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.
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.