Religion vs sex: sex wins again

The perceived clash of rights does not really stand up, as the law cannot protect subjective content

Simon Foreshaw

The decision of the Court of Appeal (CoA) in Black & Morgan v Wilkinson [2013] is another attempt by the courts to resolve the apparent clash of rights associated with sexual orientation and the right of persons to manifest their religious beliefs. Generally, in this battle, sexual orientation has appeared to trump religion, and the case seems to follow a trend.


At issue was the policy of a B&B owner only to allow heterosexual married couples to occupy her double rooms. That policy was said to be founded on her religious conviction. The CoA found it to be directly discriminatory since, although the policy had a thin veneer of neutrality, in reality no homosexual would be permitted to share a double room in this B&B with their partner. In the alternative, the court would have found the policy to be indirectly discriminatory. 

Any policy framed by reference to marriage was bound to disadvantage homosexuals; the only question therefore was whether such a policy could be justified. In this case the answer was in the negative. The rights of the couple trumped the right of the B&B owner to manifest her religious beliefs, even though the B&B was her home.

The courts have reached similar results in other contexts. In the employment sphere the dismissal of a counsellor who refused on religious grounds to provide psycho-sexual counselling to same-sex couples was found to be justified (McFarlane v UK [2013]. Similarly, a registrar who alleged religious discrimination when required to sign a new job description that included an obligation to carry out civil partnership ceremonies had no good claim (Ladele v UK [2013]. In the social care context, a local authority was entitled to consider would-be foster parents’ religious views in relation to homosexuality against a diversity criterion when assessing their application because it was considered that such views would be inimical to the interests of children (R (Johns) v Derby City Council [2011]. Elsewhere, a decision to ban a Christian advertisement on London buses that suggested that
homosexuals could be converted was upheld notwithstanding that the advertisement was placed in response to a gay rights advertisement (Core Issues Trust v Transport for London [2013]).

In our view, in these contexts there is no real clash of rights. The law protects a person’s right to have a sexual orientation and to manifest that orientation. Similarly, the law protects a person’s right to have and express a religious belief. What the law does not protect is the subjective content of any particular belief, nor could it sensibly do so. The content of such beliefs are many and varied – some mainstream, others outlandish. However, as was eloquently put by Laws LJ in McFarlane v Relate Avon Ltd [2010], what is true of all religious beliefs is that they are “necessarily subjective, being incommunicable by any kind of proof or evidence” and that “[they] lie […] only in the heart of the believer, who is alone bound by [them]. No-one else is or can be so bound, unless by his own free choice”.