In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the party bearing the slogan “Support Gay Marriage” from Ashers Bakery. When his order was subsequently rejected and his money returned on the basis that the message offended against the religious beliefs of the bakery owners, the McArthur family, these seemingly innocuous facts exploded into the “Gay Cake” case which has gripped public debate in Northern Ireland for the last year. Continue reading “Ashers Bakery Loses "Gay Cake" Discrimination Case”
Today the US Supreme Court handed down United States v Windsor, the DOMA case. This concerned Edith Windsor (left; hearing the news (photo from the New Yorker)) who married her long-time partner Thea Spyer in Ontario, Canada in 2007 and whose Canadian marriage was recognised by the state of New York so that, in state law, they were a lawfully married couple. Not so, however, in federal law where DOMA—the Defence of Marriage Act—provided in s.3 that, when reading all federal laws, “marriage means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife”. When Thea Spyer died Edith Windsor did not, therefore, benefit from federal tax exemptions normally enjoyed by bereaved spouses and had to pay over $300,000 in inheritance tax. In essence, she sought a tax refund on the basis that DOMA was unconstitutional. In a split court (5-4; Kennedy J writing for the majority) the Supreme Court agreed that DOMA was, indeed, unconstitutional. There are lots of interesting things about Windsor particularly from a procedural perspective (the Department of Justice declined to defend the constitutionality of the Act, which then fell to an intervening party) and these are dealt with in p.p. 5-13 of the slip opinion; I will not go into them here. The remainder of the relatively short opinion deals head on with the question of constitutionality. In it, the Court finds DOMA unconstitutional on the basis of the 5th Amendment’s Due Process Clause as sharpened by the Equal Protection Clause of the 14th Amendment…all couched in a lot of language about states’ rights.
As a general matter the regulation of civil marriage is a matter for individual states and not a matter for federal law. Of course, a number of federal laws relate to marriage in some ways—most particularly perhaps around federal benefits, immigration and so on—but the federal government does not define marriage as a general state of affairs. States do that, so that marriage definitions can (and do) differ from state to state. The sovereignty-related reasons why this is a state matter are not particularly complex in reality; they relate to the individual states’ capacities to regulate numerous matters such as inheritance, medical decision making, property ownership and so on (see esp. p.p. 17-20 of slip opinion for more). Based on all of this, one would expect that the Court might go down the simple route of states’ rights and invalidate DOMA on this very straightforward and, it seems to me, clearly correct application of a basic federal principle. However, the Court instead decided on a due process and equal protection basis.
In essence, the argument was that DOMA was a provision motivated by animus and mala fides, designed to deprive people of a status that states have conferred upon them and to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States” (p. 21). Here states’ rights are in some senses constructed as being mechanisms of conferring or recognising the dignity of same-sex spouses, in the same way as the general capacity to define marriage is seen not merely as a matter of practicality and governmental organisation but also as a means of recognition. When Congress rid those couples of that recognition at the federal level but treated their opposite-sex married neighbours whose marriages had precisely the same basis in municipal law as spouses by means of DOMA it contravened their constitutional rights, and not merely the rights of states (which seem to me to be implicitly recognised as having been violated here also). Thus, DOMA is unconstitutional.
What does this mean for us?
Of course Windsor has arguably limited significance outside of the US context because so much of the reasoning is constructed within a states’ rights framework. However, I do not believe this makes it insignificant. The recognition within the judgment that defining marriage is not merely a matter of practical arrangement by law-makers but also a matter of recognition—echoing Loving v Virginia, of course—is an essential element to the argument for marriage equality. Pragmatic arguments about benefits and practical inequalities and basic unfairness are, of course, made often and made well in the context of marriage equality advocacy and they are important; but they are only part of the story. Marriage equality matters, even for people who do not want to get married, because it is a matter of core, dignitarian recognition. Kennedy’s judgment acknowledges that, especially in its closing pages, and that is an elemental part of achieving equality in this field.
