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High Court rules humanist marriage recognition failure is ‘discriminatory’, but stops short of formal breach due to ongoing review

Judgment has been given at the High Court today in a case brought by six couples wanting legally recognised humanist marriages in England and Wales. The couples were seeking a declaration that the UK Government’s refusal to give legal recognition to humanist marriages in England and Wales was a breach of their human rights, which must be remedied.

High Court judge Mrs Justice Eady DBE ruled that the failure to provide legally recognised humanist marriages means that ‘the present law gives rise to… discrimination’. She also ruled that, in light of that, the Secretary of State for Justice ‘cannot… simply sit on his hands’ and do nothing. However, she said, given that the Government is currently giving the matter consideration in the form of a review into marriage law by the Law Commission, the Government’s refusal to act immediately can be justified ‘at this time’ and concluded, ‘Although I may deprecate the delay that has occurred since 2015, I cannot ignore the fact that there is currently an on-going review of the law of marriage in this country.’ As a consequence, she declined to make a formal declaration that the Government is acting unlawfully at this time.

In the court hearing, the Government had argued that the couples had no right to humanist marriages, on the spurious basis that humanist marriages are not sufficiently connected to humanism to merit legal protection. At the same time, they also argued that English law already provides for humanist marriages by way of civil marriage. But in her decision the judge rejected these arguments, saying that there is an intimate link between couples’ beliefs and their choice of a humanist ceremony, reasoning, ‘in particular, in the way in which couples prepare for their wedding with their celebrant, in the statements made during the ceremony and in the emphasis on individual freedom of choice.’

The judge said that attention must now turn to the Government’s promised review of marriage law as the way that this discrimination must be addressed. The Government said in court that a consultation would be published in early September by the Law Commission.

Humanists UK has welcomed the court making clear that the failure to provide legal recognition of humanist marriages cannot be justified other than by saying that there is a review to redress the issue, but expressed disappointment at the Government being given more time to resolve the issue, particularly given how long humanist couples have already had to wait for legal recognition.

Humanists UK Chief Executive Andrew Copson said, ‘We’ve waited nineteen years for this reform since it was first considered by the Government in an ultimately abandoned review of marriage law, and seven years since Parliament gave the Government the power to bring about legal recognition of humanist marriages without requiring a new Act. Thanks to this judgment, it is at least now not a matter of if humanist marriages will be legally recognised but when, and we await the Government’s response to the judgment and their proposals to remedy the discrimination that has been identified by the court. We hope they will act quickly to give justice to the thousands of couples annually whose weddings are being denied legal recognition.’

Humanists UK had hoped that the judge would have made a declaration of incompatibility in respect of the current state of marriage law, to mark the breach and vindicate the rights of the claimants. Such an outcome would not have interfered with the current law reform process but would have sent a stronger message to the Government about the need for change.

Mr Copson continued, ‘For the particular couples who brought this case, although it is gratifying that the judge has recognised that failure to change the law is “discrimination”, it will of course be a great disappointment that she has not found a breach and has, instead, said they must wait for the current Law Commission review to conclude to find out how the Government will remedy this. We know that the claimants will now be considering whether to appeal. If they decide to do so, we will support them.’

The claimants are being represented by Ciaran Moynagh of Phoenix Law, Caoilfhionn Gallagher QC of Doughty Street Chambers, and Steve McQuitty BL of the Bar Library of Northern Ireland. Humanists UK has been supporting them in bringing the claim.

Ciaran Moynagh, solicitor at law firm Phoenix Law, said: ‘Notwithstanding our disappointment we are greatly encouraged by the contents of the Court ruling as the substantive argument has been won. Focus now shifts back to the Government to urgently provide assurances as to when legally recognised humanist marriage will come about. If these assurances are not forthcoming it is likely this legal journey will continue.’

Please see the press release announcing the case for: information about the couples, including where they live, why they took the case, quotes, and photographs; what evidence was provided; more about humanist marriages; and endorsement quotes from politicians.

Louth, Lincolnshire-based claimants Kate Harrison and Christopher Sanderson commented: ‘We are delighted the judge agreed that the law as it stands does discriminate against those with humanist beliefs who wish to be legally married within a humanist ceremony. However, we are bitterly disappointed that she has elected not to find in our favour, opting instead to defer to the ongoing Law Commission review of marriage, itself already long delayed. For us, this means significant further uncertainty and delay until there could be a possibility that we’ll be free to marry in the only way that would ever feel legitimate to us.’

