Analysis | Court of Appeal upholds hotel gay discrimination ruling – Marina Wheeler
19 February 2012
Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 – Read judgment
On 10th February 2012, the Court of Appeal upheld a Judge’s ruling that a Christian couple, Peter and Hazelmary Bull, had discriminated against Martin Hall and Steven Preddy on grounds of sexual orientation when they refused them a double-bedded room at their hotel near Penzance.
For many years, Mr and Mrs Bull had restricted the use of double-bedded rooms at the Chymorvah Private Hotel to married couples. As devout Christians they believed that monogamous heterosexual marriage was the form of partnership “uniquely intended for full sexual relations” and that sex outside of marriage – whether heterosexual or homosexual – was sinful. To permit such couples to share a double-bed would, they believed, be to participate in promoting the sin (single-bedded and twin bedded rooms were available to all).
Denying discrimination, it was argued on behalf of the couple that since their restriction was not directed towards sexual orientation but sexual practice, it did not amount to direct discrimination.
As against this it was argued that the restriction necessarily excluded homosexual couples in a civil partnership (such as Mr Hall and Mr Preddy) and so was a plain case of direct discrimination.
The case required the Court to construe the Equality Act (Sexual Orientation) Regulations 2007 (provisions which are now contained in the Equality Act 2010) and, if this construction led to a finding of discrimination whether this would be compatible with the European Convention on Human Rights (“ECHR”).
The court’s reasoning
In finding that there had been direct discrimination, the Court reasoned thus: a homosexual couple cannot comply with the restriction because each party is of the same sex and therefore cannot marry. The restriction is thus absolute in relation to homosexuals but not in relation to heterosexuals and it therefore discriminates against Mr Preddy and Hall because of their sexual orientation. Put another way, the criterion at the heart of the restriction that the couple should be married is necessarily linked to heterosexual orientation.
The Court stated that it was fortified in this by the fact that the legislature by means of the Sexual Orientation Regulations had recently considered and determined where the demarcation should be drawn by permitting exemptions in certain circumstances for religious organisations . Such exemptions did not however benefit Mr and Mrs Bull: the Regulations, in the view of the Court, reflected a clear decision that those who offer services, especially hoteliers, may not discriminate on grounds of sexual orientation.
Human rights
Having found that the actions of Mr and Mrs Bull did constitute direct discrimination, the next issue was whether such a conclusion was compatible with the ECHR.
The Court had no trouble rejecting the argument that a finding of discrimination would breach Mr and Mrs Bull’s Article 8 right to respect for their private and family life. It found that, on the contrary, to uphold the prohibition against homosexual couples sharing double-bedded accommodation would be to breach that couple’s Article 8 rights.
Article 9, the right to freedom of thought, conscience and religion, was of course at the heart of the case:
(1) Everyone has the right to freedom of thought, conscience and religion: this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one’s beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
At first instance the Judge accepted that Mr and Mrs Bull held a belief that qualified for protection under Article 9 and that their running of the hotel along Christian principles was a manifestation of their religion (and belief). The key question was whether interference with that manifestation could be justified as a legitimate aim and whether the means of achieving it were appropriate and necessary.
In reaching its decision the Court relied on the dicta (statement said in passing) in Ladele v London Borough of Islington and another [2010] 1 WLR 955 and McFarlane v Relate Avon Ltd [2010] IRLR 872 (both of which are currently before the European Court of Human Rights). It referred to Strasbourg case law, cited in Ladele suggesting that Article 9 “primarily protects the sphere of personal beliefs and religious creeds and does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief”: C v United Kingdom App 10358/83.
The Court found that the limitations which the Regulations placed on the Bulls’ manifestation of their religious beliefs were necessary in a democratic society for the protection of the rights and freedoms of others: the Regulations aimed to ensure in a commercial context equality for all regardless of sexual orientation and that civil partnerships were treated as marriage for the purposes of the provision of goods and services. It concluded that the discrimination differed little from that in Ladele: Mr and Mrs Bull were able to manifest their beliefs in many ways outside the commercial sphere.
This decision, followed as it was by a High Court ruling that prayers could not lawfully be held in formal council session, has fuelled criticism that the domestic courts do not adequately safeguard the Article 9 rights of the Christian community. This proposition will soon be tested in Strasbourg in four eagerly awaited cases: Ladele and McFarlane (previously referred to) and: Eweida and Chaplin in which employees were prevented from wearing crucifixes to work.
