Bull vs Hall and Preddy - The Appeal

The appeal in this case is out. The Bulls (quite rightly) lost when the court ruled very clearly that since Hall and Preddy were in a Civil Partnership, to not treat them the same way as a married couple was discrimination on the grounds of sexual orientation under the Equality Act.

That said, reading the appeal ruling makes for an interesting exercise. In it we find the following,

40. Though I agree with the Respondents that Ladele does not assist the Appellants (and see below), for the reason the Court there gave, in my view notwithstanding lengthy submissions on various topics, the answer to this appeal lies in a consideration of James. It is fatal to the Appellants’ case. An homosexual couple cannot comply with the restriction because each party is of the same sex and therefore cannot marry. In James the male plaintiff could never have a pension aged 61. The restriction therefore discriminates against the Respondents because of their sexual orientation just as the criterion at the swimming baths discriminated against Mr James because of his sex. For this reason alone it is directly discriminatory. Put another way, the criterion at the heart of the restriction, that the couple should be married, is necessarily linked to the characteristic of an heterosexual orientation. There has in my view been direct discrimination by virtue of Regulation 3(1) and (3)(a) together with Regulation 4
– less favourable treatment on grounds of sexual orientation.

Hang on a minute. Let’s read that carefully – the criterion at the heart of the restriction, that the couple should be married, is necessarily linked to the characteristic of an heterosexual orientation.

Is the court arguing that a gay man cannot legally or physically or spiritually or sociologically marry a woman if he (and she) so chooses? Is the court arguing that only straight people choose to be married to someone of the opposite sex? Is the court arguing that all gay people would choose not to get married to someone of the same sex?

Surely marriage is not necessarily linked to the characteristic of sexual orientation. Gay men and women do get married to people of the opposite sex, for good and bad reasons. It matters not whether the cases only number in the teens or hundreds, they do happen, they happen mainly for love and to suggest that the law does not recognise the existence of such marriages is dangerous grounds indeed. Tantamount to the apocryphal tale of Queen Victoria not allowing the criminalisation of lesbian sex because she refused to believe it happened.

This seems to be a constant major flaw in legal rulings on this issue, even the ones I agree with, namely that the courts are trapped in a bi-polar model of sexuality that is not congruent with the reality of many people’s lives.

Just to clarify, the Lord Chancellor makes a comment later in the ruling where he writes,

61. The judge concluded that the restriction constituted discrimination and was on the grounds of sexual orientation. Mr and Mrs Bull contend that this conclusion is wrong because they apply the restriction to persons of heterosexual and homosexual orientation alike if they are not married. But, in agreement with Rafferty LJ, that cannot, in my view, be a sufficient answer. The former may be married but the latter cannot be. It follows that the restriction is absolute in relation to homosexuals but not in relation to heterosexuals. In those circumstances it must constitute discrimination on grounds of sexual orientation. Such discrimination is direct. As Rafferty LJ has pointed out there is a direct analogy with the decision of the House of Lords in James v Eastleigh BC [1990] 2 AC 751. This conclusion is not affected by the existence or terms of Regulation 3(4).

Now what the Lord Chancellor is pointing out quite rightly is that two men are discriminated against as two men, in that they are legally unable to marry and therefore the ban on unmarried couples discriminates against them, but we must recognise that that is a different position to saying, as para 41 does above, that a single gay man cannot marry. That is obviously untrue – any man may marry any woman in this county if they meet the other legal requirements.

Thoughts?

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  • Cerebusboy

     Is ‘consummation’ of relevance still in English marriage law? I don’t necessarily espouse this view myself, but it’s certainly possible to conceive of a lawyer arguing that a “homosexual” *by definition* can not fulfill a (again, arguable) ‘criteria’ of a heterosexual marriage.

     As for the decision itself – I hope the lawyers of the ‘Christian’ Institute operate on a no win/no fee basis ;-) (and a big GIRFUY! to their fans too ;-)) 

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

      Technically yes, and this was the reason the Civil Partnership Act has no reference to sexual activity.