Tonbridge, Kent-based claimants Victoria Hosegood and Charli Janeway commented: ‘We are disappointed by the result of the judgment and the fact that we still do not have the right to be legally married by our humanist celebrant. Despite this, we are very pleased that the judge has clearly acknowledged that the lack of legal recognition of humanist marriages is discrimination and we remain hopeful that this recognition will be reflected in a change to the marriage laws. We will be keeping everything crossed that this change will occur before our wedding next year.’

Carrickfergus, Northern Ireland-based claimants Finbar Graham and Jennifer McCalmont, who had their humanist ceremony in Devon, commented: ‘We are pleased that the judge has concluded that the failure to extend legal recognition to humanist marriages constitutes discrimination. This case has come too late for our wedding, but we still hope it spurs the Government and Law Commission to bring about such recognition for other couples as quickly as possible.’

St Helens-based claimants Lucy Penny and Dan Bradley commented: ‘It’s very encouraging to see the court recognise the clear discrimination that humanists face under the current system. While we are disappointed that the judgment hasn’t forced a change in law, we hope that this will encourage the Government to act as quickly as possible to make humanist weddings legal in line with other belief groups, so that humanist couples in the future don’t have to face the same challenges that we did.’

Bridgwater, Somerset-based Capella Rew and Daniel Meakin commented: ‘It is disappointing the judge did not find in our favour. However, we are happy she recognises the current law is discriminatory towards couples wishing to have a legally binding humanist ceremony. While we have already had our ceremony, we hope this case draws the Government and the Law Commission’s attention to the importance of this issue and action is taken to bring about the much needed legal recognition for other humanist couples.’

Notes:

For further comment or information, please contact Humanists UK Director of Public Affairs and Policy Richy Thompson at press@humanism.org.uk or phone 07815 589636.

Read the full judgment: https://humanism.org.uk/wp-content/uploads/R-OAO-HARRISON-AND-ORS-v-SOS-JUSTICE-CO-4609-2019-JUDGMENT-7-AND-8-JULY-2020-APPROVED.docx

A humanist wedding is a non-religious ceremony conducted by a humanist celebrant who shares the beliefs and values of the couple. It differs from a civil wedding in that it is entirely personalised and reflective of the humanist beliefs and values of the couple. Humanists UK has provided these ceremonies for many decades.

Below you can find: (a) a summary of the legal reasoning; (b) more about humanist weddings around the UK, Ireland, and Crown dependencies.

(a) What the judge found

This summary should only be read alongside the full written judgment of the court and does not purport to be a complete exposition of the same.

The case was taken under the prohibition on discrimination found in the Human Rights Act (Article 14), taken within the ambit of the freedom of religion or belief that the Act also protects (Article 9). The claimants argued that the fact that the law provides for legally recognised religious marriages means that it is discriminatory for it to not also provide for legally recognised humanist marriages. Religious groups (of all stripes) enjoy substantial autonomy and legal privileges that are, currently, not afforded to humanists. The judgment in the case is legally binding case law, that the Government must now follow.

In the court hearing earlier this month, the Government had argued that the couples had no right to humanist marriages, on the spurious basis that humanist marriages are not sufficiently connected to humanism to merit protection. But in her decision the judge rejected this argument, reasoning:

‘I am satisfied that the evidence shows that, for many who hold those beliefs, the ceremonies that mark significant life events, such as marriage, provide a close and direct link to the beliefs of the participants such as to amount to a manifestation of those beliefs. The evidence… makes clear that for many humanists such ceremonies are not simply motivated or influenced by their beliefs; rather, there is an intimate link with the humanist belief system; in particular, in the way in which couples prepare for their wedding with their celebrant, in the statements made during the ceremony and in the emphasis on individual freedom of choice. In my judgement, that evidence would establish the necessary connection between humanist marriage and humanist beliefs to amount to the manifestation of those beliefs for article 9 purposes…’

From concluding that humanist marriages are a manifestation of humanism within the ambit of Article 9, the judge then concluded that:

‘The position of such a humanist (which would include each of the Claimants in this case) is directly analogous to the position of a person holding a religious belief who similarly wishes to manifest that belief when they enter into marriage.

