The key case under the rubric of state interference in the right to marry is the judgement ofB. and L. v. the United Kingdom from 2005. The case report is quite short, but it offers a glimpse into the complicated history of English law on prohibited degrees of affinity and how the rules concerning the prohibited degrees of relationships spelt out as far back as in the Old Testament were transposed into secular law in England. Marriage prohibitions are also at the core of the anthropological study of kinship: who are seen as too close to mate and what is seen as beneficial to the community or society in question. Other
7 Malta was the last European State to legalise divorce in 2011when a referendum on allowing divorce was held (“MPs in Catholic Malta pass historic law on divorce”, 25 July 2011, BBC online news item). The Republic of Ireland has allowed divorce after a referendum held in 1995. On the process in Ireland, see Burley and Regan (2002).
8 The term ”degendering marriage” has been thought up by many scholars, for example Barker (2012: 121) and Ball (2014: 136), but usually the term is used descriptively to sum up on a debate as a passing mention.
9Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI.
10Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010.
11 A few cases (e.g.Chapin and Charpentier v. France (no. 40183/07),Orlandi and Others v. Italy (no. 26431/12) are pending on the matter of same-sex marriage and will probably shed light on the definition of marriage in the ECHR in 2015 or later (European Court of Human Rights 2015a).
12Hämäläinen v. Finland [GC], no. 37359/09, 16 July 2014.
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cases in the history of the ECHR that deal with State interference in the right to marry deal with other forms of prohibited relations, such as marriage between a stepfather and a stepdaughter13, a young man eloping with an underage girl14 and the possibility, or rather the impossibility of contracting a posthumous marriage15. All of these complaints and cases deal with the kind of anthropological import present in B. and L. – who may marry who and according to rules laid down by whom, which are intertwined with communally held moral convictions that marrying a relative not just through consanguinity but through marriage, a child or a dead person is abhorred.
Other complaints and cases in this category deal more with the interests of the State in posing obstacles to marriage: serving in the army creating restrictions on marrying16, or not regarding a certain form of marriage as valid, such as marriage celebrated through religious rituals17 not recognised by the State or different rules regarding marriage for different ethnic groups18.
From an anthropological point of view, the judgement ofB. and L. v. the United Kingdom is a prime example of the remnants of complicated incest prohibitions and marriage rules. In common parlance in Western countries,
‘incest’ tends to be understood to refer to prohibited sexual relationships between close relatives such as parents and children or between siblings.
However, incest prohibitions are not just about forbidding sexual relations between people with a close blood relationship. As Adam Kuper (2002) points out, this is the meaning the word has today, and it is also associated closely with child abuse. Within anthropological scholarship and in the past the concept of incest has been wider. Anthropological scholarship studies rules of what is considered as incest or prohibited degrees of relationships and how these boundaries vary from one culture to another. For example, in England, the concept of incest used to encompass relations through marriage, which led to marriage prohibitions between not just blood relatives (due to consanguinity) but also between in-laws, due to understandings of what affinity is (Kuper 2002).
Stephen Cretney (2003), a British legal historian, offers a detailed history of the treatment of prohibited degrees of relationships in his account of the history of English family law. In English law, prohibitions to marry a relative through marriage, such as one’s sister-in-law or brother-in-law were not reformed in a single piece of legislation that would have made the situation symmetrical in terms of gender and degree of proximity. Instead, legislation
13Waser and Steiger v. Switzerland (dec.), no. 31990/02, 23 October 2006.
14 Khan against the United Kingdom, no. 11579/85, Commission decision of 7 July 1986.
15M. v. Federal Republic of Germany, no. 10995/84, Commission decision of 13 December 1984.
16Dimitra Staiku v. Greece, application no. 35426/97, Commission decision of 2 July 1997.
17X against the Federal Republic of Germany, no. 6167/73, Commission decision of 18 December 1974, Decision and reports XX, p. 64.
18Selim v. Cyprus(dec.), no. 47293/99, ECHR 2001-IX. See alsoSelim v. Cyprus(friendly settlement), no. 47293/99, ECHR 2002-VI.
was reformed in a piecemeal fashion, responding to individual cases and life histories, or large-scale historical events such as the First World War, after which many women and the brothers of their dead husbands wanted to marry.
