Introduction
The question of whether same-sex marriage is "right or wrong" engages deep-seated moral, religious, and social beliefs. From a legal perspective, however, the question is not about abstract morality but about equality, human rights, and the role of the state in defining a fundamental social institution. For centuries, English law defined marriage as exclusively heterosexual. This position has, however, undergone a significant transformation, culminating in the Marriage (Same Sex Couples) Act 2013. This essay will not seek to provide a definitive moral answer to the question. Instead, it will analyse the legal arguments that have framed the debate in England and Wales. It will examine the historical definition of marriage, the arguments for reform based on principles of equality and non-discrimination, and the counter-arguments, particularly those concerning religious freedom. This essay will argue that while the legalisation of same-sex marriage can be seen as "right" from the perspective of achieving formal equality, the process has involved a complex balancing act, with Parliament attempting to accommodate conflicting viewpoints.
The Traditional Definition of Marriage and the Rise of Equality Arguments
Historically, English law was unambiguous in its definition of marriage. The case of Hyde v Hyde and Woodmansee (1866) provided the classic definition of marriage as "the voluntary union for life of one man and one woman, to the exclusion of all others". This definition formed the bedrock of family law for over a century and was later codified in section 11(c) of the Matrimonial Causes Act 1973, which stated that a marriage was void if the parties were not respectively male and female. This legal position reflected the prevailing social and religious norms of the time, where marriage was intrinsically linked to its procreative potential and traditional gender roles.
The shift in legal thinking began with the growing influence of human rights law, particularly after the enactment of the Human Rights Act 1998, which incorporated the European Convention on Human Rights (ECHR) into domestic law. Campaigners for reform argued that the exclusion of same-sex couples from marriage was discriminatory and a violation of their fundamental rights. The key ECHR articles in this debate were Article 12 (the right to marry), Article 8 (the right to respect for private and family life), and Article 14 (the prohibition of discrimination). Initially, the European Court of Human Rights (ECtHR) was reluctant to extend Article 12 to same-sex couples, holding that the right to marry was intended to apply to traditional marriage between a man and a woman. However, the court's stance evolved, recognising that same-sex relationships constituted "family life" deserving of protection under Article 8 (Herring, 2021). The failure to provide any form of legal recognition for same-sex couples could therefore amount to discrimination under Article 14 combined with Article 8.
This pressure contributed to the introduction of the Civil Partnership Act 2004. This Act was a landmark piece of legislation, creating a legal status for same-sex couples that was, in most practical respects, identical to marriage. It conferred almost all the same rights and responsibilities in areas such as tax, inheritance, and social security. However, it was not marriage. Supporters of same-sex marriage argued that this created a two-tier system: "marriage-lite" for gay couples and "full marriage" for heterosexual couples (Auchmuty, 2004). The very existence of a separate institution implied that same-sex relationships were not worthy of the same status as heterosexual ones. This was tested in Wilkinson v Kitzinger [2006], where a couple married in Canada sought recognition of their marriage in England. The High Court held that English law's definition of marriage as between a man and a woman did not violate the ECHR, confirming that under the law at the time, the distinction between marriage and civil partnership was legally permissible. This case highlighted that legislative change, rather than judicial interpretation, would be necessary to achieve marriage equality.
Balancing Equality with Religious Freedom
The primary argument against extending marriage to same-sex couples was, and remains, a religious one. For many faiths, marriage is a sacred covenant originating from God, defined as being between a man and a woman. From this perspective, a secular state redefining marriage is seen as fundamentally "wrong" and an overreach of its authority. Opponents argued that the purpose of the law was not to discriminate, but to uphold a unique and historic institution that was distinct in its nature and purpose (Sandberg, 2013). These arguments were raised forcefully during the public consultation that preceded the 2013 Act.
