The Cornish B&B Ruling

Introduction

As you all probably noticed, it is now out.

The owners of a hotel who refused to allow a gay couple a double room acted unlawfully, a judge has ruled.

Peter and Hazelmary Bull, of the Chymorvah Hotel, near Penzance, said as Christians they did not believe unmarried couples should share a room.

Martyn Hall and his civil partner Steven Preddy, from Bristol, said the incident in September 2008 was “direct discrimination” against them.

They were awarded £1,800 each in damages at Bristol County Court.

The ruling itself is a very interesting read and well worth your time. Justice Rutherford has deliberated carefully and written quite clinically, showing that he has genuinely listened to each side of the debate in a spirit of openness and neutrality. The clone has highlighted the key passages and I think he pretty well gets the sections of most interest, though I would recommend that if you want to engage properly with the ruling you should read all of it, not just edited highlights. Here for me are the key sections.

31. The key to whether or not the defendants are in breach of this regulation is the basis upon which they refused a double room to the claimants. They clearly did treat them less favourably than they would have treated a married couple but did they do this on the basis of sexual orientation? The defendants say “no”. We have no objection to homosexuals. Our objection is to sex outside marriage. We refused them the double room on that basis.

32. But is this a correct analysis of the defendants’ position. I think not. The defence makes it clear that the policy is that double rooms for joint occupation are only let to married persons.

33. So two persons of the same sex, whether male or female, who are just good friends back packing around Cornwall with no sexual relationship between them cannot have the double room ( and how many students over the years must have shared a double room in such circumstances?).

34. Conversely two persons of the same sex, whether male or female, who are in a sexual relationship and who have come to Cornwall intent on a sexually fulfilling weekend may enjoy that weekend to the full in a twin bedded room. Putting it bluntly the hotel policy allows them so to do albeit in the confines of a smaller bed.

35. It seems to me that a correct analysis of the position of the defendants is that they discriminate on the basis of marital status. Indeed as I have already quoted at paragraph 30 above, the amended defence says as much. If that is the correct analysis then Regulation 3(4) comes into play. There is no material difference (for the purpose of this regulation) between marriage and a civil partnership. If that is right then upon what basis do the defendants draw a distinction if it is not on sexual orientation?

36. It is important to note that Regulation 3(4) only deals with civil partnerships. I say nothing about what would have been the position if the claimants had not entered into such a legal relationship or indeed if they were a heterosexual unmarried couple.

37. I have reached the clear conclusion that on a proper analysis of the defendants’ position on the facts of this particular case the only conclusion which can be drawn is that the refusal to allow them to occupy the double room which they had booked was because of their sexual orientation and that prima facie the treatment falls within the provisions of regulation 3(1) and that this is direct discrimination.

Indirect Discrimination

43. In view of my finding that this was direct discrimination it is not necessary for me to consider the alternative of indirect discrimination. However if it should turn out that I am wrong it is I think appropriate, albeit briefly, to consider what the position would be under Regulation 3(3).

44. The defendants accept, (see the skeleton argument of Mr James Dingemans QC), “that the defendants applied the restriction, which is a provision, criterion or practice within the meaning of Regulation 3(3), and has applied it equally to persons not of B’s sexual orientation”. They therefore accept that the case falls within Regulation 3(3(a).

45. The defendants deny however that Regulation 3(3)(b) applies and if they are right then that is fatal to a claim. That Regulation provides:- (b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances) I confess that I do not follow this argument. Regulation 3(4) says that there is no material difference between those who are married and those who are in a civil partnership. It seems to me that the restriction does put homosexuals in at a disadvantage when compared with married persons and for the purpose of 3(3)(b) there is no material difference between the two legal forms of relationship. It does not matter that it puts them in the same position as unmarried heterosexuals.

For the purposes of clarity, let’s also provide the relevant section of the 2007 regulations.

3.—(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).
(2) In paragraph (1) a reference to a person’s sexual orientation includes a reference to a sexual orientation which he is thought to have.
(3) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if A applies to B a provision, criterion or practice—
(a) which he applies or would apply equally to persons not of B’s sexual orientation,
(b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),
(c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and
(d) which A cannot reasonably justify by reference to matters other than B’s sexual orientation.
(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.

It’s important to have the exact wording because there are some comments in other parts of the ruling that seem to indicate a slight confusion as to what the law does, or doesn’t say. In particular paragraph 45 demonstrates a fundamental misunderstanding as to how the law on Civil Partnerships has been framed. Let’s dive in.

1. Is the Judgement Correct?

Firstly, the judge states that “clearly in my view the case that each side hold perfectly honourable and respectable, albeit wholly contrary, views”. There is nothing illegal about the B&B owners holding their position on sexual activity. Indeed, Justice Rutherford affirms that their position is a good, coherent example of the traditional Biblical sexual morality. This is not the case of “bigots” being homophobic but rather a useful and important examination of the conflict of two “rights”.

Both can legitimately claim the right (Article 8) to have their private and family life (and in the case of the defendants their home) respected. The claimants are a family in the eyes of the law just as much as are the married defendants. Both are entitled not to be discriminated against (article 14) and the defendants have the right (article 9) to manifest their religion or beliefs.

So let’s see the argument used in the ruling. In section 32 the judge rejects the idea that the refusal to let a room was on the basis of sexual activity and not orientation. In section 34 he (quite rightly) indicates that the correct exercising of the B&B stated policy allows a gay couple to share a room and have sex, but in rather cramped circumstances! We then have section 35 (emphasis added).

It seems to me that a correct analysis of the position of the defendants is that they discriminate on the basis of marital status. Indeed as I have already quoted at paragraph 30 above, the amended defence says as much. If that is the correct analysis then Regulation 3(4) comes into play. There is no material difference (for the purpose of this regulation) between marriage and a civil partnership. If that is right then upon what basis do the defendants draw a distinction if it is not on sexual orientation?

OK, what is going on here? First, the judge believes that the B&B owners discriminated on the basis of marital status. This means that regulation 3(4) applies, which the judge says states that there is no material difference between a civil partnership and a marriage in the eyes of the law when it comes to discrimination – you can’t permit a married couple to do one thing and forbid a civil partnered couple the same thing. On that basis, it is very clear to Judge Rutherford that, despite holding to a coherent biblically conservative sexual moral, as the law is currently framed the couple are guilty.

But let’s read the law very carefully. There is in my opinion a fundamental error of understanding employed in the second half of section 35. The words in red caused me to look again at the Civil Partnership Act and note a very curious thing – the 2004 CP Act makes absolutely no reference to sexual orientation whatsoever. There is no presumption in the Act that the couple who enter into a Civil Partnership are gay (or not). Equally, the civil marriage regulations make no assumption that a couple who marry are “straight” (and this recent example demonstrates entirely my point on this – it is perfectly possible for someone who is gay to be married).

So let’s go back to the ruling and look again at what Judge Rutherford said.

