The Supreme Court of the United Kingdom ruled today that a lower court, with the support of the U.K. Equality and Human Rights Commission (EHRC), correctly found that Mr. and Mrs. Bull, operators of a hotel, had violated UK non-discrimination law by refusing to honor a reservation for a room with a double bed made by a gay couple who are registered as civil partners, the UK equivalent status to marriage for same-sex partners now in effect. Bull v. Hall,  UKSC 73 (November 27, 2013). Although the Court was divided 3-2 on some of the reasoning for the decision, it was unanimous as to the outcome, finding that the U.K.’s legitimate interest in protecting gay people from discrimination justified the burden this ruling placed on the religious liberty of the Bulls, who were claiming that they should be entitled to exclude unmarried persons from the accommodation in question.
The issue that divided the Court was whether this was a case of “direct discrimination” or “indirect discrimination.” The equivalent terms in U.S. law would be “disparate treatment” or “disparate impact.” As in US law, this makes a difference for purposes of analyzing the case, since disparate treatment regarding public accommodations would almost always be unlawful, which maintaining a policy that was facially neutral as to the characteristic in question but had a disparate impact against persons who have that characteristic could be defended by showing a legitimate justification for using that characteristic.
In this case, the Bulls posted on the website for their hotel in Cornwall the statement: “Here at Chymorvah we have few rules, but please note, that out of a deep regard for marriage we prefer to let double accommodation to heterosexual married couples only — thank you!” Mr. Preddy, who phoned to make the reservation of a double room for himself and his civil partner, Mr. Hall, was unaware of this statement. Mrs. Bull, who answered the phone when Preddy called, was out of sorts and did not make any inquiry about whether Preddy was married to the person who would be sharing the room with him. Preddy did not identify himself as part of a same-sex couple, having no apparent reason to do so. When Preddy and Hall showed up on the date of the reservation, they were met by Mr. Quinn, a cousin of the Bulls who also worked at the hotel, and he “explained that we were Christians and did not believe in civil partnerships and that marriage is between a man and a woman and therefore we could not honor their booking.” In the excitement of the moment, Quinn did not think to offer them a room with two single beds, and Preddy and Hall, naturally upset at this turn of the events, quickly left the hotel and found alternative accommodations. The Bulls re-credited the deposit they had paid to their account.
Preddy and Hall filed a complaint after having sent a letter to the Bulls charging them with discrimination. The Bulls responded that they had not discriminated because of sexual orientation, that the regulations must take account of their religious beliefs. They also offered, as a proposed settlement, to reimburse Preddy and Hall for any additional expense they incurred by getting alternate lodgings plus “a modest sum for the inconvenience,” but this proffer was rejected and plaintiffs pushed their complaint forward, winning before the Commission and the lower courts. The case generate considerable press attention worldwide. The Bulls’ appeal was pending as the U.K. Parliament voted to open up marriage to same-sex couples, an action that will not take effect until sometime in 2014. The case is not mooted as a question of law, of course, because there may remain resistant hoteliers who will have religious objections to providing marital accommodations to same-sex couples, as exemplified by the Bull’s use of “heterosexual” in their posted policy.
Deputy President Lady Hale wrote the lead opinion for the Court, in which she explained that this was direct discrimination because, in her view, the characteristic that ultimately served to disqualify the plaintiffs from getting the desired room was their sexual orientation. She observed that under current British law, married different-sex couples and civilly partnered same-sex couples are to be treated as equal for all purposes. She rejected the Bull’s argument that the grounds of denial of service were that plaintiffs were not married, since in U.K. law they were supposed to be treated as married, thus the difference between them and a married couple would turn on their sexual orientation. That being the case, the denial of service would be unlawful unless some supervening authority protecting religious belief obtained.
