Thursday, November 28, 2013
UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?
Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that he couple have entered into a civil partnership?
This is essentially the question presented in the UK Supreme Court's opinion in Bull v. Hall involving the Chymorvah Hotel in Cornwall, pictured below.
The main opinion, authored by the twelve justice Court's only woman member, Lady Hale, affirms the lower court's finding that the same-sex couple's equality claims must prevail. While the decision is unanimous, some justices wrote separately because of differing on the rationale, including whether the discrimination should be deemed direct or indirect. These differences resulted from highlighting sexual orientation or highlighting marital status, with the added wrinkle of civil partnership being equivalent to marriage.
But clearly, the Court held, there was discrimination. And further, the Court held, that discrimination cannot be justified. The Court construed the statutory frameworks prohibiting discrimination based on both sexual orientation and religious belief, and then turned to article 9 of the European Convention on Human Rights, which guarantees the ability to manifest religious beliefs in “worship, teaching, practice and observance." But Article 9 also provides:
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
This "rights of others" qualification is key to the Lady Hale's analysis, as these rights include rights under "ordinary law," including UK's regulatory framework that prohibits discrimination.
But, as Lady Hale makes clear, it is not a matter of sexual orientation discrimination trumping religious discrimination. Instead:
If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.
While the UK Supreme Court did cite cases from other jurisdictions, it sometimes noted that they occurred in a "different constitutional context."
In the United States, the constitutional context pits First Amendment rights of free exercise of religion against Equal Protection rights based on sexual orientation. When the sexual orientation rights of equality have been statutory, the United States Supreme Court has clearly held that the First Amendment interests prevail, as in Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995). However, with the constitutional recognition afforded same-sex marriage last term in United States v. Windsor under the equal protection component of the Fifth Amendment in the challenge to DOMA (Defense of Marriage Act), the legal landscape has altered.
Thus, it may be that the US Supreme Court will soon be confronting an issue quite similar to the one that the UK Supreme Court in Bull v. Hall. One possibility is Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer and in which Elane Photography has filed a petition for writ of certiorari.
Interestingly, the petition relies upon the compelled speech doctrine, arguing that requiring Elane Photography, a wedding photographer to photograph a same-sex wedding would be to require her to "create expressive images" that conveyed messages that conflict with her religious beliefs and therefore violates the First Amendment doctrine of compelled speech. The petition heavily relies upon Wooley v. Maynard (19977) the New Hampshire "leave free or die" license plate case. As Lyle Denniston notes, the case "does not ask the Court to rule on any right of gays and lesbians to marry" and NM presently does not either prohibit or allow same-sex marriage.
Given the US Supreme Court's highly discretionary grant of certiorari and the lack of a developed conflict in the circuits on this issue, it seems more likely than not that the US Supreme Court will refuse to hear Elane Photography. But given the probabilities of recurrence of the issue, the US Supreme Court will most likely be confronting this issue sometime soon.
Should be interesting. Like the clash between the religious view that African-Americans bear the "Mark of Cain" and statutes prohibiting race discrimination. Like the clash between the religious view that women are subordinate to men and statutes forbidding gender discrimination. Like the class between the religious view that peyote is necessary to commune with the spirits and statutes criminalizing peyote use. Why, decades after the decision in Employment Division v. Smith, is there any dispute that a person (let alone a corporation) seeking a religious exemption from a religiously neutral statute of general application must obey the statute? Or will the devout (corporations) rely on RFRA? Should standard of review ever be mentioned in discussions of this nature?
Posted by: Jeffrey G. Purvis | Nov 29, 2013 3:15:55 PM
Is the issue already there? Isn't it Hobby Lobby?
Posted by: David Nadvorney | Nov 28, 2013 6:30:24 PM