The thorny issue of religious belief and discrimination law (again)

Black & Morgan v. Wilkinson (unreported, 18 October 2012, Slough County Court) – Read judgment

The Christian owner of a B&B in Berkshire was found to have discriminated against a gay couple by refusing to allow them stay in a double-bedded room because of her belief that all sexual activity outside of marriage is wrong.

Although a county court judgment, this case has been splashed all over the headlines, partly because of BNP leader Nick Griffin’s comments on Twitter (about which see more below) but also because it is so factually similar to the high-profile case of Bull v. Hall and Preddy which is currently before the Supreme Court (see our analysis of the Court of Appeal judgment here). This judgment has also come along at a time when the European Court of Human Rights’ decision is awaited in the four conjoined cases of Ladele, Eweida, Macfarlane and Chaplin, all of which involve issues of religious freedom and two of which involve the same potential conflict between the right not to be discriminated against on grounds of sexual orientation and the right to religious freedom (see our posts here, here and here). Moreover, Recorder Moulder’s comprehensive and careful judgment has helpfully been made available online (see link above), so it can be considered in detail.

Some novel points

There were two elements which made this case different from Bull v. Preddy. First, Mr Morgan and Mr Black are not in a civil partnership, whereas Mr Hall and Mr Preddy, the claimants in the Bull case, are. Mrs Wilkinson said this was an important difference, because it meant the correct comparator for a discrimination claim was an unmarried opposite-sex couple, and she would also have refused to allow such a couple to have a double bed. However, Recorder Moulder considered that the decision in Bull was not dependent on the fact that Mr Hall and Mr Preddy were civil partners, and thus she was bound to follow the Court of Appeal.

He also noted that, if she were wrong about that, it would still be direct discrimination using an unmarried comparator as it appeared Mrs Wilkinson had allowed unmarried opposite-sex couples to share a bed on a few occasions because she had not found out, until it was too late to refuse, that they were unmarried (see para 44).

[One interesting side-issue to note from this judgment is that much turned in Bull, and therefore in this judgment as well, on the fact that same-sex couples cannot get married, so discriminating on the grounds of marriage was in effect the same as discriminating on the ground of sexual orientation. On the other hand, Recorder Moulder referred to regulation 3(4) of the relevant Equality Act (Sexual Orientation) Regulations 2007, which provides that there is no material difference between marriage and civil partnership. This seems to contradict Bull. If, as is proposed, same-sex ‘civil’ marriage is to be introduced, but not ‘religious’ marriage, this issue might become even more complex (particularly as it is unclear what the difference would be between the two).]

Second, the ‘Swiss B&B” which Mrs Wilkinson owns has its guest bedrooms in the centre of the family home (unlike the Bulls’ B&B where the guest bedrooms were in a separate part of the house) . She argued that this meant her B&B was not a hotel or boarding house for the purposes of regulation 4(2)(b) of the Regulations. However, Recorder Moulder held that, although different to a hotel or boarding house, the Swiss B&B is clearly a commercial venture and is a “similar establishment” to a boarding house, so did fall within regulation 4(2)(b).

Alternatively, Mrs Wilkinson argued that because she treated guests as if they were part of the family, her B&B fell within regulation 6(1), which exempts from the scope of the Regulations:

anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons or persons requiring a degree of special care and attention

Recorder Moulder did find that Mrs Wilkinson provided a personal and caring, even loving, service to her B&B guests. However, this did not fall within a straightforward reading of the regulation, which is intended to cover people (such as children) who are taken in as if they were family and/or require special care and attention. B&B guests such as Mr Morgan and Mr Black did not fit into this category.

Recorder Moulder therefore held that the Regulations did apply to the Swiss B&B and there was direct and indirect discrimination, following the decision in Bull. The final stage was to consider whether this effect of the Regulations was in breach of Mrs Wilkinson’s Article 8 (private and family life) and Article 9 rights (religious freedom) under the European Convention. After considering the case-law and the circumstances, he held that whilst Mrs Wilkinson’s Article 8 and 9 rights were interfered with, such interference was justified because Parliament had decided the approach to be taken where rights conflicted in this way and its decision should be deferred to (see para 103).

