Lord Justice Laws has refused permission to Gary McFarlane to have his case heard before the Court of Appeal.
Mr McFarlane, a relationships counsellor from Bristol, sacked by the Relate Relationship organisation after he refused to provide sexual counselling to homosexual couples because of his Christian beliefs, asked that his case be heard by different judges to those who ruled against Lillian Ladele in December 2009.
Church leaders have been deeply concerned by the ruling by Lord Neuberger, the Master of the Rolls, on behalf of the Court of Appeal, in the case of Lillian Ladele—a registrar who refused to conduct civil partnerships ceremonies because they were against her Christian beliefs—and have argued that the Court of Appeal’s decision effectively means that the right to express a strong Christian faith must take second place to the rights of homosexuals under Labour's equality laws.
It was argued by Human Rights barrister Paul Diamond that previous decisions had failed to grapple with the fundamental clash of rights that has occurred within the law between orthodox Christian teaching on sex and marriage and the protection of homosexual rights. It was argued that the Courts were required by Parliament to undertake such an exercise and have allowed instead one set of rights to trump another.
Lord Justice Laws refused Mr McFarlane’s application, and a personal plea by Lord Carey, the former Archbishop of Canterbury (1991 – 2002), and other senior church leaders, that the Master of the Rolls be asked to stand down from future Court of Appeal hearings involving cases of religious discrimination.
Senior churchmen believed that Mr McFarlane would not have received a proper consideration of the religious convictions involved if his case was heard in front of judges who, they argue, had already shown a lack of understanding of Christian beliefs in previous cases.
In his Judgment, Lord Justice Laws accepted that laws in Britain can be influenced by Christianity and said: “The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy.”
And Lord Justice Laws gave examples, such as the “core provisions of the criminal law: the prohibition of violence and dishonesty.”
However, he then seemed to draw a distinction between some moral positions of Christianity, where on merit they should be adopted by others, to other positions of Christianity, where he stated that it is “deeply unprincipled” to confer “any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture”.
Nobody would disagree that laws should not reflect purely irrational and subjective views of religious believers. However, it is deeply disturbing that Lord Justice Laws appears to place Mr McFarlane’s view on sex and marriage into the ‘subjective’ category as opposed to the ‘meritorious’ category. Hence it was held that the religious belief in question—namely that marriage as between one man and woman for life is the only proper place for sexual expression—could not be protected, because it is a belief held only on subjective basis with no objective merit to it.
Lord Justice Laws went on to say:
“...in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.
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.”
Andrea Williams, Director of the Christian Legal Centre, said: “The notion that the Bible’s teaching, of particular focus in this case on sex and marriage is ‘necessarily subjective being incommunicable by any kind of proof or evidence’, is highly contentious to say the least. To put the reasonably held beliefs of Christians into a such a category is alarming and in effect seeks to rule out Christian principles of morality from the public square.
“Mr McFarlane simply wanted his religious beliefs to be accommodated by his employer, which in the specific facts of the case was not unreasonable. It seems that a religious bar to office has been created, whereby a Christian who wishes to act on their Christian beliefs on marriage will no longer be able to work in a great number of environments.
At the Christian Legal Centre we will continue to fight for people who find themselves suffering as a result of these kinds of judgments until the law once again recognised the public manifestation of faith within a free and civilised society.”
Letters of support in Daily Telegraph
SIR – Lord Justice Laws’s view that no religious belief could be protected under the law (report, April 30) is at odds with the promises made by our present head of state.
At her Coronation in 1953, Queen Elizabeth II was asked: “Will you to the utmost of your power maintain the laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant reformed religion established by law?”
She solemnly agreed.
So on the one hand, our Queen has sworn to uphold the religion established by law, and on the other hand, a senior judge, appointed by her, says that such beliefs have no standing under the law.
No wonder Christians feel confused, and fearful, as they start to experience real persecution in our country.
Nigel Draper
Takeley Essex
SIR – Lord Justice Laws, in his comments on the McFarlane case, stated that: “In the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence.”
Lord Caldecote, former Lord Chief Justice of England, is quoted as saying: “The cardinal test of the claims of Jesus Christ, namely his resurrection, has led me as often as I have tried to examine the evidence to believe it as a fact beyond dispute.”
Val Grieve, a Manchester solicitor, used to present the case for the resurrection like a legal trial to law students.
As a scientist, I too have considered the evidence which was communicated to me and am convinced.
Colin McGreevy
Liverpool
SIR – Is it irrational to have faith in the British justice system?
Pete Aird
Wellington, Somerset