Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent)
133. It is common ground that five questions arise in an article 14 inquiry, based on the approach of Brooke LJ in Wandsworth London Borough Council v Michalak  1 WLR 617, 625, para 20, as amplified in R (Carson) v Secretary of State for Work and Pensions  EWHC 978 (Admin), para 52 and  EWCA Civ 797,  3 All ER 577. The original four questions were:
134. The additional question is whether the difference in treatment is based on one or more of the grounds proscribed - whether expressly or by inference - in article 14. The appellant argued that that question should be asked after question (iv), the respondent that it should be asked after question (ii). In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided.
135. It is common ground that one of the Convention rights is engaged here. Everyone has the right to respect for their home. This does not mean that the state - or anyone else - has to supply everyone with a home. Nor does it mean that the state has to grant everyone a secure right to live in their home. But if it does grant that right to some, it must not withhold it from others in the same or an analogous situation. It must grant that right equally, unless the difference in treatment can be objectively justified. There is no need for us to express a view on the degree to which a Convention right must be engaged in order to bring article 14 into play. On any view, that threshold is crossed here.
136. It is also common ground that there is a difference in treatment in respect of that right between the respondent and the survivor of an opposite sex relationship. It is also common ground that sexual orientation is one of the grounds covered by article 14 on which, like race and sex, a difference in treatment is particularly suspect. For the reasons given earlier, the grounds put forward to justify it require careful scrutiny.
137. The parties differ on whether the survivors of unmarried heterosexual and homosexual couples are indeed in an analogous situation and therefore on whether the basis of the difference in treatment is sexual orientation or something else. But it is impossible to see what else the difference can be based on if not the difference in sexual orientation. Everything which has been suggested to make a difference between the appellant and other surviving partners comes down to the fact that he was of the same sex as the deceased tenant. It is the decisive factor.
138. We are not here concerned with a difference in treatment between married and unmarried couples. The European Court of Human Rights accepts that the protection of the 'traditional family' is in principle a legitimate aim: see Karner v Austria (2003) 14 BHRC 674, para 40, The traditional family is constituted by marriage. The Convention itself, in article 12, singles out the married family for special protection by guaranteeing to everyone the right to marry and found a family. Had paragraph 2 of Schedule 1 to the Rent Act 1977 stopped at protecting the surviving spouse, it might have been easier to say that a homosexual couple were not in an analogous situation. But it did not. It extended the protection to survivors of a relationship which was not marriage but was sufficiently like marriage to qualify for the same protection. It has therefore to be asked whether opposite and same sex survivors are in an analogous situation for this purpose.
139. There are several modern statutes which extend a particular benefit or a particular burden, granted to or imposed upon the parties to a marriage, to people who are or were living together 'as husband and wife': see eg section 62(1) of the Family Law Act 1996 and section 137(1) of the Social Security Contributions and Benefits Act 1992. Working out whether a particular couple are or were in such a relationship is not always easy. It is a matter of judgement in which several factors are taken into account. Holding themselves out as married is one of these, and if a heterosexual couple do so, it is likely that they will be held to be living together as such. But it is not a pre-requisite in the other private and public law contexts and I see no reason why it should be in this one. What matters most is the essential quality of the relationship, its marriage-like intimacy, stability, and social and financial inter-dependence. Homosexual relationships can have exactly the same qualities of intimacy, stability and inter-dependence that heterosexual relationships do.
140. It has not been suggested to us that the nature of the sexual intimacies each enjoys is a relevant difference. Nor can the possibility of holding oneself out as a legally married couple be a relevant difference here. Homosexuals cannot hold themselves out as legally married, but they can if they wish present themselves to the world as if they were married. Many now go through ceremonies of commitment which have the same social and emotional purpose as wedding ceremonies - to declare the strength and permanence of their commitment to one another, their families and friends. If the Civil Partnership Bill now before Parliament becomes law, an equivalent status will be available to them.
