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21 February 2017

No, straight couples don’t face marriage discrimination

The couple are right in law, but their complaint is ill-judged and tone-deaf. 

By Stephen Bush

The Court of Appeal has struck down the case of a heterosexual couple – Rebecca Steinfeld and Charles Keidan seeking to have a civil partnership. The couple in question say they are the victims of discrimination. Are they right?

The legal question is more complex than the headlines. The government’s position is that they are waiting and seeing what the introduction of equal marriage means for the future of civil partnerships. Either civil partnerships will cease to be an option for same-sex couples or they will be extended to everyone. Judges were divided as to whether or not they should leave it for the government to decide that, or if civil partnerships should be extended to heterosexual couples. They opted to leave it to parliament, albeit by a narrow margin.

Legally, the judges agree, that the state of affairs creates a system where the law treats heterosexual and homosexual couples differently, and that this should be ended. And as far as the law is concerned, I agree. But emotionally and morally, the case of Steinfeld and Keidan stick in my craw.
Let’s remember why civil partnerships were created: to allow same-sex couples to access some of the legal protections extended to heterosexual couples in a way that could pass through the Houses of Parliament without being bogged down in too many battles with religious conservatives.

The rights that are not extended to civil partners include: a prohibition on religious readings, music or symbols. They cannot take place in religious venues, regardless of the beliefs of the owners’ rights. And people in a civil partnership cannot describe themselves as “married” on legal documents. There is no provision for separation as a result of adultery.

The rights not enjoyed by married couples in civil partnerships are: the ability to have private ceremonies without witnesses present. The reason why heterosexual marriages include provision for witnesses is the existence of forced heterosexual marriages in the United Kingdom, a rare example of a legal distinction based upon the sexuality of a couple that is grounded in fact, not prejudice or mumbo-jumbo. There is still no recognition for adultery in same-sex relationships in English law, whether you are married or in a civil partnership.  Equal marriage still has yet to be extended to Northern Ireland.

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But if you are a heterosexual couple and you want to have a civil union that eschews religious messages, or patriarchal tropes, from being walked down the aisle by your father to the presence of a white wedding dress, you can. If you dislike the phrase “husband” or the word “wife”, you can use whatever word you like, in a social and a legal context. Don’t forget, too, that the courts have ruled recently in favour of couples in longstanding partnerships outside of marriage being able to access pension and other survivor benefits.

So while there is discrimination as a matter of law, it is hard to see how there is discrimination as a matter of fact for heterosexual couples. There is, however, a continuing discrimination towards homosexual couples in the divorce courts and in Northern Ireland.

It seems particularly ill-judged to claim discrimination while using the courts to gain access to an institution created as a pathway to the rights you already enjoy and can freely access, crowdfunding £35,000 along the way, particularly while there is still genuine marriage inequality between heterosexual and homosexual couples.