There is no material difference (for the purpose of this regulation) between marriage and a civil partnership. If that is right then upon what basis do the defendants draw a distinction if it is not on sexual orientation?

Suddenly we see, from reading the Civil Partnership Act, that the answer to the question is clear – there was in fact no other reason for the Bull’s making their decision to refuse to let a room other then that the couple were in a civil partnership rather than a marriage. Sexual orientation didn’t come into it. Let me draw an example to make this point abundantly clear. Imagine if at the same time as Hall and Preddy arrived at the B&B another civil partnered couple had arrived and asked for a room. This couple, Fred and Harry, are straight but have entered into a Civil Partnership for the purposes of avoiding inheritance tax as they are best friends, childless and want to leave their possessions to each other. The Bulls who run the B&B say to them, “I’m sorry, our rule is that unmarried couples cannot share a double bed”.

In this example we now have two couples, both of whom are civil partners but each of whom have different sexual orientations. It is very clear that they are treated identically – there is absolutely no discrimination on sexual orientation. The discrimination is on the basis of marital status or otherwise. Surely this is clear? To argue otherwise would be to say that Civil Partnerships are restricted to gay people – this is however not the case for the law does not prevent two straight people of the same sex entering a civil partnership.

Now let’s read again section 3(4) of the SOR 2007

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.

Note very carefully that the non-material difference of civil partnership and marriage is NOT in and of itself be grounds for applying the regulations. Rather, section 3(4) refers back to 3(1) and 3(3) which mention only sexual orientation. We have seen very clearly that were an identical straight couple to have turned up at the hotel they would have been treated identically to Hall and Preddy, so the discrimination was NOT on the grounds of orientation. However, the discrimination on the grounds of marriage / CP in 3(4) is dependent on a prior discrimination on the basis of sexual orientation. We have shown above that the B&B would have treated a straight same-sex couple identically.

What I’m trying to say is this – by all means frame a law that says that you have to treat civil partners identically to married couples. However, Section 3(4) of the SOR 2007 intertwines this issue with that of sexual orientation which means that it only makes coherent sense if only gay couples enter civil parnerships. Read 3(1) again in the light of our two couples (both CPs, one straight, the other gay) and see how it is NOT infringed.

For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

Both of our Civil Partner couples are refused a double bed – there is no discrimination on the basis of sexual orientation.

With me so far? Let’s go back to the actual comparison of the case, that between a civil partnered couple and a married couple. Given that the Bulls would have let a married couple (regardless of the sexual orientation of the spouses) share a double bed, it is abundantly clear that there is discrimination on the grounds of being in a civil partnership as opposed to a marriage. But is that discrimination on the basis of sexual orientation? No, because a couple who were straight and in a civil partnership would have been treated identically to Hall and Preddy. Was 3(4) of the SOR 2007 violated? Well, that is dependent on an underlying confusion equivalating civil partnerships and homosexuality. It is the same confusion exhibited in section 45 of the ruling.

The defendants deny however that Regulation 3(3)(b) applies and if they are right then that is fatal to a claim. That Regulation provides:-

(b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances)

I confess that I do not follow this argument. Regulation 3(4) says that there is no material difference between those who are married and those who are in a civil partnership. It seems to me that the restriction does put homosexuals in at a disadvantage when compared with married persons and for the purpose of 3(3)(b) there is no material difference between the two legal forms of relationship. It does not matter that it puts them in the same position as unmarried heterosexuals.

Note the highlighted sections. Do you see what Judge Rutherford does? He conflates “homosexuals” with civil partners. He says that the restriction (no unmarried couples sharing a bed) puts “homosexuals in at a disadvantage when compared with married persons” and that might be absolutely true, but the SOR 2007 does not cover the rights of homosexual people in comparison to married people. It covers discrimination of those of a certain sexual orientation against those of another, and within the context of that discrimination, does not permit the difference between a civil partnership and marriage to be used as a defence. The way the second sentence is formulated has the appearance of moving from the terms “homosexuals” and “those who are in a civil partnership” as equivalents, but that is simply not the case in how the Civil Partnership law is worded. We should also note that during the legislation of the Equality Act 2007, it was made clear that there was a distinct difference between marriage and civil partnership. They are not simply the straight and gay versions of the same thing. Andrew Goddard’s examination of the differences back in 2005 is worth a read.

Third, there is no explicit reference to the partnership being a sexual relationship. However, during the consultation the government answered a question about why non-consummation by stating, ‘Consummation has a specific meaning within the context of heterosexual relationships and it would not be possible or desirable to read this across to same-sex civil partnerships. The absence of any sexual activity within a relationship might be evidence of unreasonable behaviour leading to the irretrievable breakdown of a civil partnership, if brought about by the conduct of one of the parties. However, that would be a matter for individual dissolution proceedings’. It is clear that the intention of the government and of most of those registering a civil partnership is that the relationship is expected to be a sexual one between people of the same sex and thus akin to marriage.

Expected, but not automatically assumed.

It would be remiss of me at this point not to quote a friend who emailed after I outlined this argument to him. He wrote,

As a matter of legal interpretation, I do not believe that any court will conclude that the Civil Partnership Act 2004 has no connection with sexual orientation. This isn’t my area of law, but the courts would no doubt look at (a) the purpose of the legislation (possibly taking into account statements from the Act’s passage through parliament), (b) the detailed provisions of the Act, which are clearly aimed at creating a “quasi-marital” form of relationship, and (c) the way in which CPs have been reflected in the law more widely, where they have repeatedly been used as a parallel for marriage (not least in the Sexual Orientation Regulations themselves).

I think my reply would be as follows – “Yes, but we need to have a judge say so first”. My friend might very well be totally correct then when asked to clarify their understanding of what was understood to be the intent of the CP Act, the courts will rule that only homosexual couples were in mind and that therefore it follows that you can assume in law that a civil partnered couple is gay. However, read the CP Act and you will see an utter absence of any reference to sexual orientation. It does not appear. By all means let’s clarify the situation (which is part of the purpose of this post) but until it is clarified let’s all understand that the law as it stands does not assume that a civil partnered couple are both gay.

In summary, what I am saying is this – if you assume that Civil Partners are gay and there is an intrinisic aspect to Civil Partnership that is connected to a specific sexual orientation, then the judgement (as the law is currently written) is correct. The fine detail of Judge Rutherford’s ruling seems to indicate that he made this assumption when deliberating. My questioning of the ruling is the legal grounds on which that assumption is made and whether further clarity is required to help flesh out this sexual orientation / marital status distinction in the English courts. Indeed, this is implicitly recognised by the Judge himself as we will see below.

The ruling also assumes an equivalence of civil partnership and marriage that is independent of issues of sexual orientation, a position that it is not clear is one that Parliament has legislated for. Other writers are now begining to examine the ruling and wondering whether it has created an equivalence of marriage and civil partnership that was not there in the law before.

