If there is one clear trend in contentious litigation in the UK in recent months, it is the increase in cases that pit the rights of religious communities against the prohibition on discrimination.
“Religitigation,” as it is becoming known, is manifest in increasingly diverse ways. Last year Christian registrar Lillian Ladele failed to exempt herself from the duty of conducting civil partnerships, Christian counselor Gary McFarlane lost his attempt to be exempt from giving same-sex couples relationship therapy and Christian British Airways employee Nadia Eweida lost her claim to have the right to wear a crucifix at work.
It is not only Christians in the dock. Also last year, north London’s Jewish Free School lost its Supreme Court bid to refuse admission to a pupil on the basis of his mother’s background, after the court found the policy amounted to race discrimination.
In much the same vein, Christian hoteliers Peter and Hazel Bull earlier this month lost their claim to be entitled to refuse double-bed hotel rooms to civil partners Martyn Hall and Steven Preddy. Judge Andrew Rutherford, sitting at Bristol County Court, found it was “clear that homosexuals as a group are disadvantaged by the practice adopted by [Peter and Hazel Bull].”
The case appears to be the first to try the distinct legal question of whether a civil partnership is the legal equivalent of marriage, as far as discrimination is concerned. The Bulls’ case was that they openly discriminated on marital status — unmarried heterosexual couples were also denied rooms with double beds — but that this policy was based on sex outside wedlock, not sexual orientation. As their counsel memorably stated, the policy “has nothing to do with sexual orientation but everything to do with sex.”
That argument might have been successful if it were legally accurate to compare an unmarried couple with same-sex civil partners. However, anticipating arguments such as these, the law faces the issue head on. The regulations that ban discrimination against sexual orientation state explicitly that “the fact that one of the persons is a civil partner while the other is married shall not be treated as a material difference.”
This exact issue is the subject of a separate legal campaign. Campaigner Peter Tatchell has announced that eight couples will apply to the European Court of Human Rights to overturn the law, on the basis that it “creates a system that segregates couples into two separate legal institutions, with different names but identical rights and responsibilities ... based on their sexual orientations.”
His gripe is that same-sex couples are denied the right to marry, while heterosexuals are denied the right to civil partnerships — and that both are violations of their rights.
So while some are fighting for gay marriage, the Bulls’ case confirms that, in the meantime, Christians will have to accept that civil partnerships are intended to be its equivalent as far as the law is concerned. However, the interesting issue in this case lurks in the judge’s commentary.
“It is no longer the case that our laws must, or should, automatically reflect the Judeo-Christian position,” said Rutherford, that is in regarding marriage as the only form of legally recognized binding relationship.
It is this issue that concerns religious groups — the ability of the law to move on from its religious roots to a more equitable formula of guaranteeing fundamental rights, including the right against discrimination. Of course, where those rights come into conflict, a more nuanced exercise of balancing takes place — one that the judiciary has so far approached with the utmost seriousness. Rutherford confessed he found the Bulls’ case “very difficult,” and Lord Phillips — president of the Supreme Court and the UK’s most senior judge — said earlier this year that the Jewish school decision had been the hardest of his judicial life.
That has been of little consolation to religitigants, however. What they seem to want is a trump card that puts them above the subtle considerations of fairness. And that, the courts have repeatedly said, is not going to happen.
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