Why the court was right to rule against the Christian B&B owners who refused a double bed to a gay couple

On 18th January the Bristol County Court ruled in Hall & Preddy v Bull & Bull that Mr & Mrs Bull, the owners of a bed & breakfast in Cornwall, breached the Equality Act (Sexual Orientation) Regulations 2007 when they refused to allow two gay men, Mr Hall and Mr Preddy, to share a double room. The story received widespread press coverage (see, for example, the BBC, Guardian, and, for the sake of balance, the Daily Mail and the Telegraph). I’ve had a few thoughts on the matter myself, so here they are.

About the judgment

The Bulls had strong religious views concerning marriage and would not let any unmarried couples share a double bed – a policy they had operated for 25 years and which had got them into the local paper on a previous occasion (that time involving an unmarried heterosexual couple). They were happy to allow unmarried people to stay in a single rooms, or share a twin rooms. However, this policy was not communicated to Mr Preddy when he made the booking, resulting in embarassment and distress, no doubt to all parties concerned, when he and Mr Hall turned up for their holiday stay.

Judge Rutherford ruled that the Bulls’ actions amounted to direct discrimination on grounds of sexual orientation, even though they applied the same rule to unmarried couples regardless of their sexual orientation. He also found, lest he be wrong about that point, that it amounted to indirect discrimination and could not be justified. To have allowed justification based on the defendants’ religious belief would have created a class of person who were exempt from the legislation.

As can be expected, this case has led to a polarisation of views in the press. Contrast Ben Summerskill (of Stonewall) writing in the Guardian, and Mike Judge of the Christian Institute, in the Telegraph, both descending in my view into unnecessary rhetoric that does nothing to enhance the merits of their arguments – the latter describing the EHRC’s attitude as “chillingly Orwellian”, and the former writing a fairly measured article then spoiling it all by describing the Christian Institute as a “shadowy” organisation, whatever that means.

Criticisms of the case fall roughly into two camps:

1. It was legally wrong: this is not direct discrimination on sexual orientation grounds. If anything it was indirect, and therefore capable of justification.

2. This is another example of how Christian belief and values, which ought to be (and are) protected by discrimination law, are being trumped by gay rights. The Bulls should be entitled to their own beliefs in what was essentially their own home.

The legal point: was it direct discrimination?

The judge said yes; others have said no. Solicitor Steven Mather (@smather21) sets out the “no” case eloquently in his blog post, Christians v Gays: Discrimination Top Trumps. A very good post it is too. Barrister Daniel Barnett (@daniel_barnett, for the handful of you not already following him on Twitter) seems to agree with Steven, and called it a policy driven judgment.

However, with respect to those venerable individuals, I disagree with them on that point, and here’s why:

The Regulations define direct discrimination thus:

3(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

3(4) For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances.

The Bulls’ argument was that it was not on grounds of sexual orientation, but on grounds that they were not married. They treated all unmarried persons equally, regardless of sexual orientation, so it could not be “on grounds” that they were gay. This is essentially the point Steven makes in his blog.

However, the test for direct discrimination involves comparing like with like. If Hall and Preddy had not been civil partners, it would have been appropriate to compare their treatment with straight non-married persons – in which case in my view they would have lost on the direct discrimination point (although they might have won on the indirect discrimination point – the judgment suggests they would). But regulation 3(4) above states that there is no material difference between civil partners and married persons. Logic dictates that there IS a material difference between civil partners and unmarried straight people, meaning the comparison is not valid. So where you are applying a criterion that a couple must be married, you must treat married couples and civil partners alike. Any difference of treatment will necessarily be on grounds of sexual orientation, because marriage is limited to straight couples and civil partnership is limited to gay couples.

(This latter point is in my view supported by James v Eastleigh Council, where the House of Lords held that a policy of giving free swimming to pensioners was discriminatory against a man aged between 60 and 65, because men of that age were not yet pensioners whereas women of that age were. The council could not argue that it was on grounds of pensioner status and therefore not on grounds of sex, because pensioner status (for people of that age) was limited to women, and was therefore determined by sex).

The “clash of rights”

This is a tricky one. I confess to feeling sympathy for both sides. The Bulls appear by all accounts (well, OK, the accounts in the Mail and Torygraph) not to be some kind of Neo-Nazi bigots, they sound like nice people trying to run a B&B while living their lives by what they genuinely believe are Christian values; they don’t ban (or hate) gay couples altogether (just won’t let them share a bed); they profess to “love the sinner, not the sin” (more on that point later).

I’m not going to go down the road of exploring the recent outbursts by the former Archbishop of Canterbury about the law being anti-Christian. But some of the public debate on this (leaving aside the downright homophobic) has focused on the argument that there should be some kind of religious “conscientious objector” type defence for things such as this. Or at least, that the law ought to give somewhat greater protection than it does to allow people to live by deeply-held religious beliefs. There are problems with this. As the Court of Appeal commented in the widely-reported MacFarlane v Relate last year, the law in this country derives from Christian traditions, but it does not (and must not) give greater protection to certain actions or beliefs just because they are religously-motivated. That would be to take civil rights out of the hands of the elected legislature and put them in the hands of the clergy. Or, indeed, into the hands of any Tom, Dick or Harry who decided his God wanted him to act in a particular way.