Marina Wheeler is a barrister at 1 Crown Office Row
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What I find astonishing – primarily from the one-sided responses from Jahiz Jacob [is that really a real name, I wonder?] – is the complete inability to view the situation from the perspective of the offended couple that were turned away from the hotel. What about the harm to their feelings?
Apart from anything else, the law is abundantly clear: any discrimination in the provision of goods and services is unlawful; in such a situation, Jahiz Jacob’s opinion is utterly irrelevant.
As mentioned in the post by Lew above, the hoteliers were perfectly happy to take money from heterosexual unmarried couples. Insisting on refusing the same service to a homosexual unmarried couple is unlawful discrimination. Why is that so hard for Jahiz Jacob to understand?
As for bringing in Arab countries – why do that? Is this some form of Hasbara divert and distract technique in operation?
It is a shame that you think what the law represents is necessarily right. I know libertarian ideas are probably poison to you and many people in the U.K. have gotten used to enforcing their views of how ‘proper’ society should look like onto other people, regardless of whether or not it is right to do so, so I will not waste my time furnishing a full reply.
What about the harm to their feelings? What about the harm to everyone’s feelings in the world? Let’s use the law to make everyone compensate everyone else for things said and done behind closed doors.
Both Stephen and Jahiz have wrongly conflated “public”, in the sense of dealing with members of the public, with “public” in the sense of owned or funded by the state.
A short glance at the statute book will find tens of thousands of pages regulating transactions between private businesses. (Too many, if you ask me, but that’s not the same as saying there should be none at all.)
The distinction between me holding a private party at my own house, which is none of the state’s business (save for tangental things such as noise pollution), and me running a business from my home and promptly specifying no ethnic minorities need apply, is not difficult to grasp.
Of course there will be dubious examples, as I mentioned before. Eg a golf club banned from holding its annual married couples tournament, or a croquet club which could not afford to rennovate its clubhouse because planning permission would be denied unless disabled access was included (meaning no disabled access happened anyway, because they left it as it was) etc etc etc. Indeed you could mount a cogent argument that the very case of the B&Bs constituted an unnecessarily harsh intervention by the state; it was hardly of a piece with “no blacks or Irish” in its scope or intent and the discrimination was indirect – they did not set out to persecute homosexuals as far as I’m aware.
“what would you say about the empirical research that shows that similar anti-discrimination laws have actually increased unemployment for many, for example, disabled and black people?”
Interesting argument. Indeed, one might imagine that some employers will start to avoid hiring minorities because they will be too afraid of being found in breach of anti-discrimination laws further down the line. But you haven’t provided any link to this empirical research so there isn’t anything more to be said.
There is a lot of research on these matters but its a shame that it usually gets blanked out due to a self-righteous bias and a strong bias in the U.K. legal academia, against scientific and empirical research in favor of abstract popular morality. All of us want to engage in noble pursuits but we should judge legislation not by what it claims to do but actually ends up doing.
As for a link, here is one such article but you will find many more if you want to find them:
http://emilyskarbek.com/uploads/Acemoglu_2001_Consequences_of_Employment_Protection_-_Case_of_the_ADA.pdf
Lets suppose that these BB owners, instead of turning away this couple because they were gay, turned me away because I’m Deaf.
Would there then still be any indignant talk about penalising people for their beliefs? Is it OK to say that in a genuinely free society, it’s OK to discriminate against Deaf people? What’s the difference?
A good result.
The case is not even vaguely similar. No religion forbids people from helping deaf people – I have yet to hear of a single discrimination case of people turning away disabled people based on religious edict.
“No religion forbids people from helping deaf people” – do you mean that if there was an obscure passage somewhere in the bible saying that “deaf people are impure” it would be OK to discriminate against deaf people?
I cannot see any other interpretation of what you said, and that is quite sad.
This has to stop: using religious beliefs to justify oppression and discrimination. That happens all the time all over the world and and that is what I think this case is all about.
Personal beliefs should not be above the law just because they are based on something written in the bible or any other religious book.
