The Cornish B&B Ruling

Introduction

As you all probably noticed, it is now out.

The owners of a hotel who refused to allow a gay couple a double room acted unlawfully, a judge has ruled.

Peter and Hazelmary Bull, of the Chymorvah Hotel, near Penzance, said as Christians they did not believe unmarried couples should share a room.

Martyn Hall and his civil partner Steven Preddy, from Bristol, said the incident in September 2008 was “direct discrimination” against them.

They were awarded £1,800 each in damages at Bristol County Court.

The ruling itself is a very interesting read and well worth your time. Justice Rutherford has deliberated carefully and written quite clinically, showing that he has genuinely listened to each side of the debate in a spirit of openness and neutrality. The clone has highlighted the key passages and I think he pretty well gets the sections of most interest, though I would recommend that if you want to engage properly with the ruling you should read all of it, not just edited highlights. Here for me are the key sections.

31. The key to whether or not the defendants are in breach of this regulation is the basis upon which they refused a double room to the claimants. They clearly did treat them less favourably than they would have treated a married couple but did they do this on the basis of sexual orientation? The defendants say “no”. We have no objection to homosexuals. Our objection is to sex outside marriage. We refused them the double room on that basis.

32. But is this a correct analysis of the defendants’ position. I think not. The defence makes it clear that the policy is that double rooms for joint occupation are only let to married persons.

33. So two persons of the same sex, whether male or female, who are just good friends back packing around Cornwall with no sexual relationship between them cannot have the double room ( and how many students over the years must have shared a double room in such circumstances?).

34. Conversely two persons of the same sex, whether male or female, who are in a sexual relationship and who have come to Cornwall intent on a sexually fulfilling weekend may enjoy that weekend to the full in a twin bedded room. Putting it bluntly the hotel policy allows them so to do albeit in the confines of a smaller bed.

35. It seems to me that a correct analysis of the position of the defendants is that they discriminate on the basis of marital status. Indeed as I have already quoted at paragraph 30 above, the amended defence says as much. If that is the correct analysis then Regulation 3(4) comes into play. There is no material difference (for the purpose of this regulation) between marriage and a civil partnership. If that is right then upon what basis do the defendants draw a distinction if it is not on sexual orientation?

36. It is important to note that Regulation 3(4) only deals with civil partnerships. I say nothing about what would have been the position if the claimants had not entered into such a legal relationship or indeed if they were a heterosexual unmarried couple.

37. I have reached the clear conclusion that on a proper analysis of the defendants’ position on the facts of this particular case the only conclusion which can be drawn is that the refusal to allow them to occupy the double room which they had booked was because of their sexual orientation and that prima facie the treatment falls within the provisions of regulation 3(1) and that this is direct discrimination.

Indirect Discrimination

43. In view of my finding that this was direct discrimination it is not necessary for me to consider the alternative of indirect discrimination. However if it should turn out that I am wrong it is I think appropriate, albeit briefly, to consider what the position would be under Regulation 3(3).

44. The defendants accept, (see the skeleton argument of Mr James Dingemans QC), “that the defendants applied the restriction, which is a provision, criterion or practice within the meaning of Regulation 3(3), and has applied it equally to persons not of B’s sexual orientation”. They therefore accept that the case falls within Regulation 3(3(a).

45. The defendants deny however that Regulation 3(3)(b) applies and if they are right then that is fatal to a claim. That Regulation provides:- (b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances) I confess that I do not follow this argument. Regulation 3(4) says that there is no material difference between those who are married and those who are in a civil partnership. It seems to me that the restriction does put homosexuals in at a disadvantage when compared with married persons and for the purpose of 3(3)(b) there is no material difference between the two legal forms of relationship. It does not matter that it puts them in the same position as unmarried heterosexuals.

For the purposes of clarity, let’s also provide the relevant section of the 2007 regulations.