English law does protect religious liberty through the country’s participation in the European Convention on Human Rights as expressed in the UK Human Rights Act, which protects freedom of religious belief and practice. However, that protection is not absolute. Just as in the U.S., where 1st Amendment protection for religious practice and belief is not absolute, European law makes the protection subject to “such limitations as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others.” The Court found that the ban on sexual orientation discrimination qualified as a limitation prescribed by law that is so necessary.
Wrote Lady Hale, “Sexual orientation is a core component of a person’s identity which requires fulfillment through relationships with others of the same orientation.” She then quoted this eloquent passage by South Africa Constitutional Court Justice Albie Sachs from a 1999 gay rights case: “While recognizing the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined.” Lady Hale continued: “Heterosexuals have known this about themselves and been able to fulfill themselves in this way throughout history. Homosexuals have also known this about themselves but were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognized. Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg 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.” The reference to “Strasbourg” is to the European Court of Human Rights.
Lords Kerr and Toulson agreed, in brief separate opinions, with Lord Hale’s analysis of the case. Lords Neuberger and Hughes, while agreeing with the ultimate decision, would have found that this was a case of indirect discrimination, but that the Bulls had not satisfied the requirement to justify such discrimination by reference to a non-discriminatory reason for their rule.
In her opinion, Lady Hale considered whether, if this were considered indirect discrimination, the Bulls had shown that “it can reasonably be justified by reference to matters other than [the plaintiffs'] sexual orientation,” and found that they had failed to do so. Their argument was that they could justify their policy “by reference to a deeply held belief that sexual intercourse outside marriage is sinful.” But, asked Lady Hale, “Can that belief be a ‘matter other than [their] sexual orientation’? I am prepared to accept that it can, not least because it covers all kinds of unmarried couple. But it would be hard to find that a belief that sexual intercourse between civil partners was sinful was a ‘matter other than [their] sexual orientation’, because by definition such sexual intercourse has to be between persons of the same sex. Thus, even in the wording of the regulation itself, it is difficult to see how discriminating in this was against a same sex couple in a civil partnership could ever be justified. But it goes further than that. Parliament has created the institution of civil partnership in order that same sex partners can enjoy the same legal rights as partners of the opposite sex. They are also worthy of the same respect and esteem. The rights and obligations entailed in both marriage and civil partnership exist both to recognize and to encourage stable, committed, long-term relationships. It is very much in the public interest that intimate relationships be conducted in this way. Now that, at long last, same sex couples can enter into a mutual commitment which is the equivalent of marriage, the suppliers of goods, facilities and services should treat them in the same way.”
But, more importantly, Lady Hale noted that allowing the defense proposed by the Bulls would “create a class of people who were exempt from the discrimination legislation. We do not normally allow people to behave in a way which the law prohibits because they disagree with the law,” she continued. “But to allow discrimination against persons of homosexual orientation (or indeed of heterosexual orientation) because of a belief, however sincerely held, and however based on the biblical text, would be to do just that.” This would, in her view, undermine the purpose of Parliament in outlawing sexual orientation discrimination. She noted that Parliament had adopted “a carefully tailored exemption for religious organizations and ministers of religion from the prohibition of both direct and indirect discrimination on grounds of sexual orientation. This strongly suggests that the purpose of the Regulations was to go no further than this in catering for religious objections.” She pointed out that the Bulls were free to advocate their point of view and to exhibit it by the way they decorate their premises and provide bibles and gospel tracts in the rooms. They could also “continue to deny double-bedded rooms to same sex and unmarried couples, provided that they also deny them to married couples”!
She also noted that the wording of the Equality Act 2010, which went into effect after the events in this case took place, differs on the issue of justification for indirect discrimination, providing that “a provision, criterion or practice is indirectly discriminatory if the person who applies it ‘cannot show it to be a proportionate means of achieving a legitimate aim.” But, she concludes, “it is unlikely in this context to lead to a different result.”
The other judges who concurred in the result also stated agreement with Lady Hale’s analysis of the indirect discrimination theory and its application to this case.