2. What Happens Next?

As I wrote near the beginning, the judgement is very fair. In it Judge Rutherford recognises that the case raises issues of the competing right to manifest one’s religion against the right of another person not to be discriminated on the basis of their sexual orientation. The whole paper has the feel not of a “the hotel owners are homophobic bigots who need to grow up” approach but rather a spirit of generosity to both sides that is almost pained that one side has to lose. In particular, Judge Rutherford understands that this case has the potential to help define future English case law in this area and makes the following final rulings.

62. I am conscious of the fact that my decision turns on:-
a.the way in which I have interpreted the position of the defendants (see paragraphs 32 onwards),
b. the way in which I have interpreted and given effect to Regulation 3(4), and that
c. this decision does affect the human rights of the defendants to manifest their religion and forces them to act in a manner contrary to their deeply and genuinely held beliefs
d. there is little or no direct authority on the issues I have had to decide.

63. I therefore propose to depart from my normal practice and, assuming that the defendants are so advised, I give permission to appeal.

Wow! The judge understands that case hangs on the understanding of how sexual orientation and marital status interact (62.b), the court’s understanding of what the Conservative Christian sexual moral is and how that was defended in law (62.a) and that there is very little case law to go on (62.d) so he is actually himself producing it! He offers a very clear invitation to appeal and seems to be suggesting that this is a good case to help the English legal system explore the issues raised.

I would be very surprised if the case is not appealed and that we see some of the issues raised explored in further detail.

3. What about the Church of England?

Well, on the surface nothing. This is not an employment case and the Church of England is not involved. However, the very clear articulation of the Bull’s position on sexual morality was pretty well identical to the Church of England’s Doctrine of Marriage. What this means is that an English court has ruled that insisting on customers adhering to the doctrine of marriage of the State Church is illegal. I find that fascinating and it hints at a very deep disconect in the Elezabethan Settlement that is occuring in our church and land.

So – over to you. What do you think? All comment gratefully recieved, but as always do lets be nice to each other.

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  • Anonymous

    Interesting post. Just to come back on a couple of points very briefly:

    By all means let’s clarify the situation (which is part of the purpose of this post) but until it is clarified let’s all understand that the law as it stands does not assume that a civil partnered couple are both gay.

    That’s not quite how the law works. Yes, we currently lack a binding authority (since Judge Rutherford is only a county court judge and therefore cannot set a precedent), but that doesn’t mean that all possible interpretations are equally valid in the meantime. And remember that strictly speaking (in terms of legal theory) judges don’t make the law – they discover (in both the old and new meanings of the word) what the law already is.

    I remain convinced that any superior court which looks at this will agree with the county court judge that CPs and same-sex orientation are inextricably linked – i.e. that that is already “the law as it stands”, even if we don’t know that completely for sure yet. If you can find a legal commentator of any weight (and finding one of more weight than me shouldn’t be difficult!) who takes a different view then let me know.

    As for the two CP couples – one straight and the other gay – I’m still of the view that, because (as I’m convinced any court would agree) CPs are intended for same-sex “quasi-marital” sexual relationships, the difference between a “straight” CP and a “gay” CP would be a “material difference in the relevant circumstances”. Hence there would still be discrimination in the differing treatments of a “straight” marriage and a “gay” CP.

    Bottom line, though: I completely agree that an appeal to a higher court would be extremely welcome, as this is clearly a very important issue, as the judge himself recognised.

    • http://www.peter-ould.net Peter Ould

      Thanks John. I hope you realise why I went ahead and wrote the post. Not trying to make a point about the case, more trying to ask questions.

  • Andrew Lilico

    Peter,

    As well as sexual consummation, isn't a marriage intrinsically a life-long arrangement? Indeed, standard Anglican doctrine remains that marriage is indissoluble. (Even many Anglicans that accept remarriage after permitted reasons for divorce – such as adultery – believe that this is a case of divinely-permitted polygamy, not of the original marriage ending.) Even divorce within civil marriage, as classically conceived, involved a breach of contract (some "ground" for the divorce to be granted – though perhaps you will say that, legally speaking, modern divorce is different, since the advent of "no-fault divorce").

    By contrast, civil partnerships are explicitly dissoluble arrangements (Section 1.3 of the 2004 Act). Isn't that an important difference?

    Next, I'm not sure the core point is right. Even if it were true that marriage were only available to the heterosexual and civil partnership to the homosexual, it would not follow that treating a marriage differently from a civil partnership woiuld be discriminating on the basis of sexuality. It would be disciminating on the basis of whether or not someone were *married*.

    Consider an analogy. Suppose that I had a society for priests, and a rabbi applied to join. If I refused the rabbi on the grounds that he wasn't a priest, would I be discriminating on the basis of religion? Surely not – my discrimination is on the basis of whether or not the person concerned is a *priest*. For my society wasn't a society for "ministers of religion" or "senior religious figures". It was a society for *priests*.

    • Jack

      Andrew,

      Section 3(3) of the regulations, does not, as I understand it, look to basis, but rather effect (unlike 3(1)). If the effect of a provision, criterion or practice is significantly discriminatory, then unlawful discrimination has occurred.

      • http://www.peter-ould.net Peter Ould

        Yes Jack, I think you do have a point here. If gay people could ONLY enter a Civil Partnership and straight people ONLY a marriage, by discriminating against those in Civil Partnerships as opposed to those in marriages, you are de facto discriminating against someone's sexual orientation.

        Of course, the point I make is that the obvious one – those restrictions are not actually in place. Gay individuals can marry and straight individuals can enter civil partnerships.

      • Andrew Lilico

        Well, of course the Judge ruled that they *were* in violation of 3(1).

  • Jack

    Peter, I think the key point here is not that non-homosexual couples can potentially enter civil partnerships, but rather that homosexual couples *cannot* marry (in any reasonable sense).

    In this case A did appear to treat B less favourably than they would others, on the basis of the sexual orientation of B, because were B heterosexual, he would be able to be married, and so so qualify for a double room. But as a homosexual he could not marry, and so was unable in any meaningful way to attain the requirement in a for the double room. A barrier was raised that would not be raised for an equivalent heterosexual person.

    So the discrimination was not just on the basis of marriage v civil partnership, but on the basis of a requirement that a homosexual could not satisfy, but a heterosexual could. And as such the conditions in the 2007 regulation for discrimination were satisfied.

    • http://www.peter-ould.net Peter Ould

      Not so. Is the issue the right to marry someone you love or to marry someone of the opposite sex? A homosexual can marry someone of the opposite sex in the same way a heterosexual can; sexual orientation is not an aspect of the marriage law. You might want to come back at me and say that the issue is that a homosexual cannot marry someone he/she loves, but then other people cannot do that either (i.e. siblings). The law of the land provides no intrinsic right to marry anybody who you love.

