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Unread 2 Aug 2006, 00:50   #33
furball
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Re: Lesbians get nailed

Quote:
Originally Posted by Boogster
I have no real idea how precedent is set: do the presiding judge's comments have no influence upon later cases? In any case, stop being a big gay pedant, ignore the word 'legal', and address the point.
Boogster hereby presents Missing The Actual Point 101


Precedent is set by the ratio decidendi of a case - the reasoning behind a decison. It is the point in the case that determines the judgement. For example, Fagan v Metropolitan Police Commissioner. I don't like linking to wikipedia for this, but most law databases require special access, usually via Athens for us students.



The judgement for the lesbians' case can actually be found here. I've skimmed through to look for the ratio:

Quote:
It is wrong for the court, by an exercise of purported interpretation, effectively to legislate by making a decision in an area for which only Parliament, following legislative deliberation in respect of its ramifications or practical repercussions, is equipped to evaluate (para 37)
There's then a whole load of stuff on the European Convention on Human Rights. Essentially the judge (Sir Mark Potter, President of the Family Division) finds that the European Court of Human Rights has already ruled against the suggestion that the Convention creates a right to same-sex marriage.

Quote:
The position is as follows. With a view (1) to according formal recognition to relationships between same sex couples which have all the features and characteristics of marriage save for the ability to procreate children, and (2) preserving and supporting the concept and institution of marriage as a union between persons of opposite sex or gender, Parliament has taken steps by enacting the CPA to accord to same-sex relationships effectively all the rights, responsibilities, benefits and advantages of civil marriage save the name, and thereby to remove the legal, social and economic disadvantages suffered by homosexuals who wish to join stable long-term relationships. To the extent that by reason of that distinction it discriminates against same-sex partners, such discrimination has a legitimate aim, is reasonable and proportionate, and falls within the margin of appreciation accorded to Convention States. (para 122)


It's easy really!
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