A Cornish hotel and the conflict between discrimination law and religious freedom
24 January 2011
Hall & Anor v Bull & Anor [2011] EW Misc 2 (CC) (04 January 2011) – Read judgment
Judge Andrew Rutherford in the Bristol County Court has held that the devout Christian couple who ran their Cornish hotel according to their Christian principles directly discriminate against a homosexual couple in a civil partnership, when they refused accommodation to them on the basis that they only let double rooms to married couples.
The couple had planned for a short break in Cornwall and, after some internet research, chose the Chymorvah Private Hotel. They booked two nights over the telephone and arrived a few days later. They were met by the owner of the hotel and told in the public reception area in front of at least one other guest, the hotels policy with regard to double rooms. The online booking form stated
“out of a deep regard for marriage we prefer to let double accommodation to heterosexual married couples only” paragraph [11],
The couple explained that they were in a civil partnership but were told by the owner that they only let double rooms to mixed sex married couples. There were no single rooms available on that weekend. The couple left, found alternative accommodation and were refunded their deposit shortly after.
There was Christian text set in mosaic around the reception desk and on the walls and they maintained that they normally inform customers over the phone of their policy. The couple did not book online and were not told over the phone.
The discrimination claim
The couple brought their claim under the Equality Act (Sexual Orientation) Regulations 2007, claiming that they were directly or indirectly discriminated against on the ground of their sexual orientation. They sought a declaration to that effect and also damages.
The Equality Regulations secured “goods and services” protections for lesbian and gay people, protecting them from discrimination. There have been several high profile cases brought as a result, often balancing the right to manifest one’s religion against the right not to be discriminated against.
The High Court in March last year decided a case involving Catholic Care, holding that the Christian charity could not deny adoption to gay couples. The court made clear that despite exceptions in the legislation, those seeking to rely upon religion as a justification for differential treatment will have to provide very strong grounds before a court will hold that discrimination is justified. It ruled:
the respect for the religious beliefs motivating such faith-based adoption agencies would not be likely to constitute a justification of differential treatment in favour of heterosexual couples under Article 14 because of the essentially public nature of their activities
In the Cornish Hotel case, the judge held that article 8 of the European Convention on Human Rights (ECHR), (right to private and family life), article 9, the right to manifest religious beliefs, and article 14, the right against discrimination, were all engaged in this case, and would need to be appropriately balanced.
The hotel denied any direct or indirect discrimination on the basis of sexual orientation, relying on the fact that the restriction applies equally to heterosexual couple who are not married. Evidence did show that the hotel had refused to let a double room to an unmarried heterosexual couple as far back as 1996. The judge, however, found that the hotel owners held a genuine orthodox Christian belief in the sanctity of marriage and of the sinfulness of homosexuality, and whilst they were entitled to the protection of article 9 ECHR, that right is not absolute and can be limited when balanced against the competing rights of others.
The Judge found direct discrimination on the basis of sexual orientation, which he held was a breach of Regulation 3(1) of the 2007 Regulations:
“Regulation 3(4) says there is no material difference between those who are married and those who are in a civil partnership. It seems to me that the restriction does put homosexuals in at a disadvantage when compared with married persons…” paragraph [44]
The hotel owners relied upon two cases (Ontario Human Rights Commission v Brockie [2002] 22 DLR (4th) 174; An Application for Judicial Review by the Christian Institute and others [2007] NIQB 66) that both upheld the proposition that people who hold similar views to those of the hotel owners, should not be free to offer services to the public unless they are prepared to act inconsistently with their own religious beliefs. This they submitted would ultimately replace the legal oppression of one community (same sex couples) with current legal oppression of another (those holding religious beliefs like the hotel owners).
The Judge held that in order to justify the practice which was based on sexual orientation there needed to be a reason
which has nothing to do with sexual orientation (paragraph 51).
He went on to cite example where religious discrimination was justified on grounds of health and safety, such as the requirement to wear a particular uniform at work. Without such a justification, he found that to enable a person to discriminate on the grounds of sexual orientation because it would otherwise be inconsistent with his beliefs, created
a class of persons (namely those who hold the views of the defendants) who are exempt from the discrimination legislation.” (paragraph 52).
