The Convention 16: The right to marriage

Are you married?
If not, do you plan to marry one day?
If so would you like to be free to marry the person of your choice?
What if you fell foul of the UK’s racial purity laws?
What if you fell in love with someone from a different ethnic group?
How does the prospect of imprisonment ‘grab you’?

Of course there are no ‘racial purity’ laws in UK. You are free to marry whomever you wish, regardless of their race, creed or colour. That’s good isn’t it?

Things weren’t always this way in Europe. During the Nazi occupation marriage was strictly managed according to racial values and characteristics. The German state took it upon itself to interfere in the reproductive rights of citizens in a number of ways based upon the prejudices of Nazism and the myth of Aryan superiority. That’s why article 12, ‘the right to marry’ (along with article 14 ‘freedom from discrimination’) are so important.

ARTICLE 12

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. Nobody can interfere with this right, especially if their objection is based upon arbitrary or prejudicial grounds.

Consider the case of Ms Ladell, the Christian registrar who refused to officiate in a civil partnership between two gay men. Ms Ladell was denying the men their legal right to engage in a civil partnership because her religion (qualified right) told her that homosexuality is ‘an abomination’. Therefore marriage before God is neither consistent with Christianity nor indeed possible within the Christian sense of the word. However this was not a marriage ‘before God’. It was a civil partnership before the state – a very different proposition.

In fact the term ‘civil partnership’ itself only came about so that a distinction could be made between religious marriage and state institution. The newspapers may talk about ‘gay marriage’ but the law does not.

Remember what we said about religious freedom – it’s a right so long as its expression does not interfere with the lawful rights of others. In this case Ms Ladell’s actions very definitely impeded the rights of others and also constituted discrimination on grounds of sexuality. That’s why she was sacked and why she lost her appeal. This may seem harsh but to restrict gay relationships on religious grounds is no more reasonable than to restrict inter-racial marriage on ideological grounds.

Indeed some religions have done just that. The Church of Jesus Christ and Latterday Saints (Mormons) prohibited marriage between lack and white citizens until the late 1970s. This may be religious doctrine but it does not have any basis in law. The right to religious expression does not equate to the right to discriminate against other people and their right to marry.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/