Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, February 25, 2009

Civil unions vs. marriage: the European experience

Aidan O'Neill writes to add a European perspective to our conversation on the treatment of same-sex couples (I've edited his remarks for length):

First the Girgis/Anderson/George proposal is nothing new.  It has been adopted in France with their regime known as PACS which is open to any two adults to register for mutual rights and responsibilities.   Although intended for gay couples, the French church’s opposition to the proposal resulted in its being open to any two person regardless of sex or consanguinity. The result has been – predictably – that it has been taken up with fervour by unrelated opposite sex couples who wish to have some mutual rights and responsibilities but could do without the expense of divorce it all comes to grief.  Thus it has become the very “marriage-lite” and has undermined “traditional marriage” which the SSM opponents fear.   See the report in the Telegraph for the most recent statistics.

Secondly the idea that two spinster sisters living together should be allowed access to civil partnership which are otherwise open to non-related same sex couples has been considered and rejected by the Grand Camber of the European Court of human Rights in its decision of April 2008 in Burden v. UK.

Thirdly, in Wilson v. Kitzinger, the English High Court held that a separate but equal status between opposite sex marriage and same sex civil partnership was compatible with respect for fundamental human rights.

Fourthly the Employment Appeal Tribunal in London has recently ruled that a claim by a civil registrar that she could not for religious reasons conduct civil partnerships but would be willing to solemnise opposite sex weddings has been rejected in Islington LBC v Ladele where the Tribunal (chaired by a High Court judge Elias J  held the Council X had not taken disciplinary action against their employee for holding her religious beliefs; it had done so because she was refusing to carry out civil partnership ceremonies and that involved discrimination on grounds of sexual orientation. The proper comparator was another registrar who refused to conduct civil partnership work because of antipathy to the concept of same-sex relationships, such antipathy not being connected to or based on his or her religious belief. If the tribunal were to be satisfied that such a person would equally have been required to carry out civil partnership duties and would have been subject to a similar disciplinary process if he or she had refused, that necessarily prevented any finding that there had been direct discrimination on grounds of religion or religious belief.


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