The Wilkinson B&B Ruling
The ruling on the Wilkinson B&B Case is out and you can read it below.
Click to access black-wilkinson-judgment-18102012.pdf
The verdict was that the Wilkinsons discriminated directly and indirectly against Black and Morgan. The judge essentially ruled that since the Wilkinsons did not question every heterosexual couple about their marital status and therefore let some unmarried couples stay in their rooms, they could not not then rely on the assumption that Black and Morgan were not in a civil partnership. Since they turned them away whereas they wouldn’t always turn away a heterosexual couple, they discriminated.
And the judge is right.
However, it does now indicate what the key test case would be. It’s certainly clear that no B&B could get away with putting up married couples but not civil partnered couples. However, what about a B&B that asked every couple staying whether they were married or in a civil partnership? If not, could they decline to offer them a room? Would love to see that one in the courts.
And whilst you’re chewing over that, have another read of these two old posts, Graeme Archer on this B&B case and my post on how to run a B&B.
The ‘Christian’ Institute losing in court? Surely not?! What are the odds!? ;-)
I like your reasoning Peter.
However, I do wonder whether the law couldn’t make room for people who want to run specialist businesses for particular groups – gay hotels or christian B+Bs, for instance.
Would said businesses have to advertise their restrictions in advance? Wouldn’t there be obvious risks – with racists claiming that they should be allowed white-only spaces, or a return to the days of men-only clubs?
Interesting idea, Dave. Are men only clubs and hotels entirely illegal now? If not I imagine a gay hotel could get away with it still. What of monastery guest houses? I’ve mentioned them before but as far as I know they are exempt. Mt St Bernard’s, the Cistercian monastery in the Charnwood Forest does accommodate women but in a separate lodge at the end of the drive. Of course no sex of any description is supposed to take place – and anyway the guesthouse beds are extremely narrow. But I think if a couple want to run a Christian hotel (or any other kind of special interest for that) provided this is made clear and the ethos is explained before you book I do not see why they should not be able to do so. It seems the law says if you want to put out your shingle for a general purpose B&B you cannot impose your ethical standards on your guests.
I think you nail it Tom. In both cases so far (Bulls and Wilkinsons) one of the key criticisms made by the justices were the inconsistency of the implementation of the moral code of the establishment. That seems to suggest that if an establishment *clearly* markets itself as Christian and makes sure that every booking is referred to this and the “moral code”, there can be no complaint if those who book turn up and object to the moral code.
Of course, that wouldn’t get round the clear legal guidance that civil partnerships need to be treated the same as marriages, but it would permit an establishment to refuse a bed to a gay couple who were not in a civil partnership IF and ONLY IF they had made this issue apparent at the point of booking AND that they applied an equal policy to unmarried heterosexual couples.
None of this though gets round the clear ruling that any form of hotel / guest house CANNOT refuse a bed to a couple who are in a civil partnership if at the same time if offers a double bed to a married couple. To be fair though, that position has never actually been tested in court, because none of the cases so far have actually been consistent in their position and made explicitly sure every guest was aware of their position before booking. If such an establishment were to be taken to court (clearly indicating to every booking before payment that they only let rooms to marriage couples because of religious convictions) then I think that a fair and reasonable judge might have to reconsider the previous rulings and weigh up whether the B&B owner’s freedom to manifest and practice one’s faith was now being compromised.
But I doubt we’ll ever find a B&B with such consistency to test the law and the issue around rights properly, and instead we’ll have more of these poor communication of moral stances dressed up as discrimination going through the courts.
It just occurs to me that if a couple of men or women said to the Christian owner we will share a bed but we promise not to have sex while on your premises would that suffice for most owners? I have shared a bed many a time with a straight young heterosexual friend without the assumption that either of us wanted sex so it is not automatic that two men in a bed has to = sex.
Good point. I think the answer might be “no” given that we want as Christians to give not even a hint of immorality.
What Catholics call giving scandal. It always strikes me that is hardly trusting people. Perhaps we should be more Quaker about it and take a man’s yea for yea and nay for nay without the need for oathes.
But if the B&B owners are really concerned about ‘marriage’ and define that in the evangelical sense, then they would be hypocrites in taking this stance, and surely that’s hardly Christian either.
But the issue is how you comply with the law Mike.
As far as I’m aware things like gay hotels may advertise themselves as “gay friendly” but may not actually turn away or discrimimate against guests who are not gay. When this came up in discussion before the latest “equality” legislation I saw gay groups were arguing that there should be exemptions – because gay people often find it hard to openly show affection to their partners in the presence of “straight” guests – but I think the government argued that either everyone or noone may discriminate (on those grounds taht the Government disapproves of).
Personally I think that that was irrational. Any establishment SHOULD be allowed to “specialise” in a particular group that has distinct needs. I can’t see what would be wrong with a hotel that specialises only in catering only for gay people, or catering only for (faithful) Jewish people or Roman Catholics or Anglicans (??!), or only for swingers etc etc. A self-imposed specialisation in your business should surely be legitimate… though the local authorities should have to issue licences to ensure that only a small proportion of the rooms in an area are specialised.