Unsurprisingly, given the fact that Bull is currently before the Supreme Court, Recorder Moulder granted permission to appeal.

Comment

Given the current case-law it is not surprising that Recorder Moulder reached the conclusions he did. It is up to the Supreme Court or European Court of Human Rights to change the approach taken thus far to these cases.

There does seem to be a good argument for a different approach to cases where religious belief clashes with discrimination law (as has been suggested previously on this blog). At present, the impression given by the courts is that Article 9 is about the least effective part of the European Convention. Although the protection of the holding of a belief under Article 9(1) is absolute, the protection of manifestations of belief under Article 9(2) is interpreted so narrowly as to have almost no impact at all in relation to whole swathes of public life.

As the UK Government argued before Strasbourg last month in Ladele et al, the reading of Article 9(2) by the European Court in previous cases has the effect that if people find their religious beliefs conflict with their jobs, they should either ‘leave their beliefs at home or get another job’. Article 9 will not help them. The practical effect of decisions like Bull and Wilkinson is that, at least in relation to some issues, self-employment is no escape either – if people find their beliefs conflict with their customers’ beliefs, they should either keep their beliefs to themselves or start a different business.

Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the mosque/church/synagogue/temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.

But the principle of non-discrimination on grounds of sexual orientation is also hugely important, and carving out exceptions would make it meaningless. Reconciling the two is difficult, but there must be a means of doing so that ensures religious freedom is more than just the freedom to believe what you want in private, and which celebrates and protects the fact that we live in a society which tolerates all kinds of different belief systems.

Postscript – how to debate these issues (and how not to)

The manner in which the parties in this case have gone about resolving their dispute stands in stark contrast to many would-be ‘supporters’ of either side. Whilst Mrs Wilkinson was firm in her refusal to offer a double bed to Messrs Black and Morgan, they confirmed that she was “polite and courteous” and said she would have offered them single rooms had any been available. Mr Black and Mr Morgan did not kick up any huge fuss, but simply had their deposit returned and left. The case itself appears to have involved very little argument over the facts, turning almost solely on careful legal argument.

In contrast to the measured way that both sides dealt with this, Mr and Mrs Wilkinson described last month how they and their children have been subjected to months of hate mail, death threats and fake negative reviews about their B&B on TripAdvisor by various anonymous ‘supporters’ of Mr Black and Mr Morgan’s position.

Then on Thursday Nick Griffin of the BNP tweeted Mr Black and Mr Morgan’s address and appears to have threatened them with reprisals as a result of this judgment. Thankfully the couple do not seem too frightened by this – calling the threats a ‘damp squib‘ . Mrs Wilkinson also immediately issued a press release expressing sympathy for the couple and condemning Mr Griffin’s comments.

Given that the issue of how best to reconcile religious beliefs with discrimination law does not seem likely to go away any time soon, it is to be hoped that the debate will be carried out in the style of Mrs Wilkinson, Mr Black and Mr Morgan, rather than that of Mr Griffin and the anonymous trolls who made Mrs Wilkinson’s life so unpleasant.

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27 thoughts on “The thorny issue of religious belief and discrimination law (again)

  1. The “private home” aspect cannot be wished away. People who take in a lodger have, ever since the first Race Relations Act, been allowed “if they must” to refuse an applicant on racial grounds, and however painful that may be to the applicant, privacy trumps equality: just as it does in the case of the gentlemen’s clubs, the Women’s Institute, the London Welsh, and similar associations. These cases of a business run in the home are right on the cusp, and for my own part I would prefer a narrowly drawn exception.