      The bottom line is this – a homosexual CAN fulfil the requirement of being married to someone of the opposite sex. Two homosexuals (or two men or two women who are straight for that matter) cannot, but then the law says that they cannot.

      • Jack

        > You might want to come back at me and say that the issue is that a homosexual cannot marry someone he/she loves, but then other people cannot do that either (i.e. siblings). The law of the land provides no intrinsic right to marry anybody who you love.

        Ah, yes, but we're not talking about discrimination against those fancy their siblings here! ;)

        In any case, to think again: B is in a relationship with C, a person of the same sex. A requirement is being imposed by A that in order to stay in the room with C, B must be married to them. If B is straight, that requirement can be fulfilled. If B is gay, it cannot. So the criteria is still discriminatory on the basis of sexual orientation.

        • http://www.peter-ould.net Peter Ould

          Your hypothesis doesn't work. If B and C are of the same sex then they cannot be married, irrespective of their sexual orientation. Try and rephrase the question!

          • Jack

            Ah, I miswrote.

            To try again: B is in a sexual relationship with C, a person of the gender which their sexual orientation makes them exclusively attracted to. A requirement is being imposed by A that in order to stay in the room with C, B must be married to them. If B is straight, that requirement can be fulfilled. If B is gay, it cannot. So the criteria is still discriminatory on the basis of sexual orientation.

            • http://www.peter-ould.net Peter Ould

              Gotcha.

              Not so. The law states clearly that two people of the same sex cannot marry. The hoteliers are not discriminating against your hypothetical gay couple – the law says they cannot be married.

              • Sue

                But if the law says a CP enjoys the legal benefits and rights of a marriage, then they are discriminating because in law they are the equivalent of "married", even if they are not "married" in an orthodox Christian/ theological sense.

                • http://www.peter-ould.net Peter Ould

                  If the law said that then you would be absolutely right, but Civil Partnerships, as I have explained above, are not simply a gay version of marriage. The law does not identify them as equal even if the government treats them the same.

                  • Suem

                    "There is no material difference (for the purpose of this regulation) between marriage and a civil partnership. If that is right then upon what basis do the defendants draw a distinction if it is not on sexual orientation?"

                    If the law as it applies to the provision of goods and services says there is to be no material difference between a CP or a marriage. That is the law, isn't it? Legally a CP entitles the partners to the same rights and protections in law as if they were married. I can't see how anything you have cited above allows anybody to legally deny Civil Partners the rights and protections that married couples enjoy – other than perhaps the right to be "married" in a church ?

                    • http://www.peter-ould.net Peter Ould

                      You're not understanding what the SOR 2007 precisely say. Section 3(4) says that you cannot discriminate between gays and straights and blame it on a civil partnership / marriage distinction. However, there is in law no bar on a straight discrimination between marriage and cp.

                      The judge made the assumption (in the quote you gave) that someone in a cp would be gay. On that basis he ruled that discriminating against a cp is de facto discriminating against someone who is gay. However, nowhere in the cp Act does such an assumption occur. That's why in the blog post I raised the hypothetical straight cp couple. Since the B&B owners would have treated them identically, the only discrimination they made was between married couples and those in cps, *regardless* of the sexual orientation of those in the marriage or cp.

                      Do you see the point? Of course, if you believe that the law simply forbids someone to discriminate between marriage and cp, please cite the relevant Act!

                    • Sue

                      Peter, I do see your point, but you haven't read my answer to your "hypothetically straight CP couple" quandry below.

              • Jack

                But they are. They are imposing a condition that has the effect of discriminating because it requires marriage, something that the same-sex couple cannot enter into, but the opposite-sex couple can. And yet the legislation makes clear that the distinction between marriage and civil partnership does not make such situations materially different. A hurdle is being put in place that a straight couple can get across, but a gay couple cannot – the fact that marriage is not lawful for the gay couple is not relevant to matter of discrimination, because a legally non-materially different alternative exists, but is being stated to be impermissible.

                (I can see there's little hope of us agreeing here, but it's an interesting argument!)

                • http://www.peter-ould.net Peter Ould

                  But the law doesn't state that you can't discriminate between marriage and civil partnership (and if I'm wrong, please tell me which Act of Parliament). What it does say is that you can't discriminate between homosexuals and heterosexuals on the basis of them being, or not being, in a civil partnership or marriage. A gay couple *cannot* be married so imposing a restriction based around marriage is not illegal. It is the government that is guilty of producing the situation in the first place!

                  And yes, we might not agree, but we are going about disagreeing in a highly productive manner!

                  • Sue

                    I don't understand your logic, Peter (legally speaking.) The law to which Judge Rutherford refers says that there is to be no material difference between a CP and a marriage. That law would have been passed through Parliament. Just because you can't find an act of Parliament that states that you can't discriminate between homosexuals and heterosexuals on the basis of them being, or not being, in a civil partnership or marriage, doesn't mean you can do those things. You might as well say, "where is the law that DOES allow you to discriminate on the basis of whether someone is in a CP or a marriage?"

                    As for your point about whether people in a CP are necessarily gay or in a sexual relationship – well, there might be a few instances where that is not the case – but I do think it is very tenuous! The Bull's objection seemed to be that they thought gay sex, along with non marital sex is wrong – so their assumption was that gay sex might be taking place, wasn't it? Also how relevant is it, the point is that when a couple in a CP present at your B&B, you can't treat them less favourably than someone who is married. To say,"Ah, but they might NOT be gay, ergo that is not necessarily the basis of my discrimination is very flimsy (I think) as a legal defence – or any defence.

                    • http://www.peter-ould.net Peter Ould

                      The law to which Judge Rutherford refers says that there is to be no material difference between a CP and a marriage.

                      No it doesn't. It says that when determining whether someone has been discriminated against on the basis of sexual orientation, you cannot use as a defence a material difference between a CP and a marriage. This is utterly different then having a de facto legal non ability to discriminate between marriage and cp.

                      Simply put, the judge still had to rule that the gay couple had been discriminated on the grounds of their sexual orientation. He did that by assuming that all people who entered a cp were gay and that therefore a discrimination against someone in a cp was automatically a discrimination against someone who was gay. However, reading the CP Act 2005 shows very clearly that that law NEVER assumes that someone entering a CP is gay.

                      Do you see the point?

                    • David

                      Peter, I tend to agree with you given that the law is about discriminating against an individual (or individuals) on the basis of their sexuality. As follows (here comes the maths):

                      After all, only about 5% of the 2.5% of the population who are gay have formed CPs – so "equal access" would only require about (5*2.5/97.5=) 0.13% of straight people to have formed a CP (eg for inheritance tax or next pf kin rights reasons). If that were the case then banning people in CPs would hit straight people as hard as gay people!

                      Similarly, we know that quite a few married people turn out to be gay. So, given that 50% of the population marry, but only (5*2.5/100=) 0.13% of the population are in CPs, you'd only need about (5*2.5/50=) 0.25% – ie 1 in 400 – of the married population to be gay to have "equal access"! If that were the case then only allowing married people to share a double room would "benefit" as many gay people (who were married) as straight people.

