This long running case (Bull & Anor v Hall & Anotherr) hit the headlines this month when the Supreme Court gave its judgment on whether it was unlawful discrimination for Christian hotel owners to refuse a double room to civil partners, under a stated policy that they would only provide double beds to heterosexual married couples (which they had accidentally omitted to mention when taking a booking over the phone).
The Court held that it was indeed unlawful sexual orientation discrimination, although there was a split as to whether it was both direct and indirect discrimination, or just the latter. The court was unanimous, however, that while there had been a breach of the hotel owners’ right to manifest their religion that was justified for the protection of the rights and freedoms of others. According to Lady Hale human rights law:
requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.
There was no dispute that restricting the availability of double beds to the married was indirect discrimination – the hotel owners, Mr & Mrs Bull, were undoubtedly imposing a requirement that only heterosexual married couples could take a room with a double bed. Their argument failed that this was justified because they should be permitted to run their business in a way compatible with their belief that to permit unmarried couples to share a bed would be to facilitate what they regarded as a sin.
It was emphasised that civil partnership had been created to recognise (and encourage) stable, committed, long term relationships and accord equality of respect and esteem to same sex couples. Specific exceptions had been carved out for ministers of religion and religious organisations – which indicates that there was no intention to allow individuals to opt out of the prohibition of sexual orientation discrimination on the grounds of their religious views in any other circumstances.
Where the Supreme Court split was over whether the treatment was direct discrimination with the dissenting minority taking the view that civil partnership could not be equated with marriage and therefore did not turn the indirect discrimination into direct discrimination. However, Lady Hale, giving the leading judgment, made clear that, in her view, the status of marriage and civil partnership were “indissociable” from the sexual orientation of the parties entering into each type of contract. The denial of a double bed to one group whilst allowing to the other was, in the majority’s view, direct discrimination.
The incident giving rise to the case predated the possibility of there being homosexual marriage within the United Kingdom and heterosexuals still do not have the option of civil partnership. The Marriage (Same Sex Couples) Act received Royal Assent in July 2013 and comes into effect to permit such marriages from 29 March 2014. Had this legislation been passed at the time of the refusal to allow Mr Hall and Mr Preddy to stay then there would probably not have been any division concerning whether or not there was direct discrimination.
The case is also notable for highlighting what is likely to be an increasing trend: competing protected characteristics under the Equality Act 2010. Religion and belief systems are most likely to come into conflict with others as in this case and courts will need to be very careful to ensure that one is not judged ahead of another. In this case it was perhaps fortunate that the exemptions for ministers of religion and religious organisations could be interpreted as denying similar protection for the hotel owners. In other cases that distinction will not be available so surely it is just a matter of time until the Supreme Court will be required to consider and to attempt to resolve this dilemma.