There was something of an inevitability about the decision of the Supreme Court concerning the refusal of Christian hoteliers to provide a double room to a couple in a same-sex relationship: Bull & Bull v Preddy & Hall  UKSC 73. The hoteliers held a sincere belief that sexual relations outside marriage were sinful. The issue for the Supreme Court involved a nuanced balance of sexual orientation and religion, both of which are ‘protected characteristics’ under what is now the Equality Act 2010.
The lead judgment was given by Baroness Hale. She traced the steady increase in anti-discrimination legislation from the mid 1970s, where sex and race were the key features, into the 1990s when disability was added, thence to the more recent inclusion of religion, age and sexual orientation. It is now unlawful to discriminate on any of these grounds in the provision of goods and services. The Christian hoteliers contended (i) that they had not discriminated on the grounds of sexual orientation; and in any event (ii) that there had been a violation of their right to freedom of religion under the European Convention on Human Rights.
Significantly, the Supreme Court was divided on a crucial element of the equality framework. Lady Hale, together with Lord Kerr and Lord Toulson, considered that the wrong which had been perpetrated was one of direct discrimination. She considered the would-be guests’ status as civil partners to be determinative since, in her view, that status had been intended by the legislature to be equivalent to that of marriage. She asserts that sexual relations are not a pre-condition of the validity of either a marriage or a civil partnership. This is incorrect: unlike a civil partnership, a marriage may be declared null on the ground of non-consummation. In reality, Lady Hale is viewing the comparison as it undoubtedly will be once the Marriage (Same Sex Couples) Act 2013 comes into force. Lord Kerr is perhaps nearer the mark in interpreting the equality regulations as prescribing that civil partners are not to be treated as being materially different from a married couple.
But the major flaw in Lady Hale’s reasoning is exposed with the calm logic of both Lord Neuberger and Lord Hughes, who dissent on this point, whilst joining in the unanimous dismissal of the appeal on other grounds. The hoteliers’ motivation, based on doctrinal belief, was to exclude all couples not in a state of marriage irrespective of their sexual orientation. Gay couples were merely a sub-set of a larger excluded group.
Where the opinions of all five Supreme Court justices converge, however, is in relation to indirect discrimination whereby the policy of letting double-bedded rooms only to married couples undoubtedly put gay people at a serious disadvantage compared with straight. But indirect discrimination can be justified under the Equality Act (and its statutory predecessors) whereas direct discrimination cannot: and this is where the balancing of rights comes into play.
The principled starting point of Lady Hale begins, ‘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’. Parliament chose not to insert a conscientious objection clause for the protection of individuals who held particular beliefs. Instead, it provided, in regulation 14, a carefully tailored exemption for religious organisations and ministers of religion from the prohibition of both direct and indirect discrimination on grounds of sexual orientation. This strongly suggests, concluded Lady Hale, that the purpose of the Regulations was to go no further than this in catering for religious objections.
In more general terms, she speaks of the intolerance of homosexuals as ‘an affront to their dignity as human beings which our law has now (some would say belatedly) recognised’. She makes the point that were the roles to be reversed and a gay hotelier denied a room to a Christian guest, this would similarly be declared unlawful. As Lady Hale pithily observes, ‘we do not normally allow people to behave in a way which the law prohibits because they disagree with the law’. And thus any restriction for Christians in running a business open to members of the public at large is both legitimate and justified. They can believe whatever they want: but they cannot be exempted from the anti-discrimination provisions of the general law. Commentators will disagree whether this constitutes neutral law making or evidences the onward march of aggressive secularism.
And whilst the judgment strays into European law, it does not touch upon the nicety of the Italian language which distinguishes between a camera matrimoniale (double room) and a doppio (twin). Any hotelier in Rome bold enough to enquire as to the marital status of couples presenting themselves at reception would soon be out of business!
Mark Hill QC is a barrister and mediator specialising in disputes concerning religious matters in the domestic courts in the United Kingdom and at the European Court of Human Rights in Strasbourg. He is Honorary Professor at the Centre for Law Religion, Cardiff University, Extraordinary Professor at the University of Pretoria, Ecumenical Fellow in Canon Law at the Venerable English College in Rome, and a former President of the European Consortium for Church and State Research. He sits as a Recorder on the Midland Circuit and is Chancellor of the Diocese of Chichester and the Diocese of Gibraltar in Europe, and Deputy Chancellor of the Dioceses of York and Blackburn. He is founder and co-chair of BIMA (Belied in Mediation and Arbitration), a charity which promotes alternative dispute resolution in cases with a religious dimension. He is Consultant Editor of the Ecclesiastical Law Journal and a member of the Editorial Board of the Oxford Journal of Law and Religion. His publications include Ecclesiastical Law (Third edition, 2007); English Canon Law (1998); Faithful Discipleship: Clergy Discipline in Anglican and Roman Catholic Canon Law (2001); Religious Liberty and Human Rights (2002); Religion and Law in the United Kingdom (2011); Religion and Discrimination Law in the European Union (2012); and a chapter on faith-based arbitration in family courts in Islam and English Law (2013). He is currently editing a book on Magna Carta and its contemporary influence in a religiously diverse society.