the condition that they leave the state and not return for twenty-five years. When the case reached the Supreme Court, the judge observed that "there can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race." and that the legislation was "designed to maintain White supremacy". He reversed the conviction of the Virginia court, stating that "Marriage is one of the "basic civil rights of man," and that "under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Click .here. for commentary on the contemporary relevance of Loving, from Randall Kennedy, a professor at Harvard Law School.

Mata Estevez v Spain (2001)
The European Court of Human Rights rejected a gay man’s claim of discrimination and lack of respect for his family life.
The European Court of Human Rights declared inadmissible a complaint from Mr Estevez, a Spanish gay man, that he should have been entitled to a social security allowance payable only to "surviving spouses" after his male partner of more than 10 years had died in a road accident. The Court agreed that the situation would be different if the partner were of the opposite sex, but stated that a refusal by the Spanish authorities to pay Mr Estevez a survivor pension following his partner’s death did not violate his right to respect for his private and family life and was not discriminatory. In particular, the Court held that "the applicant’s relationship with his late partner does not fall within Article 8 insofar as that provision protects the right to respect for family life". It also held that the Spanish legislation had a legitimate aim in discriminating against Mr Estevez, "the protection of the family based on marriage". (Only four years later, Spain opened up marriage to same sex couples.)

.Bellinger v Bellinger. (2001)
In the UK, Elizabeth Bellinger, a trans woman, unsuccessfully appealed against the refusal of the High Court to grant her a declaration that her marriage to a man was valid.

.Goodwin & I. v United Kingdom. (2002)
The decision in Goodwin & I v UK Government held that the government's failure to alter the birth certificates of transsexual people or to allow them to marry in their new gender role was a breach of the European Convention on Human Rights. (The Government has since passed the Gender Recognition Act (2004).

.Karner v Austria. (2003)
The European Court of Human Rights found discrimination on the grounds of sexual orientation
This is the first case relating to the rights of same-sex partners ever considered by the European Court. An Austrian gay man, Siegmund Karner, had lived in his male partner’s flat since 1989 and shared the expenses of the flat. His partner died in 1994 and designated Mr Karner as his heir. Although the surviving member of a married couple or of a heterosexual couple who were ‘life companions’ would have inherited the tenancy, the landlord of the property brought proceedings against Mr Karner for termination of the tenancy, and the Austrian Supreme Court found (on appeal) that the notion of ‘life companion’ was not to include persons of the same sex. Mr Karner brought the case to the European Court of Human Rights, claiming to have been a victim of discrimination on the grounds of his sexual orientation. For the first time in its history, the European Court of Human Rights ruled that this was discrimination based on sexual orientation and that his Convention rights had been breached (Articles 8 and 14).

.Ghaidan v Godin-Mendoza.  (2004)
The UK House of Lords upheld the right of a man to succeed to the tenancy of his deceased same-sex partner as if he had been the husband or wife of the deceased.   This has been described by .Richard Clayton QC. as "one of the most important decisions yet made under the Human Rights Act" because of the Lords' conclusions about Section 3 of the HRA which says: "So far as possible to do so, primary legislation and secondary legislation should be read and given effect in a way that is compatible with Convention rights".   If such a construction is not possible then the court has the power to grant a declaration of incompatibility.  "Nowhere in our legal system is a literalistic approach more inappropriate than when considering whether a breach of a Convention right may be removed by interpretation under section 3.  Section 3 requires a broad approach concentrating, amongst other things, in a purposive way on the importance of the fundamental right involved." (Lord Steyn).  According to Lord Nicholls, even if Parliament, in enacting legislation, may reasonably be supposed to have intended one thing (e.g. that homosexual partners should not succeed to tenancies) "Section 3 may require the court to depart from this legislative intention...". This means that in order to protect human rights, a court can modify the meaning and hence the effect of a legal statute.

.Secretary of State v M. (2005)
The House of Lords found no discrimination in respect for family life
In England, Ms. M, the non-custodial mother of two children, was required to contribute financially to the costs of child maintenance incurred by their father, her former husband, from whom she was divorced. The amount she paid was calculated according to the rules of the Child Support Act 1991 and in her particular case the rules resulted in her being required to pay more towards the maintenance of her children than she would have to pay if she were living with a heterosexual partner (46.97 instead of 13). She claimed that this difference in treatment of same-sex couples and heterosexual couples was discriminatory and showed a lack of respect for her family life (Articles 8 and 14). The House of Lords (on appeal) stated that there was not a sufficiently close nexus between ‘the core values which [Article 8] is intended to protect’ and the action complained of. According to Lord Bingham: "I do not think the enhanced contribution required of Ms M impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life".


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