AP muffs Britain’s foster-care ban

In other Associated Press news, The Washington Post Website published a short AP story out of England yesterday that raised more questions than it answered. The article was only five paragraphs, so I can’t adequately discuss it without posting it in its entirety. Here’s what washingtonpost.com ran under the headline “Couple lose foster care right over anti-gay stance“:

A British court has ruled that a Christian couple cannot care for foster children because they disapprove of homosexuality.

Judges at London’s Royal Courts of Justice ruled that laws protecting gays from discrimination take precedence over the couple’s religious beliefs.

Eunice and Owen Johns, aged 62 and 65-years old, had previously fostered children in the 1990s, but what one social worker described as their “strong views” on homosexuality raised red flags with authorities in the English city of Derby when they were interviewed in 2007.

Eunice Johns said Monday that she was “extremely distressed” by the decision, which Christian groups also condemned.

But the judges ruled that Britain was “a secular state, not a theocracy.”

Where to begin?

My immediate reaction was one of shock — not at the substance of the ruling, but the logic. When I realized that the Royal Courts of Justice is the British equivalence of the U.S. Supreme Court, I was dumbfounded. As I wrote at The God Blog:

even assuming that the judge was correct that anti-discrimination laws trump religious freedom, I don’t understand how awarding a child to a family that believes homosexuality is sinful would result in an actionable injury to gays and lesbians.

And what in the world did the judge mean by saying Britain is “a secular state, not a theocracy.” For one thing, that wasn’t always true. More relevant now, though, is that based on the details included in the AP story, there is no evidence here that allowing the Johnses to adopt would be tantamount to using state power to coerce acceptance of religious beliefs or even legitimate them.

I was hoping The Post had run seriously trimmed version of this AP story. But, far as I can tell from reprints at MSNBC.com and Yahoo! News, this is the whole story. And it’s a real disservice to readers.

After reading the story twice — I have to wonder whether the AP reporter did this — I had to search around the Internet from stories that actually made sense of the legal opinion. I didn’t find much from stateside — actually, only the AP story — but the British media offered a few worth noting.

This BBC story helps a bit. It explains that the Johnses had withdrawn their application to be foster parents after a social worker expressed concern over their stating that they would not teach a child that homosexuality was an acceptable lifestyle:

At the High Court, they asked judges to rule that their faith should not be a bar to them becoming carers, and the law should protect their Christian values.

But Lord Justice Munby and Mr Justice Beatson ruled that laws protecting people from discrimination because of their sexual orientation “should take precedence” over the right not to be discriminated against on religious grounds.

They said that if children were placed with carers who objected to homosexuality and same-sex relationships, “there may well be a conflict with the local authority’s duty to ‘safeguard and promote the welfare’ of looked-after children”.

That’s definitely an important detail that somehow didn’t make its way into the AP story which, again, is the only one I’ve seen appearing in American publications.

Still, I’m struggling with the connection between the Johnses believing homosexuality is sinful and their potentially raising a child to discriminate against gays and lesbians.

The high court went on to say this is not a “threat to religious liberty,” but their explanation is clearly in want. As this blog post from the Telegraph contends, “Christianity isn’t dying, it’s being eradicated.”

Indeed, this will not be a one-off case, and Telegraph religion editor Tim Ross recognized the potential fallout of yesterday’s ruling:

In their ruling yesterday, the judges complained that it was not yet “well understood” that British society was largely secular and that the law has no place for Christianity.

“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,” they said.

Considering the Anglo tradition in the United States, this ruling should be of interest to, though obviously not have any authority over, U.S. law. Also giving this story some legs is the fact that the ruling comes on the heels of the Anglican Church launching its “Not Ashamed” campaign, “urging Christians to stand up for their rights.”

It would have been nice if the AP had recognized yesterday’s foster-care ruling was more than just an odd story from across the pond.

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  • Paul Cook-Giles

    Brad, thank you for this thoughtful post. I want to make a few comments, and will attempt to maintain your calm, rational tone.

    >I don’t understand how awarding a child to a family
    >that believes homosexuality is sinful would result
    >in an actionable injury to gays and lesbians.