      Interestingly, that means that if the Marriage Act is extended to include couples of the same-sex, this understanding in law will have to be altered. Possibly a good example of how gay marriage does actually change the nature of heterosexual marriage.

  • Anonymous

    Very interesting post, Peter. I agree with you that the Bulls appeal has been quite rightly turned down. The moment the Bulls offered B&B services they needed to offer them to all without discrimination or obstruction, subject only to the qualification that people are not doing something illegal.
     
    You are right to interrogate the assumption in the judgement that marriages are only between a narrow spectrum of 100% heterosexual men and women. I love the analogy drawn with Queen Victoria’s disbelief that lesbian sex existed! But, perhaps more importantly, the research quite easily throws out that assumption.
     
    Let’s put up a version of a post I made yesterday on the Guardian website …
     
    Recent comparative figures for gay and straight people on marriage, civil partnership and partnership status are in fact very easily available from the ONS ‘Measuring Sexual Identity’ report of 2010 (2009 data). This is the famous report that concludes that 1.0% of people self-identity as gay/lesbian and 0.5% self-identify as bisexual. You can get an updated version of it at http://www.ons.gov.uk/ons/rel/ethnicity/measuring-sexual-identity—evaluation-report/2010/index.html
     
    Here’s the data for ‘Sexual Identity by legal marital status: Table 15′ (Heterosexual/straight – HS; gay, lesbian and bisexual together – GLB; Other – O; Don’t know/refusal – DKR; Non-response – NR):
     
    Single (never married): HS – 32.6%; GLB – 63.2%; O – 35.9%; DKR – 40.0%; NR – 53.9%Married, living with spouse: HS – 47.7%; GLB – 16.4%; O – 40.8%; DKR – 35.5%; NR – 39.6%Married, separated from spouse: HS – 3.0%; GLB – 1.3%; O – 3.9%; DKR – 3.4%; NR – 1.3%Divorced: HS – 9.3%; GLB – 6.0%; O – 8.1%; DKR – 8.0%; NR – 4.1%
    Widowed: HS – 7.4%; GLB – 0.8%; O – 10.8%; DKR – 12.9%; NR – 0.9%Currently or previously in a civil partnership: HS – <0.1%; GLB – 12.3%; O – 0.5%; DKR – 0.1%; NR – 0.2%Total (thousands) (=100%): HS – 46,659; GLB – 695; O – 246; DKR – 1,597; NR – 320

    The big finding that leaps out is that only 12.3% of GLB adults (over 16) were in civil partnerships 5 years after the Civil Partnerships Act 2003 came into force, slightly over a quarter of the proportion of HS adults who are married living with spouse at 47.7%. Bear in mind also that this is a generous comparison as it includes GLB now separated who were previously in a civil partnership. Clearly the demand by GLB for civil partnerships has been far lower than the demand for marriage by HS and there is no massive pent-up demand by GLB for formal legal unions.

    The other interesting figure is the 16.4% of GMB who are married living with spouse. On the face of it, this would seem to indicate a higher proportion of GLB who regard themselves as 'married', even if they do not have that legal status. But the question is on legal marital status and enumerators are usually trained carefully to probe responses for accuracy. The analogous response from HS who state that they are in a civil partnership is tiny, less than 0.1%, which shows that the enumerators did their work well in explaining the question and probing the answers.

    The report rightly draws attention to the complexities of sexual orientation, describing it's three main components of attraction, identity and behaviour and giving a welcome recognition that these three components show many and varied patterns. The report focuses on sexual orientation through self-defined identity and says nothing about attraction and behaviour. The fascinating conclusion is that 16.4% of GLB self-identify as such but are in opposite-sex marriages, a higher proportion of GLB than are in civil partnerships!

    It would of course be very useful to separate self-defined GLB into G/L and B. As this has been done for many of the questions in the study, it is surprising that it has not been done here. What proportion of the GLB in marriages are bisexual? We don't know from the figures presented.

    But these figures do show the judgement's assumption that marriages are all between 100% heterosexual men and women to be fundamentally flawed. This also provides an interesting topic for further research on sexual orientation, identity and behaviour – 'mixed orientation' marriages. I suspect that the combinations of attraction, identity and behaviour in such marriages are as many and varied as are people themselves.

