21/01/2026
Written by: Nathan Roberts
Background
Rebecca Steinfeld and Charles Keidan are a different-sex couple who wished to formalise their relationship but had a conscientious objection to marriage. When Parliament introduced same-sex marriage by the Marriage (Same Sex Couples) Act 2013, it left the Civil Partnership Act 2004 (CPA) in place only for same-sex couples. From March 2014, therefore, same-sex couples had a choice (marriage or civil partnership) while different-sex couples did not. The couple brought a judicial review, arguing that this differential treatment, based on sexual orientation, violated Article 14 ECHR (non-discrimination) read with Article 8 (private and family life). They lost at first instance (Article 8 was found not to be engaged); the Court of Appeal accepted that Article 8 was engaged but by a majority upheld the Government’s “wait and evaluate” approach as a temporary justification. The Supreme Court granted permission and heard the appeal in May 2018.
Decision
The Supreme Court (Lord Kerr giving the judgment for a unanimous court) allowed the appeal and made a declaration of incompatibility under section 4 Human Rights Act 1998. Sections 1 and 3 CPA, to the extent they excluded different-sex couples from civil partnerships, were held to be incompatible with Article 14 read with Article 8. The Government accepted there was differential treatment within the ambit of Article 8 – Strasbourg had made clear that no detrimental effect needed to be established. The sole issue was justification. The Court rejected the contention that time to “evaluate” options could itself justify an admitted inequality that Parliament had created. Justification had to address the existence of the discrimination, not merely the pace of remedy. The “wait and see” approach, years after the 2013 Act, was disproportionate.
Key conclusions included:
(1) Domestic courts do not strictly apply the Strasbourg “margin of appreciation” – they conduct their own proportionality analysis, albeit with suitable deference to the policy decisions that the legislature and executive have to make.
(2) Any margin of discretion is narrow when the relevant characteristic is sexual orientation.
(3) Where Parliament creates inequality (here, by extending marriage to same-sex couples without addressing civil partnerships), it bears a heavy burden to justify ongoing discrimination.
(4) Consultation and monitoring of an apparent inequality cannot suffice as a legitimate aim. The Court distinguished cases such as Schalk and Kopf v Austria [2010] 53 EHRR 20 (timing of first recognition for same-sex couples) and drew on Vallianatos v Greece [2013] 59 EHRR 12 and domestic authority for the intensity of review. The rest of the proportionality test therefore collapsed, the Court holding that Parliament should either have immediately abolished civil partnerships upon same-sex marriage, or should immediately have introduced different-sex civil partnerships.
(5) Having found incompatibility, the Court considered it appropriate to issue a declaration of incompatibility notwithstanding ongoing policy work, emphasising that a s.4 declaration does not compel legislative change but signals incompatibility for Parliament to address.
Comment
Parliament responded by passing the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, which enabled regulations to extend civil partnerships to opposite-sex couples in England and Wales. The Civil Partnership (Opposite-sex Couples) Regulations 2019 were made on 5 November 2019, came into force on 2 December 2019 (the date from which opposite-sex couples could give notice), and the first opposite-sex civil partnerships took place on 31 December 2019.
Steinfeld is a clear modern statement of the Article 14 methodology in domestic courts. “Administrative patience” or open-ended consultation will not neutralise an inequality that the State has itself created. It also provides a confident articulation of when declarations of incompatibility are appropriate, rejecting undue judicial reticence in the face of policy reviews.
The judgment remains a touchstone where (a) reforms produce asymmetries between groups; (b) the Government invokes “policy development” or “monitoring” to defer equal treatment; or (c) claimants seek a declaration of incompatibility despite ongoing consultation. The Court’s treatment of Strasbourg’s margin of appreciation (irrelevant domestically) and its proportionality analysis are of lasting use across equality challenges under Article 14 read with a qualified right.
The case is also an illustration of the difficulties for Government if it denies that justification is required at all. Having argued at first instance that the matter did not fall within the ambit of Article 8, the Court inferred that the Government had not conducted its own proportionality assessment.
Matrix members
Karon Monaghan KC and Sarah Hannett KC acted for the appellants.
Dan Squires KC acted for the respondent.