As a result of the extension of marriage via the Marriage (Same Sex Couples) Act 2013, same-sex couples can choose whether to secure formal legal recognition of their relationship via marriage or civil partnership. In Steinfeld and Keidan v Secretary of State for Education  EWHC 128 (Admin), the claimant couple argued that sections 1 and 3(1)(a) of the Civil Partnership Act 2004, which restrict eligibility to enter into civil partnership to same-sex couples, were incompatible with Article 14 of the European Convention on Human Rights taken together with Article 8, and sought a declaration of incompatibility under section 4 of the Human Rights Act 1998.
Andrews J dismissed their application for judicial review, reasoning on alternative grounds. Firstly, the claim did not fall within Article 14 read together with Article 8. Secondly, were the couples’ claim seen to fall within the ambit of Article 14 read together with Article 8, differential treatment of same-sex and opposite-sex couples in terms of their access to civil partnership was objectively justified (para. 86). The High Court judgment in Steinfeld is important in four respects: first, it highlights the importance of seeing the couple’s discrimination claim as equality-based, which means it is properly addressed by the courts, rather than Parliament; second, it demonstrates the impact of the uncertainty over the relationship between domestic and ECtHR jurisprudence; third, it underlines the difficulties of relying on the Court of Appeal’s earlier decision in Wilkinson v Kitzinger and another (No 2)  EWHC 2022 (Fam) in this context; fourth, it evidences significant assumptions made in this context about both the immutability and flexibility in the meaning of civil partnership and marriage, as well as the nature and relevance of the public interest to any reform of civil partnership.
This paper will be published in the (2016) Journal of Social Welfare and Family Law. The pre-print version is available here.