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).
(2) In paragraph (1) a reference to a person’s sexual orientation includes a reference to a sexual orientation which he is thought to have.
(3) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if A applies to B a provision, criterion or practice—
(a) which he applies or would apply equally to persons not of B’s sexual orientation,
(b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),
(c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and
(d) which A cannot reasonably justify by reference to matters other than B’s sexual orientation.
(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.

It’s important to have the exact wording because there are some comments in other parts of the ruling that seem to indicate a slight confusion as to what the law does, or doesn’t say. In particular paragraph 45 demonstrates a fundamental misunderstanding as to how the law on Civil Partnerships has been framed. Let’s dive in.

1. Is the Judgement Correct?

Firstly, the judge states that “clearly in my view the case that each side hold perfectly honourable and respectable, albeit wholly contrary, views”. There is nothing illegal about the B&B owners holding their position on sexual activity. Indeed, Justice Rutherford affirms that their position is a good, coherent example of the traditional Biblical sexual morality. This is not the case of “bigots” being homophobic but rather a useful and important examination of the conflict of two “rights”.

Both can legitimately claim the right (Article 8) to have their private and family life (and in the case of the defendants their home) respected. The claimants are a family in the eyes of the law just as much as are the married defendants. Both are entitled not to be discriminated against (article 14) and the defendants have the right (article 9) to manifest their religion or beliefs.

So let’s see the argument used in the ruling. In section 32 the judge rejects the idea that the refusal to let a room was on the basis of sexual activity and not orientation. In section 34 he (quite rightly) indicates that the correct exercising of the B&B stated policy allows a gay couple to share a room and have sex, but in rather cramped circumstances! We then have section 35 (emphasis added).

It seems to me that a correct analysis of the position of the defendants is that they discriminate on the basis of marital status. Indeed as I have already quoted at paragraph 30 above, the amended defence says as much. If that is the correct analysis then Regulation 3(4) comes into play. There is no material difference (for the purpose of this regulation) between marriage and a civil partnership. If that is right then upon what basis do the defendants draw a distinction if it is not on sexual orientation?

OK, what is going on here? First, the judge believes that the B&B owners discriminated on the basis of marital status. This means that regulation 3(4) applies, which the judge says states that there is no material difference between a civil partnership and a marriage in the eyes of the law when it comes to discrimination – you can’t permit a married couple to do one thing and forbid a civil partnered couple the same thing. On that basis, it is very clear to Judge Rutherford that, despite holding to a coherent biblically conservative sexual moral, as the law is currently framed the couple are guilty.

But let’s read the law very carefully. There is in my opinion a fundamental error of understanding employed in the second half of section 35. The words in red caused me to look again at the Civil Partnership Act and note a very curious thing – the 2004 CP Act makes absolutely no reference to sexual orientation whatsoever. There is no presumption in the Act that the couple who enter into a Civil Partnership are gay (or not). Equally, the civil marriage regulations make no assumption that a couple who marry are “straight” (and this recent example demonstrates entirely my point on this – it is perfectly possible for someone who is gay to be married).

So let’s go back to the ruling and look again at what Judge Rutherford said.

There is no material difference (for the purpose of this regulation) between marriage and a civil partnership. If that is right then upon what basis do the defendants draw a distinction if it is not on sexual orientation?

Suddenly we see, from reading the Civil Partnership Act, that the answer to the question is clear – there was in fact no other reason for the Bull’s making their decision to refuse to let a room other then that the couple were in a civil partnership rather than a marriage. Sexual orientation didn’t come into it. Let me draw an example to make this point abundantly clear. Imagine if at the same time as Hall and Preddy arrived at the B&B another civil partnered couple had arrived and asked for a room. This couple, Fred and Harry, are straight but have entered into a Civil Partnership for the purposes of avoiding inheritance tax as they are best friends, childless and want to leave their possessions to each other. The Bulls who run the B&B say to them, “I’m sorry, our rule is that unmarried couples cannot share a double bed”.