    But there is a blindingly obvious conclusion from these figures. 5 years after civil partnerships were brought in, there is no great demand for 'marriage equivalent' legal partnerships amongst GLB people. Which begs the obvious question as to why the government proposes to bring in gay marriage when there is clearly no significant need for it!
     – 8.0%; NR – 4.1%

    • Cerebusboy

       Philip – gay marriage is a justice issue. The ‘need’ for it is not properly understood in crude numerical terms (as -imperfect- analogy: the moral argument against pre-1967 US anti-interracial marriage laws is in no way predicated on the amount of people who would then proceed to marry partners of a different race. What percentage of white men in the UK marry women with pakistani or afro-carribean heritage? The moral response is surely “who cares?” !)

       NB good to see you back commenting! :-)
        

      • RevDave

        Dear Cerebusboy, Noone is arguing that two people of the same sex can’t marry because homosexuals should be discriminated against!!  A gay man can marry – ie form a sexual partnership with a woman, and a lesbian can marry – ie form a sexual partnership with a man.  Many have done and many still do. 
        The argument against calling same sex partnerships “Marriage” is that the nature of a sexual partnership between a man and a woman, is different to that between two men or two women: It is different physically, biologically and sociologically – and even psychologically to some extent. And there is nothing wrong with calling something that is different by a different name, indeed it is confusing to call different things by the same name!

        • Cerebusboy

           RevDave

           Firstly, “discriminate” has a specific, logical sense that we should not avoid just because it makes our ideology of choice sound bad (as Frank Miller has pointed out, when he orders steak instead of hamburger in a restaurant he is guilty of “discrimination”) . Logically (again), it could certainly be argued that a homosexual having a “sexual relationship” with a woman is no such thing , hardly negating the point that that a ban against gay marriage has the net effect of discriminating against gay people. There’s a curious dichotomy at the heart of much anti-gay ideology, whereas it is simultaneously believed that gay sex is instinctively and rightly repulsive to right-thinking straight people but that gays can have authentic sex with members of the opposite sex tomorrow if they put their mind (among other things) to it. 
           
            Anyone claiming – or proceeding from the assumption – that the Christian church invented marriage is talking demonstrable ahistorical nonsense, hence why tub thumbing proof-texting is (even more than usually) irrelevant in these debates.

           Having computer/iPod problems, will reply to other messages tomorrow! 

    • RevDave

      Interestingly, from figures I’ve seen for other countries, there is no correlation between whether legal partnerships between people of the same sex are called marriage or something else and the proportion of gay people who are in one.  
      It’s usually about 5-10% whatever the relationship is called.

  • Anonymous

    Thanks for the welcome back CB! I’ll only be commenting on gay issues on sites like Peter’s from now on. I’ve commented extensively on the Guardian site and come to the conclusion it is a dialogue of the deaf. Unsurprisingly so as well: ‘non-Christians don’t understand the foundation of Christian beliefs’ is hardly a spectacular finding!

    It has however given me a substantial storehouse of comments as I think I have by now covered every aspect of the debate. Here’s another one, edited as a response to you … :-)

    I always find the race analogy in gay rights arguments both personally interesting, as I have a black wife, and very misleading. The argument falls down in two main places:

    1. There is an underlying assumption that the different characteristics of sexual orientation are unchanging characteristics like race. This is simply not true. Race is a genetic marker that is unchanging for life. It is also a simple question of identity: if you self-define as black you are black. Sexual orientation, as I first posted, is a complex mixture of attraction, identity and behaviour. Different components of SO are not necessarily linked, which is one of the arguments of Peter’s post really. Combinations of these components also can and do change for many people.
    2. The argument against inter-racial marriage was always a foul one, and easily identifiable as such. People of all races are composed of men and women that physically and sexually complement each other. White men and black women, taking my case, are just as much sexually complementary as mono-racial couples. The argument against inter-racial marriage is therefore immediately a racial one of saying that different races must not marry because they dilute ‘racial purity’. This was seen, quite rightly, as a foul and racist argument.

