Wednesday, 19 January 2011

Marriage a la mode - popcorn

I don't think much of the Christian Institute; it takes unsophisticated people like Peter and Hazelmary Bull and makes meejah capital out of them. Had they read the post Marriage a la Mode - gay and the comments there under, they would have known:
Civil Partnerships are marriage in all but name. In some people's eyes you aren't married but they probably won't accept that you are civilly partnered anyway. The law simply has no traction over that. So What? Nothing follows from this, except if they try to deny you rights to which you are legally entitled, in which case you can take legal action.
It was thought that the argument would come over whether orthodox churches could be compelled to perform gay marriages, but this is unlikely due to primary legislation defining marriage as involving a man and a woman. I also said in the comments that:
I await with a bag of popcorn the clashing arguments of freedom of religious expression and the primacy of civil rights law.
Turns out the the challenge had in fact begun in 2008 in the small Chymorvah Private Hotel in Cornwall and followed the 2006 Equality Act and, crucially, secondary legislation in The Equality Act (Sexual Orientation) Regulations 2007.

The hoteliers, Mr Peter and Hazelmary Bull do not regard civil partnerships as marriage - because it isn't in law or Scripture - and wish to provide hospitality in accordance with their Christian beliefs. They want unmarried couples in separate rooms. Since 1 May 2007 the law has required people in civil partnerships to be treated the same way as married couples in the provision of goods and services.

(I've linked to the Netlawman version because it is the easier layout to read.)

Note that this is secondary legislation, Statutory Instrument No. 1263 of 2007 . The SI was subject to the affirmative procedure, which is supposed to provide more scrutiny than just a nod if nobody shouts. For a description of the procedure, see page 5 of this briefing.

In practice only a dedicated tracker would be able to keep up with the process. Fortunately for Stonewall, it receives some hefty donations to help it do just that. See page 15 of the Stonewall 2009 Report and Accounts for a list of major donors, including:
Equality and Human Rights Commission £96,904
(this was the body which supported the case)
Greater London Authority £12,000
Scottish Government - Voluntary Action Fund £190,921
Welsh Assembly Government £109,996.
Stonewall's (charity no. 1101255) total income 2009 £3,843,063
Do please click on page 15; only four are picked out for illustration. In comparision, the Christian Institute (charity no.1004774) , who advised the Bulls, received donations and grants totaling £1,620,874 in a similar accounting period, but does not list the donors so it is not possible to see if there is a symmetry of receipts from public bodies. The overview suggests not, that the donations are from private individuals, but without the breakdown it is not possible to say for sure.

The explanatory note to the SI (linked below) insists that a reliable consultation procedure was carried out and that there was widespread public support for the measure, and that it reflects such exemptions as where justified. The SI is algebraic to read, full of As and Bs and IFs, so the explanatory note to the instrument is an important aid to understanding

Explanatory note from the UK legislation database:
7.14 The Regulations will make clear that married persons and civil partners are in materially the same position for the purposes of the regulations. This would remove a possible obstacle to civil partners bringing a discrimination claim on grounds of sexual orientation against a provider of goods and services who denied them access to a benefit or service that was being offered to a married person in a similar situation.
Or as it says in the explanatory notes to the made version:
Regulation 3(4) provides that for the purpose of the provisions defining whether discrimination has taken place, when comparing the treatment of two people, the fact that one is a civil partner and the other is married is not a material difference in the circumstances.
When the Christian Institute approached the senior citizen hoteliers Peter and Hazelmary Bull to help with with the case which had been brought against them by Martyn Hall and his civil partner Steven Preddy it became part of the Institute's continuing campaign to show that Christians face discrimination in the practice of their religion.

Sensible advice would have been to warn Mr and Mrs Bull, that in the Statutory Instrument which came in to force in April 2007 was a clause which required civil partnership to be treated as marriage, that they were very likely to lose because they didn't come within any of the exemptions, and if they were told to pay the costs as well as compensation, they could think of a big number and double it.

Had the Bulls backed down and offered compensation they would have been exposed to only a fraction of the expense and strain, and could probably have spun the lower publicity in to increased bookings. The Christian Institute could have explained the current law to the Bulls and not used them as cause celebres. Obviously a client's wishes must take precedence but it is the lawyer's job, even if working for free, to warn the client when they are on a hiding to nothing under the current regime. Let's hope the Christian Institute are picking up the costs for the Bulls.

Let's have a look at that S.I, courtesy of Netlawman. Here's the relevant point edited to bring out the structure:
(4) For the purposes of paragraphs (1) and (3),
the fact that one of the persons (whether or not B) is a civil partner
while the other is married
shall not be treated as a material difference
in the relevant circumstances.
The legal intention is clear: a civil partnership is not a material difference to marriage for the purposes of justifying different treatment. So don't try it, because it won't work.

