How the Telegraph and Mail attacked gay marriage through the ECHR


by Unity    
12:33 pm - March 23rd 2012

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It’s been widely observed that, since it was taken over by Barclay Brothers, The Daily Telegraph has noticeably shifted downmarket and has come to resemble a broadsheet version of the Daily Mail.

It is therefore hardly surprising to find it peddling nonsense such as this: Gay marriage is not a human right, according to European ruling, which has also found its way into the Daily Mail.

The main thing to note is that the main case to which The Telegraph are referring, Gas and Dubois v. France (no. 25951/07), was not primarily about the question of whether or not gay marriage is a human right in the eyes of the European Court.

This case related to France’s somewhat arcane legal framework for adoption. Gas and Dubois are a lesbian couple who’ve been cohabiting since 1989. In 2002 they entered into a civil partnership agreement.

In 2000, Dubois had a child by way of IVF treatment and an anonymous sperm donor; the child was conceived in Belgium, where the law does not afford the donor any parental rights, but born in France. In 2006, Gas applied to a French court to adopt the child, which they’ve both been raising, with the full consent of Dubois, and its here that things get a little strange – at least to British eyes.

Under France’s civil code there are two types of adoption, simple and plenary.

Simple adoption transfers parental rights to the adoptive family but leave some legal bonds between the adoptee and their birth family in place, mostly to do with inheritance rights. Plenary adoption, on the other hand, entails a complete severance of the legal relationship between the adoptee and their birth family. Gas applied for a simple adoption.

Gas and Dubois’s primary case was therefore that the Civil Code’s provision in respect of parental rights in simple adoptions were discriminatory, which they lost because France allows both gay and heterosexual couples to enter into civil partnership, with the result that they weren’t being discriminated against because of their sexual orientation.

Its important to understand here is that ECtHR has a long tradition of ducking the issue when it comes to cases which impinge on religious ‘sensibilities’ and for understandable reasons.

As such, when confronted with cases where religious beliefs are a significant factor, the Court has long shown itself to be extremely reluctant to hand down judgements which set European-wide precedents that are likely to prove highly controversial in countries where religion exerts a significant social, political and legislative influence.

So when the court states that ‘the national authorities were best placed to assess and respond to the needs of society in this field’ what its actually saying is that its unwilling to set a European-wide precedent on same-sex marriage, but if individuals countries decide that they want to legislate for same-sex marriage then that’s entirely up to those countries.

As such, the Telegraph’s claim that this ruling is ‘likely to have an impact on David Cameron’s drive to allow gay marriages’ is complete and utter bollocks.


A longer version of this blog post is here

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About the author
'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
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Reader comments


The other puzzling thing is why the Telegraph have filed the story in their Religion section when the content of the ECJ ruling has nothing to do with religion. It’s only when people get down to theorising what issues the ECJ might have had behind it, that religion is mentioned.

And as you say, the ECJ has nothing to do with gay marriage. The two partners made their application as civil partners. If people like Donna Bowater don’t understand the subject matter that they’re reporting on, should they be asked to write the report?

Hold up, don’t the telegraph and mail usually prefer shouty headlines about why the prime minister ought to tell the European courts to go fuck themselves? What brought on this sudden change of heart? They’ll be wanting us to swap the pound for the euro next.

3. Robin Levett

@Martin #1:

This, from the referenced article:

The issue of same-sex marriage has provoked controversy with religious groups criticising the move.

Earlier this week, Muslim and Sikh groups said legalising gay unions was “unnecessary and unhelpful” after Christian leaders had spoken out against the plans.

Neil Addison, a specialist in discrimination law, told the Mail: “Once same-sex marriage has been legalised then the partners to such a marriage are entitled to exactly the same rights as partners in a heterosexual marriage.

“This means that if same-sex marriage is legalised in the UK it will be illegal for the Government to prevent such marriages happening in religious premises.”

is presumably why this belongs in the religious section.

Mr Addison’s words are very carefully and misleadingly quoted. He is not saying that once gay civil marriage is legalised churches will be forced to perform gay marriages – which seems to be the meaning the DT intends the reader to take away.

