Christians v Gays – Discrimination Top Trumps

So the decision in Hall & Preddy v Bull has been given and published online .

You may or may not have seen this in the press. Basically, the Bull’s own a B&B that has a mix of double, twin and single rooms. On their website they explicitly say that they only let straight married couples in the double bedrooms. They do not have any similar rules for single or twin beds.

Mr Hall and Mr Preddy supported by the Equality Commission, argue that the Bulls have discriminated against them in providing the services (or not) or a B&B.

The decision has been awarded in favour of the claimants, Mr Hall and Mr Preddy, on the grounds of direct discrimination.

In my opinion, the District Judge has got it wrong and i’ll explain why. However, I take Daniel Barnett’s point in agreeing with me when describing it as a “policy decision”, more on which later.

The law in question is as follows:

Direct Discrimination
A person (“A”) discriminates against another (“B”) if, on the 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) .

Indirect Discrimination
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)

Direct Discrimination can never be “justified” but Indirect Discrimination can be justified in certain circumstances.

Here, the Bulls argue that they did not discriminate on the grounds of sexual orientation. They discriminated on the grounds of being married. The would treat a same sex unmarried couple the same.

The Judge gets it wrong because later on in the section there is a part that says being married does not make a difference. He said that a civil partnership has the same legal meaning as marriage, effectively, and therefore they did discriminate on the grounds of sexual orientation. A same sex couple as friends/backpackers would not be allowed the room, and neither were Hall and Preddy, so it must be direct discrimination.

It isn’t. Direct Discrimination would be “we’re not letting you have a room because you’re gay”. Or in the words of the legislation, A has not discriminated because B is gay, A has discriminated because they are not married and would do the same to straight couples.

It is however indirect discrimination, because the Bulls apply a rule which does (clearly) affect homosexual couples. However, the law allows indirect discrimination if it can be justified. The Judge in the case believed that the Bulls position was not justifiable in law.

I disagree. Reviewing the cases referred to in the Judgment, and other cases regarding “justification”, putting the Bulls in such a morally difficult place because of their religion does allow them scope to justify their practice. Viewed another way, the court’s application is effectively indirect discrimination on the Bulls.

The bigger issue here is thus: which right is better to have? Would it be different if it were a muslim hotel? What about a gay hotel and straight guests? We end up in a situation of “protected characteristics top trumps”.

This is a matter that, with the backing of the equality commission and a Christian charity, could go to the House of Lords. My guess is that it will be referred to the European Court of Human Rights, to see whether the provisions are compatible with Human Rights. I.e. Does the right to practice a religion usurp the ‘right’ to be gay? (I know its not a right before you start….)

But as I mentioned earlier, this is a policy decision. I am a Christian, but my views above are on the basis of the law. Christianity used to be the religion of the country and it would have been blasphemous to suggest that rights of a “minority” were greater than those of a Christian. Times have changed and right now, in this country at least, Christianity ranks quite low in the league table of protected characteristics. In this age it is more attractive to decide this case against the Christians. It would be very different in other countries of course and may even be different with other religions in question.

Finally, I am not saying that Christianity should top the league table, but shouldn’t we all be equal? As it stands, the Bristol County Court’s interpretation of the law suggests that equal opportunities is no longer equal.