THE Supreme Court decision in Bull v Hall [2013] UKSC 13 has brought to the fore once again the simmering tension between the right to religious freedom and the right to freedom from discrimination on the grounds of sexual orientation. This case, involving two sets of individuals, both with protected characteristics under discrimination legislation, is important not simply for the outcome it produced (which will have less impact once the recently passed Marriage (Same Sex Couples) Act 2013 comes into force), but for the important distinctions drawn between direct and indirect discrimination, and the firm manner in which the Court dealt with claims for exceptions from legal obligations on the grounds of religious belief.
The appellants were a husband and wife who ran a private hotel. They were devout Christians who sincerely held the belief that the only acceptable sexual relationship is “that between a man and a woman within the bonds of matrimony”. As such, they implemented a rule in their establishment that only heterosexual married couples were permitted to rent double rooms. Unmarried couples, whether heterosexual or same-sex, were permitted to rent twin or single rooms. The respondents, who are civil partners, did not know about this restriction when they booked their stay, and upon arrival at the hotel were told that their booking could not be honoured.
With the support of the Equality and Human Rights Commission, the respondents launched proceedings claiming that they had been unlawfully discriminated against on the basis of their sexual orientation. The County Court and Court of Appeal found in their favour, and the appeal to the Supreme Court affirmed unanimously that the discrimination was unlawful. However, despite the consensus with respect to outcome, the Supreme Court decision showed a deep division between the judges as to the legal ground upon which this was based. While the majority (Lady Hale, Lord Kerr and Lord Toulson) found that there was direct discrimination against the respondents, Lord Neuberger and Lord Hughes argued strongly that although there was discrimination, this could only be categorised as indirect. This distinction is fundamental, for although both forms of discrimination are illegal, there is a general defence of justification to indirect discrimination that is not available to discrimination that is direct (which is only justifiable on very narrow grounds set out in the legislation, which did not apply in this case).
The divergence between the judges lay in the relationship between civil partnership and marriage, and whether the fact that the couple had entered into a civil partnership made any difference to their position. In the lead judgment, Lady Hale argued that although civil partnership is not called marriage, it is in every other respect indistinguishable under English law, and the parties enjoy the same legal rights and responsibilities as married couples. This is supported by rule 3(4) of the Equality (Sexual Orientation) Regulations 2007, which requires that when determining whether there has been discrimination, married people and those in a civil partnership should be regarded as similarly situated. Although Lady Hale conceded that this regulation could not turn what would otherwise be indirect discrimination into direct discrimination, she argued that it was relevant as to whether the circumstances of the people being compared were the same, or not materially different, from one another when considering whether direct discrimination was taking place.
Lady Hale stated that discrimination is direct where the difference in treatment is based on a criterion that is explicitly that of sexual orientation, or necessarily linked to a characteristic indissociable from sexual orientation. In applying this to the facts, she reasoned that that the principal purpose of each institution is to provide a legal framework within which a loving, stable and committed relationship can flourish. In this light, she found that the criterion of marriage or civil partnership was “indissociable” from the sexual orientation of those who qualify to enter into it, and therefore there was direct discrimination on the grounds of sexual orientation.
Lord Neuberger, on the other hand, did not see that the fact that the couple had entered into a civil partnership made any difference to the determination of direct discrimination. He agreed with Lady Hale that the purpose of rule 3(4) was not to turn indirect discrimination into direct discrimination, and that for direct discrimination to exist, there must be exact correspondence between the criterion and the protected characteristic. However, he differed on the application of this. Unlike Lady Hale, he focused on the fact that the appellants applied their rule to all unmarried couples, whether heterosexual or same-sex, and found that the claim that the respondents were treated differently because their relationship was homosexual was only a partial description of the discrimination, and thus there was no exact correspondence. This view was also espoused by Lord Hughes, who similarly argued that the respondents were a subset of unmarried people – which also included same-sex couples not in a civil partnership and unmarried heterosexual couples – all of whom were equally prevented from letting a double room.
While this stance has the advantage of ease of analysis, it fails to come to grips with the true status of civil partnership under English law. The better view, as espoused by the majority, is that civil partnership is a species of marriage, and thus the correct comparator is another married couple. This is dictated by the Equality (Sexual Orientation) Regulations 2007, but also the very nature of the statutory regime establishing civil partnership.
Although it has been suggested by some commentators that the Marriage (Same Sex Couples) Act 2013 demonstrates that civil partners were never legally equivalent to married partners, this change has been semantic, rather than substantive. Important as it was to remove this facet of discrimination against same-sex couples from the legal system, it does not detract from the fact that, for the last nine years, marriage and civil partnership have been treated by legislation and the courts as commensurate in terms of rights and responsibilities, with simply one institution for heterosexual couples, and one for same-sex couples. This is the premise upon which Lady Hale based her judgment, and it was restated by Lord Toulson. One cannot separate the sexual orientation of the partners from the institution they are permitted to enter into, and to treat them less favourably must be seen as being differentiation “on the grounds of” sexual orientation. As such, direct discrimination was the appropriate finding.
The second question at issue in this case was whether there was unlawful indirect discrimination. The appellants admitted that they had indirectly discriminated against the respondents, but argued that this was justified on the grounds of their deeply held religious beliefs, and that they should not be compelled to run their business in a way that facilitated what they regarded as sin. The Court was unanimous in finding that the indirect discrimination was unlawful, providing valuable clarity on this issue under domestic law. In a rather straightforward manner, Lady Hale found (and was supported by the remainder of the Court) that to permit a class of persons to treat others less favourably on the grounds of sexual orientation would be to create a class of people who are exempt from discrimination legislation. Although the right to manifest religious beliefs has been acknowledged as one of great importance by the European Court of Human Rights (see, e.g., Bayatyan v Armenia (Application no. 23459/03) [2011] E.H.R.R. 1095), it can nonetheless be limited in pursuance of a legitimate aim of protecting the rights and freedoms of others, as it had been in this case.
In an interesting twist, the appellants complained of the bias of the Equality and Human Rights Commission in prosecuting the case on behalf of parties with one protected characteristic (sexual orientation) against parties with another (religion), adding fire to the ongoing claims of some media outlets that the law is simply replacing the oppression of one section of society with the oppression of another. Nevertheless, human rights law in this area is clear, and the decision of the Supreme Court in this regard is relatively non-contentious. In a commercial context, there is no right to manifest religious beliefs where they have an adverse impact on a protected characteristic of another. Individuals are free to think and believe as they like, but once they manifest those thoughts and beliefs in actions in the public sphere, they may be subject to limitations to protect the rights of others. This is not to preference one group over another, but to ensure that we can live in a society where all individuals are treated equally regardless of the colour of their skin, their sexual orientation, or indeed, their religion.