In this example we now have two couples, both of whom are civil partners but each of whom have different sexual orientations. It is very clear that they are treated identically – there is absolutely no discrimination on sexual orientation. The discrimination is on the basis of marital status or otherwise. Surely this is clear? To argue otherwise would be to say that Civil Partnerships are restricted to gay people – this is however not the case for the law does not prevent two straight people of the same sex entering a civil partnership.

Now let’s read again section 3(4) of the SOR 2007

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.

Note very carefully that the non-material difference of civil partnership and marriage is NOT in and of itself be grounds for applying the regulations. Rather, section 3(4) refers back to 3(1) and 3(3) which mention only sexual orientation. We have seen very clearly that were an identical straight couple to have turned up at the hotel they would have been treated identically to Hall and Preddy, so the discrimination was NOT on the grounds of orientation. However, the discrimination on the grounds of marriage / CP in 3(4) is dependent on a prior discrimination on the basis of sexual orientation. We have shown above that the B&B would have treated a straight same-sex couple identically.

What I’m trying to say is this – by all means frame a law that says that you have to treat civil partners identically to married couples. However, Section 3(4) of the SOR 2007 intertwines this issue with that of sexual orientation which means that it only makes coherent sense if only gay couples enter civil parnerships. Read 3(1) again in the light of our two couples (both CPs, one straight, the other gay) and see how it is NOT infringed.

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).

Both of our Civil Partner couples are refused a double bed – there is no discrimination on the basis of sexual orientation.

With me so far? Let’s go back to the actual comparison of the case, that between a civil partnered couple and a married couple. Given that the Bulls would have let a married couple (regardless of the sexual orientation of the spouses) share a double bed, it is abundantly clear that there is discrimination on the grounds of being in a civil partnership as opposed to a marriage. But is that discrimination on the basis of sexual orientation? No, because a couple who were straight and in a civil partnership would have been treated identically to Hall and Preddy. Was 3(4) of the SOR 2007 violated? Well, that is dependent on an underlying confusion equivalating civil partnerships and homosexuality. It is the same confusion exhibited in section 45 of the ruling.

The defendants deny however that Regulation 3(3)(b) applies and if they are right then that is fatal to a claim. That Regulation provides:-

(b) which puts persons of B’s sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances)

I confess that I do not follow this argument. Regulation 3(4) says that there is no material difference between those who are married and those who are in a civil partnership. It seems to me that the restriction does put homosexuals in at a disadvantage when compared with married persons and for the purpose of 3(3)(b) there is no material difference between the two legal forms of relationship. It does not matter that it puts them in the same position as unmarried heterosexuals.

Note the highlighted sections. Do you see what Judge Rutherford does? He conflates “homosexuals” with civil partners. He says that the restriction (no unmarried couples sharing a bed) puts “homosexuals in at a disadvantage when compared with married persons” and that might be absolutely true, but the SOR 2007 does not cover the rights of homosexual people in comparison to married people. It covers discrimination of those of a certain sexual orientation against those of another, and within the context of that discrimination, does not permit the difference between a civil partnership and marriage to be used as a defence. The way the second sentence is formulated has the appearance of moving from the terms “homosexuals” and “those who are in a civil partnership” as equivalents, but that is simply not the case in how the Civil Partnership law is worded. We should also note that during the legislation of the Equality Act 2007, it was made clear that there was a distinct difference between marriage and civil partnership. They are not simply the straight and gay versions of the same thing. Andrew Goddard’s examination of the differences back in 2005 is worth a read.

Third, there is no explicit reference to the partnership being a sexual relationship. However, during the consultation the government answered a question about why non-consummation by stating, ‘Consummation has a specific meaning within the context of heterosexual relationships and it would not be possible or desirable to read this across to same-sex civil partnerships. The absence of any sexual activity within a relationship might be evidence of unreasonable behaviour leading to the irretrievable breakdown of a civil partnership, if brought about by the conduct of one of the parties. However, that would be a matter for individual dissolution proceedings’. It is clear that the intention of the government and of most of those registering a civil partnership is that the relationship is expected to be a sexual one between people of the same sex and thus akin to marriage.

