same Sex Marriage in UK Law

There is no lack of respect afforded to any specific aspect of the Claimants' private or family life on account of their orientation as a heterosexual couple. Thus the statutory restrictions complained of do not impinge upon the core values under either limb of Art 8 to the degree necessary to entitle the Claimants to rely upon Art 14. The link between the measures complained of, and their right to enjoy their family and private life, is a tenuous one.

In my view, at present, the Secretary of State's position is objectively justified. The future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully. At the hearing the Secretary of State's approach was described as a "wait and see" approach, although it would be more accurate to describe it as a "wait and evaluate" approach.

Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny.

Before Andrews J and the Court of Appeal it had been submitted that an adverse effect in relation to article 8 had to be demonstrated in order for an avowed infringement to come within its scope or ambit. Counsel for the respondent did not seek so to argue before this court.

It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol ("IFP"), to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all.

So it may be that the United Kingdom legislation is more advanced than that of some of such other countries. But, on the face of it, a great change has taken place across Europe during the last five or so years, of which any Court considering the current scope of article 8(1) would take most careful account.

It is suggested that the Act has made a subtle but perhaps important change to the terminology. What governed Ormrod J's decision in Corbett, based as it was on ecclesiastical principles, was whether the parties were 'a man and a woman.'