Related to this, marriage inequality is, resultantly, a denial of recognition. Where marriage inequality is deliberately imposed as it was in DOMA (introduced as states began to contemplate introducing same sex marriage) that is not merely a denial but a stripping of recognition. It strikes me that the Court wanted to make this a matter of due process and equal protection, and not a matter of states’ rights, because it was concerned to make that principle clear. That principle is not uniquely applicable in a states’ rights or federal context; it is generally applicable. I can imagine, for example, its deployment in Ireland where—one could argue—same-sex couples had a marriage right until that was stripped by the Civil Registration Act 2004 (introducing a same-sex marriage ban expressly for the first time in Ireland). For those of us who support marriage equality—and certainly for me—this elemental question of recognition is what makes this a human rights issue far more than the pragmatic and practical matters. It is why it matters that I can only ‘civilly partner’ and not marry the person I love; it is what causes marriage inequality to result in diminishment, even when a quite good alternative legal status exists. Today, in my view, SCOTUS went a long way towards recognising this, and that may well turn out to be the Windsor legacy.
This morning Hong Kong took a giant leap forward in protecting transgender rights in a judgment of the Court of Final Appeal which will allow a trans* woman to marry her partner. In a judgment that some Irish politicians could do well to take note of the Court concluded that in multicultural jurisdiction such as Hong Kong, the nature of marriage as a social institution had undergone many alterations in that the importance of procreation as an essential constituent “has much diminished”. In a 4-1 running, the Court held that it is “contrary to principle to focus merely on biological features fixed at the time of birth and regarded as immutable” and held in favour of the Appellant.
The appellant, W, is a post-operative transsexual woman who wishes to marry her male partner. However the Registrar of Marriages (Registrar) declined to confirm that the appellant was permitted to marry her partner. The appellant commenced judicial review proceedings against the Registrar on the ground that the Registrar misinterpreted ss 21 and 40 of the Marriage Ordinance (Cap 181). This raised the issue of construction of whether a post-operative male-to-female transsexual was a woman or female for the purposes of the Marriage Ordinance. The same issue also arose in respect of s 20(1)(d) of the Matrimonial Causes Ordinance (Cap 179). The appellant sought an order quashing the Registrar’s decision and a declaration that the decision was unlawful on the basis that the Registrar misdirected himself in law by misinterpreting ss 21 and 40 of the Marriage Ordinance. The appellant’s alternative case, in the event it was held that the Registrar had not misinterpreted the statutory provisions in question, was that ss 21 and 40 of the Marriage Ordinance, in failing to recognise her as a woman or female, were unconstitutional Continue reading “Protecting Transgender Rights in Hong Kong: Equal Marriage Rights”
Gay rights issues, and particularly issues of equality of treatment for gay people living in the UK have created a flurry of headlines in recent months. In January, two of the conjoined cases Eweida v UK (Ladele v UK and McFarlane v UK) involved clashes between rights to religion (Article 9 ECHR) and equality legislation (now contained within the Equality Act 2010) protecting gay people from discrimination (protected under Article 14 ECHR). In these cases, the European Court of Human Rights noted that the claimants did have religious objections to being involved in civil partnerships as a registrar and in advising gay couples as a relationship counsellor, but found that the UK had needed to “balance” the competing interests. Continue reading “Would You Adam and Eve it? The DUP and the Gay Marriage Debate”
Families Against Forced Divorce: To protect the privacy of our children and our spouses, we feel we are unable to publicly put our names to this article.
In a country where divorce was illegal twenty years ago, is it about to be made compulsory for some? Imagine being told that the State will not legally recognise your identity unless you first divorce your husband or wife. This is not some nightmare scenario from the Nazi 1930s. It’s all too real and about to be inflicted on transgender families in Ireland today.
Ireland remains the last of the 27 EU Nations which still does not allow Gender Recognition for transgender people. This lack of legal recognition of our true gender has many important implications for our lives. First and foremost is the lack of being respected and protected in Irish law in our true gender which impacts on every corner of our lives.
Without such protection, difficulties can arise in our jobs, pensions, insurance, foreign travel and even our ability to engage in most sporting activities to the point that we simply cannot participate at all. For example, to play ladies golf you must be recognised by the State as a woman. Or, what do you think your chances of getting a job would be if you are “outed” as a transgender person in the process? Only with full Gender Recognition can we hope to move on with our lives.
Marriages where one spouse is transgender are lucky to survive. Let us look at one example: Sandra and Michelle. Sandra suffered from Gender Identity Disorder and always felt female despite the fact that she had a functioning male body.
