Marriage Rites and Wrongs: Challenges to Orthodoxy

Abstract

Developments nationally and internationally have focused attention on the question of whether the traditional concept of marriage can survive the challenge from those who seek to extend the right to marry to same‐sex couples, using laws relating to human rights and non‐discrimination. This article examines the basis on which the law now acknowledges the right of transsexuals to marry in their ‘acquired’ gender and asks whether the same reasoning may be applied to same‐sex couples.

Keywords:

• Marriage
• Discrimination
• Human Rights
• Same‐sex Couples
• Transsexuals

Notes

In the United Kingdom, the Civil Partnership Act 2004 is intended, according to the Government, to mirror but not to replicate marriage by extending to same‐sex couples entering a registered partnership the rights and obligations previously available only to married couples. There are no plans to permit same‐sex marriage in the United Kingdom (Women and Equality Unit, 2003, para. 1.3). Heterosexual cohabitees are not covered by the 2004 Act. Nine other EU Member States have some form of civil partnership registration. In contrast with the situation in the United Kingdom, the legal consequences of such partnerships are often limited when compared with heterosexual marriage (Waaldjik, 2003).

Elsewhere in the world the ban on same‐sex marriage has been challenged on the basis that it violates a right to equal treatment guaranteed in a state's constitution. This was the case in the Canadian province of Ontario (Halpern v. Attorney General of Canada 2003 65 OR (3d) 161) and in Massachusetts in the USA (Goodridge v. Department of Public Health 2003 798 NE2d 941). A federal Bill has been introduced in Canada that would extend the right to same‐sex marriage to all Canadian provinces and territories. The Supreme Court of Canada has now ruled this proposal (insofar as it is concerned with permitting same‐sex marriages) is in accordance with the Constitution Act 1867 and the Canadian Charter of Rights and Freedoms. See Reference Re Same‐sex Marriage 2004 SCC 79.