‘Comparing like with like, the humanist couple who wish to have a marriage ceremony that manifests their belief, in the same way as a religious couple might do, are thus treated differently: unlike their religious comparators, the conduct of their marriage ceremony, according to their humanist beliefs will not be legally recognised absent the supervisory presence of state officials.

‘That is the difference of treatment at the heart of this claim, and I am satisfied that it is a difference of substance, not merely one of form. Although many of the consequences of that difference – such as the additional costs involved – do not give rise to such fundamental point of principle, they also represent differences of treatment between the Claimants and their comparators that are more than de minimis.’

She also said that:

‘Unlike [the opposite-sex civil partnerships case] Steinfeld, the present case does not involve a challenge to a relatively new change in the law that has introduced a difference of treatment; the discrimination of which the Claimants complain is long-standing… While there has plainly been a very real change in social attitudes towards marriage… it is difficult to say that this is discrimination that has only gradually and recently lost its historic justification: on the evidence before me, marriages in accordance with ethical, non-religious rituals (as laid down by the predecessors to Humanists UK) date back to the early twentieth century; there is force behind the Claimants’ complaint that reform is long overdue (underlining added).

‘I am concerned that there have been delays in the Defendant’s response [to this point]… there must be a question as to whether the Defendant could have mitigated against the continuing discriminatory impact of the law by moving more quickly.’

In sum then, the judge ‘found that there is a continuing discriminatory impact upon those who seek to manifest their humanist beliefs through marriage’ and ‘the discrimination suffered by the Claimants is real: the difference of treatment they experience in seeking to manifest their humanist beliefs through the ceremony of marriage is a matter of substance, not merely one of form.’ Therefore, ‘I have found that – subject only to the question of justification – the present law gives rise to article 14 discrimination in the Claimants’ enjoyment of their article 9 rights.’

But the judge also said she had to give the Government the benefit of the doubt that they would reform marriage law after the present Law Commission review, writing, ‘Although I may deprecate the delay that has occurred since 2015, I cannot ignore the fact that there is currently an on-going review of the law of marriage in this country that will necessarily engage with the wider concerns that have been raised’. With regard to the wider concerns about marriage law that prompted the review, she said that ‘such concerns could not justify the taking of no action’ on recognition of humanist marriages, merely that they justify letting the review run its course before the discrimination issues are fixed.

Humanists UK is disappointed by this conclusion, for the reasons given above. The claimants are now considering whether to appeal the judgment on this narrow point of whether the current review justifies not issuing a declaration of incompatibility to the effect that marriage law is discriminatory as in breach of Article 14. Such a remedy is now the only meaningful relief that can be granted to those claimants who have, due to delays, already had to marry by civil marriage ceremonies, contrary to what they had wished for their wedding days.

(b) More about humanist weddings around the UK, Ireland, and Crown dependencies

In England and Wales, over 1,000 couples a year already have a humanist wedding without legal recognition. They all must have a separate civil marriage – usually at a registrar’s office – for their marriage to be legally recognised, even though it is not what they want. Couples must go through formalities twice, leading to financial strain, and distress over the state failing to recognise their humanist wedding as their ‘real’ one.

Humanist marriages have long been legally recognised in Scotland and the Republic of Ireland, and have had a transformative effect in both countries. They gained legal recognition in Scotland in 2005 and in 2019 there were more humanist than Christian marriages for the first time (23% of the total). Humanist Society Scotland provides more marriage ceremonies than any other religion or belief group. In the Republic of Ireland, humanist marriages gained legal recognition in 2012. In 2019 around 9% of legally recognised marriages were humanist, placing the Humanist Association of Ireland only behind the Catholic Church and civil marriages.

Humanist marriages gained legal recognition in Northern Ireland in 2018, following a Court of Appeal ruling that concluded that a failure to do so would be a breach of human rights. Jersey also gave legal recognition to humanist marriages last year and the Guernsey Assembly has passed legislation that from next year will do the same.

Read more about Humanists UK’s campaign for legal recognition of humanist marriages: https://humanism.org.uk/campaigns/human-rights-and-equality/marriage-laws/

Humanists UK is the national charity working on behalf of non-religious people. Powered by over 85,000 members and supporters, we advance free thinking and promote humanism to create a tolerant society where rational thinking and kindness prevail. We provide ceremonies, pastoral care, education, and support services benefitting over a million people every year and our campaigns advance humanist thinking on ethical issues, human rights, and equal treatment for all.

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