European Commission on Human Rights

An attempt of analysing our approach to marriage is to ask ourselves how many of the same principle might apply to gay and lesbian relationships. A number of views have been expressed that 'marriage' between two heterosexual couples is not the same as a 'homosexual liaison'. "As a Baptist Minister, I cannot see how gay relationships can possibly be equated to marriage. Marriage is a unique institution because it allows for the possibility of children being conceived and nurtured. In marriage, a man and a woman makes an exclusive commitment to each other.

Whilst I recognise that this does not always work out in practice, no comparable situations can ever apply to homosexual couples"1 The question of same-sex marriage is relatively new on the Family law agenda in this country. Until the Sexual Offences (Amendment) Act 1957, sexual intercourse between males was a criminal offence. Complaints that such law violated the right to respect for private life under Article 8 of the European Convention on Human Rights were routinely found inadmissible during the 1950s and 1960s.

However, things started changing in the 1970s by the Court of Appeal decision in 19812, that the total prohibition in Northern Ireland was a breach of Article 8(1) which could not be justified under Article 8(2) as "necessary in a democratic society" either for the protection of morals or the rights and freedoms of others. But that does not mean that same-sex couples have to be accorded the same rights and duties as married or unmarried opposite sex couples. The freedom gained from the interference with one's "private life" is one thing; giving it the same respect as is due to one's "family life" under the Convention is another.

So far the European Commission on Human Rights has not recognised that the relationship of a same-sex couple as constitutes their "family life"3. In Simpson v UK a woman faced eviction from her house following the death of her lesbian partner, the deceased being the only legal tenant of the house. Under national legislation the court grants a succession right to the person who lived together as 'husband and wife', but the Court of Appeal interpreted this phrase as meaning 'unmarried different sex partner'. The Commission concluded that the applicant did not have a 'family life' with her deceased partner.

The appellant's strongest argument was that she had suffered discrimination in relation to her 'home', in contradiction of Articles 8 and 14 'for no other reason that she was of the wrong sex'. The Commission accepted that she had been treated differently but they found an objective and reasonable justification for such treatment, concluding that it was not 'discrimination' because 'the family (to which the relationship of heterosexual unmarried couples can be assimilated) merits special protection in society and [the Commission] sees no reason why a [government] should not afford particular assistance to families4.

In Roosli v. Germany the Commission merely adopted the same reasoning as that in Simpson. The Commission found no reasoning to depart from Simpson, having regard to the German courts reasoning: 'Views on marriage and family had changed in society and justified the extension of the [statutory terms 'family member'] to [unmarried] heterosexual couples. However, homosexual or lesbian couples were not similarly accepted in society'.

Furthermore, the European Court of Justice has adopted a conservative approach in interpreting European Community law in recent cases on lesbian and gay rights. In Grant v. South West Trains5 the court had to consider whether the extension of employee travel concessions to unmarried heterosexual partners, but not to unmarried homosexual partners, constituted discrimination on grounds of sex under Article 119 of the EC Treaty and Article 1 of the Directive 75/117/EEC.

The ECJ pointed out that since the rule applied equally to male and female employees it was not discriminatory on grounds of sex narrowly understood. Further, the Court concluded that 'in the present state of law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages and stable relationship outside marriage between persons of opposite sex'6.