Competing religious ideologies

Because once you open the door to giving special status to religious belief because it’s religious, where do you draw the line? Even Christians who would argue for a special status for Christian doctine (as opposed to religious beliefs generally) because there is still an established Christian Church in England, would have to accept that there is probably as much disagreement between Christians on certain points of morality, as there is between Christians and non-Christians. Would the courts have to adjudicate between competing views of what the Bible actually requires?

Let’s see where that might take us then… (with tongue firmly in cheek and apologies to Private Eye for nicking a couple of names).

_____________

Sir Bufton Tufton QC (for the defendants): My Lord, the simple fact is, my clients didn’t want anyone sinning in their house. They rely on Leviticus 18:22: “Thou shalt not lie with mankind, as with womankind: it is abomination”.

Ms Judith Garland (queens’ counsel): My Lord, this is not the point: whether or not the defendants think my clients had sinned, or might sin under their roof, was irrelevant. Jesus said “judge not, and you will not be judged; condemn not and you will not be condemned” (Luke 6:35). I humbly ask the court to judge them as they have judged others.

Tufton QC: My clients did not set out to judge the claimants: they profess to “love the sinner but hate the sin”.

Mr Justice Cocklecarrot (for it is he): Do you have a citation for that, Sir Bufton? I can’t find it in my copy.

Garland: I think it was actually Mahatma Gandhi who said that, my Lord.

Cocklecarrot: Then it’s inadmissible.

Garland: In any event, the principle of non-discrimination is deeply enshrined in Biblical teaching. “My brothers and sisters, believers in our glorious Lord Jesus Christ must not show favouritism.” (James 2:1). Moreover, the defendants cannot pick and choose which divine laws to apply in their hotel: “For whoever keeps the whole law and yet stumbles at just one point is guilty of breaking all of it” (James 2:10).

Cocklecarrot: So they must come with clean hands. Do you have evidence of breach?

Garland: The menu, my Lord: Full English Breakfast, which I have evidence to suggest includes bacon. “And the pig, though it has a divided hoof, does not chew the cud; it is unclean for you. You must not eat their meat or touch their carcasses; they are unclean for you.” (Leviticus 16:7-8). Moreover, although their policy regarding married couples is set out on their website, they don’t seem to mention menstruation. ‘If a man lies with a woman during her monthly period and has sexual relations with her, he has exposed the source of her flow, and she has also uncovered it. Both of them must be cut off from their people.” (Leviticus 20:18). If’ they are going to do the job properly, they really ought to check the situation with married couples before allowing them to share a bed, in my submission.

Tufton (rising): My Lord…

Garland: My Lord, I object!

Cocklecarrot: What now…?

Garland: I wish to raise the matter of my learned friend’s robe, my Lord. It appears not to be proper silk.

Cocklecarrot: Sir Bufton…?

Tufton: It is a silk and wool blend, my Lord, from Stanley Ley. In these straitened times, I submit…

Cocklecarrot: Clear the court! “..Neither shall there come upon thee a garment of two kinds of stuff mingled together.” – Leviticus 19:19. Take him down!

_____________

Loving the sinner?

On that point, about loving the sinner but not the sin, which Mrs Bull is quoted in the papers as saying: it sounds catchy, but there is considerable debate about whether it actually represents Jesus’s teaching. Many people attribute it to Gandhi. It does seem to be wheeled out a bit by conservative Christians to justify anti-gay prejudice.

Getting back to the point…

Some people have raised the argument that, even if the protection given to the claimants in this case has some place in society, it should not in this case, because it was a private home. If you can’t have your own beliefs in your own house they where can you have them? However, others have pointed out that when you run a B&B you cease to be a private house and become a business open to the public, and must abide by public, not private norms. That was implicit in the judge’s ruling here.

But in this case there was a simpler answer. They could have kept to their religious objections as well as abiding by the law. The solution would be to have only single beds in all rooms. They professed to having no objection to same-sex or other unmarried couples sharing a twin room, so they could have made this a standard for all rooms.

But surely that would upset (straight) married guests, you say? It may. Moreover it ignores the commercial reality of running a family hotel: some people may simply choose to stay at a different hotel where they could get a double room.

But apparently, you cannot serve both God and Mammon (Matthew 6:24).

Advertisements

About Mrs Markleham

Employment lawyer, discrimination lawyer, mildly peevish old woman.
This entry was posted in Discrimination, Religion. Bookmark the permalink.