                      HOWEVER, I doubt that any judge would listen to this type of reasoned argument…. who would want to loose his career and income by finding that it is legal to discriminate between CPs and marriage?? – and, tactically, wouldn't this just bring in gay marriage legislation? (Though at least then we would be able to clearly reject it on religious grounds since marriage implies sexual relationship…. Hmm)

                    • Sue

                      But if "you cannot use as a defence a material difference between a CP and a marriage", that negates the Bull's case anyhow because part of their defence was that they do not allow anybody who is not married to share the double room. To the Bulls, a CP WAS materially different from a marriage – and they treated it as such. What the Bulls did not take into account (and maybe did not realise) is that in respect of the provision of goods and services a CP affords the same rights and protections as marriage.
                      It is this that is the key point, not whether the partners are gay or straight or one of each, or bi or asexual, or sexually active or celibate, as you say the law does not concern itself with this. I do not think we can conclude that Judge Rutherford was saying that civil partners are automatically gay because he referred to "homosexuals" – simply that the couple involved were homosexual and this was (in fact) the Bull's understanding of them and assumption about them as well and that the Bulls considered that to give them the room was to potentially condone immoral conduct. It was their concerns about the potential for homosexual activity outside of marriage (whether or not they truly knew the orientation of the partners) which concerned the Bulls, they were not simply discriminating against marital status in itself, as a neutral thing, but discriminating against people on the basis of what that MIGHT imply about the sexual activity that could occur.

                    • http://www.peter-ould.net Peter Ould

                      But if, as you argue in your last sentence, the Bulls discriminated on the grounds of sexual activity and NOT orientation, what law has been broken?

                      It isn't just myself pointing out the things I do in my post. A number of other commentators with no agenda to advance are questioning whether Judge Rutherford has created an equivalence of marriage and cp (which you yourself also intimate) which simply does not exist in law. Marriage and CP are NOT simply gay and straight alternatives of the same thing. Legally they are two entirely separate conditions which share several similarities. That is a hugely important fact in this case.

                      You need to understand very clearly that 3(4) of the SOR 2007 does NOT make illegal discrimination on grounds of marriage/cp per se. It is this fundamental misunderstanding of the law that is causing you to not appreciate the subtlety of the ruling (and the criticism of it). For example the last sentence of your first paragraph above is factually incorrect. A cp does NOT afford the same rights and protection as marriage. If you think otherwise, please demonstrate so.

  • Scotch

    Oh Peter. What questions do you need to ask?
    Anybody can have sex with anybody else if they want can't they?
    Or sleep in a bed with anybody else they want, can't they?
    Or go on holiday together, can't they?
    Or hold hands in public without getting stoned to death, can't they?

    But "Well, of course, no one is really gay". Wow. That is really disgusting, Peter. Right up there with paedophiles having the same DNA as crabs.

    I'm interested to hear your views on that psychotherapist who cures gays.

    scotch

  • Scotch

    Addendum: Is no one really straight?

    I'd quite like you to address that.
    cheers
    s

  • Alathia

    Aside from the mind numbing complexity of legal argument – I must confess to initially being rather sympathetic to the owners of this Cornish B&B; and I write as a person who often visits B&Bs with my same-sex partner. The fact that there does, superficially at least, seem to be some degree of integrity in the B&B’s owners ‘policy’ in that non-married couples are denied double rooms. Yet thinking about it I think all their ‘policy’ proves is the idiocy of much that passes for ‘Christian’ morality. For by their policy Fred and Rosemary West could bed down for a night’s sleep in a double room, being deemed morally acceptable because they were married. Yet a same sex couple would be forced into a twin room because they are deemed – by implication or overt intention – to be morally corrupt or at least second class citizens. If we’re brutally honest the policy has little to do with righteousness or ‘God’s Law, but seems be devised to make the B&B owners feel better about themselves (but then such is the intent of a great deal of what passes for religion and its practice). Thankfully, it seems that there has been a victory for common sense and all this turning over the legal ruling is the irritating quibbling with a logical dissection of the irrationality of religious views, which I am sure are heartfelt, but fundamentally illustrate that something else is often going when people think they are being virtuous.

    • http://www.peter-ould.net Peter Ould

      Yet thinking about it I think all their ‘policy’ proves is the idiocy of much that passes for ‘Christian’ morality. For by their policy Fred and Rosemary West could bed down for a night’s sleep in a double room, being deemed morally acceptable because they were married.

      I think that if your eponymous hosts actually knew that Fred and Rosemary were murderers they would give them the room and then phone the police. This example is a bit silly isn't it?

      Yet a same sex couple would be forced into a twin room because they are deemed – by implication or overt intention – to be morally corrupt or at least second class citizens.

      Er no, if you read the judge's ruling he very clearly understands that the offering of a twin room (which I agree defeats the object of denying a double bed – sex on the floor perhaps?) was down to an opinion of sexual behaviour and NOT believing the couple were either morally corrupt or second class citizens.

      If we’re brutally honest the policy has little to do with righteousness or ‘God’s Law, but seems be devised to make the B&B owners feel better about themselves (but then such is the intent of a great deal of what passes for religion and its practice).

      So what you're saying is that the judge was wrong!

  • Nightblogger

    Why the assumption from the Bull's that sharing a bed is a sexual act? They are presuming, surely, that some nookie is going to take place. This assumption is challenged by the younger genertions who regular share sleeping arrangements with no such assumption.

    • Andy

      Why then was it such an issue last year when it was revealed that William Hague had shared a room with his special adviser ? The reports I have found did not specify if it was a twin or double but merely sharing a room was enough to spark rumours of sexual relations between the men.

      • http://www.peter-ould.net Peter Ould

        Because there is a persistent rumour in some circles that William Hague is gay? But methinks this is taking us off topic…

        Sent from my iPad

  • Marin Reynolds

    Peter throws up a creditable argument – but I think his friend who warns :
    "I do not believe that any court will conclude that the Civil Partnership Act 2004 has no connection with sexual orientation" is right, particularly in what he lays out about how legislation is looked at by the courts.
    The words of the Bill were indeed sexless! But as I remember it, the statements of Ministers as the Bill preceded and the "marriage equivalence" mantra that accompanied the Bill in both houses left no doubt what was intended and the courts have already decided that Acts of Parliament must be seen in the light of such commentary.
    As I recall the bishop of London particularly saw this "marriage equivalence" theme that then governed secondary legislation giving CPs the same status as marriage, as a betrayal of what he had understood the Government of the day had assured the Church and had seemed implicit in the bald words of the Bill!!

    • http://www.peter-ould.net Peter Ould

      This is indeed the key issue. Judge Reynolds has enacted a judgement based on that assumed equivalency. Higher courts need to determine whether that is a correct asumption in law.

