Another Christian Bed & Breakfast case came out last week, containing some faintly unsettling insight from the Court of Appeal into the issue of balancing rights to manifest one’s religion against rights not to be discriminated against.
Black & Morgan – v – Wilkinson reached the right and usual conclusion, i.e. that the refusal of a B&B to provide a room to a homosexual couple was direct discrimination on grounds of sexual orientation. There was a brief but diverting excursion into whether “board” in the sense of “boarding house” (expressly covered by the sexual orientation law) required the provision of both breakfast and another meal and into who did the washing-up, but B&B owner Mrs Wilkinson’s rearguard action on that point was swiftly trampled down by the Court for want, essentially, of any supporting logic, evidence or facts.
However, the Court also chose to examine the question of whether, if refusing such rooms to homosexual couples were indirect discrimination, that refusal could be justified and so lawful. Determination of that question involved weighing those separate rights against each other. Despite the past rantings of the Daily Mail and British National Party leadership on the point, the Court of Appeal reiterated that neither right “is intrinsically more important than the other. Neither in principle trumps the other”. Well, yes and no – the right not to suffer discrimination on the grounds of sexual orientation is more or less absolute, but the right to manifest one’s religion is subject always to any limitations necessary for the protection of the rights and freedoms of others.
The balancing/justification exercise required an assessment of the adverse impact on Mrs Wilkinson if she were obliged to make double rooms available to gay couples. She had said rather dramatically that if forced to respect homosexuals’ rights, she would have to “withdraw from public life”. The Court clearly recognised this as histrionic nonsense, but did ultimately accept that if Mrs Wilkinson would be compelled by law to offer services at her B&B which she was simply not prepared to offer, then she could possibly (but not more than possibly) have to abandon the business altogether. If she could not offer double or twin rooms without fear of being obliged to provide them to gay couples, then she would have to provide single rooms only, she said.
The Court of Appeal bemoaned the absence of any evidence from Mrs Wilkinson as to how a B&B offering single beds only might survive or fail or as to her ability to mitigate reduced accommodation revenues by offering other services. “If she wished to show that a restriction of her rights [to manifest her religion] would cause her serious economic harm”, said the Court of Appeal, “then the burden was on her to do so. She failed to discharge it”.
This begs the key question – if Mrs Wilkinson had brought evidence to show that a single beds-only B&B would definitely not survive, i.e. beyond the mere possibility that it might not do so identified by the Court, then would that adverse impact on her business have led to a different conclusion? The Court of Appeal said that it did “not exclude the possibility that the financial impact on an existing business may be relevant to justification if appropriate evidence were available”.
It is very much to be hoped not. The European Court of Human Rights has already decided most of the “crucifix cases” against the employees even in the knowledge that they had lost their jobs in consequence of their beliefs. It would seem quite wrong if the closure of a business leading essentially to the same loss of livelihood would justify the owner’s otherwise unlawful actions. Much better for all businesses to stick to the clear and unambiguous response from the Government to its 2007 consultation on outlawing sexual orientation discrimination in the provision of goods and services: “The Government contends that where businesses are open to the public on a commercial basis, they have to accept the public as it is constituted”. Really, Sherlock?