Joan Smith: Even the ancient Romans had different forms of marriage

Five years ago this month, when civil partnerships were allowed in law for the first time, onlookers smiled warmly as gay and lesbian couples emerged from their long-awaited ceremonies; among the first to benefit were Sir Elton John and David Furnish, who organised their ceremony and the party afterwards with typical flamboyance. It was a huge step forward for gay men and lesbians, as well as a boost to the greetings card industry, which seized the chance to produce civil partnership cards as well as the more usual wedding ones.

For a while, just about the only people I knew who tied the knot were gay couples, and I was moved almost to tears last summer when a friend and his boyfriend walked down the aisle at Sheffield City Hall, hand in hand and wearing matching tuxedoes. To begin with, most people seemed prepared to overlook the fact that the new law was blatantly discriminatory, although a straight friend of mine was startled when she was told by the local town hall that she couldn't book a civil partnership ceremony because her partner was a man.

In retrospect, Tony Blair's eagerness to reduce (but not eradicate) discrimination against gay people created a situation that is unfair and unsatisfactory all round: gay couples are banned from getting married, while straight couples are not allowed to form civil partnerships. It doesn't make any sense and yesterday saw, not before time, the launch of a challenge to the law.

The cases are being brought by four gay and four heterosexual couples, all of whom have been turned away from register offices over the past two months. The same-sex couples were told by registrars in Greenwich, Northampton and Petersfield that they couldn't apply for a civil marriage licence; the straight couples were turned away in Islington, Camden, Bristol and Aldershot on the grounds that they cannot apply for civil partnership status. According to the Matrimonial Causes Act 1973, the parties to a marriage must be male and female, while the Civil Partnership Act 2004 stipulates that they must belong to the same sex. All the couples intend to argue at the European Court of Human Rights in Strasbourg that their treatment contravenes articles of the Human Rights Act that guarantee respect for private life, family life and the right to marry, and prohibit discrimination.

Because Peter Tatchell is one of the instigators of the Equal Love campaign, it has been reported as though it is entirely about gay rights, but it is to Tatchell's credit that he was one of the first people to spot that the law is unfair to straight people as well. One of the heterosexual men bringing the challenge observed on yesterday's Today programme on Radio 4 that many straight people don't like the baggage that comes with marriage. They see it as an old-fashioned institution whose roots lie deep in patriarchy; Lucy Hilken, whose application for a civil partnership with her boyfriend, Tim Garrett, was turned down in Aldershot last week, said she would prefer it because "it is free from the negative, orthodox traditions of marriage".

For heterosexuals, marriage isn't a joining together of equals; you become husband and wife, not partners, and the roles still come with different expectations. When I got married years ago, I had to fight to keep my own name but no one expected my then husband to change his; there is no longer an automatic assumption these days that a woman will give up her "maiden" name, but families can be surprisingly conservative in their views about how a married woman is supposed to behave. What feels like an important symbol of acceptance for gay and lesbian couples no longer suits many straight people, which is a powerful argument in favour of choice.

The Romans had different forms of marriage, evolving over the centuries as women came to be regarded as something more than just the property of their husbands or fathers. Something similar has happened in this country: civil marriage was introduced in 1837, allowing couples to get married in a register office instead of a church, and the first Divorce Act became law 20 years later. Lawrence Stone's magisterial study of marriage and divorce before 1857 is called Uncertain Unions & Broken Lives, calling attention to the misery caused by couples' uncertain legal status and the difficulty of obtaining a parliamentary divorce.

Civil partnerships are an imperfect step on the long road to modern relationships between adults, creating a weird situation in which choice is restricted for everybody on grounds of sexual orientation. According to Professor Robert Wintemute, legal adviser to the Equal Love Campaign, the law as it stands is "discriminatory and obnoxious"; he compares it to having "separate drinking fountains or beaches for different racial groups, even though the water is the same".

He's right. The arguments against gay and lesbian couples being allowed to marry are insulting, harking back to reactionary Conservative thinking about "pretend" family relationships; the only argument I've heard against extending civil partnerships to heterosexuals is that they should get married instead, which is too absurd to be taken seriously. Some people are happy to cohabit but there are good reasons, symbolic and practical, for opting for a relationship that has official recognition; it offers clarity about next of kin, advantages in terms of inheritance and a public statement of commitment.

In fact, there is no logical reason why civil partnerships should be restricted to people in a sexual relationship. In some countries, it is possible for sisters, brothers or friends to form a civil partnership in order to protect joint assets; a change in the law in this country would remove tremendous anxiety from elderly friends and relatives who share houses or flats. Indeed I'm amazed that some enterprising backbench MP hasn't already challenged all these anomalies with a private member's bill, obviating the need to mount an expensive challenge at the European court.

I'm sure Tony Blair meant well when he introduced civil partnerships, but it has become clear that he landed us with is a typical New Labour fudge. Now he has taken himself off to the Catholic Church, we are sorely in need of bolder, braver and more modern politicians to clear up the mess.

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