7 Responses to Why the court was right to rule against the Christian B&B owners who refused a double bed to a gay couple

  1. Pingback: Tweets that mention Why the court was right to rule against the Christian B&B owners who refused a double bed to a gay couple | Mrs Markleham -- Topsy.com

  2. Brilliant post! Thanks for mentioning me, although I’m not sure I’m worthy to be included in your post…

    I don’t think there can ever be a religious top trump (as I called it), why should religion be “better than” another protected characteristic, but careful thought needs to be given to avoid a situation where one characteristic “beats” another.

    Rock paper scissors?

  3. Antony Sendall says:

    It was all going so well and then you used “criteria” when you meant “criterion”. As an atheist who has become known in Chambers as “God’s Barrister” after doing cases for a couple of churches (including one for a church that believes that the Earth is only about 4000 years old and does not tolerate homosexuality among its clergy), I well understand the difficult balance that needs to be struck between people’s firmly held religious beliefs and the norms of the society in which they choose to live. However, for the reasons you give, I am with the court on this one and think it probably should be cast as direct discrimination.

    I am always fascinated by Bible Quotes and how they can be so readily taken out of context and misused or appear to say very odd things:

    “Happy [shall he be], that taketh and dasheth thy little ones against the stones.” Psalm 137:9 (Dashing my kids on rocks makes you happy ? Not sure what Mr Justice Cocklecarrot would make of that as a potential defence to child murder)

    “And the LORD was with Judah; and he drave out [the inhabitants of] the mountain; but could not drive out the inhabitants of the valley, because they had chariots of iron.”
    Judges 1:19 (So let’s be clear, for God, iron is a bit like Cryptonite is for Superman. Divine omnipotent superbeing apparently unable to defeat people in iron chariots. Are cars today’s iron chariots ?)

    “But those mine enemies, which would not that I should reign over them, bring hither, and slay [them] before me.” Luke 19:27 (Now this chap does not sound like a very nice guy does he ? Who is he ? Well, Luke seems to attribute this to a young Jewish bloke called, erm… Jesus.)

    Of course there is lots of lovely stuff in the Bible too and I mean no disrespect to anyone by plucking a few quotes out of context to demonstrate that you need to be a bit careful when deciding the extent to which the literal words of the Bible should inform the way you perceive the world or the way you should live your life.

    Apparently the Quran has one or two passages that have been taken out of context and misinterpreted too !

    Henceforth, I intend to live my life by constantly asking myself the question, “What would Pingu do ?”

  4. Pingback: A Clash of Cultures: Gay Rights vs Religious Belief | Equality | Jobsworth by Michael Scutt

  5. gsccdallas says:

    I happened upon this post while researching the B&B ban on the island of Oahu in Hawaii.

    I may not be familiar with British law, but there is an out in many states of the USA. I am in agreement with the views of the Bulls, however, if I were to offer a service to the general public, I could not discriminate. The way around is to not offer one’s services to the general public and operate on a referral only basis.

    I’m a pastor, and we have a policy at our church of not making out facilities available for weddings except to members. This avoids the pitfalls of our policies regarding marriage in our facilities (premarital counseling requirements, previous marriages, confessional identification, Christian testimony, same sex marriage, etc.) that some churches have faced.

    A B&B could set up a similar arrangement by taking new clients by referral only and not being available to the public at large. However, this may not be possible in the UK. I have a photographer friend who does weddings on a referral only basis, and he does quite well.

    Of course, in the US, we understand rights–including free exercise of religion– as apriori possessed and unalienable and not granted by any governing authority.

    • Thanks for your comments, gsccdallas. Your idea about a “referral only” business is an interesting one. I doubt it could work in this situation, for 2 reasons:

      1. Commercially, I suspect it would make no sense as a basis on which to run a hotel as it would cut down your potential customer base in an already competitive market. (Although I know some businesses are run very successfully on a personal referral basis – your wedding photographer friend being one example – I don’t think it would work for all types of business).

      2. Legally, I think it might not work either. A business that only takes customers on referral would still (I think) be “concerned with the provisions of services to the public or a section of the public” (section 29 Equality Act 2010), and hence could not discriminate in the provision of those services. I don’t think you would cease to be “the public” just because you have been referred. If the hotel (or perhaps a group of hotels) tried to set up some kind of private club or association and only provide rooms to members, they would cease to be providing services to the public, but would fall foul of the rules governing clubs, which cannot discriminate on grounds of sexuality in the people it offers membership to, and cannot discriminate between members on grounds of sexuality in the services it provides them (section 101, Equality Act).

      Whether rights such as this are “unalienable” vs “granted” is an interesting academic question but it doesn’t really answer the rather more pressing question that arose in this case: what happens where upholding one person’s rights inevitably breaches another person’s right? It is also strongly arguable that even an unalienable right to hold a belief does not in itself justify a right to act on that belief to another’s detriment. It is in this field that the balancing exercise exercised by the courts is essential. Whether they are exercising it in the right way is another question, that our Equality and Human Rights Commission is currently thinking about – see my later blog post, Reasonable adjustments for religion: the EHRC explains all.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s