Michal Hain: Past is Prologue – The Role of History in the Law of Equality

The legal institution whereby couples express their mutual commitment, which is recognised, protected and regulated by the state – marriage – touches the most intimate parts of people’s lives. Its recent transformation raised profound questions of personal morality, human dignity, and religious doctrine. As the tide of public opinion turned, Parliament repealed section 28 of the Local Government Act 1988 (which had prohibited the “promot[ion] of homosexuality” and the “teaching in any maintained school the acceptability of homosexuality”) in 2003, passed the Civil Partnerships Act the following year, and enacted the Marriage (Same Sex Couples) Act in 2013. The result is that same-sex couples can currently choose between entering a civil partnership or marriage, whereas different-sex couples cannot.

This regime has become the subject of a legal challenge brought by Rebecca Steinfeld and Charles Keidan who “wish to formalise their relationship, but … have a deep-rooted and genuine ideological objection to marriage based upon what they consider to be its historically patriarchal nature” (Steinfeld v Education Secretary [2017] EWCA Civ 81, [2017] 3 WLR 1237 at [5]). The Court of Appeal unanimously held that this fell within the ambit of Article 8 of the European Convention on Human Rights (“ECHR”), but, by a 2-1 majority (Arden LJ dissenting), accepted that it was legitimate and proportionate for the government to adopt a “wait and see” approach to assess how to remedy the situation, which all three judges considered discriminatory. The government outlined three options: (1) expanding civil partnerships to different-sex couples; (2) abolishing civil partnerships altogether; (3) phasing-out civil partnerships (i.e. retain existing ones but abolish them prospectively).

The Supreme Court granted permission to appeal on 8 August 2017, and it epitomises the extraordinary pace of legal developments that new European authorities have since emerged on the legal horizon, Ratzenböck v Austria App. No. 28475/12 (ECtHR, 26 October 2017) and the decision on 4 December 2017 of the Austrian Verfassungsgerichtshof (“VfGH”). They shine a light on two central issues: the significance of past discrimination for the assessment of present legal classifications and, relatedly, the difficulty of distinguishing measures aimed at correcting historical inequalities from those that merely reinforce negative stereotypes about their beneficiaries. Bringing our understanding of equality into focus, these questions reveal that history plays two potentially conflicting roles. It can justify the conferral of a benefit to the marginalised group, whereas in other cases it may also fatally undermine forms of benign discrimination. This analysis casts an illuminating light on the issues confronting the Supreme Court in Steinfeld and establishes a framework for analysing the current law as discriminatory vis-à-vis same-sex couples (as opposed to different-sex couples).

Correcting Historical Inequality

The Austrian Registered Partnership Act, which entered into force on 1 January 2010, established registered partnerships for couples of the same sex. By contrast, marriage remained open to different-sex couples only. In the past, the VfGH rejected challenges that alleged this differentiation discriminated against either different-sex couples (decision on 22 September 2011) or same-sex couples (decision on 9 October 2012).

The former is the subject of Ratzenböck. The ECtHR held that the application “f[e]ll squarely within the notion of ‘family life’ within the meaning of Article 8” (at [30]) reaffirming, thereby, the Court of Appeal’s unanimous decision on this point in Steinfeld. On the question of whether Austria breached Article 14, the Court recognised that “different-sex couples are in principle in a relevantly similar or comparable situation as regards their general need for legal recognition and protection of their relationship” (at [39]), but, by a 5-2 majority, reasoned that the different-sex applicants were “not in a relevantly similar or comparable situation to same-sex couples who, under the current legislation, have no right to marry and need the registered partnership as an alternative means of providing legal recognition for their relationship” (at [42]).

It may be thought to be of little relevance for Steinfeld because “the institutions of marriage and the registered partnership [are] essentially complementary in Austrian law” (at [40]), whereas civil partnerships and marriage in this country are plainly not, but this would be to miss the wood for the trees. The broader, far more significant, point was articulated succinctly in the challenged VfGH decision:

Given that persons of different sex have access to marriage (see the [explanatory report on the draft law]); the registered partnership was introduced only to counter discrimination against same-sex couples; [the registered partnership] should, in substance, have the same effects as marriage; different-sex couples are not a group (historically) discriminated against; and there is no European consensus on this matter, it does not amount to a violation of Article 14 taken in conjunction with Article 8 of the [Convention] if the Austrian legislator does not grant different-sex couples access to the registered partnership (at [1.6], cited in Ratzenböck at [10]).

In other words, a measure aimed at correcting historical inequality is not discriminatory against the historically privileged merely because they are denied access to the benefit conferred upon the historically marginalised; in the terminology adopted by the ECtHR in Ratzenböck, the former are not in a “relevantly similar or comparable situation” to the latter. This is not an altogether novel point, and it formed part of the House of Lords’ reasoning in R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681 where, in the context of a challenge to widows’ pensions brought by widowers who had no such entitlement, it was recognised that “older widows were historically an economically disadvantaged class which merited special treatment” (at [32] per Lord Hoffmann).