What he is saying is that the Government can’t confine gay marriages to registry offices.

4. Chaise Guevara

@3 Robin

“What he is saying is that the Government can’t confine gay marriages to registry offices.”

Yup. I.E. that the government wouldn’t and couldn’t oppress churches by ordering them to only marry straight couples. A good thing for religious people, one would assume.

I wonder if an underlying objection of the Churches to letting other religions conduct same-sex marriages is a fear that some priests will start officiating same-sex marriages, in defiance of the Church as a whole.

Lots of divorced people are quietly allowed to remarry in a church, in spite of official bans by most religions on them doing so.

I suspect there would be plenty of priests who’d gladly marry gay couples in their church, and the Church would end up having to excommunicate them, which would get messy – the Catholic Church has strong enough central discipline to do this, but the Anglicans would have yet another issue to tear themselves apart over.

As a technical point, if and when the legal prohibition on religious same sex marriages is lifted, there would still be no realistic prospect of equality law being used to compel the Church of England to conduct same-sex weddings as its self-governing status is still guaranteed by one of the four remain clauses of Magna Carta that’s still in effect.

Even allowing for HRA, any such case would almost certainly fail because the judiciary would take the view that such a change could only be made on the basis of positive law, i.e. an Act of Parliament, or by a decision of the General Synod and not on the basis of a judicial precedent.

7. Paul Newman

The Telegraph was never as po faced as the Guardian and has been the subject of sniffy remarks since it began.
Anyhoo I don`t believe for one second the Magna Carta will be any defence a for the Churches. If European Law can be used to force us to allow paedophiles and murderers to have the vote then equality legislation will have no problem breaking down the Church door. In the ECHR the right to freedom to practice religion may not interfere with anyone else’s human rights and I can hear already the arguments
” Could you start a club that excluded black people …well then… are gays equal or not ” etc. These arguments will of course be made by people who hate the church have no faith and regard any spiritual concern as a primitive superstition that the non-intellectual pesticide of science is yet to eradicate and marriage itself as a vile patriarchal imposition
It was always the tactic of those who loathed social conservatism to include sexual orientation as a minority and then demand an equality that looks oddly like aggressive proselytising.
If they can force us to pay for books in schools encouraging our own children to believe that same gender sex is an equivalent choice the Church will be a mere snack to be gobbled …and let us not forget that the perfectly ordinary majority who thought that was going a bit far are relentlessly demonised to the point that people are amazed at how moderate the objections were .
No no it can never happen will be followed b , you knew it was going to happen as night follows day .The main point of interest will be the first state enforced gay Muslim Marriage conducted , presumably at gun point but the unhappiest Mullah in the world

Its almost worth it

8. Robin Levett

@Paul Newman #7:

If European Law can be used to force us to allow paedophiles and murderers to have the vote

It’s a good job that the European Human Rights Convention that Britain wrote back in the 1950s can’t be used for such a purpose, isn’t it?

9. Robin Levett

@Unity #6:

There’s also the point that sexual orientation is not privileged over religious persuasion. Non-Catholics can be excluded by the Catholic Church from weddings in Catholic Churches according to its rites – an apparently clear example of apparent discrimination on the ground of religion, but not prohibited.

I’m surprise people are unaware or still willing to ignore the point @6 Unity make here. Churches can (and many do) refuse to perform mixed-faith ceremonies, or refuse to we’d divorcees etc, but I’ve never heard of (or can find in a quick search) any instance of a church being compelled, by European law or any other, to do so.

Thing is, people opposing same-sex marraige almost certainly already know this.

I’m surprise people are unaware or still willing to ignore the point @6 Unity make here. Churches can (and many do) refuse to perform mixed-faith ceremonies, or refuse to wed divorcees, but I’ve never heard of (or can find in a quick search) any instance of a church being compelled, by European law or any other, to do so.

Thing is, those opposing same-sex marraige almost certainly already know this.

But, says the Court, if same-sex “marriage” is lawful, then religious organisations that refuse to perform them do face litigation or prosecution under existing anti-discrimination legislation, irrespective of any statutory exemptions.

