Supreme Court upholds gay discrimination ruling in hotel case
27 November 2013
Bull and another (Appellants) v Hall and another (Respondents) [2013] UKSC 73 (27 November 2013) – read judgment
This appeal concerned the law on discrimination. Mr and Mrs Bull, the appellants, own a private hotel in Cornwall. They are committed Christians, who sincerely believe that sexual intercourse outside traditional marriage is sinful. They operate a policy at their hotel, stated on their on-line booking form, that double bedrooms are available only to “heterosexual married couples”.
The following summary is taken from the Supreme Court’s press report. See Marina Wheeler’s post on the ruling by the Court of Appeal in this case. A full analysis of the case will follow shortly.
References in square brackets are to paragraphs in the judgment.
The respondents, Mr Hall and Mr Preddy, are a homosexual couple in a civil partnership. On 4 September 2008 Mr Preddy booked, by telephone, a double room at the appellants’ hotel for the nights of 5 and 6 September. By an oversight, Mrs Bull did not inform him of the appellants’ policy. On arrival at the hotel, Mr Hall and Mr Preddy were informed that they could not stay in a double bedroom. They found this “very hurtful”, protested, and left to find alternative accommodation.
In March 2009 the respondents, supported by the Equality and Human Rights Commission, brought proceedings against the appellants under the Equality Act (Sexual Orientation) Regulations 2007 (“EASOR”). Regulation 4 EASOR makes direct or unjustified indirect discrimination on the grounds of sexual orientation unlawful. Regulation 3 EASOR defines discrimination. Regulation 3(1) states that direct discrimination exists where person A treats person B less favourably then others on the ground of B’s sexual orientation. Regulation 3(3) states that indirect discrimination exists when person A applies a general policy or practice to person B and others not of B’s sexual orientation, which puts B at a particular disadvantage compared to those others, and the policy or practice is not reasonably justified by reference to matters other than B’s sexual orientation. Regulation 3(4) provides that for Regulations 3(1) and 3(3), civil partnership and marriage are not to be treated as materially different.
The respondents argued that the refusal to provide them with a double bedroom was unlawful under Regulation 4 EASOR. The appellants contended that their actions did not constitute discrimination under either Regulation 3(1) or 3(3) EASOR since they differentiated not on the basis of sexual orientation, but on marital status. They also suggested that EASOR should be applied compatibly with their right to manifest their religious beliefs under Article 9 of the European Convention on Human Rights (“ECHR”).
In the Bristol County Court, the judge held that the appellants’ actions directly discriminated against the respondents under Regulation 3(1). The Court of Appeal unanimously dismissed the appeal against the judge’s decision.
Mr and Mrs Bull appealed to the Supreme Court. They argued that (i) their policy did not constitute direct discrimination under Regulation 3(1) (“direct discrimination”); (ii) that their policy did constitute indirect discrimination, but that indirect discrimination was justified (“indirect discrimination”); and (iii) that if their policy did contravene EASOR, EASOR should be read and given effect compatibly with their Article 9 ECHR right of freedom to manifest their religion (“the ECHR issue”).
Judgment
The Supreme Court unanimously dismissed the appeal. The leading judgment was given by Lady Hale, with supplementary judgments from all other members of the Court. On point (i) direct discrimination, Lady Hale, Lord Kerr and Lord Toulson held that the appellants’ policy constituted direct discrimination on grounds of sexual orientation. On point (ii) indirect discrimination the Court unanimously held that if the appellants’ policy constituted indirect discrimination, it was not justified. On point (iii) the ECHR issue, the Court unanimously held that EASOR engaged Article 9 ECHR, but was a justified and proportionate protection of the rights of others. There was therefore no breach of Article 9 ECHR which would require EASOR to be read down in the way the appellants suggested.
Reasoning behind the judgment
(i) Direct discrimination.
According to Lady Hale and Lord Toulson: the appellants’ concept of marriage was the Christian concept of the union of one man and one woman [25]. Civil partnership is a status akin to marriage, and the criteria of marriage and civil partnership are indissociable from the sexual orientation of those qualifying for the particular statuses [29, 67]. All married couples would be permitted a double bedroom by the appellants, while no civilly partnered couples would be [29]. Regulation 3(4) reinforces this conclusion [26, 70]. The Court’s judgment does not favour sexual orientation over religious belief: had the respondents refused hotel rooms to the appellants because of the appellants’ Christian beliefs, the appellants would equally have been protected by the law’s prohibition of discrimination [54]. According to Lord Kerr: but for Regulation 3(4), the discrimination would have been indirect. The relevance of Regulation 3(4) is that the respondents were to be treated as not materially different from a married couple [57-59]. Given that, the only remaining reason for the respondents’ treatment by the appellants was their sexual orientation [60]. Lord Neuberger and Lord Hughes reached a different conclusion. It was correct that, had the case concerned only discrimination against the unmarried, the appellants would have discriminated only indirectly [74]. However, the respondents’ civil partnership did not convert this into direct discrimination [75, 87]. The appellants would have treated an unmarried heterosexual couple in precisely the same way that they treated the respondents [77, 90-91]. Regulation 3(4) did not provide the answer to the question whether the appellants’ treatment of the respondents was on grounds of their sexual orientation [78, 92].
