The Marriage (Same Sex Couples) Act passed through both houses of parliament this week and received royal assent. It is now the law of England and Wales. The first same-sex marriages are expected to take place in the summer of 2014.
It has been a long, hard struggle, spanning 21 years. Way back in 1992, the LGBT rights group OutRage! made the first challenge to the ban on same-sex marriage. We didn’t succeed but it was the opening shot in the battle for marriage equality.
The enactment of same-sex marriage removes the last major legal discrimination against lesbian, gay, bisexual and transgender (LGBT) people. It is a reason for great celebration. But amid the jubilation, we should remember that, despite all our efforts, we failed to persuade the government and parliament to legislate equal marriage.
Same-sex marriages are legalised under a new law, the Marriage (Same Sex Couples) Act. It is separate and different from the Marriage Act 1949 – the legislation governing opposite-sex marriages. Separate and different are not equal.
Aside from the fact that this law does not apply in Scotland and Northern Ireland, there are in total six discriminatory aspects of the new legislation.
Pension inheritance rights are fewer on death of a same-sex marriage spouse. The surviving partner is not entitled to receive the full value of the deceased partner’s pension. Employers are required by law to pay same-sex survivor’s pensions based on only contributions made since 2005. Although many employers are likely to pay out from 1988 onwards, this is discretionary and may not be the full value of the lifetime pension contributions by a same-sex spouse. This means that pension contributions made in the years before 2005/1988 are in many instances discounted and will not be received by the surviving same-sex marriage partner.
Although David Cameron argued that same-sex marriage is an issue of equality, the ban on opposite-sex civil partnerships remains. Straight couples continue to be prohibited from having a civil partnership, even though the government’s own public consultation on equal marriage found that 61 per cent of respondents supported the right of heterosexual couples to have a civil partnership if they want one. Only 24 per cent disagreed. In the Netherlands, two-thirds of civil partnerships are between male-female couples. A similar take up is likely in the UK if civil partnerships were available to heterosexuals.
The existing grounds for the annulment of a marriage – non-consummation and adultery – do not apply in the case of same-sex marriages. To many people, these are antiquated aspects of marriage law that should be repealed. Nevertheless, this differential in the law governing same-sex and opposite-sex married couples is not equality.
There is no restoration of the marriages of transgender people that were forcibly annulled as a precondition for them securing a gender recognition certificate. Moreover, the spouse of a transgender person must consent to the marriage continuing after the issue of a certificate.
Under the so-called “quadruple lock” legislation, the Church of England and the Church in Wales are explicitly banned from performing religious same-sex marriages. While other faiths can “opt in” to marry LGBT people, these two denominations are prohibited. This is not only homophobic discrimination; it is also an attack on religious freedom.
The special requirements for registering premises for the conduct of religious same-sex marriages are more restrictive than for opposite-sex marriages in religious premises. In the case of premises shared for faith services by several small denominations – which is often the case with evangelical, African and pro-LGBT churches – all the sharing faith organisations have to give their permission for the premises to be used for same-sex marriages. In effect, anti-gay churches will have a veto over pro-gay churches.
Despite these flaws, the new same-sex marriage law is a milestone. It is of huge symbolic importance; signalling that LGBT love and commitment have social recognition and public acceptance.
However, because of these flaws, the campaign for equal civil marriages and equal civil partnerships continues. My own organisation, the Peter Tatchell Foundation, working with the Equal Love campaign, will seek to rectify the shortcomings in a subsequent bill; probably when the government next year holds its promised review on the issue of civil partnerships for opposite-sex couples. We are ever hopeful.
As a back up, our case in the European Court of Human Rights – Ferguson & Others v the UK (pdf) – remains on course.
It already challenges the ongoing ban on opposite-sex civil partnerships and we will now make a new submission to the court to strike down pension inequality in marriage law.
Just as the embarrassing prospect of losing this ECHR case helped pressure the government to end the ban on same-sex marriage, I’m optimistic that it will also help persuade David Cameron and Nick Clegg to remedy these remaining shortfalls in civil marriage and civil partnership law.