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Christian sexual morality and the law

3 March 2011

The English High Court case of R (EUNICE JOHNS and OWEN JOHNS) versus DERBY CITY COUNCIL and EQUALITY AND HUMAN RIGHTS COMMISSION has raised a number of contentious issues. Eunice and Owen Johns brought a case against the Derby City Council, which they claimed was infringing on their religious freedom because it said that their views on sexual morality might disqualify them from being foster parents

Solicitors Journal – Foster carers’ views on sexuality are relevant, High Court rules:

The views of prospective foster carers on sexuality are relevant and should be considered by councils to the extent that they affect the treatment of children, the High Court has ruled.

Lord Justice Munby was giving judgment in a case brought by Eunice and Owen Johns, who claimed that Derby City Council refused to let them foster children because of their christian beliefs.

The couple argued that their beliefs were not a legitimate fostering concern, that they were being discriminated against under article 9 of the ECHR and that the council’s decision to exclude them was unreasonable under the Wednesbury principle.

Quite a lot has been written about the case, often in terms that confuse the issues.  For example this piece, The judges’ atheist inquisition in The Spectator:

The secular inquisition against Christians was ratcheted up another notch yesterday in a grotesque judgment in the High Court by two judges, who have upheld the ban against a couple from fostering children simply because they hold traditional Christian views about homosexuality.

What helps to obscure the real issues is that many people discuss such cases by referring to tendentious articles like this one, rather than basing them on the actual judgement, and so each misreporting gets further misreported.

If we look at the actual judgement itself, rather than twisted and exaggerated reports of it, we find that the core of the question is this:

27. Shortly before the hearing, and in order to focus the points at issue, we asked the parties to formulate the terms of the declarations that they sought. The claimants and the defendant did so.

The claimants sought the following declarations (as refined following the hearing):

(a) Persons who adhere to a traditional code of sexual ethics, according to which any sexual union outside marriage (understood as a lifelong relationship of fidelity between a man and a woman) is morally undesirable, should not be considered unsuitable to be foster carers for this reason alone. This is a correct application of the National Minimum Standards 7 ‘Valuing Diversity’.

(b) Persons who attend Church services at a mainstream denomination are, in principle, suitable to be foster carers.

(c) It is unlawful for a Foster Service to ask potential foster carers their views on homosexuality absent the needs of a specific child.

(d) It is unlawful for a public authority to describe religious adherents who adhere to a code of moral sexual ethics namely; that any sexual union outside marriage between a man and a woman in a lifetime relationship of fidelity is morally undesirable, as ‘homophobic’.”

28. The declaration sought by the defendant (as refined during the hearing) is:

“A fostering service provider may be acting lawfully if it decides not approve a prospective foster carer who evinces antipathy, objection to, or disapproval of, homosexuality and same-sex relationships and an inability to respect, value and demonstrate positive attitudes towards homosexuality and same-sex relationships.”

29. The intervener considers that declaratory relief in the circumstances of this case is problematic. Ms Monaghan submitted that both the claimants’ and the defendant’s formulations were too wide. She submitted that in a context where no decision had yet been made, and where there may be a range of factual contexts for reaching a particular decision about an application to become an approved foster carer, it is difficult to formulate a form of declaratory relief which would in fact be of assistance to the parties and to other public authorities and applicants who wished to become foster carers. We deal with this later in this judgment.

One problem seems to have been that the counsel for the claimants indulged similar hype to that of the columnist in The Spectator, which led the judges to say

All we can do is to state, with all the power at our command, that the views that Mr Diamond seeks to impute to others have no part in the thinking of either the defendant or the court. 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.

I’m not a lawyer, and so I may have missed something important, but it seems to me that what the court decided was that it was within the competence of the Derby City Council to enquire into the attitudes of potential foster carers towards sex and sexuality. It made no ruling on the competence of the claimants to be foster parents and the Derby City Council had apparently made no decision on that either.

The court found it a difficult matter to deal with because there was very little evidence, and only a lot of assertions and counter assertions.

Nevertheless the case does raise a number of issues, which perhaps need to be faced and worked through, rather than sidestepped. For example, the judges say

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.

In spite of this, however, in England the state recognises marriages that take place in Christian churches, and perhaps, in the light of this observation by the judges, it ought not to do so, and the church, for its part, should not register marriages on behalf of the state.It seems that neither church nor state, nor the judges themselves, have faced up to that contradiction.

In the case, neither the claimant nor the defendant questions the laws, rules and regulations that were applicable, and if they had, it would have made the court’s job even more difficult. Instead they focused on the way in which the laws, rules and regulations were interpreted and applied by the Derby City Council.

For the defendants, “The ability to promote diversity is the main issue.”

That doesn’t appear to have been challenged by the claimants, but “diversity” is a rather vague and nebulous concept, and it seems that it is being held up as something intrinsically good. But those researching things like HIV find that the constantly mutating virus is a problem in finding a cure for Aids, and diversity in this case seems to be a drawback. If diversity is good per se, then the elimination of the smallpox virus must be seen as a sin against bio-diversity.

The judges sought to distinguish between moral attitudes that were held on religious grounds, and those held on other grounds, and pointed out that there are limits to religious freedom.

Though this is not an example they gave, and does not arise out of this particular case, the matter of human sacrifice is an example of a possible conflict between the values of religion and the values of society. In most societies where murder is regarded as immoral, a religion that practised human sacrifice would not be allowed to do so in a society that values human life. The right to religious freedom is trumped by the right to life.

But the values of society change, not only with regard to sexual morality, but in other areas as well. Some societies, for example, now permit euthanasia. In such a society, could not human sacrifice become lawful on the basis of “willing slayer, willing victim”?

And would it then become the duty of potential foster parents to evince a positive attitude towards human sacrifice, even if they themselves believed it to be wrong, in the interests of promoting diversity?

Postscript

I’ve just come across an excellent blog post on this topic: Misplaced outrage over High Court “ban” on Christian foster parents, and if I’d read it earlier, I wouldn’t have written this post. I recommend it to anyone interested in the topic. The author concludes:

I have no doubt that there are cases of Christians suffering for their faith.  And I have no doubt that there needs to be a public debate about the competing interests of those who seek to advance rights on the basis of sexual orientation and those who seek to uphold traditional and orthodox Christian views on human sexuality.

Today’s judgement was not comfortable reading and there are parts of it which do cause concern; but the courts are not the place for a public debate about competing rights.

Wherever the debate does take place it needs to be handled truthfully and accurately.  Painting a false picture to shout discrimination where none has been shown does nothing to advance the Christian gospel; does nothing to fight for the rights of Christians facing real persecution and does nothing to advance the argument about those competing rights.

And I wholeheartedly concur.

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