(ii) Indirect discrimination.
The appellants accepted that their policy constituted indirect discrimination [33]. The question was whether it was justified. It was difficult to see how A’s belief that sexual intercourse between civil partners is sinful could be justified by reference to matters other than B’s sexual orientation, since definitionally such intercourse was between those of the same sexual orientation [35]. Moreover, it was in the public interest to encourage stable, committed, long-term relationships, whether homosexual or heterosexual [36]. The purpose of EASOR was to secure that those of homosexual orientation were treated equally. There was a carefully-tailored exemption for religious organisations in Regulation 14 EASOR, which did not extend to the appellants [38].
(iii) The ECHR issue.
The appellants’ rights under Article 9(1), which protects the manifestation of religious belief, were engaged [44]. However, EASOR’s interference with those rights was justified as a proportional means of achieving a legitimate aim: the protection of the rights and freedoms of people such as the respondents [51]. There was therefore no need to read down EASOR [42].
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Richard: before 1967 would you have said “the law is the law is the law” so that a man who was sexually attracted to other men should remain celibate?
If not, what is the difference?
I have said that I accept that you cannot in practice treat new and old hoteliers differently. But I remain of the view that Ms Ladele was badly treated. Other districts where there were registrars of her view managed to cope by sharing out the work – including Brighton which nobody will be surprised to learn had a lot of c.p. ceremonies in the early months. If once in a while a c.p. couple could not have the day they wanted – well, that happens to wedding couples too.
If I were getting married or going into a c.p. I would not want to have to wonder whether the Registrar, be s/he never so polite and professional, thought we would roast in hell. I would not invite a guest or relation who thought so and I would regard the registrar as the wrong registrar for the job in hand. I hope that if there are any registrars now in office – newcomers are obviously different – who are content with civil partnership but cannot in good conscience do a same-sex wedding (and there cannot be many) the registration authorities will discreetly and without making an issue of it allocate them more weddings instead so that nobody’s conscience is under attack and everyone gets a registrar who does not internally disapprove.
Would that not be better all round?
@Neil Addison,
If the Halls believed that providing a double room to a same-sex couple would make them complicit in an immoral act, then they should have immediately ceased their bed and breakfast business when the Equality Act (Sexual Orientation) Regulations 2007 came into force in April 2007. Those Regulations made it crystal clear that you could no longer treat people differently in the provision of goods and services because of the sexual orientation of the people. This includes limiting double rooms for married opposite-sex couples because that rule means that same-sex couples would never be able to get a double room.
If the law changes so that it requires you, as the owner of a business, to do something you don’t want to do, then stop running that business. Or campaign against the law. Or challenge it in court. You cannot simply disobey the law and then complain when, upon breaking it, the victims seek redress in the court as they are entitled to do so.
The British Courts have simply applied the law as it is, and how the European Convention on Human Rights (so far as it is relevant) has been interpreted in Strasbourg. Your issue is with the law itself, not the court’s rulings.
Richard, I suppose you are right and that you cannot distinguish new entrants to a business form existing ones. But I stand by my position that if the business is your home your rights in that respect are trumps.
John, you raise important points. Are you like me watching out for the result in Mba -v- Merton Council? If Ms Mba wins it could be calamitous. I take the view that if you excuse a sabbatarian Christian from the Sunday roster, where Sunday work is necessary, that is an act of religious discrimination against those of other religions or no religion, and I apply that more widely: if you excuse people with child-care commitments from the night or weekend shifts, where they are needed, it is probably going to be indirect discrimination against men and therefore unlawful. “probably” because you might be able to show a legitimate need, if you were haemorrhaging female staff who said in terms that it was because of the night or weekend shifts – but even then making other people give up more of their nights and weekends might not be proportionate. Everyone has the same right to a private life regardless of race, gender, religion or the lack of it, or family circumstances; does anyone disagree and if so why?
It is utterly ridiculous and ‘disproportionate’ (to use the language of the Equality Act) to have the Owners of a small B&B dragged to Court simply for not wanting to give 2 customers a double bed room. The simplistic comparisons with Rosa Parks misses 2 crucial points
Firstly the protests by Rosa Parks involved segregation on the Buses throughout Montgomery Alabama (and indeed throughout Alabama) where there was no alternative transport system available, very different from the Bull case where the same sex couple had no difficulty in finding an alternative Hotel.
Secondly the segregation in Montgomery and elsewhere was not voluntary but was required by the Segregation laws, the same was true with the segregation in South Africa under the Apartheid law where there was no individual choice allowed.
The fact is that the current Equality Laws are the mirror image of Apartheid and compel people to act in particular ways regardless of their personal views, desires or principles.
In giving her Judgment in the Supreme Court Lady Hale said
“If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.”