The history of prohibited degrees of marital relationships in English law is by no means clear or straightforward. Prohibitions on marrying the brother or sister of one’s former spouse were lifted one by one over a long period lasting from the 19th century to the early 20th century, so symmetrical relationships such as marrying the sister of one’s former wife for men or marrying the brother of one’s former husband for women were not made possible at the same time. Personal Acts of Parliament were a way of getting around the restrictions, as mentioned in the case material of B. and L., but this was a costly, complicated and a one-by-one solution to this issue. (Cretney 2003, see also Héritier 1993.)
B. and L. v. the United Kingdom was about a couple, an older man and a younger woman, who had been father-in-law and daughter-in-law – that is, L., the woman, had been married to B.’s son, C.,and L. and C. had had a child together. After L., the woman, separated from her husband C., she and B., a divorcee, began cohabiting, and L.’s and C.’s child lived with them. Thus, the child was living with his mother and his grandfather, who also happened to be his ‘stepfather’. In 2002, B. inquired from their local Superintendent Registrar whether B. and L. could marry. The Superintendent Registrar replied that under English law at the time, the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986, this was impossible unless B.’s ex-wife (C.’s mother), and C. (B.’s son and L.’s ex-husband), were both dead.19 There was one possible way around the marriage prohibition, which was the Personal Bill procedure available in the Parliament. Over the years, some couples with a similar degree of affinity had succeeded in obtaining the possibility to marry through a personal petition in the form of a
“personal legislative project” made to the Parliament.20 However, in order to succeed one needed to know about the procedure and devote both time and money to it.
When complaining to the European Court, B. and L. invoked Article 12 of the European Convention, and no other rights stipulated in the Convention.
They argued that the prohibition in place “denied them the very essence of the right to marry”21 and that the restriction was ”disproportionate and unjustified”22 . They also pointed out that Personal Acts that had been passed for other couples undermined the importance of the prohibition. Furthermore, they argued that:
19B. and L. v. the United Kingdom, paras 7-12.
20 Personal bills mentioned inB. and L. v. the United Kingdom are theValerie Mary Hill and Alan Monk (Marriage Enabling) Act 1985(para 21) andSonia Ann Billington and Norbury Billington (Marriage Enabling) Bill 1985 (para 23).
21B. and L. v. the United Kingdom, para 28.
22B. and L. v. the United Kingdom, para 28.
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… the majority in the report before the House of Lords were in favour of lifting the restriction as serving no purpose. Even the minority were more concerned about the relationship of father and step-daughter, in which respect the prohibition was in the end removed.
There were, in the applicants' view, no sensible or coherent distinctions between their situation and that of other categories which were permitted (step-father and step-child, brother-in-law and sister-in-law etc.).
B. and L. V. the United Kingdom, para 29
Regarding the position of L.’s and C.’s son, they argued that he actively supported B.’s and L.’s plans to marry and “wanted to be part of a ‘normal’
family”23. The Government defended the legislation in place due to the
“complexity or relationships”24 in question, potential harm to third parties and the protection of morals. Regarding L.’s and C.’s child, the situation could be
“deeply confusing and disturbing”25. The Government maintained that the restriction could be defended as part of the national legislation that Article 12 very much refers back to and necessary “…given the risk of such marriages undermining the foundations of the family and altering relationships between affines; public views on the moral limits of permissible relationships within the family and the risk of public outrage; and the role of law in defining and reinforcing family relationships”26.
The European Court elaborated that the English legislation in question
”aimed at protecting the integrity of the family (preventing sexual rivalry between parents and children) and preventing harm to children who may be affected by the changing relationships of the adults around them”27 and deemed these to be legitimate aims. It noted that there was no legislation in place to deter parents-in-law and children-in-law from having sexual relations together and such relationships did sometimes take place as the case at hand demonstrated. In addition, as it was legally possible to contract such marriages with the help of the Personal Bill procedure, the European Court reasoned that there was no categorical ban of marriages such as B.’s and L.’s proposed marriage. According to the European Court ”[t]he inconsistency between the stated aims of the incapacity and the waiver applied in some cases undermines the rationality and logic of the measure”28. Thus, the European Court ruled that there had been a violation of Article 12 of the European Convention.
