Excluding same-sex couple from hotel constitutes unlawful discrimination
Bull (And Another) v Hall (And Another) [2013] UKSC 73 (27 November 2013)
Summary
The Supreme Court in the United Kingdom recently upheld a ruling by the Court of Appeal that hotel owners Peter and Hazelmary Bull, a Christian couple, discriminated against homosexual couple Martin Hall and Stephen Preddy on the grounds of sexual orientation, when they refused to rent them a double room in their hotel.
The Bulls conceded that their refusal to let rooms with double beds to unmarried couples indirectly discriminated against same-sex couples (as they cannot marry), but argued that the refusal was justified because it was based on their religious beliefs.
Facts
The Bulls own Chymorvah Private Hotel in Cornwall. They are devout Christians and believe “that the only divinely ordained sexual relationship is that between a man and a woman within the bonds of matrimony.” Their online booking form states: “…please note, that out of a deep regard for marriage we prefer to let double accommodation to heterosexual married couples only.”
Hall and Preddy are civil partners. In September 2008 Preddy booked a double room at the hotel by phone. He was not informed of the policy. When Hall and Preddy arrived, the receptionist, Quinn, told them that the double rooms were for married couples. Preddy informed Quinn that they were in a civil partnership. Quinn said that as Christians, the hotel owners did not believe in civil partnerships; they believed that marriage is between a man and a woman, and could not honour the booking.
Proceedings were issued in March 2009 in the Bristol County Court. Justice Rutherford held that the refusal to allow the couple to occupy a double room constituted direct discrimination on the basis of Hall and Preddy’s sexual orientation, in contravention of the Equality Act (Sexual Orientation) Regulations 2007. He held that the Regulations were a necessary and proportionate intervention by the state to protect the rights of others. Alternatively, Rutherford J held that the refusal was unjustified indirect discrimination.
Justice Rutherford held that the Regulations were not incompatible with the Bulls’ right to manifest their religion under the Human Rights Act 1998 (UK), or the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR), as was argued by the Bulls.
The Bulls appealed to the Court of Appeal, which unanimously dismissed their appeal. The Court held that the Bull’s policy directly discriminated on the grounds of sexual orientation. While the policy was a manifestation of the Bulls’ religious beliefs, the limitation imposed on their right to freedom of religion was necessary. The Bulls appealed to the Supreme Court.
Decision
The Court considered whether the Bulls’ refusal to rent a double room to Preddy and Hall was direct or indirect discrimination. If it was direct, no justification was possible. The relevant prohibition was Regulation 4(1), which makes it unlawful for a provider of goods, facilities or services to discriminate against a person seeking to obtain or to use them.
The earlier decision in the Court of Appeal had relied on a House of Lords case James v Eastleigh Borough Council [1990] 2 AC 751. In that case, the majority held that where there is an exact correspondence between the criterion and the protected characteristic, direct discrimination occurred. The Court referred to later European Court of Justice cases where this test was put more clearly - essentially, direct discrimination occurs where the difference in treatment is based on a criterion which is necessarily linked to a protected characteristic.
In the leading judgement, Lady Hale applied this test as follows: “…it can be argued that a marriage criterion is “indissociable from sexual orientation”, in that at present… persons of homosexual orientation cannot marry.” Lady Hale held that civil partnerships are indistinguishable, but for the name, from marriage under UK law, and they offer the same legal rights and responsibilities. Lady Hale noted that under Regulation 3(4), married people and civil partners should be regarded as not materially different. Therefore, a policy that exempted civil partners was necessarily linked to sexual orientation.
Following Lady Hale’s analysis, the majority of the Court held that the Bulls’ policy was directly discriminatory on the grounds of sexual orientation. The Court unanimously held that alternatively, the Bulls’ policy constituted unjustified indirect discrimination within the meaning of Regulation 3(3).
The Court then considered whether a finding of discrimination was incompatible with the ECHR. The Bulls argued that they were protected by Article 9 which protects freedom to manifest religion or belief, subject only to strict limitations. The Court agreed that the hotel’s policy was a manifestation of the Bulls’ religious beliefs within the meaning of Article 9, but held the limitation imposed on them was necessary in a democratic society for the protection of the rights of others. The Court referred to ‘the continuing legacy of … centuries of discrimination [against homosexuals], persecution even, which is still going on in many parts of the world’ and stated that the Bulls’ refusal was an affront to the human dignity of Hall and Preddy.
Commentary
The intersection of the right to religious freedom and the right to freedom from discrimination is a complex area in Australian law. The right to be free from direct or indirect discrimination on the basis of sexual orientation is protected in Victoria under the Equal Opportunity Act 2010 (Victoria) (EO Act) and federally under s 5A of the Sex Discrimination Act 1984 (SDA).
The EOA and SDA contain exceptions for certain activities of “a body established for religious purposes”. Section 82(2) of the EO Act provides a broad exception allowing a religious body to discriminate on the basis of various attributes, where the action:
- Conforms with the doctrines, belief or principles of the religion; or
- Is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.
Section 84 of the EO Act provides a further exception for anything done by a “person” which is reasonably necessary for them to comply with the doctrines, beliefs or principles of their religion. This provision has no equivalent under other applicable anti-discrimination legislation.
These issues were recently considered in VCAT in Cobaw Community Health Services Limited v Christian Youth Camps Limited [2010] VCAT 1613, a case in which Christian Youth Camps (CYC) had refused to provide a service to Way Out, an organisation that assists same sex attracted youths.
The case was considered under the previous version of the EO Act 1995. CYC argued that its conduct was exempt under section 75 and 77 of that Act, because its refusal to provide services was in pursuit of a religious belief; and it was necessary to deny the use of the camping ground to comply with this belief.
VCAT found that an act will conform with the doctrines of a religion only where the doctrine requires, obliges or dictates that a person act in a particular way, and held that while beliefs about marriage, sexual relationships or homosexuality may be included in scriptures, they were not doctrines. VCAT also held that the ordinary meaning of ‘necessary’ is narrow. The VCAT decision has been appealed and the Court of Appeal’s judgment is pending.
Decision is available at: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0065_Judgment.pdf
Josie Polak is a lawyer in the Equality Law Program at Victoria Legal Aid.