The thorny issue of religious beliefs and the law of discrimination (again)

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October 20, 2012 by Alasdair Henderson

Black & Morgan v. Wilkinson (unpublished, October 18, 2012, Slough County Court) – Read the judgment

Christian owner of Berkshire b & b has been found discriminating against a gay couple by refusing to allow them to stay in a twin room because of his belief that all sexual activity outside of marriage is bad.

Despite being a county court judgment, the case grabbed the headlines, in part because of comments from BNP leader Nick Griffin on Twitter (see further below), but also because it is so factually similar to the high-profile case of Bull vs. Hall and Preddy which is currently before the Supreme Court (see our analysis of the Court of Appeal decision here). This judgment also comes at a time when the decision of the European Court of Human Rights is awaited in the four joint cases of Ladele, Eweida, Macfarlane and Chaplin, which all involve issues of religious freedom and two of which involve the same potential conflict between the right to be free from discrimination on the basis of sexual orientation and the right to religious freedom (see our articles here, here and here) . Additionally, Recorder Moulder’s complete and careful judgment has been helpfully made available online (see link above), so that it can be reviewed in detail.

Some unpublished points

There were two things that made this case different from Bull vs. Preddy. First of all, Mr. Morgan and Mr. Black are not related by a civil company, while Mr. Hall and Mr. Preddy, the plaintiffs in the Taurus cases, are. Ms Wilkinson said this was a significant difference, as it meant that the correct comparator for a discrimination claim was an unmarried couple of the opposite sex, and she also reportedly refused to allow such a couple to have a double bed. However, Recorder Moulder considered that the decision to Taurus did not depend on the fact that MM. Hall and Preddy were civilian partners, so she was required to follow the Court of Appeal.

He also noted that if she got it wrong, it would still be direct discrimination using a singles comparator, as it appeared Ms Wilkinson had allowed opposite-sex unmarried couples. to share a bed a few times because she had not found out, until it was too late to refuse, that they were not married (see paragraph 44).

[One interesting side-issue to note from this judgment is that much turned in Bull, and therefore in this judgment as well, on the fact that same-sex couples cannot get married, so discriminating on the grounds of marriage was in effect the same as discriminating on the ground of sexual orientation. On the other hand, Recorder Moulder referred to regulation 3(4) of the relevant Equality Act (Sexual Orientation) Regulations 2007, which provides that there is no material difference between marriage and civil partnership. This seems to contradict Bull. If, as is proposed, same-sex ‘civil’ marriage is to be introduced, but not ‘religious’ marriage, this issue might become even more complex (particularly as it is unclear what the difference would be between the two).]

Second, the ‘Swiss B&B’ owned by Mrs Wilkinson has its guest rooms in the center of the family house (unlike the Bulls’ B&B where the guest rooms were in a separate part of the house). She argued that this meant that her B&B was not a hotel or guesthouse for the purposes of Rule 4 (2) (b) of the Regulations. However, Recorder Moulder felt that, although different from a hotel or pension, the Swiss B&B is clearly a commercial enterprise and is a “similar establishment»To a boarding house, therefore fell under article 4 (2) (b).

Alternatively, Ms Wilkinson argued that because she treated guests as if they were family, her B&B fell under Regulation 6 (1), which exempts from the scope of the Regulation:

anything that is done by a person as a participant in arrangements whereby they (for reward or not) receive at home and treat as if they were family members, children, the elderly or persons requiring a special degree of care and attention

Recorder Moulder found that Ms. Wilkinson provided personal and caring, even affectionate, service to her B&B guests. However, this did not fall under a simple reading of the regulation, which aims to cover people (such as children) who are welcomed as if they were a family and / or require special care and attention. Guests of the B&B such as Mr. Morgan and Mr. Black did not fall into this category.

The recorder Moulder therefore considered that the regulation applied to the Swiss B&B and that there had been direct and indirect discrimination, following the decision of Taurus. The final step was to examine whether this effect of the Rules was contrary to Ms Wilkinson’s rights (private and family life) and Article 9 (religious freedom) of the European Convention. After reviewing the case law and the circumstances, he found that if Ms Wilkinson’s rights under Articles 8 and 9 were infringed, such interference was justified because Parliament had decided on the approach to be taken in the event of a conflict. rights in this manner and that its decision should be deferred to (see paragraph 103).

Unsurprisingly, given that Taurus is currently before the Supreme Court, Recorder Moulder has granted leave to appeal.

Comment

Given the current case law, it is not surprising that Recorder Moulder came to the conclusions it did. It is up to the Supreme Court or the European Court of Human Rights to change the approach taken so far in these cases.

There seems to be a good argument for a different approach to cases where religious belief conflicts with discrimination law (as suggested earlier on this blog). Currently, the impression given by the courts is that Article 9 is about the least effective part of the European Convention. Although the protection of beliefs under Article 9 (1) is absolute, the protection of manifestations of belief under Article 9 (2) is interpreted so narrowly that it has practically no impact on entire areas of public life.

As the British government argued in front of Strasbourg last month in Ladele et al, the reading of Article 9, paragraph 2, by the European Court in previous cases has the effect that if people find that their religious beliefs come into conflict with their work, they must either “leave their beliefs at home, or find another job ”. Clause 9 will not help them. The practical effect of decisions like Taurus and Wilkinson is that, at least when it comes to some issues, self-employment is no escape either – if people find their beliefs in conflict with those of their clients, they should either keep their beliefs to themselves or start another business.

Article 9 indeed protects a mediocre form of religious freedom, if it does not extend to the workplace or the market. The current approach risks forcing millions of people to be hypocrites; able to act according to their beliefs in their own homes or mosque / church / synagogue / temple, but having to take on a different face at work or in business. It is unacceptable and impractical.

But the principle of non-discrimination on the basis of sexual orientation is also extremely important, and providing for exceptions would make it meaningless. Reconciling the two is difficult, but there has to be a way to do it that ensures that religious freedom is more than the freedom to believe what you want in private, and that celebrates and protects the fact that we live in a society that tolerates all kinds of different belief systems.

Postscript – how to debate these issues (and how not to)

The way the parties in this case resolved their dispute stands in stark contrast to many potential “supporters” on either side. While Mrs Wilkinson firmly refused to offer a double bed to MM. Black and Morgan, they confirmed she was “polite and courteous” and said she would have offered them single rooms if they had been available. Mr. Black and Mr. Morgan didn’t make a lot of fuss, but just got their bail and left. The case itself appears to have involved very little factual argument, relying almost entirely on cautious legal argument.

Contrary to the measured way both sides handled this, Mr and Mrs Wilkinson last month described how they and their children have been subjected to months of hate mail, death threats and false negative reviews about their B&B on TripAdvisor by various anonymous supporters. ‘from the position of Mr. Black and Mr. Morgan.

Then on Thursday, BNP’s Nick Griffin tweeted Mr. Black and Mr. Morgan’s address and appeared to have threatened them with retaliation over the judgment. Thankfully, the couple don’t seem too scared of this – calling the threats a “wet backfire.” Ms Wilkinson also immediately issued a press release expressing sympathy for the couple and condemning Mr Griffin’s comments.

Given that the question of how best to reconcile religious beliefs and the law of discrimination does not appear to be going away any time soon, it is to be hoped that the debate will play out in the style of Ms Wilkinson, Mr Black and Mr Morgan. , rather than that of Mr. Griffin and the anonymous trolls who made Mrs. Wilkinson’s life so unpleasant.

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