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.