  2. I agree a family should not be subject to discrimination law on lodgers, i.e. those that use the accommodation as their home and it becomes their address. But for casual vacancies, whatever the house layout, the law should apply, otherwise the B&Bs would also be allowed to display “no gays” signs. Such rejection, including signage, would be deeply hurtful to those affected and sends an message unacceptable in terms of the law’s declaratory role.
    Mr Henderson does not seem to me to give enough weight to this.
    It is none of Mrs Robinson’s business what people lawfully do, or don’t do, behind closed doors in her house as part of a contractual arrangement. She is able to manifest her beliefs in her place of worship and with her family, and she is not being forced to have sex with anyone out of marriage; her Article 9 rights are not compromised.
    If this case (or indeed Ladele and McFarlane at the ECtHR http://www.secularism.org.uk/uploads/nss-intervention-to-european-court-of-human-rights.pdf ) were to reverse the law, it would create a hierarchy of rights with religion at the top and hugely undermine the equality laws of which we are rightly proud. Then someone who disapproved of mixed race couples could send them packing too, provided they waived the religious flag. And the Christian conscience of Lillian Ladele, the Islington registrar, that prevented her conducting same-sex civil partnerships didn’t prevent her from solemnising marriages involving divorcees, Curious, that.

  3. What if the B&B owners were Gay and refused accommodation to two Christians because they believed them to be anti-Gay/homophobic and therefore this clashed with their fundamental beliefs. The law would also protect the Christian couple from such discrimination/prejudice based on religious beliefs on a similar basis.

    The ECHR protects people from discrimination on grounds of their religion or belief (Article 9), but does not allow people to use their religion or belief to undermine the human rights of others (Article 17) e.g. the right not to be discriminated against (Article 14). The UK courts are currently following these principles and I doubt very much if the ECHR will change this in the cases currently before them.

  4. Keith, the point is that she was not free NOT too sign the contract with them, just like faith organisations have no right not too accommodate trade unions opposed to their beliefs, despite TUs being a philosophical belief. TUs are an atheist privledge. Religious workers should have the same right to withdraw their labour to consentual acts as athiests workers. All consentual acts are manifestations of the forum internum, and so are beliefs. Paul, thats not quiet true, if say Eweida went to a B&B, and they had a no crucifix policy, they could turn her away.

  5. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the mosque/church/synagogue/temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.

    Yes and how things have changed. I remember my mother’s story. When she trained to be a physio in the early 50’s she lived away from her parents in a bigger town. Before she got married, she had to go every Sunday morning (in hat and gloves), to church. She had no religious belief, but to keep her training place, then her job and her lodgings she had to know tow to the society around her and be a ‘respectable’ woman, seen in church every Sunday.

    People who want to force others into complying with the often bizzare rituals set down by their particular religion are always about. Things have changed and their power has eroded considerably. Now they squeal.

    The law must not allow the religious to use their economic and social power to force other people to put on another face, in any aspect of their lives. This certainly includes when they wish to buy non-religious services from others.

    And as a further point, I happen to know several B&B owners. As they run their businesses all year long, the bulk of their trade, even though they are near the sea, is commercial travellers and people who use then to hold down jobs away from where they have permanent homes. The owners would certainly say, – as I have people who come here, week in week out for months, sometimes at a certain period for year after year, I try to provide a home away from home for them – but its not my job to patrol what I might think of as their moral lives. I’m running a business.

    The debate has got a bit skewed, as I think the average lawyer just thinks of a B&B as some sort of small hotel for a quick weekend in a rural area, and the average user is just on a jolly.

  6. Good article, but the suggestion that religious freedom should mean some freedom from the law doesn’t hold up.

    Even if we were so inclined there is no way to allow ‘just a little religious discrimination’. Any rule allowing Christian beliefs to override the law where it conflicted would have to be extended to all religions. Unless you plan to make a law defining which beliefs are valid.

    I’m sure we could all think of ludicrous and hateful consequences. ‘Decent Christian’ drivers who won’t allow Muslims on their bus, ‘Devout’ Muslim High Street shops that won’t serve woman with their faces uncovered. Perhaps B&B owners could refuse to allow female guests who were not ‘sewn up’.

