How cases help campaigns — and campaigns help cases
By Louise Whitfield, Solicitor at Deighton Pierce Glynn
Rebecca Steinfeld and Charles Keidan want a civil partnership. They don’t want to get married, but because they’re a heterosexual couple, rather than a gay couple, they have no choice: it’s marriage or nothing. This means they don’t get the legal recognition of their relationship that they want, or the legal protections for their children that come with having married parents. As Rebecca and Charles explained it themselves:
“Personally, we wish to form a civil partnership because that captures the essence of our relationship and values. Civil partnerships are a modern social institution conferring almost identical legal rights and responsibilities as marriage, but without its historical baggage, gendered provisions and social expectations. We don’t think there is any justification for stopping us or other opposite-sex couples from forming civil partnerships.”
The court case began in December 2014, when Rebecca and Charles launched their judicial review claim issuing it in the High Court. The trial was in January 2016, and although the trial judge found against them, she recognised the importance of the issue and immediately gave them permission to go ahead with an appeal to the Court of Appeal. This was heard in early November 2016, but judgment was not handed down until February 2017, and the couple narrowly lost. They have applied and are waiting for permission to appeal to the Supreme Court; if this further appeal goes ahead it is unlikely to be heard until well into 2018. The couple has been heavily engaged in the public discourse around this issue, frequently appearing in the media and hosting a wide variety of forums.
The campaign and the legal case have very much run in parallel but it’s proved important to distinguish between the two at various points. Only Rebecca and Charles are the claimants; my retainer is with them and no-on else; I can’t give legal advice to anyone else in the campaign. And my legal advice must be based on what’s in their best interests, even if there’s a potential conflict with the wider campaign. As my clients, they can then make an informed decision about what steps they want to take in the litigation — or the campaign.
The flipside is that the campaign involves far more people than just Rebecca and Charles. Everyone has their own reasons for wanting a civil partnership but lots of people feel the same as Rebecca and Charles. This has helped enormously in terms of gathering evidence, getting the court to understand the importance of the issues and getting the first judge who looked at the case back in early 2015 to give Rebecca and Charles the costs protection they need: an order that limits how much they have to pay the Government if they lose their case. This last point was crucial as it was the only way the couple could take the case forward without fear of it bankrupting them. The costs protection was only made available because we successfully demonstrated the case was of public importance and that it was in the public interest to have it resolved.
So the campaign helped the court case get going, and the court case has kept the campaign alive, with the highs and lows of getting permission for the judicial review, but losing at trial; getting permission to appeal and having Lady Justice Arden agree with Rebecca and Charles after the appeal hearing, while two Lord Justices disagreed — a split court that took everyone by surprise.
The legal arguments are relatively narrow: are Rebecca and Charles being discriminated against in the context of their family life because same sex couples can have a civil partnership but they can’t? As claimants, they have to show that they are being treated differently in a way that relates to their family life. The Government has to justify the different treatment to successfully defeat the claim.
The campaign arguments are much broader, although they clearly underpin the legal case. For many it’s about feminism; to have legal recognition of your relationship that isn’t based on patriarchal assumptions of a woman being given away by her father to become her husband’s property. For others, the focus is on family life — wanting to ensure that their children’s rights, and their own rights as parents, are protected in a way which endorses family life based on equality. And, as Rebecca and Charles have explained:
“We also believe that opening civil partnerships to opposite-sex couples would complete the circle of full relationship equality that began with the hard-won victory for same-sex marriage. We campaigned for equal marriage and believe that the significance and symbolism of opening marriage to same-sex couples cannot be overstated. Legalising same-sex marriage was the recognition that everyone is of equal worth and has the right to equal treatment under the law.”
Charles and Rebecca are now taking their battle to the Supreme Court. They need to ask for permission to appeal — a request that is still outstanding. If they get permission, they’ve got a lot more fundraising to do and possibly a long wait for a hearing. If they get all the way to the Supreme Court, their case will be heard by a larger panel of judges, but that panel can only include one woman, as the gender divide in the highest court in the land is even higher than it was in the Court of Appeal. Meanwhile, the wider campaign goes on: lobbying politicians and trying to secure election pledges; making sure there’s enough money in the pot for the campaign and the next stages of the court case; keeping the media interested but not wearing them out.
It’s a lot of work but then there’s a lot at stake. Over 76,000 people have signed a petition in support of Rebecca and Charles’ effort. A recent Populus poll found that 3 in 5 people think civil partnerships should be open to all and only 1 in 5 are opposed — current laws that prohibit this are outdated, unjust and discriminatory. In the UK today there are around 2.9 million different-sex couples that live together without being married, 39% of whom have dependent children. Some of these couples don’t want to make a legal commitment, and some are unaware of their lack of rights if they don’t. But many chose not to marry because they object to the history and trappings of the institution. Even if those in the latter group only make up a small proportion of current cohabitees, enabling them to have civil partnerships would change the lives of thousands, if not hundreds of thousands of people.
So the legal case and the wider campaign goes on.
By Louise Whitfield, Solicitor at Deighton Pierce Glynn
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