    The argument against gay marriage is very different. It is a fact so obvious to be banal that human beings are sexually differentiated into men and women in a way that is mutually physically and sexually compatible. Same-sex couples are not mutually sexually and physically compatible. This does not mean that same-sex relationships cannot be loving and mutually supporting. But it does mean that they are physically and sexually different in a way that inter-racial relationships are not.

    Same-sex marriage can only be justified by denying the realities of our gendered human existence as men and women.

    • Guglielmo Marinaro

      “Same-sex couples are not mutually sexually and physically compatible.”

      Really? Countless same-sex couples have yet to discover this. How did you?

      “Same-sex marriage can only be justified by denying the realities of our gendered human existence as men and women.”

      Sorry. Don’t get it. How does it deny it exactly? Please elucidate.

    • Cerebusboy

       He Phillip. I myself am never off the Guardian MBMs (and putting my name into a search on guardian.co.uk/football reveals lots of fun results!) but the below the line comments, on even relatively benign fitba related stories, do seem to involve far more heat than light. 

       And now, to your points. I find it , more generally speaking, interesting when conservatives conflate race and gender as two kind of ontological,benign states that sexuality is not comparable to. No kind of logical complimentarian should regard race and gender/sex as *perfectly* analogous, which does not of course mean that grouping them together is, in some contexts, valid. The point about prejudice against interracial marriage is that it a good example of minority group x having their rights to marry curbed in a manner that is, in a free society, ultimately immoral. Here in Scotland we have a history of sectarianism (although we’re also the only European country to never have shed Jewish blood) meaning that Catholics marrying Protestants were often subjected to prejudice. That is clearly immoral, and is legitimate to claim that such prejudice is in some senses *like* racial prejudice. This is despite the fact that being Catholic or Protestant is not like a race that people are born with, meaning that much of your objections to the race/sexuality analogy could also be made to prejudice against those of different religions marrying.  

        Your argument appears to give much weight to the “aetiology” of sexuality, as if the rights or wrongs of gay marriage are somehow predicated on it.   Even if people (how many? a majority?) ‘could’ change their sexuality, that in no way means that they should, or that society should give more weight to the tiny, tiny “gay to straight” cases than they do the actual majority of gay men (there is, as a great man once said, far more ex ex-gays than there is ex gays) 

       It is a fact so obvious to be banal that human beings are sexually differentiated into men and women in a way that is mutually physically and sexually compatible.

       Cliches and truisms are not objective fact. You might not be quoting scripture, but you are invoking so-called natural law. Given that most people in this country are not subscribers to its sub-Platonic banalities, why should such ideology be granted societal acceptance in a manner that curbs the right of individuals?  Let’s not forget that the “Natural” (!) argument is the same line of thinking that identified homosexuality as the Greek vice, not found in nature (!!). Homosexuality is, from an anthropological perspective, perfectly ‘normal’ and ‘natural’. Heterosexual sex is (IVF etc aside) needed for procreation of course, but the vast majority of sexual acts in the world – and this is as true of the conservative world as it is the ‘liberal’ one – are recreational, not procreational. And the natural responsiveness of the human body is hardly an argument ‘for’ natural law. Quite the opposite. C.f. those feminists who, for over forty years now (!), have been scientifically pointing out the primacy of clitoral stimulation in achieving the female orgasm and the fact that the missionary style positions associated with ‘normal’ ‘natural’ sex are hardly conducive to it, or the biological fact that prostate stimulation leads to superior orgasms in the male; hardly conducive to anti-gay rhetoric on the ‘unnatural’ evils of sodomy.  And feminists could also note that the misogynistic power relationships that have historically been structurally encoded within marriage show the dangers of pretending like the heterosexist ideal is moral, let alone a necessarily moral state that gay relationships ought to be judged against and found wanting. 

       Anti-gay rhetoric reflects meaning imposed *on* the reality of human bodies, not an ‘objective’ understanding *of* them. The fact that Natural Law arguments have a few millenia of currency is ultimately, in a logical sense, irrelevant.  Arguments-from-plumbing are, when one considers science and the entire span of human history (i.e.: not just the cherry-picked monotheistic bits) very silly indeed. 

