The law of England is not Christian

By Andrew Brown, The Guardian, 28 February 2011: 

The judgment in the case of a Pentecostal couple who wanted to foster children, but refused to accept homosexuality, is an important statement of secular principles

The Christian Insitute and similar bodies have mounted a series of court cases over the alleged persecution of Christians in the last five years. Almost all have been based around the claim that Christians are entitled to discriminate against gay people. Each one has ended in defeat. From the cross worn by Nadia Eweida to the attempts to allow religious exemption to the registrants of civil marriage, or the owners of B&Bs, the cases have been pitched as matters of high principle, and the judges have responded with increasing asperity. None, I think, has been so brutal as Lord Justice Munby in his judgment on the case of Owen and Eunice Johns, a couple of Sheffield pentecostalists who were turned down as foster carers because they would not accept homosexuality.

"I cannot lie and I cannot hate, but I cannot tell a child that it is ok to be homosexual", as Mrs Johns explained her position.

Now it is arguable that this is a case that could, and should, have been settled much more quietly. I believe that if you really "can't lie and can't hate", or even if you have ordinary human difficulties with a policy of full-on lying and hating, then you must come to the view that for some people it is perfectly OK to be homosexual. But either way it isn't really an urgent problem. The Johnses were applying to foster children between the ages of five and ten, not teens troubled about their sexuality. It's absurd to make their views on homosexuality a shibboleth.

But the Johnses themselves, no doubt egged on by rich backers, decided to turn the case into a matter of principle. they wrote to the council "We take these statements and others to mean that it is either your policy, or your understanding of the law, that Christians and other faith groups who hold the view that any sexual union outside a marriage between a man and a woman is morally reprehensible are persons who are unfit to foster. In short you seem to be suggesting that Christians (such as us) can only adopt if we compromise our beliefs regarding sexual ethics"

This is the view that Lord Justice Munby has described as a "travesty of reality". He goes on to say that:

"We are simply not here concerned with the grant or denial of State 'benefits' to the claimants. No one is asserting that Christians (or, for that matter, Jews or Muslims) are not 'fit and proper' persons to foster or adopt. No one is contending for a blanket ban. No one is seeking to de-legitimise Christianity or any other faith or belief. No one is seeking to force Christians or adherents of other faiths into the closet. No one is asserting that the claimants are bigots. No one is seeking to give Christians, Jews or Muslims or, indeed, peoples of any faith, a second class status. On the contrary, it is fundamental to our law, to our polity and to our way of life, that everyone is equal: equal before the law and equal as a human being endowed with reason and entitled to dignity and respect."

And it is the statements he goes on to make about "what ought to be, but seemingly are not, well understood principles regulating the relationship of religion and law in our society." I am going to quote what follows at length, because it is a really clear statement of the status of establishment, and wholly in line with what has been said in other, similar recent cases where Paul Diamond made similar arguments:

"Although historically this country is part of the Christian west, and although it has an established church which is Christian, there have been enormous changes in the social and religious life of our country over the last century. Our society is now pluralistic and largely secular. But one aspect of its pluralism is that we also now live in a multi-cultural community of many faiths. One of the paradoxes of our lives is that we live in a society which has at one and the same time become both increasingly secular but also increasingly diverse in religious affiliation.

"We sit as secular judges serving a multi-cultural community of many faiths. We are sworn (we quote the judicial oath) to "do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will." But the laws and usages of the realm do not include Christianity, in whatever form. The aphorism that 'Christianity is part of the common law of England' is mere rhetoric; at least since the decision of the House of Lords in Bowman v Secular Society Limited [1917] AC 406 it has been impossible to contend that it is law.

...

"Religion – whatever the particular believer's faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts, though the courts will, of course, pay every respect and give great weight to the individual's religious principles. Article 9 of the European Convention, after all, demands no less. The starting point of the common law is thus respect for an individual's religious principles coupled with an essentially neutral view of religious beliefs and benevolent tolerance of cultural and religious diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect. And the civil courts are not concerned to adjudicate on purely religious issues, whether religious controversies within a religious community or between different religious communities.

"However, it is important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. And invocation of religious belief does not necessarily provide a defence to what is otherwise a valid claim.

"Some cultural beliefs and practices are simply treated by the law as being beyond the pale. Some manifestations of religious practice will be regulated if contrary to a child's welfare. One example is the belief that the infliction of corporal punishment is an integral part of the teaching and education of children and is efficacious ... And some aspects of mainstream religious belief may even fall foul of public policy. A recent striking example is Westminster City Council v C and others [2008] EWCA Civ 198, [2009] Fam 11, where the Court of Appeal held on grounds of public policy that a 'marriage' valid under both Sharia law and the lex loci celebrationis despite the manifest incapacity of one of the parties was not entitled to recognition in English law."

The judgment then went on to quote the (devout Anglican) Lord Justice Laws, when he rejected Mr Diamond's earlier case about an Islington registrar, another penetecostalist, who wanted exemption on religious laws from perfrming civil partnerships. She had been supported by the former Archbishop of Canterbury, Lord Carey of Clifton. Laws was dismissive of their arguments, and said:

"The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself."

"So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime."

Lord Munby added: "We respectfully and emphatically agree with every word of that."

Obviously, these judgments will have a considerable effect on evangelical protestantism in this country, which has always taken the view that we are, or should be, a Christian nation. But I think the greatest effect will not be on pentecostalists like the Johnses. They can adjust quite easily to the idea that they live under a heathen or godless regime. It is the old-fashioned evangelical wing of the Church of England which will be most upset and confused by these clear statements of principle.