Recognising the profound nature of these objections, Parliament did not simply dismiss them. Instead, the Marriage (Same Sex Couples) Act 2013 was drafted to perform a careful balancing act. The central purpose of the Act was to enable same-sex couples to marry, thereby putting their relationships on the same legal footing as those of heterosexual couples. However, the Act also contained specific provisions, often referred to as the "quadruple lock," to protect religious freedoms. These provisions ensured that:
- No religious organisation or individual minister could be compelled to conduct a same-sex marriage.
- The Church of England and the Church in Wales were specifically prohibited by the Act from marrying same-sex couples unless they formally opted in through their own governance structures (which they have not).
- The Equality Act 2010 was amended to protect religious organisations from claims of discrimination if they refused to marry a same-sex couple.
- The Act applied only to civil marriage, leaving religious marriage untouched unless a religious organisation chose to opt in.
This attempt to balance competing rights shows that the law did not declare the religious viewpoint "wrong" in an absolute sense. Instead, it sought a compromise: the state redefined civil marriage as an inclusive institution, but simultaneously protected the right of religious bodies to adhere to their own, different definition of marriage. This accommodation demonstrates a core function of law in a pluralistic society: to manage deep social disagreements without compelling conformity of belief.
The 2013 Act and its Aftermath
The Marriage (Same Sex Couples) Act 2013 effectively resolved the primary question of access to civil marriage for same-sex couples in England and Wales. By opening up the institution of marriage, the law gave a clear answer from the perspective of state recognition: treating same-sex couples differently from heterosexual couples in this regard was a form of inequality that needed to be remedied. The legal argument for equality had prevailed in the legislative sphere.
Interestingly, the debate about equality and the nature of legal relationships did not end there. In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2018], the Supreme Court considered the opposite issue: the fact that civil partnerships were open to same-sex couples but not to heterosexual couples. The Court held that this difference in treatment was a breach of the ECHR rights of heterosexual couples who wished to enter a civil partnership rather than marry. This led to Parliament extending civil partnerships to all couples in 2019. This development reinforces the central principle that underpinned the campaign for same-sex marriage: that the law should not create unjustified distinctions between couples based on their sexual orientation. It shows that the "rightness" of same-sex marriage, in legal terms, was part of a broader principle of equal access to legal relationship statuses for all.
Conclusion
To return to the question, "Same sex marriage is right or wrong," a legal analysis shows that the answer is more complex than a simple binary choice. For much of its history, English law embodied the view that marriage could only be between a man and a woman. However, propelled by principles of equality and human rights, the law has evolved. The journey through the Civil Partnership Act 2004 to the Marriage (Same Sex Couples) Act 2013 demonstrates a clear legislative decision in favour of inclusivity. From a legal standpoint, based on the principles of non-discrimination, same-sex marriage is considered "right" in the sense that its prohibition was an unjustifiable inequality.
However, the 2013 Act itself shows that the law does not exist in a vacuum. By including robust protections for religious freedoms, Parliament acknowledged the deeply held convictions of those who believe that same-sex marriage is "wrong." The law’s solution was not to erase this viewpoint but to create a system where civil marriage is inclusive, while religious marriage remains a matter for religious bodies to decide for themselves. Therefore, the current legal framework in England and Wales represents a pragmatic and pluralistic settlement, concluding that while the state has a duty to provide equal access to the civil institution of marriage, it must also respect the freedom of conscience of those who disagree.
References
Auchmuty, R. (2004) 'Same-sex marriage revived: feminist critique and legal strategy', Feminism & Psychology, 14(1), pp. 101-126.
Herring, J. (2021) Family Law. 10th edn. Pearson.
Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130.
R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32.
Sandberg, R. (2013) 'The right to religious marriage', Ecclesiastical Law Journal, 15(2), pp. 158-171.
Wilkinson v Kitzinger & Ors [2006] EWHC 2022 (Fam).
Civil Partnership Act 2004.
Marriage (Same Sex Couples) Act 2013.
Matrimonial Causes Act 1973.
