The Curious Case of Civil Partnership: The Extension of Marriage to Same-Sex Couples and the Status-Altering Consequences of a Wait-and-See Approach

In this article, I argue that, if civil partnership is to persist and marriage remain unchanged, civil partnership must be extended to include opposite-sex couples.  I develop my case through an analysis of Andrews J’s decision in the High Court in Steinfeld and Keidan v Secretary of State for Education.  Firstly, I demonstrate why it matters whether any specific discrimination claim is equality-based or liberty-based.  Secondly, I consider immutability or flexibility in meaning of particular status relationships – both civil partnership and marriage.  Thirdly, to determine the correctness of the decision in Steinfeld, I examine the ongoing relevance and value of the High Court’s earlier decision in Wilkinson v Kitzinger and another (No 2), particularly in light of the ECHR’s developing jurisprudence.  Fourthly, given its notable absence from Andrews J’s judgment, I consider the significance of the nature and justifiability of the public interest in status relationships.  I conclude that, whilst an equality-based discrimination claim demands that entitlement to enter into civil partnership be extended to opposite-sex couples, a liberty-based perspective reveals that revisiting the meaning of civil marriage may yet justify denying demands for extending entitlement to entry into civil partnership.  Preferring the equality-based approach depends on seeing it as justifiable for the courts, not Parliament, to pursue reform here.  Favouring the liberty-based view turns on believing in the transformation of the meaning of marriage by the modernising role for civil marriage.

This paper will be published in the (2016) Child and Family Law Quarterly.  The pre-print version is available here.

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