Full Judgement of B&B Case Now Available

h/t to Thinking Anglicans. Here's the pdf and here are what I think are the key excerpts:

8. In our parliamentary democracy it is for parliament to frame laws which reflect these changes in attitude or which give a lead to such changes. Whatever may have been the position in past centuries it is no longer the case that our laws must, or should, automatically reflect the Judaeo- Christian position. I will not lengthen this judgment by repeating the very interesting analysis of Laws LJ in McFarlane v Relate Avon Ltd [2010] IRLR 872 beginning at paragraph 20. One quotation will suffice:- “The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves.” So it is that laws have been passed, examples of some of which I have given above, which do not follow the traditional religious position and this case is about one such area, namely that of sexual orientation and equality.

20. The defendants deny direct or indirect discrimination on the basis that the restriction on having a double room has nothing to do with sexual orientation but, as their counsel put it, everything to do with “sex”. They make the point that the restriction applies equally to heterosexual couples who are not married. In case anyone should think that this is simply a clever defence let me say straight away that this is, without doubt, the genuine policy of the defendants. The trial bundle contains newspaper reports back in 1996 (eg page 61) which deal back then with their refusal to allow unmarried couples to share the same room. The issue of homosexual couples does not even get a mention.

22. I should say at this point that I have no doubt, and the point was not seriously pursued by the claimants, that the defendants genuinely hold a perfectly orthodox Christian belief in the sanctity of marriage and the sinfulness of homosexuality. Such a belief in my view reaches the threshold set out in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 and therefore does fall within Article 9 of the European Convention.

28. And it is clearly in my view the case that each side hold perfectly honourable and respectable, albeit wholly contrary, views.

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?

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

It seems that where the defendants shot themselves in the foot was in the fact that they were prepared to allow a homosexual couple to share a room, so long as it wasn't with a double bed. One has to feel the weight of this part of the judge's argument – it does demonstrate an inconsistency of sorts on the part of the defendants – although some may suggest it was more naïvety on the part of the defendants to think that, as the judge put it,

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.

So I still end up concluding that he's done us a favour. He's shown us that we've got to think through our policies to ensure that we really aren't being inconsistent. And, as we noted in a previous post, he's recognised the serious implications (setting aside the issue of how many people can get into one or two beds!) of the general right to exercise one's religious choices and preferences.

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