On Friday 26 June 2015 same-sex marriage was recognised as a constitutional right in the USA. Siân McKinley looks at the judgment in Obergefell v Hodges, and future areas of development for the UK.
Obergefell v Hodges
The Fourteenth Amendment to the US Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law” (the Due Process Clause). Furthermore, no state shall “deny to any person within its jurisdiction the equal protection of the laws” (the Equal Protection Clause).
The U.S. Supreme Court ruled 5–4 that the right to marry is a fundamental right inherent in the liberty of a person. They based this decision on four principles:
- Marriage requires personal choice and is an expression of individual autonomy; “the decision whether and whom to marry is among life’s momentous acts of self-determination.”
- Marriage supports the union of and commitment made by two people, in a way that no other association does.
- Marriage safeguards children and families. The right to establish a home and bring up children is a central part of the liberty protected by the Due Process Clause, albeit that the US Supreme Court recognised the right to marry is no less meaningful for those who do not or cannot have children.
- Marriage is a keystone of the American social order. Valid marriage under state law is the basis of government rights, benefits and responsibilities and for provisions of federal law.
The majority of the US Supreme Court considered that the principles which underpin the fundamental right of marriage applied with equal force to heterosexual couples as to same-sex couples. Same-sex couples could not therefore be deprived of the fundamental right to marry contrary to the Due Process Clause.
The US Supreme Court also acknowledged that a prohibition on same-sex marriage contravened the Equal Protection Clause. Therefore, it concluded, States cannot prohibit the issuing of marriage licenses to same-sex couples on the same terms and conditions as opposite-sex couples, nor deny recognition of marriage licenses to same-sex couples lawfully performed in other states.
Notable for UK practitioners is the emphasis placed by both the majority of the US Supreme Courts and the dissenters on the continued protection of those who disagree with same-sex marriage on religious grounds. The majority opinion expressly stated that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
From a UK perspective, this suggests greater protection of actions as a result of a religious belief than in our jurisdiction. Advocating a view that same-sex marriage should not be condoned amounts to manifesting a religious belief (Mbuyi v Newpark Childcare (Shepherd’s Bush) Ltd ET no. 3300656/2014). An individual has only a qualified right to manifest their beliefs under Article 9(2) of the EHRC which may be restricted if necessary to achieve a legitimate aim.
However, many in the US (including all the dissenting judges) do not consider that the majority opinion went far enough. Already there are questions as to whether clerks in US courthouses are entitled to refuse to issue marriage licenses to same-sex couples if it conflicts with their religious beliefs. It will be interesting to watch how the conflict between the protected characteristics of sexual orientation and religious belief in the USA develops in the future.
At the very least, the judgment of the US Supreme Court is an opportunity for lawyers to observe a different approach. It is not likely that UK lawyers will read any government publication which uses such poetic language as “marriage responds to the universal fear that a lonely person might call out only to find no one there”. It is even less likely that UK lawyers will read dissenting judgments in which UK judges criticise the majority’s “hubris reflected in today’s judicial Putsch” or refer to their judicial colleagues’ reasoning as “mystical aphorisms of the fortune cookie”!
Developments in the UK
England and Wales
Same-sex marriages have been legal in England and Wales since July 2013, and in Scotland since March 2014. However, there are still some battleground areas.
On Tuesday 30 June 2015 Innospec v Walker was heard before the Court of Appeal. This case concerns the provisions of the Equality Act 2010 which permit terms of an occupational pension scheme to provide survivor’s benefits to spouses but not to those in a civil partnership, insofar as those benefits derived from service prior to the day the Civil Partnership Act 2004 came into force (5 December 2005).
The appellant, Mr Walker, paid into the respondent’s pension scheme between 1980 and his retirement in 2003. He had lived for some time before retirement with his male partner and they entered a civil partnership in January 2006. If he had had a wife, she would be entitled to 2/3 of his pension (around £57,000 per annum). But because his service occurred entirely prior to coming into force of the law prohibiting discrimination on the ground of sexual orientation, the most his partner can hope for should he survive Mr Walker is around £500 per annum.
Mr Walker argued that this amounted to discrimination. The employment tribunal initially agreed with Mr Walker, but this was overturned by the Employment Appeal Tribunal. Judgment of the Court of Appeal is expected in several weeks.
Civil partnerships have been both recognized and performed since December 2005. However, following the “Yes” vote in Ireland’s referendum in May 2015, Northern Ireland is the only part of the UK or Ireland where same-sex marriages are not performed or recognized. There is no legislative plans to change this as the Northern Ireland Assembly has now rejected a proposal calling for the introduction of same-sex marriage on four occasions.
In January 2015, a same-sex couple who married in England but live in Northern Ireland filed a legal challenge in the family courts to have their marriage recognised in Northern Ireland. Currently same-sex marriages are recognised as civil partnerships. These proceedings are currently progressing through the courts system, as is a more fundamental challenge.
On the same day as the Obergefell judgment, the first couples in Northern Ireland to enter into civil partnerships were allowed to seek judicial review of the refusal by the devolved Stormont Assembly to legalise same-sex marriage. Granting permission, Mr Justice Treacy recognised that the potential ramifications of this judicial review were significant as the result would be to strike down the legislation preventing same-sex marriage.
Many people within and outside of Northern Ireland will be watching these developments with interest.