THE Supreme Court of the United Kingdom upheld a decision of the
Court of Appeal in February last year that the actions of two
hotel-owners in refusing to provide a double-bedded room for a
homosexual couple amounted to unlawful discrimination on the
grounds of sexual orientation (News, 17
February 2012).
Peter and Hazelmary Bull owned and ran the Chymorvah Private
Hotel in Cornwall. They are Christians who believe that sex outside
marriage is sinful. They let single-bedded and twin-bedded rooms to
anyone, regardless of their marital status or sexual orientation,
but they let double-bedded rooms only to married couples, and they
made that plain on their website. Their online booking-form stated
that they had "few rules, but please note, that out of a deep
regard for marriage we prefer to let double accommodation to
heterosexual married couples only".
Steven Preddy and Martyn Hall are civil partners who live in
Bristol. In September 2008, Mr Preddy made a telephone booking for
a double-bedded room at the hotel. He had not seen the clause on
the website, and he was not asked whether the room was for a man
and his wife. When Mr Preddy and Mr Hall arrived at the hotel they
were informed that double-bedded rooms were for heterosexual
married couples only, and that Mr and Mrs Bull were Christians who
did not believe in civil partnerships. It was accepted that that
was not done in a degrading manner, but there were other guests
present and the refusal was "very hurtful" to Mr Preddy and Mr
Hall. They left and found other accommodation at a different hotel.
The deposit that they had paid was re-credited to their
account.
Mr and Mrs Bull denied that they had unlawfully discriminated
against Mr Preddy and Mr Hall on the basis of their sexual
orientation. They said that the Equality Act (Sexual Orientation)
Regulations 2007 should be applied in a manner that was compatible
with their rights under the Human Rights Convention, in particular
their right to manifest their religion. They offered to reimburse
the additional expense to which Mr Preddy and Mr Hall had been put
in having to find alternative accommodation, together with a modest
sum for the inconvenience. That offer was rejected, and, in January
2011, Judge Rutherford in Bristol County Court declared that Mr
Preddy and Mr Hall had suffered direct discrimination. He awarded
each of them £1800 in damages for injury to feelings and the extra
cost of their alternative accommodation. The Court of Appeal agreed
with Judge Rutherford.
In the Supreme Court, Mr and Mrs Bull stated that they did not
discriminate against Mr Preddy and Mr Hall on the ground of their
sexual orientation but on the ground that they were not married to
each other, and they would have applied exactly the same policy to
unmarried heterosexual couples. Discrimination against a person on
the grounds that he or she is married is outlawed by the Sex
Discrimination Act 1975, but it has never been unlawful to
discriminate against the unmarried. Mr and Mrs Bull accepted,
however, that there was indirect discrimination as opposite-sex
couples were able to marry while same-sex couples currently cannot
do so, and therefore the policy in regard to double-bedded rooms
put the latter at a disadvantage. Indirect discrimination is not
unlawful if it can be shown that there was reasonable justification
for it by reference to matters other than sexual orientation. Mr
and Mrs Bull argued that they should not be compelled to run their
business in a way that conflicted with their deeply held religious
beliefs, and that they should not be obliged to facilitate what
they regarded as sin by allowing unmarried couples to share a
bed.
This was a dispute between two sets of individuals: Christian
hotel-owners and same-sex civil partners, all of whom had what was
called a "protected characteristic", that is, a characteristic that
protected them against discrimination in a wide variety of areas of
activity. It was a curiosity of this case, of which Mr and Mrs Bull
complained, that the Equality and Human Rights Commission had
prosecuted it on behalf of a party with one protected
characteristic - the same-sex civil partners - against parties with
another. The Deputy President of the Supreme Court, Baroness Hale,
said that it was understandable that Mr and Mrs Bull should feel
aggrieved, and that a more neutral stand of the Commission might
have been to intervene in, rather than to prosecute, these
proceedings.
The five justices of the Supreme Court were unanimous in
rejecting Mr and Mrs Bull's appeal, but three of them, Lady Hale,
Lord Kerr, and Lord Toulson, ruled that Mr Preddy and Mr Hall had
suffered direct discrimination, and two justices, Lord Neuberger
and Lord Hughes, ruled that they had suffered indirect
discrimination for which there was no reasonable justification.
Lady Hale said that Mr and Mrs Bull's policy undoubtedly put
homosexual people as a group at a serious disadvantage compared
with heterosexuals, as they could not enter into a status that Mr
and Mrs Bull would regard as marriage. The question, therefore, was
whether that could reasonably be justified by reference to matters
other than the sexual orientation of Mr Preddy and Mr Hall.
The purpose of the 2007 Regulations was to secure that people of
homosexual orientation were treated equally with people of
heterosexual orientation by those in the business of supplying
goods, facilities, and services, Lady Hale said. Parliament was
very well aware that there were deeply held religious objections to
what was being proposed in the Regulations, and careful
consideration had been given to how best to accommodate those
within the overall purpose. Parliament did not insert a
conscientious-objection clause for the protection of those who held
such beliefs. Instead, it provided a carefully tailored exemption
for religious organisations and ministers of religion from the
prohibition of direct and indirect discrimination on grounds of
sexual orientation. That strongly suggested, Lady Hale said, that
the purpose of the Regulations was to go no further than that in
catering for religious objections.
Mr and Mrs Bull were free to manifest their religion in many
other ways. They did not discriminate against non-believers or
adherents of other faiths - that would also have been unlawful
under the Equality Acts. They were free to continue to deny
double-bedded rooms to unmarried same-sex and unmarried couples
provided they also denied them to married couples. It did make a
difference, Lady Hale said, that Mr Preddy and Mr Hall were in a
civil partnership. Civil partnership was not called marriage, but
in almost every other respect it was indistinguishable from the
status of marriage in UK law, and "was introduced so that same-sex
couples could voluntarily assume towards one another the same legal
responsibilities, and enjoy the same legal rights as married
couples assume and enjoy." Mr and Mrs Bull could not get round the
fact that UK law prohibited them from doing as they did, Lady Hale
said. The limitation in the 2007 Regulations on their right to
manifest their religion was a proportionate means of achieving a
legitimate aim. That aim was the protection of the rights and
freedoms of Mr Preddy and Mr Hall.