  7. I’m not a person with legal training, so it may be this comment is entirely irrelevant (if so, apologies). It occurred to me while reading Alasdair’s comments on the law’s promotion of “private values” vs “work and marketplace actions”, that there may be a parallel with immigration judgements in which, I believe, LGB applicants have been told fear of persecution on grounds of sexual orientation offers insufficient grounds for right to remain as they have the option to “be discreet” about their orientation. I’d be really interested to read opinions on this. 

    Either way, many thanks for an interesting and informative blog.

  8. Well, Panikos, do you say that the rule which excludes genuine lodgers – long-term residents in somebody else’s spare bedroom – from protection if that somebody else does not want gays, black people, Irish people, whatever it may be, in their homes, should be abrogated?

    That rule represents in your words ‘just a little religious discrimination’ – and may be hateful and hurtful – but that is the price we pay for protecting the privacy of the home, which is also an important social and legal value.

    And the gentlemen’s clubs and WI represent freedom of association, which is another important social and legal value.

    Those values are like freedom of expression – they don’t only apply to the liberal bien-pensant elements of society. Once you accept that there is a balance of rights there will be winners and losers depending where you draw the line.

    I agree with Keith that the B and B cases are not identical to the long-term lodger case. The latter case falls firmly on the personal privacy side of the line; the former is on the cusp, and I can’t admit to being greatly troubled about which side wins. But then, I am not gay and I am also not a religious owner of a B and B!

  9. Mr [edit – Henderson] makes a very good point, in my view, when he says,

    “Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace.”

    Power is the freedom to curtail someone else’s freedom. Perhaps analysing these issues in terms of power and freedom can help resolve some of these issues.

    In the workplace or the marketplace, the respective positions of the parties are rarely equal. Generally one side has more power, either legal or economic, than the other. In my view, freedom should, where practicable, prevail over power and this rule may suggest a way forward in resolving conflicts between Articles.

    The marketplace
    In the B & B cases, of course, it is feasible to argue that the host parties had no more economic power than the guest parties – the latter were able to find an alternative place to stay.

    However, it the law finds in favour of the hosts (the B & B owners) then it effectively confers power on them. The freedom of the guest party to choose, compared to a heterosexual couple, is restricted as a consequence. So from a Libertarian perspective the decision must favour the guests (the gay couple).

    The workplace
    In the case of employees, power invariably rests with employers. This is because employment law has its roots in a “master-servant” relationship – a clear power relationship if ever there was one

    If freedom is to trump the application of arbitrary power, then In cases where employees wish to wear religious insignia, absent substantive business objections. the Courts should should side with employee Article 9 rights. This conclusion is relatively easy to arrive at because there is no clash with any employer Article rights as may occur in marketplace transactions..

    It is too easy to forget that the ECHR stands for human rights and FUNDAMENTAL FREEDOMS. The right to manifest is a fundamental freedom although one could be forgiven for missing this point as as Mr Wagner observes in his comments above,

    “At present, the impression given by the courts is that Article 9 is about the least effective part of the European Convention. Although the protection of the holding of a belief under Article 9(1) is absolute, the protection of manifestations of belief under Article 9(2) is interpreted so narrowly as to have almost no impact at all in relation to whole swathes of public life”

  10. Andrew, If having a lodger is just a business arrangement then I don’t think it should be legal to discriminate on race, politics, gender preferences and so on. You are exchanging part of your home and privacy for money.

    Now if a lodger is part companion and part paying guest then that might be different.

    I would say that it was about relevance. If I need a worker who can reach the top shelves in my shop I can ask for a tall person. That’s not discrimination against short people because it’s a necessary part of the task.

    So we might argue that a single woman would prefer a female lodger. Having a man around might mean she would feel constrained to be fully dressed on the way to the bathroom etc. A clearer thinker might ask for women or homosexual men in that case, but still there is an argument there that the gender is relevant.

