By Andrew Brown
Carey’s intervention in the case of the Christian Relate counsellor has been fisked by an appeal court judge. The judgment handed down by Lord Justice Laws doesn’t merely crush the case of Gary McFarlane, the evangelical Christian sacked by counselling service Relate for refusing to give sex therapy to gay couples; it goes out of its way to demolish former archbishop of Canterbury Lord Carey’s intervention. But does it also remove more vestiges of any established religion from the law?
No judge could possibly say that an archbishop of Canterbury was a self-important and alarmist twit who has no idea what he is talking about. Instead, Lord Justice Laws said that
‘Lord Carey’s observations are misplaced … It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination … the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.’
There is worse, from Carey’s point of view:
‘These considerations, I believe, refute the applicant’s argument as to the meaning of discrimination. But they do not confront deeper concerns expressed in Lord Carey’s statement and in Mr Diamond’s argument. These are to be found for example in the references to an alleged want of understanding or sensitivity on the part of the courts in relation to the beliefs espoused by Lord Carey and others: ‘a lack of sensitivity to religious belief’ … These concerns are formulated at such a level of generality that it is hard to know precisely what Lord Carey has in mind. Broadly, however, the argument must be that the courts ought to be more sympathetic to the substance of the Christian beliefs referred to than appears to be the case, and should be readier than they are to uphold and defend them. The beliefs in question are not specified by Lord Carey.
Lord Carey’s statement also contains a plea for a special court. I am sorry that he finds it possible to suggest a procedure that would, in my judgment, be deeply inimical to the public interest.’
Or, in plain English, Carey is an alarmist and self-important twit. But that is hardly news. The question is whether the judgment goes further. It seems to me that it explicitly denies that any religious beliefs should be privileged because they are religious; but since society has to privilege some set of beliefs and values over others, this is a lurch away from the Christianity of our constitution. After all, the symbolic gesture from which all other legitimacy in this country derives is the coronation of a monarch by the archbishop of Canterbury. That does in some sense necessarily privilege Christianity and indeed Anglicanism. Parliament could of course change it and perhaps Lord Laws is asserting no more than that.
I’m not a lawyer, and we hope to have Christian lawyers writing about this case and its implications soon enough. But this is also a judgment which in many ways cuts out any suggestion of special recognition for Muslim sensibilities quite as decisively:
‘The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified … 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.’
This seems clear and reasonable. But he also says that making law on religious grounds would be ‘irrational, as preferring the subjective over the objective’. Here I have to climb off the bus. This isn’t because I think religious objections are objective ones rather than subjective, but because of his implication that a secularist view is any different.
All societies have to believe that they are founded on objective truths, and not mere subjective preferences. This is as true of the secular US constitution (‘We hold these truths to be self-evident ... ‘) as of the British one. It’s perfectly possible to replace an established church with an established secularism. But in both cases there will be an unprovable belief system privileged by the state as true. In modern Britain we believe in human rights. I do too, But I couldn’t possibly prove that they exist. We simply have to act as if they do. This isn’t really a step from subjectivity to objective truth.
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