The Judge awarded £1800 in damages to each of the men to reflect the injury to their feelings. He also granted permission to appeal. The hoteliers are currently discussing their options with the Christian Institute, an organisation which has funded the case so far.
Some newspapers have suggested that the hotel were set up by the couple with the assistance of a gay rights organisation. The Judge, however, stated he was quite satisfied that there was no evidence of a set up. Whatever the circumstances, this case sends an important message that private beliefs will not always be tolerated if they lead to discrimination. The case may, of course, be appealed.
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Read more
- Previous posts on religion
- Sexual orientation, religion and the courts’ increasingly difficult role
- High Court says Lord Carey “mistaken” on religious discrimination [updated]
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There is an interesting analysis of the wider issue raised by this case, i.e. the correct relationship between law and religion, to be found here –
http://www.guardian.co.uk/commentisfree/belief/2011/jan/22/law-religion-relationship-subtle-clarity
Also, apparently the B&B owners are appealing the decision –
http://www.bbc.co.uk/news/uk-england-12282087
If the Church allowed gay couples to marry in a church then the hoteliers’ arguments fall away. Of course the Church has lobbied long and hard so as to influence the legislature and judiciary to exlude gay marriage from Church blessing. Had it not done this, then this gay couple may well have married in church as distinct from opting for a civil partnership. The judge’s decision in this case is the logical consequence of the Church’s successful lobbying to exclude gay partnerships from church blessing.
Catriona – if I may say so, a very impressive post.
I am not entirely convinced of the argument relating to human rights becoming horizontal.
If by that is meant that the European Convention is becoming more “horizontal” then I doubt it. However, States may have to enact laws which impose obligations on individuals in order to secure human rights generally. Thus there may be a sort of “indirect horizontal effect” though I very much doubt that such a term would “catch on.”
Of course “courts” are public authorities (HRA 1998 s.6) and this might one day lead them to recognise new rights but we seem to be some way off that. s.6 seems to be narrowly interpreted as requiring courts to act in accordance with the convention in relation to the conduct of legal proceedings.
I am also Christian and find much force in what James Hurst has said above. However, religion and law will always intertwine. It must be for Parliament to settle such controversies and not for individual judges.
Then perhaps it is time that religion stopped being used as an excuse to discriminate.
Law has to apply to all people, without exception. Sadly some people of faith feel they should be exempt from laws; this creates an imbalance within society that leads to disorder – and more often than not, people being harmed. An axiom I know, but one so self-evident that people refuse to see it.
Being a Christian (as I consider myself to be) does not entitle one to defy the law and treat people as second class – no matter what our personal beliefs may be. If you run a business, then you have to be subject to the same rules as everyone else.
Anything else is just… madness.
Given the result in Ladele, McFarlane, Eweida, JFS and now this case, it appears that religion is having a very tough time in the courts against discrimination.
The decision was a straightforward one on the facts. Two objections have gained currency in the media. The first is that the B&B operators should have been able to include or exclude anyone they wanted, because it was their home.
The short answer is that they had turned their home into a business for present purposes. Nothing affected whom or what they invited into their house in a private capacity. The fact that they happened to run their business from their home was co-incidental.
The second, and slightly more substantive, objection raised is that this involves their right to freedom of religion being subordinated to the right of homosexuals not to be discriminated against. This is too simplistic. The better view is that the state prohibits discrimination against people – including religious believers – in the “public sphere”, that is, in such matters as employment or business transactions like B&B contracts. It works both ways: if a gay B&B owner refused to serve Christians he or she would be met with the same response. So too if anyone tried the infamous “No Blacks or Irish” exclusion apparently once common in this country.
Far from treating everyone unfavourably, precluding this sort of discrimination is treating everyone equally. It’s the same principle regarding employment, which gains attention from time to time – people shouldn’t be able to opt out of employment duties (unless agreed with the employer from the start) on religious grounds, any more than an employer should be able to refuse employment to people on religious grounds (unless it was material to the job, eg hiring someone to give sermons at a place of worship of whatever sort).
Aside from the religion/discrimination conflict, this case also shows the increasing horizontal nature of rights. Although not an HRA case, this does enforce certain standards on individuals and small businesses, something which the HRA sought to avoid 12 years ago.
http://www.lawthink.co.uk/2011/01/the-hall-and-preddy-case-horizontal-rights/