I suggest you read Leviticus 21:16-23 in the original Hebrew. Those of us with disabilities are considered to be ritually impure and our presence in a Temple, etc deemed sacralege. Would it therefore be acceptable for a Christian business to refuse goods and services to disabled people, people wearing mixed fibres, menstuating women or those who have had contact with them, any person who has recently had contact with a corpse of performed a transplant, etc? I suspect that nowerdays that would be unacceptable, even with the government inspired demonisation of disabled people as ‘scroungers’. In the 1930s my uncle and his parents was barred from the local C of E church, in a well-known village in Lancashire near the moors, because he was disabled and apparently it was forbidden in the Bible!
The reality is that minorities like homosexuals and Muslims held without trial have only acquired any rights through litigation with reference to EU law or the European Convention of Human Rights. When religious minorities, especially Christians were denied basic rights in the old USSR their treatment was rightly condemned as persecution by Christians and others. When some Christians choose to treat other religious minorities and homosexuals in not dissimilar ways we describe their actions as ‘religious liberty’ and enforcement of article 9(2) rights as Christanophobia. Many Christians in the UK do not share the inhospitable beliefs of some fellow Christians towards certain minorities. Moreover as a general principle, the law ought not to prohibit discrimination against Christians whilst allowing Christians to discriminate against others.
Yes, it does seem strange that a private sector organisation is designated as “public”.
Jahiz Jacobs writes: “If in principle, you think this is a good law, then you shall have no basis on which to criticize a law in some Arab countries that bars owners from letting out their private property to unmarried couples. There is absolutely no difference between the two situations except one of cultural relativism.”
(1) Correct, I have no problem with judging anyone else by an objective standard instead of dismissing criticism of certain cultural practises on “cultural relativism” grounds. I wouldn’t suggest anyone in another country should refuse to comment on British affairs either.
(2) If, on the other hand, you think this is a bad law, then consider (a) less than 40 years ago it was commonplace for British B&Bs to have signs saying “no blacks or Irish”, and (b) President Obama’s observation that fifty years ago he would not have been able to get a table in a restaurant in Washington, never mind the top job in the country …
Of course at times any law may have a harsh application (it is hard to imagine that the drafters of the Race Relations Act 1976 ever had in mind its application in the JFS case, for example), but anti-discrimination laws exist for sound, historic reasons.
(3) The key point here, as others have observed, is that they were offering their premises for a business. What happens in their own home as such is their own business. But if they are transacting with the public then they will be required to abide by the laws of the land including not selling alcohol to minors, complying with hygiene laws and not discriminating against others on prohibited grounds, all irrespective of their religious or other beliefs.
I think a fundamental disagreement I would have is with your assumption that somehow when one engages in business, he is engaging in public service akin to the civil service or something – this elevation of business from the confines of private to the public sphere I cannot understand. If he is using public money to run the business, sure, but otherwise how do you explain this?
And would it bother you that good, honest people like the couple in this hotel case will refuse to enter the hotel business or suffer financially because they do not want to engage in business that contradicts their religious belief?
And what would you say about the empirical research that shows that similar anti-discrimination laws have actually increased unemployment for many, for example, disabled and black people?
Excuse me for imposing but Mr Jacob has asked repeatedly what cost society would incur in non-abstract terms if this couple had been allowed to discriminate according to their prejudice. As a gay Irishman, I think Mr Jacobs is being somewhat purblind to the entire recent history of civil rights movements. Let me speak plainly as a non-lawyer, and hopefully Mr Jacobs will be satisfied. I don’t think it’s too hyperbolic to say that casual discrimination can cause very deep and very widespread discontent not only to the people discriminated against directly, but also among their kin. Various purportedly moral justifications for such discrimination have been proffered in the past. If those justifications are upheld, then rightly or wrongly, the “society” whose court upheld them is seen a responsible collectively. Now read Irish republicanism, Dalston/Brixton riots, Apartheid and Stonewall. The latter may seem like an odd one out by I would respond that each of these movements involved uprisings of people discriminated against on the basis of an accident of birth, however hot they became.
What also leapt off the screen was Mr Jacobs’ assertion that this pair were “good, honest people”. Allow me to wonder, since the bar has been lowered, whether he assumes these people are “good” and “honest” because they are religious. This would seem a bit of a stretch. For one thing, their honesty has been called into question by the National Secular Society, which reports that a doctor and his female partner, unmarried, stayed at that B&B and were not asked about their marrital status.
