This week the British government introduced a bill into Parliament that would allow same-sex couples to marry. While the bill may signal progress on the issue of marriage equality in Britain, some details about the bill and the circumstances surrounding it are worth noting:
- Britain now has a civil status called “Civil Partnerships” which is available only to same-sex couples. A complaint was filed in the European Court of Human Rights in February of 2011 challenging not only the exclusion of same-sex couples from marriage but also the exclusion of different-sex couples from Civil Partnerships. This is unlike any ligation (to my knowledge) in the U.S. challenging the exclusion of same-sex couples from marriage in states that also exclude different-sex couples from civil unions or domestic partnerships. Even if the Marriage Bill passes, at a minimum there will remain live claims in the ECHR case relating to the sexual orientation discrimination experienced by different-sex couples in their access to Civil Partnerships.
- The new Marriage Bill would create marriage equality (sort of) for same-sex couples, while leaving in place the civil partnership inequality for different-sex couples.
- The new law would allow same-sex couples who are now in Civil Partnerships to convert their partnerships into marriages, but when they do so their marriages will be post-dated to the date upon which they entered the Civil Partnership (“the resulting marriage is to be treated as having subsisted since the date the civil partnership was formed.”).
- The new law enables married individuals wishing to change their legal gender to do so without having to end their marriage.
- The new law does not abolish Civil Partnerships, as have some laws in the U.S. granting marriage equality to same-sex couples, but rather, as Robert Wintemute from Kings College London wrote me the other day, “treats civil partnership as an inferior institution from which same-sex couples are being offered the option of liberating themselves.”
- The law is FULL of unnecessary references to religion. As Robert Wintemute explained it: “It is shocking to read all the special rules regarding the Church of England, the Church in Wales, “the usages of the Society of Friends (commonly called Quakers)” and “the usages of the Jews”.” The Bill allows any religion, including 3 of the 4 named religions (the Quakers, any branch of Judaism, and the Church in Wales), to “opt in” to marrying same-sex couples. All except the Church of England. It will take another Act of the UK Parliament to permit the Church of England to marry same-sex couples. This is the “protection” against “the threat” of having to marry same-sex couples (in fact, against liberal tendencies inside the religion) that some members of other religions envy. For example, the Muslim Council of Britain has asked for the same “protection,” explained here. As Wintemute wrote me: “I would prefer the French system in which legal marriage and religious marriage are completely separate, or a rule that religious organisations applying for legal authority to marry couples must be willing to marry all regardless of sexual orientation.”