So there.

So much for just letting Quakers, Unitarians, Reform Jews and some Anglicans, Methodists and members of the URC get on with it, because no one was ever going to force it on Catholic churches (or on the Catholic Church, as such), on most Anglican churches (or on the Church of England and the Church in Wales, as such), on many or most Methodist or URC chapels, on Baptist chapels, on Orthodox synagogues, on mosques, and on churches attended by the growing number of black Pentecostals or by that sixth of the world’s Greek Cypriots which lives in Britain.

Oh, yes, they are.

The only way to stop them is to retain the legal definition of marriage as only ever the union of one man and one woman.

To abolish the specific and distinct categories of husband and wife, with different rights and different responsibilities directly related to the differences between the two sexes, would be to redefine every marriage. If, unlike me, you are a married person, then that means your marriage, redefined without any reference to you and to your husband or wife.

Ed Miliband’s Labour Party, as such, has pointedly declined to endorse the legal redefinition of marriage to include same-sex couples, a change which was specifically ruled out in 2000 by the then Home Secretary, Jack Straw. Expect a Labour free vote. That might deliver enough votes to defeat this proposal, if enough Coalition MPs broke a three-line whip and opposed a Government Bill which was not in either of their manifestos.

Ed Miliband’s Labour Party is also totally opposed to the cutting of incomes outside London and its environs, to the deregulation of Sunday trading, to the devastation of rural communities by letting foreign companies or even foreign states buy up our postal service or our roads, and to Royal Mail privatisation’s severing of the monarchy’s direct link to every address in this Kingdom.

And Ed Miliband’s Labour Party is the only Opposition party capable of winning the 2015 General Election. At that Election, it and he will deserve every support from everyone non-metropolitan, or who believes in traditional marriage, or who wants to keep Sunday special, or who supports family and local community businesses, or who cherishes rural communities and the countryside, or who defends national sovereignty over our economy and our infrastructure, or who values the Queen’s head on our stamps and her crown and initials on our post boxes.

In 1974, Enoch Powell told his supporters to vote Labour because of Europe. This is a 1974 moment.

13. Robin Levett

@David Lindsay #12:

But, says the Court, if same-sex “marriage” is lawful, then religious organisations that refuse to perform them do face litigation or prosecution under existing anti-discrimination legislation, irrespective of any statutory exemptions.

So there.

All the lawyers on the thread would probably like a cite to that finding. Any chance of one?

David Lindsay: “To abolish the specific and distinct categories of husband and wife, with different rights and different responsibilities directly related to the differences between the two sexes, would be to redefine every marriage.”

I don’t know what country you live in, David, but in the UK two spouses have identical rights, responsibilities, and obligations towards each other. That enormous redefinition of marriage was carried out over the past 150 years (give or take) and now we live in a country with equal marriage.

Lifting the ban on same-sex couples marrying will cause no further redefinition of marriage. How could it?

There is a really effective way to prevent gay marriage, no courts or ECHR necessary: http://andreasmoser.wordpress.com/2012/03/24/how-to-fight-gay-marriage/

Nearly a million 16-24 year-olds classed as not in education, employment or training so we must fight to stop gay marriages.

Some are really getting their social priorities a bit tangled IMO.

17. Paul Newman

Ahem David Lindsay …this is also the Party of Harriet Harman and Ed Milliband has never stepped foot outside his Metropolitan circle in his puff It is inconceivable that Labour could out flank the Conservative Party on conservatism from immigration to gay books for children to banning Irish jokes and hounding the hunt sexual identity politics and the whole grim rattle bag of trendy nostrums Not only is that Labour territory but it is Labour`s only territory having, once again lost the economic argument and surely this time, for good.
For example look at the asymmetry of interest on this Labour supporting blog between Anders Behring Breivik and , Mohamed Merah slaughter and this at a time when Labour Mayoral candidate is quite deliberately profiting form his anti Semitic credentials to suck up to the Muslims
Labour made their bed and it is with the Guardian reading classes , Public Sector Unions immigrants and welfare queens .Now lie in it .

