Thursday, April 25, 2024
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This specious human right to marriage-lite


One thing is clear about Wednesday’s Supreme Court decision on the right of opposite-sex couples to contract civil partnerships. The judges had the government bang to rights: legally their decision is impeccable. Some might say this is good news. The more thoughtful might conclude that if this is indeed true, something is seriously wrong.

Let me give TCW readers a brief reminder of what it was all about. Before 2014 opposite-sex couples could marry, religiously or otherwise as they chose; gay couples could not marry but could contract civil partnerships that gave all the advantages of marriage bar the name. After 2014 gay couples could marry, but retained the option of civil partnership. The Government saw no need to extend this to heterosexual couples who had always been able to marry anyway. One couple, Ms Steinfeld and Mr Keidan, didn’t like this. They were opposite sex, didn’t fancy either marriage or old-fashioned cohabitation, and wanted civil partnership. They said that the fact that they, unlike a gay couple, couldn’t have it indirectly infringed their human right to family life. They won.

Now, human rights are (or should be) seriously important rights: your right not to be slaughtered, beaten up, starved, enslaved, silenced or otherwise outrageously treated by government. That is their justified claim for particular respect; that, crucially, is their only claim to have judges empowered to say you are entitled to them when elected legislatures can’t or won’t.

That in mind, let’s have a look at the sufferings of this petulant pair at the hands of the government which was said to put the UK beyond the pale of civilised states. Marriage was available to them, in a form (if they wished) as secular and irreligious as anyone could want. It would put them in exactly the same position as if they had a civil partnership. Their prejudice? Not being offered the same institution under a different name they fancied more. Indeed, not even that. By a quirk of human rights law, explained here, the government would have been in the clear if no one at all could contract a civil partnership; the claimants succeeded only because some people (gay couples) could have what they wanted and they couldn’t.

In other words this isn’t a complaint by Little Bear that she had to go hungry, or that Father Bear wouldn’t give her her morning plate of porridge with jam on it. It’s a complaint that Baby Bear was offered a choice of red and green jam and she wasn’t. Bad parenting, possibly: but fundamental rights, or rights so important that we have to entrust them to a fairy godmother in the shape of the Supreme Court? I leave readers to judge.

What should we do now? According to the court we have either to open civil partnership to everyone or scrap it. The answer is obvious: we must get rid of it. By all means give people a choice between marriage on one hand, with the spiritual joy, responsibility and commitment it represents, and co-operative concubinage (aka cohabitation) on the other: that’s what being in a free country is about. But there is no case for the state promoting for all and sundry the bastardised form of marriage-lite known as civil partnership – all the legal advantages, none of the spiritual commitment, so quick and convenient, Sally, let’s do it now – merely because, like Ms Steinfeld and Mr Keidan, they say they want it. The state should ration its favours to those who deserve them, not purvey them like some municipal pound shop in what Laura Perrins on TCW rightly excoriates as an Amazon marriage market.

It goes further than this. Remember that this whole silly debacle came about courtesy of the European Convention of Human Rights. It’s hard not to conclude that these days what civil partnership is to marriage, the 2018 European human rights edifice is to humanitarianism. An institution once high-mindedly dedicated to promoting people’s ability to use their virtue and talent to the full is now a vehicle for marriage-lite à la mode: the dignity of man has morphed into the state’s sacred duty to make sure that, in a spirit of equality, nothing is put in the way of anyone who wants to go giggling to hell in a handcart if that’s where his lights take him. If this is what the European Convention on Human Rights is about, so be it: but if so it has lost any claim it might once have had to our respect, or to being entitled to any privilege against the rough-and-tumble of democratic politics. The case gets stronger every day for denouncing it and replacing it with something capable of protecting only the rights that really matter. If people like Ms Steinfeld and Mr Keidan want to insist that the state satisfy their more trivial desires, that’s their business. But like anyone with a political axe to grind, it should be up to them to persuade politicians and voters, and not simply beguile unelected judges and human rights professionals to give them an end-run around democracy.

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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