Allow me to wonder too if these people weren’t themselves exploited to some extent by the religious ambulance chasers at the Christian Legal Centre, which boasts some 40 cases on its books at the moment of supposed discrimination against Christians, and seems concerned less about justice than with the rather more tricky matter of saving souls.
Lew – apartheid is not a good example because that was state sanctioned discrimination. Also, you mistake my argument for being one that supports discrimination.
Let me be clear, I am against all forms of discrimination, but I do not believe that my disapproval or disgust with certain behaviour gives me the right to use other people’s money (taxation) to coerce and penalize “good, honest” people into running their business how I might want them to run it (and when did I say “good, honest” derives from religious?). By the use of the term, I only take it to mean, people who do not otherwise actively set out to harm others, regardless of whether they be Christian or atheist. Let us not use the word “exploit” and “justice” lightly when using other people’s money to enforce our beliefs. A better sanction would be to publicize the couple’s behavior and write about their “injustice” in the press and punish them through non-legal means rather than divert money that could be used to help build hospitals and schools towards punishing them.
If you are really concerned about hotels discriminating against gay people in their private property or business, should you use coercion to punish them? No, in my opinion, never. Just like I would not support a law forcing a gay person to rent out a room to a homophobic, I would not support a law forcing a homophobic to serve a gay person.
“If a couple does not want to let out the bedroom to a homosexual couple, it is they who will suffer a financial loss, not government or society, the cost is completely internalized”
This argument assumes that the only cost worth considering is a financial one. The ‘costs’, to use your language, that are at the heart of this are not simply financial (although finances may well play a part in various ways) but about our rights, as individuals. The court has to look at these wider rights, on both sides of the argument, and try to find the right balance. I don’t envy them, but I’m certainly glad they are not just looking at this from a financial perspective.
What about the right to earn wages in a way you like and use them in pursuit of a life according to your values? Was there no other hotel within a 5 mile radius allowing homosexual couples the right to board? Is there nothing shameful about forcing people to run their business in specific ways. I have asked again and again what cost has been imposed on society to no avail when an owner discriminates in his own private property.
As someone who believes in individual liberty, I do not think it is morally defensible to use public money (including the hotel owner’s taxes) to force the hotel owners to run their business according to how other people want when all they done is refuse to confer a benefit on someone, at their expense. You may disagree based on abstract principles of justice, which is fine.
If I don’t believe in hygiene, I am free to live in dirty in my own home. However, if I run my home as a B&B, it is reasonable to expect that I meet minimal hygiene standards, despite of my personal beliefs.
In other words, everybody is free to discriminate against whoever they want in their own home, however when they convert their home to a business that makes money, they should abide by the law and treat everybody equally. It is not that difficult to understand.
If in principle, you think this is a good law, then you shall have no basis on which to criticize a law in some Arab countries that bars owners from letting out their private property to unmarried couples. There is absolutely no difference between the two situations except one of cultural relativism.
Good response from Jahiz Jacobs. In a genuinely FREE society, why re these people to be penalised for their beliefs? This a serious question which merits a very serious answer.
I completely agree, and that is why Article 9 is drafted in such a way to allow someone to do what they like with their property in line with their religious convictions, but only in the private sphere.
The moment it touches and affects society, in the interests of democracy, it should be regulated in a way to satisfy the majority.
Assuming you are right, who are the majority?
It is a shame how people, spending their own money, within private property cannot decide how they wish to utilize their property. If a couple does not want to let out the bedroom to a homosexual couple, it is they who will suffer a financial loss, not government or society, the cost is completely internalized. Therefore, in the absence of such harm, what business does the state have to interfere in people’s personal habits and force them to live their lives in satisfaction of the majority? As someone who detests discrimination, I would try to persuade the couple, not coerce them into doing what I think is right.
“it is they who will suffer a financial loss, not government or society” – when discriminatory actions are allowed to be carried out in the public sphere then it is society’s loss. Discrimination is harmful, and it is harmful to live in a society where discrimination is allowed in the public sphere.
Can you please specify in non-abstract terms specifically what was the loss society suffered (quantifiable in economic terms) when two people wish to run their private business in accordance with their beliefs. What exactly is this harm to society that you are regulating against I am curious to know – except perhaps your opinion of how society should look like. And on what basis do you call people’s private business the “public sphere”?