I do think that there is a glaring error in Recorder Moulder’s interpretation of the ‘special care and attention’ exemption to the Equalities Act.
Regulation 6(1): ‘regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.’
Recorder Moulder claims that: ‘In my view the correct interpretation is that “how” a person treats the relevant categories is “as if they were members of the family” and “who” is so treated are children, elderly persons and persons requiring a special degree of care and attention. Accordingly it seems to me on a straight reading of the regulation 6 (1) that this exception applies only to “children, elderly persons or persons requiring a special degree of care and attention”.
He sees ‘children, elderly persons, or persons requiring a special degree of care and attention’ as a strict qualification of which members of the family would incur the exemption. Whereas defendants read these as examples of familial treatment under a commercial (or non-commercial) arrangement that might involve the use of one’s home.
The key to understanding the exemption is to ask, ‘under what sort of arrangement for reward is a person taken into your home ands treated as a family member?’
Recorder Moulder says the claimants are neither children, nor elderly, nor *require* special care and attention. The sentence expressed explicitly would be: ‘takes into his home, and treats as he would if they were members of his family’
The focus of the exemption is on:
1) where the commercial arrangement takes place: one’s home;
2) treatment of that person *as if* they were a member of the family, etc.
So, show me any other commercial arrangement under one’s own roof that might fall into this form of familial hospitality, if not a home-based B&B, or bed-sit. There are none. The purpose of the exemption is to exclude any impositions on one’s personal domain of family life, even where there is a commercial element to the arrangement.
Strangely, when Moulder considers a part of the regulation relating to its applicability to specific businesses, he uses,
‘paragraph 1 applies in particular to (b) accommodation in a hotel, boarding house or similar establishment…’ to *extend* to B&B’s which are not explicitly mentioned, not limit the applicability of the regulation.
Wrong, wrong, wrong.
I agree with you, Tom (don’t have a heart attack!). I think the problem with both these cases is that the couple turned up thinking that this was an ordinary B&B open to everybody and got told ‘Open to everybody except people like you’ (or, at least, that’s how it’s going to have felt to them, apart from the inconvenience and spoiling their trip). It’s unfortunate that the gvt. is backing itself into a corner with equalities legislation. I think a gay bar/hotel should be able to politely ask straight couples to go elsewhere. Of course, there’s the danger of ghettoisation, but if a bar owner said to me ‘would you mind going elsewhere to get a drink, my clients want to let their hair down’, I wouldn’t be offended. Sometimes I like to have a little time with the girls without any guys around. Maybe that’s how gay people feel about straights?
Very sound piece of work, I was very impressed by her judgement.
There are a number of key issues here:
1. The court considers private homes to fall within the scope of Equality regulations, once people pay to stay in them for a short time. It doesn’t matter whether the guest rooms are in an annexe or the heart of that house.
2. The court upheld that running a business in accordance with Christian principles *was* a manifestation of belief withing Article 9(2).
3. Nevertheless, if comparison of the experience of un-civil partnered homsexuals with unmarried heterosexuals at an establishment proves they are treated less favourably, then this limits
the religious exemption provided by 2.
4. The married-only policy is considered to discriminate aginst homosexuals who can’t marry.
5. A business policy will only be interpreted as a manifestation of belief if it is applied uniformly.
6. Permitting a couple to stay in the double room in not considered to involve the same interference with Article 9 rights as being forced to profess something (as a
school teachers might) contrary to one’s beliefs. The courts consider the latter to be an infringement on your right to HOLD a belief., the former is a right to MANIFEST that belief.
7. The judge concluded in respect of the B&B: ‘It seems to me that the Defendant has a choice whether or not to operate this particular business; it is not a case where an employee has had new duties imposed on him by an employer’ In this sense, it differs SIGNIFICANTLY from Ladele vs.
The crucial difference between this case and those involving other protected characteristics is the higher level of cogency that a manifestation of belief must demonstrate for exemption when the difference in treatment is claimed to relate to sexual orientation: ‘where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be
cogent if such differential treatment is to be justified.’
David, I am impressed by your analysis here. It explains the judgment perfectly. Perhaps you are a lawyer yourself. Now if what you have said could be made available on a widespread basis to B&B owners perhaps we could have an end to these tiresome cases egged on by the Christian Institute’s ideas that a home is a castle even when it’s a B&B.
Not a lawyer, but Briggs-Myers says I should be. ;-)
1. Would point 4 apply, if same-sex marriage proposals were implemented? Presumably, a marriage requirement would then no longer discriminate against homosexuals.
2. Could a uniformly applied policy of stating at booking time that the honeymoon suite is reserved for married couples recognise the distinction the government holds between religious and civil marriage? Or is the distinction specious?