141. The relevant difference which has been urged upon us is that a heterosexual couple may have children together whereas a homosexual couple cannot. But this too cannot be a relevant difference in determining whether a relationship can be considered marriage-like for the purpose of the Rent Act. First, the capacity to bear or beget children has never been a pre-requisite of a valid marriage in English law. Henry VIII would not otherwise have had the problems he did. Even the capacity to consummate the marriage only matters if one of the parties thinks it matters: if they are both content the marriage is valid. A marriage, let alone a relationship analogous to marriage, can exist without either the presence or the possibility of children from that relationship. Secondly, however, the presence of children is a relevant factor in deciding whether a relationship is marriage-like but if the couple are bringing up children together, it is unlikely to matter whether or not they are the biological children of both parties. Both married and unmarried couples, both homosexual and heterosexual, may bring up children together. One or both may have children from another relationship: this is not at all uncommon in lesbian relationships and the court may grant them a shared residence order so that they may share parental responsibility. A lesbian couple may have children by donor insemination who are brought up as the children of them both: it is not uncommon for each of them to bear a child in this way. A gay or lesbian couple may foster other people's children. When the relevant sections of the Adoption and Children Act 2002 are brought into force, they will be able to adopt: this means that they will indeed have a child together in the eyes of the law. Thirdly, however, there is absolutely no reason to think that the protection given by the Rent Act to the surviving partner's home was given for the sake of the couple's children. Statutes usually make it plain if they wish to protect minor children. These days, the succession is likely to take place after any children have grown up and left home. Children, whether adult or minor, who are still living in the home may succeed as members of the family under paragraph 3 of the Schedule. It is the longstanding social and economic inter-dependence, which may or may not be the product of having brought up children together, that qualifies for the protection of the Act. In the days when the tenant was likely to be a man with a dependent wife, it was understandable that preference was given to the widow over anyone else in the family. But in 1980 that preference was extended to widowers, whether or not they were dependent upon the deceased wife. In 1988 it was extended to the survivor of unmarried marriage-like relationships, again irrespective of sex or financial dependence.
142. Homosexual couples can have exactly the same sort of inter-dependent couple relationship as heterosexuals can. Sexual 'orientation' defines the sort of person with whom one wishes to have sexual relations. It requires another person to express itself. Some people, whether heterosexual or homosexual, may be satisfied with casual or transient relationships. But most human beings eventually want more than that. They want love. And with love they often want not only the warmth but also the sense of belonging to one another which is the essence of being a couple. And many couples also come to want the stability and permanence which go with sharing a home and a life together, with or without the children who for many people go to make a family. In this, people of homosexual orientation are no different from people of heterosexual orientation.
143. It follows that a homosexual couple whose relationship is marriage-like in the same ways that an unmarried heterosexual couple's relationship is marriage-like are indeed in an analogous situation. Any difference in treatment is based upon their sexual orientation. It requires an objective justification if it is to comply with article 14. Whatever the scope for a 'discretionary area of judgment' in these cases may be, there has to be a legitimate aim before a difference in treatment can be justified. But what could be the legitimate aim of singling out hetero-sexual couples for more favourable treatment than homosexual couples? It cannot be the protection of the traditional family. The traditional family is not protected by granting it a benefit which is denied to people who cannot or will not become a traditional family. What is really meant by the 'protection' of the traditional family is the encouragement of people to form traditional families and the discouragement of people from forming others. There are many reasons why it might be legitimate to encourage people to marry and to discourage them from living together without marrying. These reasons might have justified the Act in stopping short at marriage. Once it went beyond marriage to unmarried relationships, the aim would have to be encouraging one sort of unmarried relationship and discouraging another. The Act does distinguish between unmarried but marriage-like relationships and more transient liaisons. It is easy to see how that might pursue a legitimate aim and easier still to see how it might justify singling out the survivor for preferential succession rights. But, as Buxton LJ  Ch 380, 391, para 21, pointed out, it is difficult to see how hetero-sexuals will be encouraged to form and maintain such marriage-like relationships by the knowledge that the equivalent benefit is being denied to homosexuals. The distinction between hetero-sexual and homosexual couples might be aimed at discouraging homosexual relationships generally. But that cannot now be regarded as a legitimate aim. It is inconsistent with the right to respect for private life accorded to 'everyone', including homosexuals, by article 8 since Dudgeon v United Kingdom (1981) 4 EHRR 149. If it is not legitimate to discourage homosexual relationships, it cannot be legitimate to discourage stable, committed, marriage-like homosexual relationships of the sort which qualify the survivor to succeed to the home. Society wants its intimate relationships, particularly but not only if there are children involved, to be stable, responsible and secure. It is the transient, irresponsible and insecure relationships which cause us so much concern.
144. I have used the term 'marriage-like' to describe the sort of relationship which meets the statutory test of living together 'as husband and wife'. Once upon a time it might have been difficult to apply those words to a same sex relationship because both in law and in reality the roles of the husband and wife were so different and those differences were defined by their genders. That is no longer the case. The law now differentiates between husband and wife in only a very few and unimportant respects. Husbands and wives decide for themselves who will go out to work and who will do the homework and child care. Mostly each does some of each. The roles are inter-changeable. There is thus no difficulty in applying the term 'marriage-like' to same sex relationships. With the greatest respect to my noble and learned friend, Lord Millett, I also see no difficulty in applying the term 'as husband and wife' to persons of the same sex living together in such a relationship. As Mr. Sales, for the Secretary of State, said in argument, this is not even a marginal case. It is well within the bounds of what is possible under section 3(1) of the Human Rights Act 1998. If it is possible so to interpret the term in order to make it compliant with Convention rights, it is our duty under section 3(1) so to do.