  • David Shepherd

    Thanks for providing a useful and detailed insight. Messrs. Hall and Preddy, as homosexual civil partners claimed that they didn't enjoy the same treatment as heterosexual married couples.

    Even if they were only turned down on account of not being married, the judge's hands were tied. The regulations treat the marriage vs. civil partnership distinction as making no material difference (however morally valid) to his assessment of whether discrimination occurred on the basis of sexual orientation. The judge could only interpret the Sexual Orientation Regulations as presented (which he indicates by prefacing his position with if this is right).

    It wasn't that, under the B&B policy, unmarried heterosexual couples or platonic civil partners would also have been excluded from a double bed. It was the fact that married couples (and ipso facto of a heterosexual orientation) could enjoy the better treatment of a double bedroom that put Messrs. Hall and Preddy at a disadvantage.

    • Sue

      Precisely!

  • Sue

    Hi Peter,
    You say,
    But if, as you argue in your last sentence, the Bulls discriminated on the grounds of sexual activity and NOT orientation, what law has been broken?

    I read a Hansard transcript a while back where this distinction about activity v orientation was discussed and the judge was quite clear that there is no such distinction in law. He said something along the lines that "you cannot discriminate against a gay person on the basis that they are having gay sex, because that is to discriminate against their orientation because gay sex is what gay people (generally) do."

    I don't have the transcript anymore I am afraid but it might give some indication of the likely legal response to your belief that one can discriminate against sexual activity without discriminating against orientation. ( I accept this may be a valid moral stance, I just don't think it stands in law.)

    I also remember hearing a radio debate when CPs were introduced (2005 I think) and a lawyer said that they afford pretty much ALL the legal rights of marriage except the right to be termed a "marriage" and to take place in a church or be recognised by the church as such. This is probably why the Cof E has given pension rights to CPs – they have checked the law!

    I agree that Judge Rutherford's ruling confirms that CPs are the equivalent of gay marriage in a legal sense. Could you quote the clauses and details that specifically says you CAN discriminate on the basis of someone being in a CP rather than a marriage?

    You also haven't addressed my point the Bull's were not simply discriminating against marital status in itself, as a neutral thing, but discriminating against people on the basis of what that MIGHT imply about the sexual activity that could occur – in this case homosexual sex.

    I am not a lawyer and, unlike yourself, I am not of the opinion that I know or can interpret the complexities of the law better than Judge Rutherford. I cannot quote you a clause that says a CP does afford the rights of marriage – but nor do I think you have substantiated your claim that it does not do this, or does not at least provide a sufficiently high level of rights and protections to make the Bulls' actions unlawful.

    I do know that case law confirms and clarifies the way in which acts, laws and statutes are to be interpreted and applied. I guess this is why this is being described as a landmark ruling.

    Ultimately you and I are laypersons discussing something we know relatively little about, let's not forget that.

    • http://www.peter-ould.net Peter Ould

      Sue,

      Something is not illegal until the law says it is.

      • Sue

        Something IS illegal when a Judge interprets the complexities and intricacies of English law and concludes that it was illegal. It is called "case law" and clarifies points that may not be apparent to peeps like you and me who, in our ignorance, read the laws and go, "Where does it actually say that is illegal, Gov?"

        But seeing as you are convinced, just phone the Bulls up and tell them they don't have to pay and that they can continue to turn away gay people.

        • http://www.peter-ould.net Peter Ould

          Get a grip Sue. The point of my post was to explore the assumptions that the judge made in his judgement. Those assumptions will be tested at appeal and will help to establish the law. One ruling does not a cast iron statute make.

          • Sue

            Hmmmmm… you just seem oblivious to the possibility that your own arguments might well be very tenuous in the light of the law, you seem to think they are cast iron – and you are not a lawyer any more than I am! Well, the party aint over in this one yet, but I would be surprised if the Bulls get anywhere- for a start look at the Ladele and McFarlane cases – even with Lord Carey's intervention.

            So, if gay people were allowed to marry ((as may well happen one day in this country) – would it then be discriminatory in your view to treat them differently to married heterosexuals?

            • http://www.peter-ould.net Peter Ould

              Of course it would. The fact that you ask that as though you think I would say "no" only serves to demonstrate that you simply have not engaged with what I wrote. If you had engaged with my argument properly you could have come to no other conclusion from what I wrote that the answer would obviously be yes.

              How is it that others here (and elsewhere) can understand that SOR 2007 3(4) is NOT a carte blanche "marriage = civil partnership in the eyes of the law" section of the law and the that the innovation of Judge Rutherford's judgement is to assume that carte blanche AND to assume an intrinsic aspect of civil partnerships (and marriage) that is simply not present (and one might even argue reading some of the debate, explicitly not present) in the legislation passed by Parliament, but you cannot realise that?

              • Sue

                Hi Peter- the fact is YOU assume that I am asking as though I think you would say "no" – I did think from what you wrote that you would have to conclude that, if gay marriage is allowed in Britain it would be discriminatory to treat a homosexual married couple differently than a heterosexual one.

                I wanted to clarify that before I went on to ask you whether you had thought about the implications of that? So, if gay marriage is allowed then you would presumably be happy to give gay married couples communion and to marry them in your church and ensure you never gave pastoral advice that it would be wrong for them to have sex? Otherwise you would be treating them less favourably than heterosexual married people?

                • Sue

                  As to the question of how I cannot understand the points about SOR 2007, well I can, but I have told you about some of the things I have read and some of the aspects of your arguing that I suspect may be flawed – and I am not going to reiterate my points because you simply don't engage with them. But what I always keep in mind is that I could be wrong. What concerns me more is that you don't seem able to admit that YOU might be wrong?

                  • http://www.peter-ould.net Peter Ould

                    I'm perfectly happy to be proved wrong, I just realise very clearly that a higher court of the land will need to do that. Judge Rutherford is a County Court judge – a small fish in the bigger judicial pond. his judgement is not a final word but rather a (well argued and thought out) opening round in an ongoing discourse. This thing won't be over until it gets to the highest levels.

                    • Sue

                      That is true. The appeal rulings on Ladele and McFarlane (despite the interventions of Lord Carey) have not been auspicious though, have they? It might be third time lucky, I suppose?

                    • http://www.peter-ould.net Peter Ould

                      McFarlane was a non case to start with, as he was not consistent in his exercising of his choice of who to counsel. He should have only counselled married couples to be consistent as a "Christian" sex counsellor. Counselling unmarried straight couples but not gay couples utterly undermined his "faith" position.

                      Ladele is a case of working for the State and having to adhere to a contract of employment. The Bull's case is about how two subjects of the Crown interact and as such is far more interesting (and therefore far more likely to go to appeal AND get some coherent case law established).

                • http://www.peter-ould.net Peter Ould

                  As regards your second paragraph, if the law of the land says that the preaching of the Word of God is illegal, then those who preach it must expect to be prosecuted.

