Homosexual activist Peter Tatchell is supporting eight British couples who are taking a case to 
the European Court of Human Rights (ECHR) on the grounds that prohibitions on same-sex marriages and heterosexual civil partnerships are unlawful and should be reversed.
In the last two months of 2010 four same-sex couples in the UK were refused marriage licenses at registry offices across England, while four heterosexual couples were turned away when they applied for civil partnership status.
The couples are set to file a joint application to the ECHR this week. It is unclear whether the ECHR will hear their case, especially because the court ruled last year that there is no right to same-sex marriage in the European Convention on Human Rights.
However, the couples will argue that the current ban on gay marriages is a breach of the UK’s Human Rights Act, specifically the right to respect for private and family life, the right to marry, and the prohibition of discrimination.
Mr Tatchell, who coordinates the “Equal Love” campaign, of which the couples are part, said bans on same-sex civil marriages and opposite-sex civil partnerships were “a form of sexual apartheid”.
“Outlawing black marriages would provoke uproar,” he said. “The prohibition on gay marriages should provoke similar outrage.”
Mr Tatchell said some heterosexual couples wanted civil partnerships because they objected to the “patriarchal history of marriage” and being called “husband and wife”.
Professor Robert Wintemute, from King’s College London, who is legal adviser to the campaign, said the current English law was “discriminatory and obnoxious” and likened it to having “separate drinking fountains or beaches for different racial groups, even though the water is the same”.
“I am confident that we have a good chance of persuading the European Court of Human Rights that the UK’s system of segregating couples into two ‘separate but equal’ legal institutions violates the European Convention,” he said. I predict that same-sex couples will be granted access to marriage in the UK. The government will eventually accept that it cannot defend the current discriminatory system.”
The ECHR in Strasbourg will only hear a case once domestic legal avenues have been exhausted and the couples have not taken their challenge through the English legal system.
However, Professor Wintemute argued that the ECHR was a legitimate avenue because there was no “effective remedy” available to challenging marriage laws through the UK courts.
Last June, the court ruled that the European Convention of Human Rights, of which it is the guardian, did not oblige states to legalise same-sex marriage. The case had been taken by two homosexual men against Austria on the grounds that it did not permit same-sex marriage. The Court ruled that the right to marry under Article 12 of the Convention applied only to men and women.
The Court said that it found that “there was no consensus regarding same-sex marriage” among the 47 member-states of the Council of Europe. Only six permit same-sex marriage and a minority permit civil partnerships.
It also examined the provision in the Charter of Fundamental Rights of the European Union and its reference to marriage.
It noted that while the relevant Article did not include a reference to men and women, which would allow states to provide for same-sex marriage it left the decision regarding same-sex marriage to regulation by member-states’ national law.