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Judgment in the case of R (Steinfeld & Anor) v Secretary of State for International me-individualDevelopment [2018] UKSC 32 is here.

Often, the road to equality is long and arduous, just ask the same-sex couples who had to wait until the Marriage (Same Sex Couples) Act 2013 for recognition of the right to marry or those whose right to legal recognition will still feel a long way off. On any view, the road to equality in civil partnerships will be shorter. But that route has had its own difficulties and the significance of the success of this appeal should not be underestimated.

The appeal started out as a judicial review that was dismissed at first instance on the basis that the right of different-sex couples to have equal access to civil partnerships was not even within the ambit of ECHR, art 8. In the Court of Appeal, the Government stood squarely behind that argument. The court unanimously disagreed. Arden LJ, in the minority, went further still and found that the Claimants had been unlawfully discriminated against. However, she declined to grant a declaration of incompatibility for fear of “micro-managing” policy decisions. Beatson and Briggs LJs agreed that the Claimants had been discriminated against, warned the Government that the “the status quo cannot be maintained for long” but concluded that the discrimination was justified on account of the Government’s need to “wait and evaluate” how it would remedy the situation. From that empiric victory comes a resounding one.

On the first day of the Supreme Court hearing, the Government conceded that civil partnerships fell within the ambit of art 8; that there was a difference in treatment between same-sex couples and different sex couples in relation to the availability of civil partnerships; that this difference in treatment was on the grounds of sexual orientation, a ground falling within art 14; and that the appellants were in an analogous position to a same-sex couple who wish to enter into a civil partnership. Therefore, the sole issue was whether or not that difference in treatment could be justified (para [19]).

As Lord Kerr emphasised, at para [9] the Government knew when it introduced civil partnerships legislation on the terms that it did that it was perpetrating unequal treatment. This was said to be justified on familiar themes – much was made of the “sensitive issues of social policy” that were at stake for example. The Government also relied heavily on the apparent lack of consensus which had emerged following to public consultations on the future of civil partnerships and evidence which suggested that the numbers of same-sex couples entering into civil partnerships had declined so markedly, particularly following the MSSCA 2013, that they could be abolished. But the Government said it could not decide what to do just yet because it needed to collect more data. Indeed, shortly before the hearing, the Government published its latest policy paper, referencing four areas in which it would seek further responses from the public.

One striking omission from “The Future Operation of Civil Partnership: Gathering Further Information” is any proposal to consult on the views of heterosexual couples about civil partnerships. The paper more than slightly misses the point. The steps it proposes have nothing directly to do with those who were affected by the unequal treatment. This was indicative of a critical floor in the Government’s argument on legitimate aim.

The Government no longer argued that the discrimination itself was defensible. It just wanted more time to “wait and evaluate”. With the help of Counsel for the Appellants, Lord Kerr resoundingly put paid to that idea. At [42] he said this (emphasis added):

“[w]hat has to be justified is not the measure in issue but the difference in treatment between one person or group and another”. To be legitimate, therefore, the aim must address the perpetration of the unequal treatment, or, as Ms Monaghan put it, the aim must be intrinsically linked to the discriminatory treatment. In this case it does not and is not. The [Secretary of State] does not seek to justify the difference in treatment between same sex and different sex couples.  To the contrary, it accepts that that difference cannot be justified. What it seeks is tolerance of the discrimination while it sorts out how to deal with it. That cannot be characterised as a legitimate aim.”

He was similarly quick to dispatch the argument that sensitive policy issues should deter the court from issuing a declaration of incompatibility, pursuant to Human Rights Act 1998, s 4. Quite the reverse, said Lord Kerr, “in the circumstances, of this case, it would be wrong not to have recourse to that power” (para [61]).

The Supreme Court has made it emphatically clear that the status quo cannot be maintained and it never should have been (para [50]). Of course, a s 4 declaration neither requires the Government to take action nor affects the legality of the current legislation. Unsurprisingly, that has caused consternation in some quarters. After all, if there is an ideal case in which the courts ought to be able to strike down legislation it is surely one in which the Government and the legislative must be taken to have known that they were creating a “new form of discrimination” (para 46) (the cruel irony they did so whilst simultaneously offering civil partnerships in appeasement of marriage inequality will be lost to no one). Sadly, we are not in an ideal situation.

Marriage is not for everyone. Rebecca Steinfeld and Charles Keidan represent a growing number of people who are deeply opposed to what they see as the pervasive patriarchal trappings of marriage. Except where convicted prisoners are concerned, Governments of all colours have taken appropriate remedial steps to respond to a s 4 declaration. One way of doing that here would be to abolish civil partnerships altogether – as recently as May, the Government remained open to that possibility. That of course, would leave marriage as the only means of legal recognition of one’s relationship, with all the consequences that would flow from that. Fortunately, and I suspect in light of the widespread public support for this appeal, that would seem unlikely.

In the last couple of weeks, the Equalities Minister Penny Mourdant MP declined an opportunity to re-affirm the possibility of abolition and has reportedly given a private assurance that civil partnerships will not be abolished, to Stonewall, who have also welcomed the success of this appeal. It is then surely a question of when, not if the law will give equal recognition to same-sex and different-sex couples; those that wish to marry and those that do not.

This appeal is another important staging post in the extension of legal recognition to those who fall outside recognised norms. The glare of this success should now shine a light on those who remain left behind.