Justified Discrimination

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t Justified Discrimination? A Critical Analysis of the Decision in Wilkinson v Kitzinger [2007] 1 FLR 296 by Erin Culley, Department of Law, University of Greenwich [1]  ABSTRACTThe creation of the civil partnership was a clear compromise between the need to recognise a formalised relationship between same-sex couples while still acknowledging the protests of those against the creation of gay marriage. Many were thrilled with the symbolic step taken by Parliament, whereas others were appalled at the creation of a new institution rather than simply permitting same-sex couples access into the institution of marriage. This was the subject of the challenge to the High Court in the case of Wilkinson v Kitzinger [2007] 1 FLR 296, where it was argued that the creation of a similar but different institution for same-sex couples was discriminatory and conflicted with the European Convention on Human Rights. This article criticises the decision of Sir Mark Potter, who ruled that though it can be seen as discriminatory, such discrimination is justified on the legitimate ground of the protection of family life. It is argued in this paper that the justifications put forward have no legitimate basis and that the decision was erroneous and was based on a culturally conditioned heterosexual predisposition.KEYWORDS: Civil partnership, marriage, discrimination, same-sex, sexual orientation, human rights. INTRODUCTIONIn recent years, several countries – the Netherlands, Belgium, Spain, Canada and South Africa – have legislated to permit same-sex marriages. While the law of England and Wales does not allow such marriages, the Civil Partnership Act 2004 has created a legally recognised relationship for same-sex couples, the civil partnership. Apart from minor differences which will be discussed later, there are no noteworthy legal differences between a civil partnership and a marriage. However, in 2006, a same-sex couple challenged its compatibility with the European Convention on Human Rights (ECHR) in the case of Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 FLR 296. This decision will be critically analysed in the light of recent decisions of other common law jurisdictions, which have found prohibitions on same-sex marriages discriminatory. While it is acknowledged that the common law decisions are based on different constitutional models to those of the UK, they prove to be a useful source of comparison on the issue of discrimination, particularly as they are some of the only cases that have directly discussed the issue of same-sex marriage.Before examining the judgment, we shall explain briefly the role of Parliament and the courts in ensuring compatibility with the ECHR. Prior to the Human Rights Act 1998, challenges to the compatibility of domestic laws were made to the European Court of Human Rights (ECtHR). Challenges may now be made directly to domestic courts. The courts have a duty under s.3 to read all legislation in line with the Convention, if possible, something described by Lord Steyn as  the ‘lynch-pin’ of the legislative scheme, its purpose being to ‘bring [Convention] rights home’. (Ghaidan v Godin-Mendoza [2004] UKHL 30 at para. 42). As a ‘last resort’, if ‘reading down’ is not possible, a declaration of incompatibility must be made under s.4 (Ibid. at para 46). This declaration is not binding on Parliament, but changes will usually be made to bring the provisions in-line with the Convention to prevent a challenge to the ECtHR.The petitioners in Wilkinson v Kitzinger were legally married in Canada and sought a declaration of validity under s.5 of the Family Law Act 1986. However, according to s.11 of the Matrimonial Causes Act 1973, a marriage is void if it is between two persons of the same sex. Furthermore, s.215 of the Civil Partnership Act 2004 provides that any same-sex marriage entered into abroad shall be regarded as a civil partnership rather than a marriage. The petitioners argued that the prohibition on...
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