One of the remarks made by the Judge Andrew Rutherford at Bristol County Court was that if the claimants, Hall and Preddy, had 'set up' the Bulls or were part of a sting operation, then damages would be curtailed. Strange to note, then, that the on-line booking form for Chymorvah makes the Bull's religious views reasonably clear:

Here at Chymorvah we have few rules, but please note that as Christians we have a deep regard for marriage (being the union of one man to one woman for life to the exclusion of all others).

Therefore, although we extend to all a warm welcome to our home, our double bedded accommodation is not available to unmarried couples – Thank you

Whether the Bulls were prepared to let them have the twin-bedded room, Trigge, is not recorded. Interestingly, this is a change from the wording which was earlier alleged to have been "we prefer to let double accommodation to heterosexual married couples only" says the Daily Mail, which suggests the wording was changed after a letter from Stonewall. One wonders how likely it is that Hall and Preddy were unaware of other legal challenges, or that they didn't read the hotel's website? They maintain they did not see it.

What the name and the wording suggests, however, is that the Bulls thought of themselves as running a home where they allowed people to stay overnight, as opposed to a hotel where they happened to be operators who also owned the building and lived there . They had mis-read the situation. Their freehold makes no difference to the legal position.

There is a very limited exemption under s.6 for someone taking in a close family member or similar in to their homes, but s.4.2(b) makes it clear:
Paragraph (1) applies, in particular, to— ...accommodation in a hotel, boarding house or similar establishment,
John Wadham of the Equalities and Human Rights Commission has been crowing that this is a landmark decision. Pish. It is a county court judge reading and correctly applying an SI which contained measures which mean that if push comes to shove, civil law trumps religious protocols in the booking of hotel rooms which are not part of religious organizations, and that goes for whoever is running the business, however small.

In general, the proposition that the secular law (both civil and criminal) should prevail over religious views has wide support. This is not so difficult to understand in the public sphere. Ms Ladele (a previous Christian Institute case) was a registrar and her job was to register civil partnerships, not have an opinion on whether this was morally defensible. Supermarket staff cannot refuse to handle goods on the basis that the items are forbidden in their religion. There are limits however. For example, the law recognizes the right of medics to refuse to take part in an abortion. It recognizes that for reasons of religious belief, pre-stunning before the slaughter of animals may not be enforced even though much secular opinion thinks it should be.

Despite the views of Judge Andrew Rutherford, Mr and Mrs Bull have a great deal of support in the country as it is by no means clear to people with better things to do than grovel around in the pocket-lint of discrimination legislation, why a pair of small business owners should be forced to facilitate sodomy in their own homes against their religion but are prohibited from allowing a paying guest to smoke indoors when they may have no objection to it.


Jim said...

If you want a real clash of PC ideas, wait for a 'gays vs Islam' scenario to turn up. That'll be a lot more interesting than this little spat, which was always going one way only.

JuliaM said...

" it is not possible to see if there is a symmetry of receipts from public bodies."

I'll be very, very surprised if there is!

Woman on a Raft said...

Indeed, Jim, I'll be watching that one from behind a blast-wall.

This case has happened in a hotel so small that it shows that across the tourism sector there is little or no sex discrimination worth talking about. Stonewall, who lobbied for their SI, knew that perfectly well in 2005. I'm sure the idea of searching for a test-case for their SI never crossed their minds.

The underlying dynamic is not really about hotels but is a challenge to the Church, for which the hotel is a proxy. The Church itself comes within exemptions so a case against it would have failed.

The case has leave to be appealed (we don't know yet if they can face it) and this time it will involve a discussion of which has primacy: a highly specific regulation in an SI or the primary legislation which protects religious freedom of expression.

However, before we get to the I-word there is an argument to be had about clubs which are exclusively for heterosexuals.

At the bottom of the SI (reg. 17) is a provision protecting clubs set up for single "sexual orientation" i.e. not gender-dependent. This was necessary otherwise gay clubs would be unlawful under their own legislation.

Admittedly there is room to argue about whether it is a club or a business and whether its purpose fits within the definition of the clause, but in theory a heterosexual-only club can be set up.

Woman on a Raft said...

I'd be surprised, too, JuliaM, but I'd also like to know the approximate source of their funding. If it really is coming in £10 donations from thousands of individuals then the organization has a much greater claim to represent public opinion than Stonewall does.

If, however, most of the funding is from, say, a dozen big backers who use the outfit as a training ground for Conservative MPs (whereas Stonewall is the bootcamp for Labour MPs) then the Christian rhetoric is just dog-whistle stuff designed to mobilize innocent people in to behaving in an authoritarian and unpleasant way. The only point of 'virtue' being that at least we aren't paying for half the CI from the public purse.

