Thinking Anglicans

What the Strasbourg Court didn't say

Recently, there were claims in the British press that the European Court of Human Rights had issued a new ruling to the effect that “same sex marriage is not a human right”. These claims appeared in the Daily Mail, and in the Telegraph, though the latter subsequently amended its article to remove the errors that had been brought to their attention.

The situation was well explained in this article at The Blog That Peter Wrote titled The Case Against Same Sex Marriage.

…The Mail today reported on the Strassbourg case of Gas/Dubois v France. It relates to a lesbian couple in a French civil union, who complained that they were discriminated against because they could not adopt as a couple. The ruling is in French and is here. My French is no longer fluent, but I waded through it and also looked at the English summary which can be downloaded here if you are interested. The court found against the couple and expressly recognised (as it has done before) that a signatory state has to the right to discriminate against same-sex couples by not allowing them the right to marry if it so chooses.

The Mail, and the Telegraph [See Footnote] in a near virtual copy of the original article curiously reported that “the ruling also says that if gay couples are allowed to marry, any church that offers weddings will be guilty of discrimination if it declines to marry same-sex couples”. That is a pretty startling aspect that would drive a horse and cart through the government’s statement to the contrary.

It is also, as far as I can see, entirely wrong. There is nothing that I can find in the French ruling or the English summary to this effect. It is important to note that if there had been, of course, it would have been obiter in the sense that the court was looking at whether the couple had the right to adopt under a civil union, not considering hypothetical situations that do not exist. Further, the English law doctrine of binding precedent does not apply to ECHR judgements, so it would additionally have provided persuasive guidance rather than hard case law to be followed. But again, let’s get back to the point: it’s not in the ruling…

And he concludes:

Let me summarise: the Gas/Dubois ruling expressly confirmed the right of ECHR states to discriminate against gay people in matters of marriage. It did not discuss what I think is a key question of the interplay of the Article 9 Right of Freedom of Thought, Conscience and Religion with the right of a gay person not to be discriminated against, where a state does have same-sex marriage. The Netherlands, Sweden, Spain, Norway, Belgium all have full same-sex marriage. Any court actions in these countries attempting to force a clergyman to marry against his conscience in these countries would, I am sure, have been widely reported. Certainly nothing has reached Strassbourg.

This is only my opinion, but I think it is widely fanciful to suppose that, in the light of its repeated view that gay people can be discriminated against by their countries, Strassbourg would currently take on the church in this way and rule that the rights of a gay person to get married in church outweigh Article 9 rights. It is scare-mongering, it is conjecture, and it is not based on any jurisprudence I am aware of to pretend it is fact this would be the case…

Links:

Court judgment (only in French)

English summary of court judgment

Telegraph article as amended

Daily Mail article (has not been corrected)

And just today, there is a detailed discussion of this case, and its press coverage at UK Human Rights Blog titled Can a homosexual person adopt his or her partner’s child? The case of Gas and Dubois v France.

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David ShepherdMartin ReynoldsScot PetersonLaurence RobertsIain McLean Recent comment authors
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Martin Reynolds
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Martin Reynolds

I ended up discussing this “story” on LBC radio that morning. Fortunately I read French and began the interview: “All this goes to prove is that you should not believe a thing you read in the Daily Mail.” But this was clearly something prepared for the daily Mail by religious activists because there was a guy representing the Coalition against same sex marriage who was briefed and “going big” on the “gay people do not have a human right to marriage” spin on the story. So, with some (rather surprising) help from Neil Addison this story seems to have been… Read more »

Iain McLean
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Iain McLean

I have taken the trouble to read the French judgment. It says exactly what blogger Peter says it does. The English press release is a fair summary. It makes no mention of religion AT ALL. The Mail story is therefore totally bogus. If it can’t be forced to retract, then the Press Complaints Commission is useless.

but we knew that already.