At the time Sandra married Michelle in 1990, she was endeavouring to be the “man” that society expected her to be. Their marriage is fully valid Continue reading “Families Against Forced Divorce”
Recent months have seen the movement for same-sex marriage gain astonishing political momentum. At least three cabinet ministers have recently declared in favour of equalising marriage rights, while a recent opinion poll suggested that almost three quarters of the public agree. A broad spectrum of political opinion supports reform; this week, one local authority unanimously passed a resolution supporting equal marriage rights. Joining Labour and Sinn Fein, Fianna Fail, on this issue in particular, has somewhat rebranded itself as a socially liberal party, and in a broader lens there is little sign of any serious figurehead of opposition to marriage reform. Perhaps the culture warriors are keeping their powder dry for looming battles on abortion and school control.
In this environment, one would expect that, in a functioning democracy, this groundswell of support for same-sex marriage might naturally put legislative reform in motion. Alas, the Constitution has been dubiously invoked, yet again, as an overarching fetter upon political choice. The Government claims that legalising same-sex marriage requires a constitutional amendment and therefore, a referendum – that the Oireachtas is bereft of any power to substantially reform the institution of marriage. I think that this is not only wrong and misguided as a point of constitutional interpretation – it is also symptomatic of a deeper dysfunctionality in the relationship between politics and constitutional discourse.
Last Friday, the French constitutional court handed down a judgment rejecting a challenge to the constitutionality of laws limiting marriage to persons of the opposite sex. This restriction was challenged as incompatible with the right to a “normal family life” contained in the preamble to the Constitution of 1946, and the principle of equality contained in the 1789 Declaration of the Rights of Man and the Citizen (both of these sources still have constitutional force). The applicants were denied their application to marry on the basis of references to “husband and wife” and “man and woman” in the Civil Code, which regulates the conditions of marriage. The essence of the judgment was that the regulation of the scope of the right to marry fell within the purview of the legislature, while the right to a “normal family life” did not imply the right to marry. The distinction between heterosexual and homosexual couples was held to be a legitimate one from the standpoint of the equality principle.
Below I have translated this quite brief ruling (please bear in mind that I am not a specialised legal translator. Also, official English translations of a small cross-sample of past rulings of the Conseil Constitutionnel are provided here).
Today will see a press conference and discussion panel at King’s College London to announce the launching of a legal challenge to UK law on partnership and marriage. The “Equal Love” campaign is challenging the ban on same-sex marriage and opposite-sex civil partnerships. Eight couples are filing a joint application to the European Court on Human Rights to challenge the UK. Speaking about the action, Professor Rob Wintemute of King’s College London said:
I am confident that we have a good chance of persuading the European Court of Human Rights that the UK’s system of segregating couples into two ‘separate but equal’ legal institutions violates the European Convention. I predict that same-sex couples will be granted access to marriage in the UK. The government will eventually accept that it cannot defend the current discriminatory system.
The launch takes place at 10am and will feature speeches from Lord Anthony Lester QC and Peter Tatchell, co-ordinator of the campaign.
A five judge panel of the Grand Chamber of the European Court of Human Rights has decided not to allow a full hearing take place in relation to the case of Schalk and Kopf v. Austria. In Schalk, the ECtHR found that there was no violation of Article 8 or Article 12 (alone or in conjunction with Article 14 of the European Convention on Human Rights) where a state did not provide for same-sex civil marriage. For my previous blog post on this decision, see here. As this judgment is now final, it is worthwhile to point out that the original chambers judgment on same-sex families as having protection under the right to family life under Article 8 ECHR still stands. UK Human Rights Blog has further commentary on the impact of this decision.
We are delighted to welcome this guest post from Dr. Nicola Barker; a lecturer in law and director of the LLM programme in Gender, Sexuality and Human Rights at Keele University, UK. She is author of Not the Marrying Kind: Feminist Critiques of Marriage and the Legal Recognition of Same-Sex Relationships (forthcoming, 2011).
I was recently at an academic conference in Vermont, which was a celebration of the 10th anniversary of the Vermont Civil Union and 1st anniversary of same-sex marriage in the state. Most of the conference participants were happy to celebrate marriage as an achievement of equality and access to numerous important legal rights (and responsibilities) of marriage. I can understand those sentiments, particularly in a country where access to health care may be dependent on the person one chooses as a spouse having employment benefits and spousal coverage, but I cannot join in the celebration. Likewise, I can understand the celebrations in Ireland following the introduction of civil partnerships but I do not share the jubilation.