I don't think much of the CI's legal or PR strategy. They pick bad cases, lose them, and don't seem to be able to grasp that this makes every other Christian in the country look peculiar.

The social workers in Islington had enough to put up with, without the CI forcing the council to suck money which should have gone to child protection in to paying employment lawyers.

Even frivolous employment cases run up huge lawyers bills because it takes hours to do the case-work and fact checking.

Surreptitious Evil said...

"Whether the Bulls were prepared to let them have the twin-bedded room, Trigge, is not recorded."

Apparently, they would have but it was already occupied or booked. I notice that there are now 2 twin rooms, Trigge and Powdar. There is only one single room at the hotel so the "they were told to occupy two single rooms" is mere propaganda.

"One wonders how likely it is that Hall and Preddy were unaware of other legal challenges, or that they didn't read the hotel's website? They maintain they did not see it."

It was agreed that they booked by phone. The notice on the website was only on the online booking form so if you used the website for information and then rang to book, you wouldn't see it.

Woman on a Raft said...

Thanks for the clarification, Surreptitious Evil. The story is moving around. I accept that it would be easy to miss the statement on the online booking form.

You are so right; there is a huge fog of propaganda around this one.

Whilst I have sympathy with the view that this is a religious point of principle in conflict with the civil law, I'm wary of the Christian Institute and the Christian Legal Centre as both are only too willing to pull the public's emotions around if it helps them win an argument.

Elby the Beserk said...

Odd, is it not, that Google informs me that there a a number of gay only clubs in the UK.

One law...

Elby the Beserk said...

The other thing that strikes me about this set up - why would ANYONE want to stay in an establishment that clearly did not want them there?

To feel fully victimised, I would think...

Anonymous said...

For non-reproductive sex to remain a new-high you can either create new fetishes out of strangers or 'do it' in taboo places. The Mile High club look for virgin places such as little Christian bed and breakfastes.

Tony Sidaway said...

Thanks for the exposition, both here and in your earlier post to which you link. It's saved me some very boring hours posing over the primary legislation and the statutory instrument.

I think I disagree with you on the notion that this is about sticking it to the religious (Ithough they richly deserve it). Rather, it seems to me that Tatchell's position is based very sensibly on the principle that "separate but equal" ends up being the same as "unequal".

Is allowing the state to register gay marriage in name, and with all kinds of religious or pseudo-religious paraphernalia, really going to arrest the decline of religion and bring forth a theocracy? Search me but I'll not be holding my breath.

People want to be married and for that to mean something, so they're unlikely to settle for a halfway house. The degree of support for marriage equality is surprisingly high--I'd even say overwhelming. That's an awful lot of folk to write off as motivated by triumphalism or anti-religious sentiment.

All Seeing Eye said...

A good line from David Blackburn in the Spectator.

"The Equality Act coalesces 40 years of legislation into one document, codifying past mistakes for future use."

Woman on a Raft said...

Hope it helps, Mr Sidaway. The matter is unlikely to go away; I expect a challenge to the gay hotels which exclude women at some point. As Mr Elby points out, there are some possible inconsistencies but we won't know until somebody tests the exemptions.

You are right about Tatchell; he has always been consistent in his views but he has a history of using the CoE for its publicity purposes and I haven't seen him trying the same stunt down at the Peterborough Mosque.

One from the archives when Tatchell interrupted a sermon by Dr Carey in Canterbury Cathedral.

Tatchell's own account is eloquent and well worth reading.

On day 2 of the trial - a show-trial in every sense of the word for a minor public order offence with a fine of less than £20 - Tony Benn gave a character reference and mounted a defenence of Tatchell's protest. Benn said:

"It has long been accepted that'Conscience is above the Law' and that men and women who follow their own deeply held beliefs and peacefully defy unjust laws are right to do so, and though they may be punished at the time for what they have done are often upheld by the judgement of history."

Tatchell lost. The prosecution was lucky; they didn't really fight a good hand and anyway, as far as Tatchell was concerned it gave him a national platform at a bargain price. The Crown was frankly silly to have prosecuted. He had to pay £320 costs, which I'd be surprised if Mike Mansfield didn't pick up for him.

Outside the court Tatchell said:

I have been found guilty in a court of law: but I do not regard myself as morally guilty of any crime. My actions in Canterbury Cathedral were in defence of Human Rights.

This knife cuts both ways; I have a great deal of trouble deciding who is the victim here; the right not to be discriminated against in the supply of goods and services, or the right to hold quaint views and act on them in a limited household.

All Seeing Eye said...

Your last sentence is telling - that we live in a victimocracy. Why should there be a "victim" at all?

Surely if there needs to be an eventual winner then market forces will dictate?

I'll take the risky route of an analogy, and make a reservation at a vegetarian restaurant.

