Celia Kitzinger and Sue Wilkinson lost their High Court fight to be recognised in law as a married couple.

The British couple used human rights laws to argue that the union should have full legal status under English law. But Sir Mark Potter, President of the Family Division of the High Court, also cited human rights legislation in dismissing their application.

He ruled that “to accord a same-sex relationship the title and status of marriage would be to fly in the face of the European Convention on Human Rights as well as fail to recognise physical reality”.

The university professors, who married while working in Vancouver in 2003, said that they were “deeply disappointed by the judgment” and claimed that it perpetuated discrimination. They have described civil partnerships as “insulting and discriminatory”.

If their case had been successful it could have allowed gay couples to wed abroad and have their marriages legalised on return to Britain. In rejecting their case the judge gave a conservative definition of marriage, in language steeped in history and echoing that of the Solemnisation of Matrimony in the 1662 Book of Common Prayer. The sermon defines holy matrimony as “an honourable estate, ordained for the procreation of children . . . and for a remedy against sin and to avoid fornication”.

It is a description to which Sir Mark believes the majority of people still adhere, nearly 350 years later. He wrote: “It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit, in which both maternal and paternal influences are available.”

Canada was one of the first countries to legalise same-sex marriages, along with Belgium, Spain and the Netherlands.

But the judge said that the couple faced “an insurmountable hurdle” in trying to have a same-sex union recognised in English law.

“The belief that this form of relationship [marriage] is the one which best encourages stability in a well-regulated society is not a disreputable or outmoded notion based upon ideas of exclusivity, marginalisation, disapproval or discrimination against homosexuals, or any other persons who by reason of their sexual orientation or for other reasons prefer to form a same-sex union,” he said. Marriage was, by “long-standing definition and acceptance”, a formal relationship between a man and a woman, primarily designed for producing and rearing children.

The couple’s marriage was automatically deemed in the United Kingdom to be a civil partnership under laws introduced last December.The couple, who live in North Yorkshire, brought the case with the support of OutRage!, the gay rights organisation, and Liberty, the human rights watchdog.

Professor Wilkinson, 52, who works in the psychology department of Loughborough University, said: “We are deeply disappointed by the judgment.”

She said that they had been “stripped of our marriage” by a judge who preferred to uphold the traditional notion of marriage.

“It perpetuates discrimination and it sends out the message that lesbian and gay marriages are inferior,” she said. “This judgment will not stand the test of time.” Costs were awarded against the couple, but capped at £25,000. They were given leave to appeal.

SIR MARK POTTER'S JUDGMENT

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