So, what were these restrictions based on? To go far back, the Old Testament, more specifically Leviticus 18: 6-18. The old Judaic rules
23B. and L. v. the United Kingdom, para 29.
24B. and L. v. the United Kingdom, para 31.
25B. and L. v. the United Kingdom, para 31.
26B. and L. v. the United Kingdom, para 32.
27B. and L. v. the United Kingdom, para 37.
28B. and L. v. the United Kingdom, para 40.
prohibited sexual relations with certain categories of both consanguineous relatives29 and affines30. Verses 6-13 prohibit relations with mainly consanguineous female relatives in relation to a male Ego: mother, step-mother (father’s wife), sister, half-sister, niece and aunt. In verses 14-18, the prohibitions deal with relatives through marriage:
14 Do not dishonor your father’s brother by approaching his wife to have sexual relations; she is your aunt.
15 Do not have sexual relations with your daughter-in-law. She is your son’s wife; do not have relations with her.
16 Do not have sexual relations with your brother’s wife; that would dishonor your brother.
17 Do not have sexual relations with both a woman and her daughter.
Do not have sexual relations with either her son’s daughter or her daughter’s daughter; they are her close relatives. That is wickedness.
18 Do not take your wife’s sister as a rival wife and have sexual relations with her while your wife is living.
New Living Bible 2007, Leviticus 18: 6-18
In the Catholic Church these verses gave rise to a complex system of marriage prohibitions, but they could be overcome by dispensation from the Pope. In England, the content of these verses were worked into a table of prohibited degrees of relationships, known as ‘Archbishop Parker’s Table’, which was adopted in the Canons of the Church of England in 1603 and included in the Book of Common Prayer in 1662. So, even after Reformation English law prohibited certain potential marriages according to rules spelt out in Leviticus, and in contrast to mediaeval canon law of affinity offered no dispensation.
(Bennett 1998: 668.) However, these rules were formally situated in ecclesiastical law. They were engrained in secular legislation in 1835, when Lord Lyndhurst’s Act turned them into effective legislation (Cretney 2003: 39, see also Héritier 1993: 125-138).
From the point of view of the right to marry as a right guaranteed by the European Convention,B. and L. is a highly interesting case from the point of view of anthropological scholarship, as it displays a question where a complex bundle of incest prohibitions that have travelled from one culture and era to another and human rights principles, yardsticks of ethical principles specified in our culture and era, come together. Héritier (1993), who has analysed a variety of historical traditions related to the question of incest of the second degree, meaning prohibited degrees of relationships not on the basis of genetic
29 I.e. blood relatives.
30 I.e. relatives through marriage or “in-laws”.
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relatedness but of ties created by marriage; offers a general framework of the avoidance of contact between blood relatives through the same sexual partner, which applies toB. and L. as well. However, she also points out the question of maintaining social order and hierarchies between male head of a kin group through the avoidance of sexual rivalry between brothers, fathers and sons and so on (see 1993: 20).
From the perspective of normativity, it is a key judgement as it sets doctrine emanating from religious authority such as biblical rules and canon law in opposition with human rights doctrine. What was at some point regarded as necessary for order and stability in society is seen as irrational, backward, and standing for “no just cause” as noted in a committee report on the possibility of lifting these prohibitions in the United Kingdom in the 1980s (Report by Group… 1984). However, the juxtaposition of tradition and religiously inspired norms of prohibited degrees of affinity against human rights law in this manner is not this self-evident. What is most interesting in B. and L. is how ancient Judeo-Christian incest prohibitions are juxtaposed with modernity and the idea of individual human rights. The judgement led to the lifting of such marriage prohibitions with the Marriage Act 1949 (Remedial) Order 2006. In conjunction with the preparation of this Act, opposition was still voiced by some Christian communities, and also after 2006 priests are exempt from marrying couples within the former prohibited degrees of affinity with the help of a conscience clause. (Draft Marriage Act 1949 [Remedial]
Order 2006.)