Martin Reynolds
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Martin Reynolds

I did complain yesterday on an earlier thread about Benjamin Guyer taking this story at face value, these little drips of poison do irreparable harm to all Christians – where there is no love there is no truth. I am told a recent video exchange called Anglican Unscripted repeated the falsehood that Rowan Williams was a Druid. This goes back to a story in 2002 from Ruth Gledhill at The Times – I know Ruth is very sorry she made the mistake she did – but it was poor journalism at best and here we are 10 years later and… Read more »

David Shepherd
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The case report is by itself more fascinating than the headline grabbing reports. We might be tempted to think that an adoptive transfer of parental responsibility to Ms Dubois’s civil partner would be the best way of securing the primacy of Ms, Gas’s parental rights over all other family claims, especially should Ms Dubois die prematurely. The French authorities rightly saw that this was not in the best interest of the child, given that should their partnership be dissolved, it could inadvertently challenge her own access to her biological child. Marriage, given the body of case law, is the only… Read more »

Iain McLean
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Iain McLean

David – thanks for that measured comment. But read the dissenting judge’s opinion. It states that the majority have refused to consider the interests of the child adequately. Should her mother die, she becomes an orphan under French law and her mother’s surviving partner has no rights. that seems cruel, and not in the interests of either.

Laurence Roberts
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Laurence Roberts

In calling Williams ‘a Druid’ Gledhill showed unforgivable ignorance of Welsh culture at its heart; and a failure to FIND OUT. Both disrespectful and lazy. It would not have been at all difficult to find out more of the Gorsedd of Bards – had she been remotely interested in honest reporting of facts:

http://www.gorsedd.org/

There is an anti-Welsh bias in the English establishment, especially in the south of England, and sneering London

David Shepherd
Guest

Ian: Your point is valid, but this case does highlight the very real problems in implementing parallels to marriage without discerning the full implications. Marriage is clearly NOT just about two people who love each other. It can naturally trigger legal consequences far beyond those two people that case law has thoroughly considered. Marriage also carries a gravitas (derived from human history and supported by case law) and essence of commonly understood mutual obligations that can be relied upon in law. It is this gravitas, when compared to the relative informal ease in ending PACS, that led the French authorities… Read more »

Scot Peterson
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But David, surely you realize that Hyde v. Hyde is no longer good law in any sense of the word. The holding was reversed by the Matrimonial Causes Act 1973, and UK law now gives rights and remedies to plural spouses (that is, it recognizes plural marriage valid in the country of celebration). It’s just the Mormons that created problems; we’re perfectly happy to accommodate Muslims in our legal system. And somehow (despite Lord Penzance’s fears) the ‘meaning’ of marriage has not changed. Are same sex marriages a greater danger for some reason?

Scot Peterson
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Clarification: Reference to Mormons in the post above is to the facts of Hyde. The court refused to recognize a marriage performed in the Territory of Utah in the middle of the nineteenth century, because the parties could have engaged in a polygamous Mormon marriage (even though the actual parties had not done so). Sorry for any confusion–or the appearance of a derogatory reference to Mormons…

David Shepherd
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Scot: Penzance merely showed that the then Divorce Act could not be extended to apply to relationships that did not demonstrate the essential quality of exclusivity. I would invite you to read the full judgement of Hyde vs. Hyde, since, in spite of its colonialist overtones, I believe it to be more wise and all-emcompassing than many think: http://www.uniset.ca/other/ths/LR1PD130.html Particularly, Judge Penzance foresaw the problems in treating the first union in a polygamous arrangement as valid and all subsequent unions as void. In 2006, Lord Penzance’s view was endorsed in Sir Michael Potter’s 2006 judgement regarding Celia Kitzinger and Sue… Read more »

Martin Reynolds
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Martin Reynolds

Sir Michael Potter’s 2006 judgement was just a teeny bit nasty ……..

David Shepherd
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Self-correction: It was Sir Mark Potter. Martin: Maybe a throw-away comment, but what part of his judgement appeared slightly nasty? Even the most erudite criticisms of his judgement claim that on Articles 8 and 12, he could not be faulted for his strict application of the Strasbourg jurisprudence. They merely claim that he failed to ‘take proactive steps to reflect the changes in society’s acceptance of same-sex couples as constituting a family’. In spite of this, the study ‘Civil Partnerships five years on’ reveals that there is a firm majority of society in favour of civil partnerships for gay couples,… Read more »