  • Anonymous

    Guglielmo

    Marriage has developed and been supported by society as it provides a social good, namely families. Children are the fruit of a particular type of loving, faithful and stable relationship between men and women which is the only type that can produce offspring. Marriage has therefore developed for society and the state to support opposite sex relationships as loving, faithful and stable relationships provide the best environment for children to grow and be raised with good values.

    Marriage is rooted in an opposite sex relationship because it is the only sexual relationship that can produce children. Clearly there is no compulsion to produce children nor should there be – it would be invasive to people’s privacy. But the prime social purpose and social good of marriage – the reason for society to support it – is that it provides stablity for raising children, ideally with a natural mother and natural father.

    Gay relationships are also loving, faithful and stable. But they will not produce children or be sexually complementary in the sense that children can result. There is a social good in supporting gay relationships – loving, faithful and stable relationships are after all good for people generally. But gay relationships are sexually different relationships because they are same-sex and because children are not a possible fruit of the relationship. So civil partnerships, which I support, provide a different legal framework which provides most of the rights and responsibilities of marriage but with important differences that reflect the different realities of gay and straight relationships. As CerebusBoy and Peter have been exchanging, consumation is not part of civil partnership law as there is no sense in which a gay partnership can be consumated.

    At root, the plea for gay marriage is one that denies a reality that gives society a number of social goods and hence an interest in supporting marriage in its current form:

    – that men and women are physically different and have sexually, mutually supportive complementary roles. In short, we are gendered beings and gender is at the root of our reality as human beings.
    – that our existence is rooted in our birth which always comes from the sexual relationship of men and women.
    – that marriage is a special type of relationship that has evolved to support families and the raising of children.

    And of course Monty Python had one of the best and funniest observations on the reality of gender, as well as the ludicrous position of those who deny it, in the ‘Life of Brian’ all those years ago! (see http://www.youtube.com/watch?v=sFBOQzSk14c)

    • Guglielmo Marinaro

      Well, Philip, I’ve read over what you’ve written several times, and I think that you’ve made a good case against calling gay relationships marriages. In fact, I tend to agree with you. A gay relationship isn’t and can’t be exactly the same as a heterosexual one; which doesn’t make a gay relationship inferior, any more than a heterosexual relationship is inferior because it can’t be the same as a gay one. (Actually, I’m not at all fussy about gay relationships being called by the same name as what I was being periodically nagged to do in my twenties until I cut the Gordian knot by coming out, but that’s a personal point rather than a logical one.) However, I could never support those who are agitating against gay marriage, because I know what the motives of most of them are: they would like to prevent or discourage gays from forming sexual relationships at all, and would reverse the civil partnership legislation if they could. I could never make common cause with those whose agenda is so despicable.

      Where I cannot follow you is in your arguments about our “gendered existence”. I agree with you that the theory that our gender (as opposed, I might add, to gender stereotypes, which are another matter) is essentially fluid and socially determined is nonsense, and I have no doubt that it will eventually find its way into the trash-can of history. But that cranky idea is in no way needed to support the acceptance of gay sex; indeed I would say that is a complete irrelevancy. Both partners in any sexual relationship are just as gendered whether the relationship is a heterosexual or a homosexual one. Incidentally, I don’t think that an appeal to “orthodox Christian” belief really gets us anywhere. What is orthodox in one denomination may be heretical in another; some religious beliefs which were universally regarded as orthodox among Christians a few centuries ago are now simply obsolete; and some of the opinions expressed even by such staunchly conservative Roman Catholics as the present Pope and the previous one would have brought the Inquisition down on them like a ton of bricks 400 years ago.

      • RSABaggie

        Guglielmo

        Thanks for your kind comments about my argument against marriage. I think that it’s important to develop a strong argument that is not from scripture as most people in Europe and Northe America do not now hold to a Christian worldview. The argument therefore has to be won on a different basis.

