Same-sex marriage: What does human rights law say about claims of equality?

Same-sex marriage: What does human rights law say about claims of equality?

Same-sex marriage: What does human rights law say about claims of equality?

Updated 1 September 2017, 5:40 AEST

The phrase "marriage equality" potently summarises one of the central claims to marriage reform.

The phrase "marriage equality" summarises so potently one of the central claims made by those advocating for marriage reform.

It conveys the assertion that not permitting same-sex couples to access the institution of marriage is a breach of their human rights. The reasoning is simple, accessible to all, and powerful.

Citing the legal principle of equality, the Queensland Law Society and the presidents of the Law Society of NSW and NSW Bar Association have each released statements supporting the redefinition of marriage. These positions have caused some controversy, with members of these bodies asserting a lack of consultation and even making threats of legal action.

But the "marriage equality" claim is not borne out by the decisions of the highest human rights authorities in the international order. Both the United Nations Human Rights Committee and the European Court of Human Rights have held that there is no inequality where a state retains the traditional definition of marriage. In so ruling, these bodies have actually affirmed the inherent equality of all persons.

The dominant perspective is that human rights are the province of the progressive, so the findings of these authorities are counter intuitive.

Although I am in favour of retaining the current definition of marriage, this isn't my personal opinion: these rulings are from independent, non-partisan bodies. Their considered deliberations should be made available to those deciding how to respond to the postal survey.

United Nations Human Rights Committee

In Joslin et al. v New Zealand, the United Nations Human Rights Committee held that "marriage" is a definitional construct which, by the expressed terms of Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR), includes only persons of the opposite sex.

Importantly, the committee held that the right to equality under Articles 2 or 26 of the ICCPR, which is the applicable international covenant that Australia has ratified, was not then violated.

That is to say, there is no inequality because the definitional boundary did not enfold persons of the same sex.

Such people are equal in all respects and defining marriage as being between persons of the opposite sex was not to render such people as unequal.

That is consistent with the UNHRC's clarification, that "not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the covenant".

European Court of Human Rights

Although Australia is not subject to its decisions, similar conclusions have been reached by the other principal arbiter of international human rights jurisprudence, the European Court of Human Rights.

In decisions handed down in 2010, 2014, 2015 and 2016, the court has also concluded that the European Convention on Human Rights does not impose an obligation to grant same-sex couples access to marriage.

Consequently, the court has consistently held that the prohibition on discrimination (the right to equality) under Article 14 of the convention was not breached by states that continue to recognise that marriage is between a man and a woman.

The court observed "that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another".

Underpinning the European Court of Human Rights' judgements is the further recognition that the state has an interest in preserving and maintaining committed, life-long loving relationships, including same-sex relationships.

It identified the criteria for determining the claims of equality as being the extent to which same-sex couples are "in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship".

The court held that the important claims of equality are met through civil partnership regimes and through equality in access to entitlements such as inheritance rights and material support.

These are measures Australia has already enacted.

In essence, the court's test that differing constructs be of a "relevantly similar situation" in order to enliven equality measures did not extend to the inclusion of same-sex couples in the definitional construct of marriage. The right to equality in "legal recognition and protection of their relationship" was instead met by forms of recognition other than marriage.

Not a human right

To admit this doesn't divert from the political principle which Professor Ronald Dworkin calls sovereign — "no government is legitimate unless [it shows] equal concern for the fate of every person over whom it claims dominion".

The idea that people should not be treated detrimentally in relation to a comparable attribute is not contentious, and is a good to be honoured within our community.

This principle underpins both the jurisprudence of the UNHRC and the ECHR in respect of the definition of marriage.

Equality is a human right. Both the United Nations Human Rights Committee and the European Court of Human Rights have however declined to endorse claims that same-sex marriage is a human right.

Indeed, international human rights law recognises that to maintain a traditional view of marriage, as a definitional construct, does not detract from the equality of same-sex persons, including in circumstances where such life-long loving committed relationships are provided state recognition and protection.

Mark Fowler is a lawyer and doctoral candidate in law at the University of Queensland. He was a member of the Queensland Law Society human rights working group.