Same-sex couples, different rules

Martin Bowley looks into the difficulties of affording gay relationships the same legal status as conventional marriages. Martin Bowley QC is a tenant at One KBW at 36 Bedford Row and president of the Bar Lesbian and Gay Group.

In spite of all the Government's pre-election statements of good intent, the only sign of movement in the area of gay rights has been the decision not to contest Morris and Sutherland – “the age of consent” cases – before the European Court of Human Rights. And that was only bowing to the inevitable.

It is generally accepted that an equal age of consent could have come in during the last Parliament. And, in spite of Labour front bench support in the House of Lords for the Sexual Orientation Discrimination Bill last year, the Government still found it necessary to argue in Luxembourg in Grant – the “Fares Fair” case – that it should remain lawful to refuse travel concessions to same sex partners even when they are available to spouses and opposite sex partners.

Surprisingly enough, it is the higher judiciary that has taken the lead in arguing the case for the basic human right of sexual equality, not radical politicians. Two years ago in Smith – the first “gays in the military” case – Lord Justice Simon Brown said in the Divisional Court: “The tide of history is against the Ministry. Prejudices are breaking down. Old barriers are being removed.”

In the Court of Appeal Lord Bingham said: “There has, in this country, been a discernible trend over the last half century or so towards greater understanding and greater tolerance of homosexuals by heterosexuals, and towards greater openness and honesty by homosexuals”.

In the same case, Lord Justice Henry commented: “Since 1967 there can be no doubt that public opinion has moved a very long way towards toleration and acceptance of homosexuals. There has been a growing recognition of the specific human rights of homosexuals, including rights in the workplace.”

Earlier this year in Perkins – the second “gays in the military” case – Mr Justice Lightman said: “Homosexual orientation is a reality today which the law must recognise and adjust to, and it may well be thought appropriate that the fundamental principle of equality and the irrelevance of a person's sex and sexual identity demand that the court be alert to afford protection to them.”

Shortly before the end of last term there came further powerful statements from the Court of Appeal in Fitzpatrick v Sterling Housing Association (see Litigation, page 11), in which it was held that the surviving partners in a stable and permanent homosexual relationship still cannot claim succession rights under the Rent Act in respect of premises of which the deceased partner was a protected tenant.

Lord Justice Waite spoke of “the modern acceptance of the need to avoid any discrimination on the ground of sexual orientation” and of the necessity for Parliament “to fulfil its function of reflecting the spirit of our times – in particular the spirit which recognises the value of all abiding relationships, the heterosexual, the lesbian, the gay.”

Lord Justice Ward described the tide in favour of equality rolling relentlessly forward, and showing no sign of ebbing. Remarks such as these, from the most senior of judges, provide invaluable ammunition in the gay marriage/domestic partnership debate which is now very much part of the legal and social, if not yet political, agenda.

The UK is waiting for the final analysis of the 6,000 questionnaires received by the Stonewall Group in response to its partnership survey.

In Europe the Dutch are moving in the Scandinavian direction of registered domestic partnerships for lesbian and gay couples which early next year will provide virtually all the rights and responsibilities of marriage, except the right to adopt.

In the US the argument has developed in a very difficult way, driven largely by the Hawaiian case of Baehr v Milke, the Marriage Project of the Lambda Legal Defence and Education Fund and its director, Evan Wolfson. The backlash created by their efforts resulted not only in last year's federal Defence of Marriage Act, but also in the passage in 25 of the 50 states of legislation restricting marriage to different-sex couples or denying recognition to same-sex marriages.

In Hawaii the political debate has taken an interesting turn. In November of next year Hawaiian voters will be asked to support a constitutional amendment which, if adopted, will permit (but not require) the legislature to restrict marriage to opposite-sex couples.

As part of the political quid pro quo for getting that proposition on the ballot, the Hawaiian legislature approved a “reciprocal beneficiary relationship” law which has been said to provide “the most sweeping package of rights and protections ever offered to same-sex couples anywhere in the US.”

The package includes health coverage, employment leave, joint tenancies, insurance and state pensions, and property inheritance without a will. About 60 such rights are included. But that is still less than half a loaf for, in Hawaii, civil marriage brings with it more than 160 rights. And, as a result of the Defence of Marriage Act, same-sex couples will still be denied all federal rights and benefits, including immigration rights and veterans' benefits.

In Hawaii, since 1 July, any couple over 18 who is unmarried and who cannot be married can fill in a simple one-page form and, on payment of eight dollars, receive a reciprocal beneficiary relationship certificate. Those entitled to a certificate include both same-sex couples and the immediate members of a family. Either party may terminate the relationship by submitting another form and a payment of a further eight dollars! It all seems too easy to be true. And it probably is. The debate is not just about rights. It is also about responsibilities. It is even more about the recognition of long-term committed and caring same-sex relationships by the rest of society.

Whether the ultimate answer is gay marriage or domestic partnerships, proof of personal commitment should be a necessary prerequisite. And the dissolution of such a partnership should be no easier than dissolving a marriage.

In neither case is eight dollars enough! When I first began writing on this topic, I argued that what matters is the contract and the commitment. The ceremony, I suggested, is largely irrelevant. I was wrong.

The public recognition of relationships – straight or gay – requires more than form-filling and cheque-signing. It will require a public ceremony of commitment, not necessarily even a civil marriage (though in due course that may well become an option on the basis of equality of sexuality). Only then will the rights and responsibilities to which such relationships are entitled receive the recognition they deserve.