B. and L.is not the only complaint made to the European Court of Human Rights concerning marriage prohibitions between affines. In Waser and Steiger against Switzerland from 200631 a couple composed of a man and a woman who was the daughter of the man’s former wife sought to marry after living together and having children. Interestingly, the arguments put forward by the Federal Tribunal, the highest court where the complaint was made before reaching the European Court, stressed “peace within the family” as the rationale behind the law:
The federal Tribunal concluded that the prohibition was absolute and its ratio legis (legal rationale) was the maintenance of peaceful relations within the family. In addition, the federal Tribunal judged that such a marriage would have been destabilising for the immediate family, especially to the parent of the child finding him or herself in this situation as well as for his/her brothers and sisters.32
31Waser and Steiger against Switzerland, 31990/02, decision of 23 October 2006.
32. Original quote: "Le Tribunal fédéral en conclut que l’interdiction était absolue et saratio legis était le maintien de la paix familiale. Au surplus, le Tribunal fédéral jugea qu’un tel mariage eût été déstabilisant pour la famille proche, notamment le parent de l’enfant se trouvant dans cette situation ainsi que ses frères et sœurs".Waser and Steiger against Switzerland, “En fait”, available only in French. Translation by the author.
Waser and Steiger v. Switzerland, “En fait”
The applicants lodged their complaint to the European Court in 2002, but the Swiss government and the applicants reached a friendly settlement as marriage prohibitions between affines were suppressed when Switzerland adopted legislation for registered partnerships for same-sex couples in 200533. Thus, unlike in the United Kingdom, enacting separate partnership legislation led to suppressing the remnants of affinity-based marriage prohibitions. In United Kingdom, they have been suppressed as well in 2007 (Draft Marriage Act 1949 [Remedial] Order 2006), but after approving civil partnership legislation that entered into force in 2004.
Other decisions and judgements involving state intervention in the right to marry are to do with other prohibitions, such as age, retroactivity and mental incapacity, or the interests of the State and other institutions and the powers of the State in delegating the right to contract marriages to religious communities. In Khan against the United Kingdom (1986)34 a 21-year-old man had run away with a 14-year-old girl. The couple had sought permission from the father of the girl to marry, but due to his refusal they ran away and held an Islamic marriage ceremony. They lived together for over a year before the father of the girl took her away. The young man was charged with abducting the girl “from the possession of the father”35 and having sex with a girl under 16 years of age, both breaches of the Sexual Offences Act 1956. The young man received a prison sentence of nine months. To the European Court, he evoked Articles 9, 12 and 14 and complained that the Sexual Offences Act interfered with his possibility of “manifesting his religion through his marriage under Islamic law”36, “prevented him [from] consummating his marriage and founding a family”37 and that he was “discriminated against in that the judge failed to take into consideration his religion, under which it is considered lawful for a girl to marry on attaining the age of 12 years without her parents’
consent”38. The European Court considered his complaint inadmissible.
A somewhat similar case wasX. against the Federal Republic of Germany from 1974. In this complaint, the applicant and Mrs Y had considered themselves to be married after having intercourse after “having read out verse 16 of the 22nd chapter of the second book of Moses in the Old Testament”39. The complaint was deemed manifestly ill-founded and inadmissible, as the Commission considered that “[m]arriage is not considered simply as a form of
33 Waser and Steiger against Switzerland, “En Droit”.
34Khan v. the United Kingdom, no. 11579/85, Commission decision of 7 July 1986.
35 Khan v. the United Kingdom, p. 254.
36 Khan v. the United Kingdom, p. 254.
37Khan v. the United Kingdom, p. 254.
38Khan v. the United Kingdom, p. 254.
39X v. the Federal Republic of Germany, no. 6167/73, Commission decision of 18 December 1974, Decision and reports XX, p. 64.
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expression of thought, conscience or religion but is governed by the specific provision of Article 12 which refers to the national laws governing the exercise of the right to marry”40. In contrast toKhan, no crime had taken place as supposedly the parties to the marriage rite were of marriageable age, but the role of the State in having the last word in what is to be considered a marriage despite of religious views and convictions is demonstrated in these two cases.
In this vein, the State also draws the line in matters concerning who can perform marriages: inSpetz and others against Sweden41 Pentecostal pastors of a certain congregation had their licenses for performing marriages revoked by the Swedish authorities due to supporting “breakaway movements” from
In this vein, the State also draws the line in matters concerning who can perform marriages: inSpetz and others against Sweden41 Pentecostal pastors of a certain congregation had their licenses for performing marriages revoked by the Swedish authorities due to supporting “breakaway movements” from