Thursday, 29 March 2012

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.

Posted by Simon Sarmiento on Thursday, 29 March 2012 at 8:41am BST | TrackBack
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Categorised as: equality legislation
Comments

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 constructed in the inky depths of the Christian Institute or some such group who fed it to the Mail knowing they are always hungry for an anti-gay story.

It seemed to me to wholly wrong to spin a story like this. I was quite appalled by whole process of disinformation that it typified.

As a matter of interest the prohibition the partnered gay girls are trying to undo is against unmarried couple adopting jointly.

Here in the UK the law to allow unmarried couples to adopt jointly was changed in 2005, in New York as recently as 2010. In France it remains only possible for married couples or one of the couple to adopt, or as in this case, it is not possible for the civil partner to adopt the natural child of her partner.

If this case proves anything, it is that in France Civil Partners do not have the same rights as married couples and thy will not unless and until the government legislate that they have.
The courts did not see it as part of their remit to second guess the French legislature.

If anything this is an argument FOR gay marriage. French Civil Partnerships are clearly a discriminatory second best option.

I think it highly significant that Neil Addison says nothing about this on his blog!

Posted by: Martin Reynolds on Thursday, 29 March 2012 at 10:46am BST

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.

Posted by: Iain McLean on Thursday, 29 March 2012 at 12:33pm BST

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 people's opinions of Rowan Williams are still informed by that falsehood.

When you complain, you are told.
"Oh get over it! It's just tomorrow's fish and chip paper." That's just not true either!

Posted by: Martin Reynolds on Thursday, 29 March 2012 at 12:38pm BST

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 exception in which the parental responsibility is shared between the biological parent and the adoptive husband, or wife.

But surely, this is discriminatory? Well, no. Had there been a French prohibition on forming opposite-sex civil partnerships (as there is in the UK), the Strasbourg court would most certainly have viewed the adoption ban as discriminatory. In fact, opposite-sex civil partners in France equally fall foul of this limitation on the transfer of parental rights. So, in this case, the adoption refusal was *not* about sexual orientation, however loud others might scream to the contrary.

In a sense, the limits on the right to marry is the final counter-argument. Surely, it was the lack of access to marriage that scuppered the couple's bid to share parental rights over Ms. Dubois' child. The blunt answer is that EU governments are under no obligation to extend marriage to same-sex couples. The legal implications for the church can only be applied, once same-sex marriage has been granted, not before.

The approach of the French authorities is vastly preferable to the 'blue skies' thinking that permeates the current UK government proposals for re-defining marriage and that leaves off defining a gender-free common standard for annulment through non-consummation and even adultery as issues for judges to unravel under case law.

Posted by: David Shepherd on Thursday, 29 March 2012 at 1:07pm BST

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.

Posted by: Iain McLean on Thursday, 29 March 2012 at 2:19pm BST

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

Posted by: Laurence Roberts on Thursday, 29 March 2012 at 5:21pm BST

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 to restrict the sharing of parental rights via adoption to married partners.

While it is a painful outcome, we return to Lord Penzance's statement in Hyde vs. Hyde: 'It may be, and probably is, the case that the women there pass by some word or name which corresponds to our word “wife.” But there is no magic in a name; and, if the relation there existing between men and women is not the relation which in Christendom we recognise and intend by the words “husband” or “wife,” but another and altogether different relation, the use of a common term to express these two separate relations will not make them one and the same, though it may tend to confuse them to a superficial observer'

Posted by: David Shepherd on Thursday, 29 March 2012 at 7:02pm BST

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?

Posted by: Scot Peterson on Friday, 30 March 2012 at 7:33am BST

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...

Posted by: Scot Peterson on Friday, 30 March 2012 at 9:20am BST

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 Wilkinson's suit to have their Canadian marriage declared a UK marriage. Potter showed that civil partnership was provided as a remedy to 'remove the legal, social and economic disadvantages suffered by homosexuals who wish to join stable long-term relationships' while maintaining 'the concept and institution of marriage as a union between persons of opposite sex or gender'.

Yes, the Matrimonial Causes Act 1973 does afford relief to plural spouses and their dependents, but only by according the first marriage a monogamous marital status. That's not the same as re-defining marriage itself. Additionally, MCA 1973 stated that a marriage, celebrated overseas after 31 July 1971, could be treated as void, once:
‘(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.’ This non-domicile requirement is applying private international law to provide limited recognition for plural marriages. English domiciles are not permitted this recognition.

Clearly, the current proposals for re-defining marriage in the UK do not consider non-domicile parties to marriage. The parallel, while thoughtful and interesting, is invalid.

Posted by: David Shepherd on Friday, 30 March 2012 at 1:04pm BST

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

Posted by: Martin Reynolds on Friday, 30 March 2012 at 10:30pm BST

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, but not marriage. So much for changes in society's acceptance. It is not the judge's role to replace Parliament in enacting a law for which there is little popular support.

Critics also claim that, regarding article 14, he only considered the legal effect and not the symbolic effect of differences between Civil Partnerships and Marriage. Of course, you can only do so by decrying the short-sightedness of those LGBT groups that influenced and embraced the CPA in the first place.

In much the same way, the latest proposals claim that Civil partnerships (that Stonewall and others promoted) are discriminatory in effect because they are limited to same-sex couples. So why not just open up civil partnerships to opposite-sex couples?

In a few years, some will then further claim, despite current assurances to the contrary, that the lack of equal access to religious marriage (as if the distinction will be clear when civil marriages are conducted on religious premises) is also a cause of POTENTIAL discrimination that requires legal enforcement. Archbishop Rowan Williams address to the WCC now makes perfect sense.

Posted by: David Shepherd on Saturday, 31 March 2012 at 4:53pm BST
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