                  • Sue

                    So you would refuse to marry a same sex couple, even though you admit that this would be discrimination on the basis of orientation alone? And yet you make such a fuss about whether the Bulls have actually been discriminatory on the basis of orientation? And you go on about how you do not discriminate on the basis of orientation because you think ALL sex outside of MARRIAGE is wrong? Yet…if the law is changed, the basis underlying your claim of non discrimination will be completely removed. What will you do – change the goal posts?

                    (I am not being rude – I am just struggling to understand how your mind works on these matters, because it doesn't seem honest or consistent to me.)

                    • http://www.peter-ould.net Peter Ould

                      There are two separate discussions to be had. The first is what the law of the land in the country I live in is and isn't. The second is whether as a Christian I would be prepared to break that law if it conflicted with my loyalty to Christ. It strikes me that whether the law does or doesn't say marriage is this or that, the Bible and Christian Tradition's witness will not change. If the state wishes to send me to jail for preaching the gospel, that is its prerogative.

  • Cerebusboy

    Apparently a heterosexual director of the National Secular Society, Dr.Ray Newton, stayed with his female partner in the hotel in 2006. They were not married, and the B & B very much did not object to them staying. Epic fail! More broadly, I'm not sure how people can claim to be allowed to discriminate against whomever they like in their 'home' whilst simultaneously advertising the 'home' as a 'seven bedroom hotel'. I also see that the Daily Heil are (subtly) slandering the journalist in the Pilkington 'ex'gay therapy case

    • http://www.peter-ould.net Peter Ould

      To be fair to the Bull's, it's not reasonable to ask everyone to produce a marriage certificate. I guess their policy is to tell guests what the rules are before booking and expect them to be honest and comply. If someone wants to pretend to be married, that's their issue.

      • Cerebusboy

        A heterosexual variety of Don’t Ask, Don’t Tell (that *assumes* straight couples are married) is dishonest, not the actions couples like Newton and his partner. I imagine that Netwon, like many others, would not have stayed at the hotel if he knew that non-married couples were stigmatised (I doubt a director of the National Secular Society would be convinced by biblical arguments!) and the Bulls knew this. People should of course be allowed to let into their home whoever they like, but it’s very much a good thing that hotels and the like are not allowed “No Irish, No Blacks, No Dogs” signs (or equivalent) these days. A belief can be deeply held on religious grounds and result in legally objectionable bigotry (c.f. evidences of antisemitism from those who subscribe to distorted forms of fundamentalist Islam). It’s a bit ironic that conservatives railing against the Judge’s decision on this issue (not yourself, I hasten to ad) are also the same ones who warn of the dangers of multiculturalism, or the creeping introduction of principles of Islamic law. I can understand why they don’t flat out come out and say “well, Islam is wrong, but obviously *Christians* should be allowed to discriminate on religious grounds!” but defending discrimination against one particular group of people is the sort of behaviour that unsurprisingly called phobic.

      • Cerebusboy

        A heterosexual variety of Don't Ask, Don't Tell (that *assumes* straight couples are married) is dishonest, not the actions couples like Newton and his partner. I imagine that Netwon, like many others, would not have stayed at the hotel if he knew that non-married couples were stigmatised (I doubt a director of the National Secular Society would be convinced by biblical arguments!) and the Bulls knew this. People should of course be allowed to let into their home whoever they like, but it's very much a good thing that hotels and the like are not allowed "No Irish, No Blacks, No Dogs" signs (or equivalent) these days. A belief can be deeply held on religious grounds and result in legally objectionable bigotry (c.f. evidences of antisemitism from those who subscribe to distorted forms of fundamentalist Islam). It's a bit ironic that conservatives railing against the Judge's decision on this issue (not yourself, I hasten to ad) are also the same ones who warn of the dangers of multiculturalism, or the creeping introduction of principles of Islamic law. I can understand why they don't flat out come out and say "well, Islam is wrong, but obviously *Christians* should be allowed to discriminate on religious grounds!" but defending discrimination against one particular group of people is the sort of behaviour that unsurprisingly called phobic.

        • http://www.peter-ould.net Peter Ould

          Just to take your first point, I don't think the Bull's policy was "to assume". They outlined the policy to booking guests and let them then take the responsibility for complying with it. Of course, if two men turned up together then since two men CANNOT be married they would automatically ask them to have seperate beds.

          • Cerebusboy

            But if, to all intents and purposes, the policy of not allowing unmarried straight couples to share a bed wasn't enforced, but all gay couples *were* banned, then isn't that very much discrimination on the grounds of sexual orientation? Surely Christians need to do more than pay mere lipservice to a theological, (non-phobic) equivalency between homosexual relationships and heterosexual fornication in order not to run afoul of equality laws?

            • http://www.peter-ould.net Peter Ould

              If all gay couples were banned, then yes, but if all gay couples happened to be banned incidentally as a result of not being married (along with other pairings of two people of the same sex), the best you could argue would be indirect discrimination (which indeed is the line of argument the Judge takes in para 45). Of course, this all comes down to the assumption that two men or two women who are in a civil partnership are automatically gay and as I have pointed out, this assumption was crucial to the judgement.

              As to your second setence, yes (to the best of their abilities and as reasonably as possible).

  • Blair

    Hi Peter,

    I think I see where you're coming from with this but your argument seems a little tenuous. Can I nit-pick over a thing or 2? (I think the friend you quote near the end of your section 1 is very likely right FWIW).

    – you say that "There is no presumption in the Act that the couple who enter into a Civil Partnership are gay (or not)" – but given that the 'prohibited degrees' of relationship for contracting a CP are identical to those of marriage, and that therefore there is (as Andrew Goddard says in your quote) an expectation that CPs are sexual relationships, isn't there actually something close to such a presumption? This also rather undermines Marin (Martin?) Reynolds's comment that "The words of the [Civil Partnership] Bill were indeed sexless!". It might suggest too that it is reasonable to assume that people who enter CPs are gay…

    – in a reply to a comment you say, "The judge assumed that civil partnerships were always relationships of two gay people …" – indeed, but his paragraph 62 that you quote also means he makes that assumption explicit, and grants that it could be challenged, doesn't it? I think you're right about the way the judge presents his ruling btw – does seem very candidly and fairly done (admit I've only read what you've quoted…).

    – importantly: you insist to Sue that "A cp does NOT afford the same rights and protection as marriage". Please could you demonstrate this? What rights / protections afforded by marriage aren't given to those in a CP? My understanding is that civil partnership and civil marriage are 99% identical. Jacqueline Humphreys, a barrister, wrote in the Church Times in 2006 that, "In the vast majority of legal contexts therefore, there is no distinction between marriage and civil partnership". See http://www.churchtimes.co.uk/content.asp?id=14932

    I'll stop, I'll stop ;)

    in friendship, Blair

    • http://www.peter-ould.net Peter Ould

      The key point about how marriage / cp inter-relate is that they are NOT intended to be mirror images of each other. Even though they share the vast proportion of characteristics, one is not simply the "gay" version of the other. They are two separate legal unions.