@ David Lindsay

“So there”

What? Are you seven years old?

What ECtHR actually said was…

“Where national legislation recognises registered partnerships between same sex, member states should aim to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a similar situation.”

Which is a clear reference to their civil status and rights and nothing whatsoever to do with the status, or lack thereof, afforded to them by a specific religion or religious denomination.

To be absolutely clear, it is an established principle in English common law that our secular courts DO NOT rule on the validity or otherwise religious doctrines and dogma, and any attempt to compel a church to perform a same-sex marriage contrary to the establish doctine of their religion would fail on that basis.

The ONLY way in the Catholic Church, or any other church or religion, could face legal compulsion on same-sex marriage would be as a matter of positive law, i.e. it would take an Act of Parliament which specified that a refusal to perform a same-sex marriage on religious grounds is unlawful – and the repeal of one of the last four remaining clauses of Magan Carta – for any church to be in that position.

The chances of that happening are somewhere on a par with the chance of my being offered the job of Archbishop of Canterbury following Rowan William’s retirement.

19. Paul Newman

Yes Unity but the Human Rights Act is also part of English Law and Article 14 has limitless applications on discrimination and has been used in respect of sexual orientation.
It also contains a guarantee of marriage which has not thus far been used in respect of different sexes but that clearly flouts the spirit of the Convention for pragmatic reasons. Such law might very well be used to impose on Churches a duty not to discriminate against gay couples, Is it so very different to forcing Catholic adoption agencies to approve the adoption of children by gay couples?
You say that it is an established Common Law precedent that the Churches are self governing but that clearly does not allow it to break any law made by the state ( human sacrifice anyone ?) and if the principle of non – discrimination were applied in the spirit of the HRA which it could easily be, then we would see Churches forced to conduct Gay marriages.
As I mentioned if the same Law can be used to force us to give the vote to rapists and paedophiles ( and I am aware that we are dragging our heels as much as we can ) then anything is possible
In fact the only reason you pretend this is not the slippery slope it is to make it easier for us to slip down it and for people like you to eradicate the Churches from our lives.

20. Robin Levett

@Paul Newman #19:

As I mentioned if the same Law can be used to force us to give the vote to rapists and paedophiles</blockquote.

But, as I said upthread, it can't. Are you listening?

Is it so very different to forcing Catholic adoption agencies to approve the adoption of children by gay couples?

Is adoption a religious ceremony? No; so it is very different from preventing Catholic adoption agencies from discriminating against gay couples.

Ahem David Lindsay …this is also the Party of Harriet Harman and Ed Milliband has never stepped foot outside his Metropolitan circle in his puff It is inconceivable that Labour could out flank the Conservative Party on conservatism from immigration to gay books for children to banning Irish jokes and hounding the hunt sexual identity politics and the whole grim rattle bag of trendy nostrums Not only is that Labour territory but it is Labour`s only territory having, once again lost the economic argument and surely this time, for good.
For example look at the asymmetry of interest on this Labour supporting blog between Anders Behring Breivik and , Mohamed Merah slaughter and this at a time when Labour Mayoral candidate is quite deliberately profiting form his anti Semitic credentials to suck up to the Muslims
Labour made their bed and it is with the Guardian reading classes , Public Sector Unions immigrants and welfare queens .Now lie in it .

I just think it’s funny you call Ken Livingstone an anti-semite yet he would never in a million years dare talk about jews in the way you talk about muslims.

As for asymmetry. I’m sure you’ll appreciate there was an asymmetry in the scope of the crimes themselves. About 70 extra dead young people give or take.


Reactions: Twitter, blogs
  1. B.Y.

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  2. Lukey Stanger

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  3. Dale Hinch

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  4. stevenblue

    How the Telegraph and Mail attacked gay marriage through the ECHR | Liberal Conspiracy http://t.co/I3lN8Mjd

  5. Daragh Quinn

    How the Telegraph and Mail attacked gay marriage through an obscure ECHR ruling (and got it wrong) http://t.co/WS3EVrq3

  6. Lambeth NUT

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  8. Stephen Scullion

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  9. Molly

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