    If you are just renting rooms out to strangers then their personal relationships are not relevant to the arrangement.

    In the case of clubs for men, women, chess players etc the purpose of the club is to associate with that category of person, so once again it is relevant.

  11. Quite a well-measured article, and I liked the bit at the end emphasizing the positive aspects of how the litigation and reporting were conducted, but this bit was pure horsefeed:

    “Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the mosque/church/synagogue/temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.”

    Belief is and should be protected, but actions aren’t and shouldn’t be. If beliefs manifest themselves as actions which infringe the lawful rights of others, such as the right not to be discriminated against on the grounds of sexual orientation, that’s wrong. Is that a difficult concept?

    We all have to keep our opinions to ourselves occasionally, be they views on clients, colleagues or members of the public. If those views manifest themselves, with the result that someone’s lawful rights are infringed, we must accept the consequences. The non-religious are expected to justify their prejudices: a non-believer who wanted to discriminate against homosexuals simply because he didn’t like them would reveal himself for what he was – prejudiced.

    The religious, however, are often not expected to justify their prejudices. But they must be because all of us – believer and non-believer – are and must remain subject to the same law if “human rights” is to mean anything at all.

  12. To me, it’s very simple – if you are charging money for people to stay in your home then you abide by the rules. This couple don’t want certain people to stay in their place so don’t run a B&B – simple.

    On a lighter note, many years ago my school friend’s parents bought a B&B – they were surprised that most of their guests were gay men – but also delighted to be full….the previous owner had not cancelled their ad in a gay magazine.

  13. It’s sad that our days have become so intolerant that people mainly describe not how the law should work, but whether or not they hate the victims of it.

    The issue is not, I beg to suggest, a thorny one. We have a whole bunch of new laws, unknown in previous history, all of which interfere wildly with the lives of ordinary people by obliging them to believe (or not believe) various things, and observe those novel beliefs. What we are seeing here is the downstream consequence of passing laws about ideology.

    We have been here before. What else were the Test Act, the Act of Uniformity, etc? Where only people willing to say the Right Things could do this, could live here; and dissenters were subjected to legal penalties and (more) harassment? I remember from Pepys diary a telling entry, where these acts were to be brought into the House of Lords and applied to their lordships; who suddenly discovered that the acts were oppressive, once they would be affected by them themselves, and introduced various alleviations and modifications. Doubtless they too would have described the problem as “thorny”.

    How is it that in England we have reintroduced these evil pieces of legislation, made for evil purposes. Indeed I recall from Augustine Birrell that the wretch who framed one of them boasted that it would damn one half of England and starve the rest.

    It is almost a litmus test for oppression, whether a state interferes with the Christians. Any free state finds no difficulty in leaving these peaceable folk alone. Any oppressive state cannot avoid dragging them through the courts.

    My suggestion is that all this “anti-discrimination” legislation is abolished. All of it interferes with the principle of equality before the law. All of it involves the power of the state being used to force individuals to do things which they may well believe are perfectly justified, and are certainly no business of David Cameron, or a bunch of people in London.

    Until this is done, our courts will be filled with harmless ordinary people like Mrs W., and her well-funded, well-connected tormentors, their agents provocateurs, the malicious, the informer, and other creatures of the night. They are not lacking in these comments, indeed, I notice.

