A glorious revolution? UK courts and same-sex couples

Abstract

This chapter traces the developing jurisprudence and legislation in the United Kingdom concerning same sex couples. It focuses on the opposing pulls made on this issue as between equality law and human rights law. Equality law is about the State changing society, by legislating to instruct and educate institutions and individuals as to how they might act in their public interactions: thus employers and employees, teacher and pupils, providers of goods and services to the public have now to be blind to differences in race, in gender, in age, in sexuality; they have to uncaring to differences in religion or belief; and they have to be ready to make reasonable adjustments for the differently abled. Human rights law is, by contrast, essentially about limitations being imposed upon the State, to stop it from interfering in how individuals may choose to structure their lives. It may be said to seek to carve out areas of freedom for individuals and voluntary organisation-privacy, free expression, free exercise of religion-which the State should not interfere in (except for very good reason) and if the State does interfere in those freedoms it has to do so only in a manner which does not discriminate on grounds of sex, race, age, religion, social status and the like. So equality law arises from the State not doing enough to protect its citizens and those in its care, whereas human rights law arises from the perception that the State is doing too much in oppressing its citizens and those at its mercy. The fulcrum for the creative tension between these two notions in recent United Kingdom law has been the legalisation of same sex marriage.