Expected, but not automatically assumed.

It would be remiss of me at this point not to quote a friend who emailed after I outlined this argument to him. He wrote,

As a matter of legal interpretation, I do not believe that any court will conclude that the Civil Partnership Act 2004 has no connection with sexual orientation. This isn’t my area of law, but the courts would no doubt look at (a) the purpose of the legislation (possibly taking into account statements from the Act’s passage through parliament), (b) the detailed provisions of the Act, which are clearly aimed at creating a “quasi-marital” form of relationship, and (c) the way in which CPs have been reflected in the law more widely, where they have repeatedly been used as a parallel for marriage (not least in the Sexual Orientation Regulations themselves).

I think my reply would be as follows – “Yes, but we need to have a judge say so first”. My friend might very well be totally correct then when asked to clarify their understanding of what was understood to be the intent of the CP Act, the courts will rule that only homosexual couples were in mind and that therefore it follows that you can assume in law that a civil partnered couple is gay. However, read the CP Act and you will see an utter absence of any reference to sexual orientation. It does not appear. By all means let’s clarify the situation (which is part of the purpose of this post) but until it is clarified let’s all understand that the law as it stands does not assume that a civil partnered couple are both gay.

In summary, what I am saying is this – if you assume that Civil Partners are gay and there is an intrinisic aspect to Civil Partnership that is connected to a specific sexual orientation, then the judgement (as the law is currently written) is correct. The fine detail of Judge Rutherford’s ruling seems to indicate that he made this assumption when deliberating. My questioning of the ruling is the legal grounds on which that assumption is made and whether further clarity is required to help flesh out this sexual orientation / marital status distinction in the English courts. Indeed, this is implicitly recognised by the Judge himself as we will see below.

The ruling also assumes an equivalence of civil partnership and marriage that is independent of issues of sexual orientation, a position that it is not clear is one that Parliament has legislated for. Other writers are now begining to examine the ruling and wondering whether it has created an equivalence of marriage and civil partnership that was not there in the law before.

2. What Happens Next?

As I wrote near the beginning, the judgement is very fair. In it Judge Rutherford recognises that the case raises issues of the competing right to manifest one’s religion against the right of another person not to be discriminated on the basis of their sexual orientation. The whole paper has the feel not of a “the hotel owners are homophobic bigots who need to grow up” approach but rather a spirit of generosity to both sides that is almost pained that one side has to lose. In particular, Judge Rutherford understands that this case has the potential to help define future English case law in this area and makes the following final rulings.

62. I am conscious of the fact that my decision turns on:-
a.the way in which I have interpreted the position of the defendants (see paragraphs 32 onwards),
b. the way in which I have interpreted and given effect to Regulation 3(4), and that
c. this decision does affect the human rights of the defendants to manifest their religion and forces them to act in a manner contrary to their deeply and genuinely held beliefs
d. there is little or no direct authority on the issues I have had to decide.

63. I therefore propose to depart from my normal practice and, assuming that the defendants are so advised, I give permission to appeal.

Wow! The judge understands that case hangs on the understanding of how sexual orientation and marital status interact (62.b), the court’s understanding of what the Conservative Christian sexual moral is and how that was defended in law (62.a) and that there is very little case law to go on (62.d) so he is actually himself producing it! He offers a very clear invitation to appeal and seems to be suggesting that this is a good case to help the English legal system explore the issues raised.

I would be very surprised if the case is not appealed and that we see some of the issues raised explored in further detail.

3. What about the Church of England?

Well, on the surface nothing. This is not an employment case and the Church of England is not involved. However, the very clear articulation of the Bull’s position on sexual morality was pretty well identical to the Church of England’s Doctrine of Marriage. What this means is that an English court has ruled that insisting on customers adhering to the doctrine of marriage of the State Church is illegal. I find that fascinating and it hints at a very deep disconect in the Elezabethan Settlement that is occuring in our church and land.

So – over to you. What do you think? All comment gratefully recieved, but as always do lets be nice to each other.

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