        I agree with you that far too much Christian argument against marriage is motivated by the desire to reverse the important rights that gay people have won over the past few decades. That, in my view, is mistaken as well as being in un-Christian. Adults have the right to self-definition within the law and so, in my view, it is Christian to provide the legal framework for civil partnerships for gay people that want to commit to loving, faithful lifelong relationships. Stable and loving relationships are a social good whoever they are between.

        Commitment to Christ and to His principles are living are, and should be, always freely chosen by the individual. There should be no compulsion in religion as it acts counter to love.

  • Anonymous

    CerebusBoy
     
    I also comment on the fitba’ on the Graun – but almost entirely on the fortunes of West Brom (COYB).
     
    I take all your points and see the logic of them. I simply don’t see how they can be justified within an orthodox Christian framework that sees us as created humans given the great gift of freewill by God, which is after all the great mark of his image in us, but also accountable to him for our actions. In the end, it all comes down to foundational beliefs about the world and our place in it …
     
    If, like me, you believe in an orthodox Christian framework that sees both purpose and design in our gendered existence and continued validity in scripture as a moral framework, then gay sexual behaviour is simply inconsistent with those beliefs.
     
    If you do not believe in God, see our existence as primarily material and our gender as essentially fluid and socially determined then it is quite logical that there is no moral objection to gay sex.
     
    The fundamental reason that Europe and North America now largely accept consenting gay sex as moral is simply that their worldview has changed. The majority of people have ceased to believe in an orthodox Christian view of the world. Just as the reverse is true in the two-thirds world where I live!

    • Cerebusboy

       (Sorry for not replying earlier)

       I see that West Brom got Mick McCarthy the boot after a 5-1 win the other day – although it would be difficult to find a team, anywhere (Portsmouth aside) whose fortunes do not currently compare favourably to my team (the Glorious – yet ingloriously skint – Glasgow Rangers)

        As to the substance of your post: do we live in a theocracy? No, of course not. What  would the results be if we had, say, a free vote on the desirability of the UK becoming a Christian equivalent to the Middle-Eastern Theocratic states? I’d imagine that such a proposition would be rejected out of hand. People have rights in a free society. Worshipping a false God ranks pretty highly in the list of Ten Commandment no-nos but one does not hear of conservative Christian campaigns to try and criminalise other religions. Fornication is a sin, but I can’t recall many (recent) Christian attempts to crack down on what consenting men and women do behind closed doors.  Despite the horrendous impact of alcohol (especially here in Scotland) temperance Christians are largely seen as an Amish style novelty act. And so forth. What are the implications of the fact that it’s only in the area of gay rights that proof-texts are deemed to supplant  democratic rights? I once asked Peter on this blog if he thought homosexuality should be illegal. He said no, and I imagine that many a conservative could characterise such a question as raising of a straw man. But, as a statement of fact, it’s undeniable that (to give one example) the Church of Scotland opposed the legalisation of homosexuality in 1980 for exactly the same kind of proof-texted arguments that are being cited now in order to ban gay marriage.  I would say that Europe and America accepting that gay sex is a free will choice (like, to deliberately choose some other immoral examples, drinking or heterosexual fornication) is the worldview change, and it is one demanded by logic. Why should homosexuality be, in practice, the only sin that should be illegal *because* it is a sin? One appreciates that Gagnon et all try and come up with Mickey Mouse (lesbians 300 times more likely to die in a car crash indeed!) pseudo-scientific ‘justifications’ for homosexuality, but they are not worth the paper they are (with green ink?) written on. Nor, from a conservative Christian perspective, does the immorality of homosexual acts necessarily mean that legalising and accepting them will lead to societal decay and destruction. 

  • Jimbo1978

    Not sure about North America there.. USA is still largely Christian.

    • Cerebusboy

       I think it would be more honest to say that America has great swathes of cultic, republican-party-at-prayer-and-on-the-make, revivalist, creationist fundamentalists who (madly) appear to believe that the Founding Fathers were theocrats, rather than men of the Enlightenment. The distinction is important. 

  • Law & Religion UK

    Small technical point: the Chancellor of the High Court is not the Lord Chancellor.

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