  14. I cannot agree with Roger’s sentiments above that ‘all this “anti-discrimination” legislation..[should be]… abolished.’ I can still remember the days when accommodation vacancy cards in shop windows read “No blacks, Irish or dogs”.
    If we abolish anti-discrimination legislation, we risk returning back to the bad old days when such discriminatory practices – which were hurtful and upsetting for many perfectly innocent people – would become re-enshrined into our belief systems. Having packed-off the bad old days, let them stay buried.
    There is another aspect to this debate which does involve the current case. Most recently, we have seen individuals whose religious beliefs have been “offended” engage in unlawful activities leading to the deaths of others; I refer, of course, to the recent apparent outrage at the making and publication of the film known as “The Innocence of Muslims”. I have no idea as to what was portrayed in the film and I suspect the vast majority of those who rioted over the alleged contents of the film did not either. This absence of knowledge, however, did nothing to stop their religious leaders from urging their followers to take actions which led to large-scale deaths and injuries for other innocent individuals. What we need to learn from these sorry events is that allowing religious beliefs to attain a position of superiority in any society can only lead to eventual widespread anguish and suffering for substantial minorities of all kinds.
    This may yet happen again. Europe was torn apart for well over a century during the 16th and 17th Century religious wars. If the European courts give a green light to religious persecution, we could yet all find ourselves living in another era of religious oppression and persecution. I hope the European judges remember that we ended up choosing a secular way of life for a very good reason – that way we all keep our lives and beliefs, however imperfect.

  15. Just a quickie on religion and discrimination.

    It is a tenet of many religions to condemn homosexuality. It is not a tenet of religion to condemn people on the basis of their race, religion, creed, nationality, colour, or gender. Sexual orientation is the only protected characteristic that clashes with religious belief and Article 9.

    It is unlikely therefore that affirming an Article 9 right to discriminate in cases of sexual orientation would open the door to discrimination against other protected groups.. So although this gateway argument is often put forward, there appears to be no logical basis for it.

    That is not to say that an Article 9 right to discriminate should be affirmed; it is simply to say that the gateway argument is fallacious.

  16. The idea that religion and discrimination are two separate entities is fundamentally flawed. For this simple reason, I do not know of any religion that says one has a right to discriminate whether directly or indirectly against another because of their individual beliefs or practices. Indeed, each scripture makes clear reading that such acts or conduct is an anthesis of any religious virtue.

    However, religion does have a moral code which emphasis how one should live and behave in society, but this code is for each person to consider without any compulsion or rendition. And so where individuals hold such religious convictions this must not be a dictat or an yardstick in which to discriminate in public or private; there is a difference between observing a religious doctrine and blatant disregard of that doctrine through discrimination.

  17. I am concerned with the judge’s interpretation of the ‘special care and attention’ exemption to the Equalities Act.

    Regulation 6(1): ‘regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.’

    The judge explains that: ‘In my view the correct interpretation is that “how” a person treats the relevant categories is “as if they were members of the family” and “who” is so treated are children, elderly persons and persons requiring a special degree of care and attention. Accordingly it seems to me on a straight reading of the regulation 6 (1) that this exception applies only to “children, elderly persons or persons requiring a special degree of care and attention”.

    He sees ‘children, elderly persons, or persons requiring a special degree of care and attention’ as a strict qualification of which members of the family would incur the exemption. Whereas defendants read these as examples of familial treatment under a commercial (or non-commercial) arrangement that might involve the use of one’s home.

    The key to understanding the exemption is to ask, ‘under what sort of arrangement for reward is a person taken into your home and treated as a family member is treated?’

    The judge says the claimants are neither children, nor elderly, nor *require* special care and attention. However, the sentence expressed explicitly would be: ‘takes into his home, and treats them *as he would if* they were members of his family’

    The focus of the exemption is on:
    1) where the commercial arrangement takes place: one’s home;
    2) treatment of that person *as if* they were a member of the family, etc.

    So, can anyone show me any other commercial arrangement in one’s own home that might fall into this form of familial hospitality, apart from a home-based B&B, bed-sit, or caring arrangement. As far as I’m aware, there are none. The purpose of the exemption is to exclude any impositions on one’s personal domain of family life, even where there is a commercial element to the arrangement.

    Strangely, when the judge considers a part of the regulation relating to its applicability to specific businesses, he uses,
    ‘paragraph 1 applies in particular to (b) accommodation in a hotel, boarding house or similar establishment…’ to *extend* to B&B’s which are not explicitly mentioned, not limit the applicability of the regulation.

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