Hidden Discrimination

Historical context was also significant for the VfGH’s decision on 4 December 2017, where it held that marriage and registered partnerships must be open to both different-sex and same-sex couples. It reasoned as follows: Although registered partnerships were initially created to counter-act the discrimination of same-sex couples in accordance with a certain understanding of marriage (at [2.3]), “this differentiation into two legal institutions can no longer be maintained without discriminating against same-sex couples with regards to their sexual orientation” (at [2.4]). Furthermore, the separation of different-sex couples and same-sex couples into different legal frameworks manifests that they “encompass intrinsically different connections” (ibid). The Court held that:

[a]gainst the backdrop of the legal and social discrimination of homosexuals that reaches into the most recent past, this segregation of relationships, which are of fundamentally the same character and significance for individuals, into two different legal institutions is discriminatory (at [2.5]).

An important factor in the VfGH’s analysis was the fact that persons in same-sex registered partnerships are forced to reveal their sexuality by virtue of the different labels used to describe one’s marital status (“married” vs “in registered partnership”) even in circumstances where sexual orientation plays no role and, indeed, is not allowed to play a role. As a consequence, they “run the risk, in particular as against the historical backdrop, of being discriminated against” (ibid).

Lastly, due to their symmetry, the Court considered it necessary to remove both of the access restrictions; thus, marriage as well as registered partnerships would be open to all. This last point, woefully under-analysed by the VfGH, is perhaps the most significant for the purposes of Steinfeld. It demonstrates that leaving in place a distinction by removing the marriage restriction alone, which overtly benefits the historically marginalised group, can actually reinforce, as opposed to counter-act, discrimination. In more practical terms, if registered partnerships remained exclusively available to same-sex couples, this would nevertheless have meant that registered partners would “out” themselves whenever they disclosed their marital status. This suggests that the third option (merely phasing out civil partnerships) may not be a permissible solution in the UK, as this nevertheless exposes existing civil partners to the risk of discrimination.

Admittedly, it was the Austrian constitutional principle of equal treatment which formed the basis of the VfGH’s decision, but this is neither here nor there. Logic, unless flawed, is transferable across jurisdictional borders. What is more, post-Ratzenböck, there can be little serious doubt that the facts of Steinfeld fall firmly within Article 8 so that Article 14 is in any case engaged, and it is clear that the anti-discrimination analysis is the same: “[f]or the purposes of both the principle of equality as well as Article 14 ECHR special reasons must be present so as to justify the difference in treatment rooted in protected characteristics” (VfGH decision on 11 December 2014 at [3]).

History Lessons for Steinfeld

A measure, although ostensibly aimed at benefiting a historically marginalised group, may unlawfully discriminate that group by buying into harmful stereotypes. This has been explicitly recognised by the Supreme Court of the United States in the area of gender discrimination. In Orr v Orr, it declared a statutory scheme, which required ex-husbands, but not ex-wives to pay spousal support, unconstitutional and held that “[l]egislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the ‘proper place’ of women and their need for special protection” (440 US 268 (1979) at 283),

This raises the question of whether the regime at issue in Steinfeld, which makes available two options to same-sex couples where one is thought of as less of an undertaking, may be similarly rooted in stereotypes about same-sex couples’ (lack of) commitment. Conversely, is the law essentially saying that different-sex couples are by their very nature more dedicated so that they only need marriage? The concern that a legal classification reinforces negative stereotypes is all the more acute where it effectively imposes a hierarchy between the individual classes. Arguably, that is precisely what the Marriage (Same Sex Couples) Act 2013 does by allowing the conversion of a civil partnership into a marriage pursuant to section 9.

The law is at its worst when it takes sides. But where it is merely attempting to redress historical imbalances, giving a leg up to those who would otherwise struggle, it is eminently justified. This is no more than an application of the general precept of justice to treat like cases alike coupled with a recognition that the historically marginalised may not be, in the relevant sense, alike to the historically privileged. Nonetheless, it is critically important that ostensibly benign measures, whether in the area of gender, race or sexuality, redress – as opposed to entrench – past inequality. In Steinfeld, the Supreme Court will have to take a side.

I owe an enormous debt of gratitude to Alison Young for her comments on a previous draft. The mistakes remain my own.

Michal Hain is a pupil barrister at 20 Essex Street.

(Suggested citation: M. Hain, ‘Past is Prologue – The Role of History in the Law of Equality’, U.K. Const. L. Blog (9th Jan. 2018) (available at https://ukconstitutionallaw.org/))