In saying this Lady Hale utterly failed to understand let alone address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point
What the Bull case demonstrates is a dangerous unwillingness in the law to permit, or even understand, freedom. Freedom requires people like the Bulls to have the right to make decisions others might disagree with
Does anyone see a difference for people letting spare bedrooms in their own homes? I do; and with some regret I extend it to race. The right to decide who does and who does not come into your own home has to trump the rights of individuals to access services.
This appeal was bound to be lost, if it was fought, as it was, using a religious freedom argument, rather than using a freedom of conscience argument, as it should have been. The following comments of judges VUČINIĆ and DE GAETANO in the dissenting judgment in Ladelle explain this vitally important distinction.
66
The … case is not so much one of freedom of religious belief as one of freedom of conscience – that is, that no one should be forced to act against one’s conscience or be penalised for refusing to act against one’s conscience. Although freedom of religion and freedom of conscience are dealt with under the same Article of the Convention, there is a fundamental difference between the two which, in our view, has not been adequately made out in … the judgment. Even Article 9 hints at this fundamental difference: whereas the word “conscience” features in 9 § 1, it is conspicuously absent in 9 § 2. Conscience – by which is meant moral conscience – is what enjoins a person at the appropriate moment to do good and to avoid evil. In essence it is a judgment of reason whereby a physical person recognises the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed. This rational judgment on what is good and what is evil, although it may be nurtured by religious beliefs, is not necessarily so, and people with no particular religious beliefs or affiliations make such judgments constantly in their daily lives. The pre-eminence (and the ontological roots) of conscience is underscored by the words of a nineteenth century writer who noted that “…Conscience may come into collision with the word of a Pope, and is to be followed in spite of that word.”
99
If the Bulls appeal to the ECtHR, their legal team must advance a *conscience* argument rather than a *religious* argument. Religious people should not be losing cases like this, almost deliberately it would seem, because they demand special treatment, their religious rights. They should win cases like this, by defending the freedom of *conscience* that is *everybody’s* right, whether he or she is religious or not.
Does your public sector employer make you work all seven days of the week? Bring a claim on your right to a private and family life, and win. Or get a Christian activist law shop to bring a claim for you, on some supposed, fictitious right of all Christians to have Sunday as their weekly day off, and lose. Is it against your conscience to let a double room to two homosexuals? Simply say so in court, and win. Or let a Christian law shop say nothing about your conscience, and instead assert that letting a double room is against your *religion*, and lose.
When Christian Concern For Our Nation lives up to its name, and protects rights, everybody wants, like conscience and private and family life, it will start to win cases, and earn gratitude even from Christianity’s enemies, whose rights it will be protecting too. At the moment, it is narrowly focused on proving persecution of those who think they need the highly unpopular religious rights, making the name Christian Concern For Our Christians more apt for what it actually does.
Even if she had warned him of the policy, the result would have been the same — you cannot treat certain people or groups less favourably than others simply because of their gender, race, religion, sexual orientation or otherwise.
Further, you cannot demand that the laws that apply to you when you open a business remain the same as long as you continue to do so. By that logic, anyone who opened a business before 1965 would still be allowed to refuse to serve people just because they were black. When you open a business, you are taking advantage of what society has to offer. You are able to make profit from the desire of society to purchase your goods or services. The flipside is that society can collectively (through Parliament) decide to impose certain terms and conditions on how you make your profit, and one of these is that you must offer your goods and services on a non-discriminatory basis. It is no defence to complain that society has evolved and standards have evolved. That is the gamble you take when you enter the realm of the marketplace.
The world would, indeed, still turn if they had been allowed to treat gay people differently. And the world would still turn if pubs could kick out black people, landlords refused to provide housing to ethnic and religious minorities, and men were always promoted ahead of women. That is how the world turned in the first half of the last century. But it wasn’t a very nice world, so we moved on, and perhaps you should as well.
On spiked I have argued that this is a case of intolerance dolled up as ‘equality’:
http://www.spiked-online.com/newsite/article/intolerance_dolled_up_as_equality/14355#.UpdNAcRdW3h
What if Mrs Bull had warned him of the policy?
I am reminded of the minority (alas) judgment in the ECtHR in Ladele which referred to “obsessive political correctness”. The world would still turn if Mr and Mrs Bull were allowed to run their hotel according to their beliefs. It might be different if they were new to the business; newcomers might have to accept that they could not do this or not come into the trade at all.
I am glad that this ruling has gone through. The Bulls have, in my view, been grossly misled or misadvised – by groups such as Christian Concern – into believing that their appeal stood any chance of success.
This case sets a positive precedent in affirming what most people, I think, already assumed was the case – that people cannot use the “but I has a religion!” argument to allow them to disregard the law.
You describe the business as a private hotel. This is not correct. The business is a publicly licensed hotel, i.e. one in which any member of the public is entitled to stay provided there are vacancies – which there clearly were in this case, as the booking was accepted in advance.
Just because they don’t like buggery in their bedrooms Mr and Mrs Bull are reviled as racist /sexist ! What happened to “an Englishman’s home is his castle”?? Would the same verdict have been given if the householders had been Moslem?? I’m only asking……………….
God if you look like either of them your only hope is to be a committed Christian!
Regards,
Jane