      Of course, a judge is perfectly entitled to rule that they are to be treated as equivalents, but until that judge is one of those sitting in the Supreme Court it ain't so across the whole country.

      • Blair

        Hi Peter,

        but if they "share the vast proportion of characteristics", how can they be so different? How would you show that they are "NOT intended to be mirrir images of each other"? Granted they are 2 separate legal unions, but they are all but identical. Please could you answer my question above – what rights or protections do civil marriages grant that civil partnerships do not?

        in friendship, Blair

        • http://www.peter-ould.net Peter Ould

          I would go to the parliamentary debates and show the times when questions were asked of the government as to whether they intended cp to be the equivalent of marriage. The answer time and again was no.

          Yes, they are all but identical in how they benefit the couples involved, so you might want to say "If it looks like a duck and sounds like a duck..". However, until a very senior judge at the Supreme Court says "Yes, it is our opinion it is a duck", it ain't.

          • Blair

            But Peter, that still doesn't answer the question about what differences there are in rights… or are you answering by implication when you grant that "they are all but identical in how they benefit the couples involved"? And if you are conceding this, then there's only a very slender basis on which to argue, isn't there?

            Also, the Labour govt at the time may well have said that CPs were not intended to be the equivalent of marriage – I'm willing to take your word for it, not least 'cause I'm too lazy to look back thru' Hansard online ;) But if so I suggest it was simply disingenuous, dissembling even – I speculate, but suspect that the then govt wanted to get the CP Act onto the statute book with minimal obstruction. So it didn't use the word marriage and created something legally distinct from marriage (so that it didn't fall foul of the established church being thoroughly knotted up over the gay question – presumably, as established church, if 'gay civil marriage' had simply been created, the C of E would have been obliged to do them? Or do I misunderstand? If that were the case the CP act would prob never have passed), while nonetheless making CPs 99% identical to civil marriage, prohibited degrees and all. And when asked it insisted, despite the blatant and numerous similarities, that CPs weren't marriage – and the C of E House of Bishops seemed willing to believe them, maybe for political reasons, understandable as that may be…

            That's cynical and rather uncharitable, and a bit off-topic ;) …but more to the point it will be interesting to see if the Bulls appeal. If an appeal went to a higher court it looks rather unlikely that a judge will say, well, it looks like a duck and sounds like a duck, but is in fact a totally unrelated avian species…

            in friendship, Blair

            • http://www.peter-ould.net Peter Ould

              I agree, but then that's why a good case (private citizens suing each other rather than an employee of the state or state funded QUANGO) sjhould go up to the higher courts so we can settle this once and for all. Judge Rutherford is only a County Court judge.

  • Tom

    Peter: "McFarlane was a non case to start with, as he was not consistent in his exercising of his choice of who to counsel. He should have only counselled married couples to be consistent as a "Christian" sex counsellor. Counselling unmarried straight couples but not gay couples utterly undermined his "faith" position."

    I wish you tell that to Andrea Minichiello Williams at the CLC and Lord Carey.

    • http://www.peter-ould.net Peter Ould

      The CLC have a very good team of lawyers who seem to be working on the basis of the "rights conflict" argument. From that perspective I can fully understand why they backed Gary McFarlane. The strategy seems to be to keep on fighting these cases to give the continued public impression of christians' rights being trampled on. Then, along comes a case like the Bulls' which is a very clear example of private citizens' rights in conflict, and they can then take it all the way up.

  • Tom

    To give the impression that Christians' rights are being trampled on? Even if they are not? Sounds more like Niccolo Machiavelli than Jesus Christ. ……….Or does it make them fools for Christ's sake? Andrea Minichiello Williams's CLC has never won one of these cases as far as I know.

    • http://www.peter-ould.net Peter Ould

      I'm not sure it's a case of giving the impression to try and manipulate opinion, Rather, they have chosen to defend down a particular line of argument (the conflict of rights). In that sense, it doesn't actually matter if a few cases are lost because it is the momentum of the argument that is important. At some point one of these cases (and the Bulls is a good case for this because unlike the others it involves the interaction of private citizens and NOT representatives of the State) will go to our new Supreme Court and even beyond. When that happens, the weight of previous cases will begin to bear.

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  • Anonymous

    I've been thinking more about this over the weekend.

    I still think that the judge was correct in his interpretation of the Regulations, and that to argue against that on the grounds that CPs have nothing to do with sexual orientation is, frankly, quixotic.

    What will be interesting is to see how the human rights aspect is developed on appeal. Personally I think talk of "balancing" the rights of gay people with those of Christians (not that those are disjoint sets, of course) is unhelpful. How I'd prefer to frame the issue is: at what point should it be appropriate for the state to intervene?

    I think it is entirely appropriate, at the level of fully commercial (or more broadly "public") operations, for the state to say that those running them should be non-discriminatory in their provision of services and employment of individuals. Equally, where people have "discriminatory" views or practices in their private lives – who they let into their house on a purely private basis – then that is not a matter for the state to interfere with.

    The question is at what stage someone has crossed the line from private life to commercial life. Many would say that there is no grey area: the moment you start charging someone to sleep in a room in your house, you have crossed into the realm of public, commercial services and the full weight of the law should apply.

    But that means that what underlies the B&B case isn't a "gay agenda", but a capitalist one: namely, the tendency of capitalism to "commercialise" all areas of human activity – to transform all areas of life into commercial transactions and to remove any grey areas between the purely private and the commercial. As someone wrote over a century and half ago: '[Capitalism] has left remaining no other nexus between man and man than naked self-interest, than callous "cash payment" ' – in other words, the only "public" means of human interaction is through the means of commercial transactions.

    As it happens, it sounds to me that the Bulls had gone further than just simply letting out a room in their house to something rather more fully established as a commercial operation. But it does seem to me the law needs to allow for more of a fuzzy, grey area beyond the purely private, in which money may be changing hands but it's still not regarded as something in which the state should be intervening in the same way it does in commercial life.

    • Blair

      Hello John,

      liking this – hadn't thought of seeing this case in the context of capitalism before, and that casts another light on things. Nicholas Lash (somewhere) quotes Margaret Thatcher saying, "You can't buck the market" and comments that this showed that 'the market' was in effect a god for her. But just about all of us probably idolise 'the market' to some degree. Regulations such as those the Bulls fell foul of, arguably don't try to "buck" the market but simply rein it in a bit… I'm rambling a bit but liked the point.

      The pedant in me can't help pointing out that the Bulls had indeed "gone further than just simply letting out a room in their house", though – they run a guest house which is advertised on the 'net and linked to from tourism sites (see http://www.chymorvah.co.uk). Looks like a full-fledged commercial operation to me…

      in friendship, Blair

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