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Same-Sex Marriage and Human Rights

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In December 2005, the Civil Partnership Act came into force, making a big step towards equality for same-sex couples. However, many felt that civil partnerships were not enough, and looked to the government to make provision for full equality: only then could same-sex relationships be deemed as 'valid' as heterosexual ones. Currently, civil partnerships are not legally recognised in every country; marriage would enable international recognition for same-sex couples.

Civil partnerships offer almost the same rights as marriages, but the problem is inherent - they are civil partnerships, not marriage. Perhaps the most important differences are that a wedding ceremony requires vows rather than simply signatures, can have a religious aspect, and can take place in a church.

Last month the government proposed a change to the law that would allow same-sex couples to enter into marriage, but in the case of religious ceremonies this will be only at the discretion of the individual religious institution.

Big changes are bound to cause some controversy and draw criticism, and this proposal was no exception. The government has tried to avoid any breach of human rights laws by instituting a 'quadruple lock' of four legal assurances that are designed to ensure the sanctity of religious institutions.

Under the new proposals, an amendment to the Equality Act 2010 will mean that no discrimination claims can be brought against churches or ministers for refusing to marry same-sex couples. Neither the Church of England or Church in Wales will be allowed to conduct same-sex marriages without a change to the law - a move designed to protect the Canon Law of the churches, which is also part of the law of the land. Other religious organisations will be able to opt in, but the new legislation will be carefully worded to ensure no individual minister or religious organisation is forced to conduct same-sex marriages.

Whilst the quadruple lock would seem to offer some balance between a progressive move towards equality and the conservative leanings of many within religious groups, the proposals have come under fire over the legal protections which will allow religious organisations and ministers to lawfully discriminate against gay couples.

The question is, if the proposals become law, will there be recourse to the European Court of Human Rights on these issues of discrimination?

Issues surrounding same-sex relationships have gone in front of the European Court of Human Rights a number of times - In Gas and Dubois v France (2012) the ECHR decided France was in the right by denying one partner's request to adopt the other's biological child, on the grounds that this right is granted only to married couples, and France does not recognise same-sex marriage.

In Schalk and Kopf v Austria (2010) the Court deemed that the right to marry did not apply to same-sex couples: Austria did not breach the right by refusing them a marriage. This case is particularly relevant to the human rights debate surrounding same-sex marriage in the UK. Essentially, it was argued that Austria had breached Article 12 of the European Conveyention on Human Rights by not allowing same sex marriage. Unfortunately, Article 12, which deals with the right to marry only guarantees marriage rights in accordance with national laws. British couples looking to challenge the law on same-sex marriage (if it is enacted) are very likely to encounter the same difficulty.

There is also the issue of the human rights of those who conduct the ceremonies. Should a vicar who is opposed to gay marriage be forced to conduct a ceremony? Just recently, we have seen the ECHR uphold the religious freedom of Nadia Eweida, the BA check-in clerk who was sent home for wearing a cross at work. Article 9 of the European Convention guarantees religious freedom within the law, so long as it does not interfere with the rights and freedoms of others.

There may be scope for a challenge within human rights law, but there is no guarantee it would be successful. It is clear that getting the balance right will be a challenge, but if these proposals do pass into law it will be a real step forward towards equality for same-sex couples.

Tom Rokins writes on behalf of Switalskis Family Law, which has seven offices in West Yorkshire. Switalskis deals with divorce and associated financial disputes, children matters and domestic violence cases. See more on Equal Marriage and Human Rights.

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