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National Secular Society

Challenging Religious Privilege

High Court judge makes clear that the law is secular, it is not anti-Christian

The National Secular Society has welcomed the judgment in the High Court yesterday on the case of a Christian couple who were refused foster caring placements because of their anti-homosexual views based on Christianity. The judgment is a severe blow to those evangelical Christians who seem determined — through repeated court cases — to give Christianity a privileged place in the legal system.

Ruling on the case of Owen and Eunice Johns, Lord Justice Munby said that the case was a "travesty of reality". He went on to say that that law is secular, not theocratic.

Terry Sanderson, President of the National Secular Society, said: “The reaction to the judgment has, as usual, been ignorant and, in some cases, deliberately misleading. The Christian activists still try to claim that the judgment has made some sort of sweeping anti-Christian restriction on adoption. This simply is not true.”

Mr Sanderson pointed out a statement by the former Bishop of Rochester, Michael Nazir-Ali, who declared yesterday that the judge was wrong to claim that this is a secular country (Mr Nazir-Ali seems not know the difference between a secular country and a secular state).

The former bishop continued: “However, what really worries me about this spate of judgments is that they leave no room for the conscience of believers of whatever kind. This will exclude Christians, Muslims and Orthodox Jews from whole swaths of public life, including adoption and fostering.”

Because this is so misleading, it is important that the judge’s actual words are repeated so that they can’t be misrepresented. They make quite clear that the misleading claims by Mr Nazir-Ali, and other evangelical Christians, are incorrect.

Ruling on the case of Owen and Eunice Johns, Lord Justice Munby said that the case was a "travesty of reality". He went on to say that that law is secular, not theocratic. He said:

"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...

"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 celebration is 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 Pentecostalist, who wanted exemption on religious laws from performing 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."

Read the judgement in full

Published Tue, 01 Mar 2011