Harrison & Ors, R (On the Application Of) v Secretary of State for Justice

Article 14 ECHR applies where the state creates a marriage-recognition scheme that has more than a tenuous connection with the values protected by article 9. Humanist marriage ceremonies may fall within article 9 because they can directly manifest humanist beliefs. Humanists seeking to express those beliefs through marriage are in an analogous position to religious couples, and the absence of equivalent recognition constitutes a difference in treatment on the ground of belief.

Nevertheless, the difference may be justified where reform requires wider consideration of the structure, venue and safeguards of marriage law. A current, informed review directed towards wholesale reform may justify maintaining the existing position temporarily, although delay remains relevant to proportionality. The claim was dismissed.

Six opposite-sex couples who identified as humanists challenged the failure of English law to provide legal recognition for humanist marriages. They sought declaratory relief and a declaration of incompatibility under section 4 of the Human Rights Act 1998, alleging discrimination contrary to article 14 ECHR taken with articles 8 and 9.

The statutory scheme, principally under the Marriage Act 1949, recognised specified religious ceremonies and civil ceremonies requiring state officials, but did not recognise humanist ceremonies conducted by humanist celebrants without such officials. The central issues were whether the complaint fell within article 9, whether there was a difference of treatment between analogous groups, and whether that difference was objectively justified while wider reform was under consideration.

1. Ambit. Article 14 is not freestanding, but the legal recognition of marriage is a modality of the exercise of rights under article 9 where it has more than a tenuous connection with the protected values. Humanist wedding ceremonies, for those holding humanist beliefs, have a close and direct nexus with those beliefs and fall within article 9. The alternative article 8 case was not established because the complaint concerned the form of ceremony expressing belief, rather than denial of family life.
2. Difference and analogy. The statutory distinction was substantive. Religious couples could obtain legal recognition of their ceremony without the presence of state officials in circumstances where humanist couples could not. Humanist couples seeking to manifest their beliefs through marriage were directly analogous to religious couples doing likewise. The Marriage Act 1949 did not make recognition dependent on proving that marriage was especially significant to the relevant religion.
3. Justification. The court applied the four-stage proportionality test: legitimate aim, rational connection, less intrusive means and fair balance. The asserted aim of recognising the special place of marriage in particular religions was not legitimate or rationally connected to the scheme. Avoiding further complexity could only operate as part of the wider aim of wholesale reform.
4. The Government established a legitimate aim in addressing the discriminatory structure through broader reform. The Law Commission had identified difficulties concerning venues, celebrants, registration and safeguards. The power under section 14(4) of the Marriage (Same-Sex Couples) Act 2013 was not, by itself, a sufficient solution.
5. The delay was concerning and relevant to the fair-balance assessment. However, the ongoing Law Commission review, following public consultation and a scoping exercise, justified allowing a margin of judgment in this area of social policy. The court could not treat that margin as eliminating the discrimination, but at the relevant time it supported the conclusion that a fair balance had been struck.
6. The claim was dismissed. The parties were directed to agree any outstanding matters and submit a Minute of Order; unresolved matters were to be addressed by written submissions within seven days.