"Oh. Is it vegetarian? You didn't say so over the phone. No no, I didn't book on your website. No matter, we'll stay"

"This Meat Eaters Union badge I'm wearing, oh no, just ignore that. I've borrowed the jacket for the night."

"Right, I'll have steak."

"You won't serve me? Vegetarian restaurant be damned, I's my right..." etc etc. You get the point.

Point is, it's their restaurant and they serve what they want. They might even be carnivores themselves - they've identified a niche and are selling into it.

Market forces say that if every cafe in the area did the same thing then a small proportion of customers would be happy, a small proportion would suffer it and most people would phone for a Chinese. And a bucketful of restaurants wouldn't survive the season.

I can't see the difference. The gay community is safe that every hotel won't do the same thing because market forces wouldn't allow it. In fact, those same forces would encourage the opening of gay-friendly lodgings to exploit that niche.

So why legislate at all?

I apologise for taking the risk of an analogy because they always have weaknesses and encourage the weakest thread to be pulled to discredit an argument. But I think this one is relatively firm.

It's all about what you do with your meat.

Woman on a Raft said...

"I can't see the difference".

It depends where you stand on the map of the law. If this were a matter of private contract and property law then there is very little reason for public law to step in and you are absolutely correct.

The snag being that this isn't about contract law but is the inevitable clash of two principles of human rights law i.e. the right to freedom from discrimination versus the right to expression of religion.

The Human Rights legislation was originally set up after the Second Unpleasantness to put a moral framework around the claim that a duly elected government could change the law how it damn well pleased.

It's now our prime directive so anyone looking at the law has to look at through this lens. History just trundled over us, I'm afraid.

While the continent had a majority of people supporting a form of fairly conservative Christianity then there was a reasonably common concensus of what Human Rights meant i.e. how the legislation should be interpretted.

Now, the parallax shift between the judiciary and the Christian Conservative minority (majority? who knows) is becoming apparent.

Of which more later, only I want to do some lighter stuff as this is deadly earnest and there is a bucket load of fun coming up to do with discrimination in the insurance market.

Tony Sidaway said...

Yes, I know Peter Tatchell has "previous" with the Church of England. As you suggest, civil disobedience cuts both ways.

This question of why somebody who gets into an argument with Christians doesn't instead go pick an argument with Muslims keeps cropping up. I don't think it makes any sense. If a Christian hotelier unlawfully discriminates against you, it would seem perverse to run off to find a Muslim hotelies in the hope that he will do the same, and then sue him in preference to the Christian. What would be the point? You sue the person who has wronged you. A British court is unlikely to make any special allowances for Muslims that it doesn't for Christians.

There is another case in the news, from an incident of homophobia last March. The couple were met outside and refused entry, the hotelier being unwilling to let a room to a gay couple. There is apparently no civil partnership/marriage issue in this case, just open-and-shut discrimination on grounds of sexual orientation. They filed suit last May.

Ed Butt said...

When I once turned up at a private hotel with a lady who was not who was not wearing a ring and who was quite a lot younger than me to be told there was a married couples only rule and they suspected we were not married we simply said OK then, quite understand; can you recommend anywhere else nearby.
They sent us to a very comfotable pub that had a few rooms.

Good manners till works at times. So I suspect this whole thing was a set up.

Tony Sidaway said...

Ed Butt, I think both homosexual rights campaigners and conservative Christians see behind this case to deeper issues. For a gay couple a civil partnership is a "don't mess with us, we're as good as you" card, and after decades of work against what at one time seemed insurmountable obstacles they expect their hard-won legal rights to be taken seriously. Christians too haven't been slow to assert claims of religious discrimination at employment tribunals and to fight for a broad interpretation of their rights to practise their religion.

The world has changed, and the general thrust of public policy with it. Probably quite soon the Scottish Assembly may introduce a new legal framework granting equal rights to marriage in Scotland, and England and Wales won't be far behind. This case and others like it will resonate with both supporters and opponents of the law by dramatizing the clash between old culture and new.

The Bulls and those like them are, I agree, just pawns of the Christian Institute.

Tony Sidaway said...

Jim, in the first comment I notice that you refer to the possibility of a future "gays vs. Islam" case. Well we already have one, with three men charged with public order offences for distributing leaflets advocating the execution of homosexuals. But sorry, I don't think this will be that entertaining. These leafleting chaps aren't going to woo any hearts and minds, and as it's a criminal matter with the CPS itself prosecuting there aren't any convenient gay targets for friends of the defendants to denigrate.

Outright homophobic extremists don't do subtlety, it seems.

Woman on a Raft said...

History note: the case of the three Muslims went before a jury and they were convicted.

Three Muslim men have been found guilty of stirring up hatred on the grounds of sexual orientation after distributing a leaflet that said Islam called for homosexuals to be executed.