    I suspect that the concern was about a gay foster child. I couldn’t find stats online for the UK, but a study in the US says 26% of gay kids are kicked out of their home by their families, and that 42% of homelss kids identify as GLBT. (http://www.mlp.org/resources/ygh.html)

    >what in the world did the judge mean by saying
    >Britain is “a secular state, not a theocracy.”
    >For one thing, that wasn’t always true.

    But it is now, right? In a theocracy, a religious belief might trump an anti-bigotry law.

    >But Lord Justice Munby and Mr Justice Beatson
    >ruled that laws protecting people from discrimination
    >because of their sexual orientation “should take
    >precedence” over the right not to be discriminated
    >against on religious grounds.

    I think the Justices were saying that the right of the Johns to provide foster care was trumped by the right of a gay kid not to be placed with people who believe that his very nature is defective and abominable.

  • Brad A. Greenberg

    I think the Justices were saying that the right of the Johns to provide foster care was trumped by the right of a gay kid not to be placed with people who believe that his very nature is defective and abominable.

    Initially, I thought the same. But far as I can tell, their concern is with placing a child into a home that would teach something contrary to the principals behind Britain’s anti-discrimination laws.

    If it was only the concern for a gay foster child, they could certainly screen the Johnses so as to only receive non-gay children. (Obviously, that assumes a bit about when children realize they are gay and when they say that.) If the concern was only for the child, I would think that this ban would be overbroad and not narrowly tailored enough to infringe upon the Johnses rights to exercise their religious beliefs. That, at least, is how a U.S. court would rule.

    If, however, the conflict is bigger — not between the Johnses’ beliefs and the sexuality of a possible foster child but between the teaching of those beliefs and the principals behind the anti-discrimination laws — then the court’s ruling makes more sense. But that does place quite a restriction against religious freedom and it has, as the Telegraph story suggested, broad implications.

  • Steve

    The line of thinking of the British Court reveals the difficulty for a society to maintain the illusion that homosexuality can be granted protected status under the law with minimal destruction to traditional biblical Christianity. To those who do not understand the what will happen, this article clears much of the fog by showing that Christians who hold to biblical mores about sexuality will become de facto practicioners of unlawful bigotry. To equate the free excercise of faith with theocracy is a dangerous (and as history shows – deadly) idea to the faithful. As both an Attorney and a United Methodist Pastor who holds to this biblical view, I am concerned that modern Western Civilization is swimming blindly and rapidly into uncharted waters and we may not realize where we have gone until we discover an void where our faith used to be.

  • http://bullschuck.blogspot.com Bull

    “his very nature is defective and abominable.” Where did you get that from the story? Is it a quote from the prospective carers? Is it part of a statement of faith from the particular church that these carers attend?

  • Bain Wellington

    The Royal Courts of Justice are not the equivalent of the US Supreme Court (it is the name of a building). This particular decision was made (I guess) by what is called a Divisional Court of the Queen’s Bench Division of the Supreme Court of Judicature. Above the Divisional Court is the Court of Appeal, and above that is the Supreme Court – so this case has got legs.

  • Deacon John M. Bresnahan

    Here in Ma. (where the U.S. Constitution-including its First Amendment
    protecting religious liberty– is supposed to trump all) Gay Rights have been steamrollering the Rights of religious people. But from media coverage you would never know what is going on so much of the media here is just a cheering squad for the Gay Agenda.
    So it is not surprising to see limited coverage of the English Gay steamroller at work across the Pond. No Paul Revere type stories wanted on this issue over here that might warn Americans that their religious liberties are being eroded.

  • Chip

    Brad,

    Have you read the English court’s ruling?

    It may answer some of your questions that the AP and BBC accounts fail to answer.

  • Bain Wellington

    Where to begin, indeed. How about a GetLaw website, for a start? :p Just about everything concerning this case has been misreported in the AP piece, and Brad (goaded by loose reporting in England) has over-reacted (there is no “ban” here). My initial comment was directed solely at the level at which the case was decided (that is to say, it was a case at first instance, and so was, in theory, liable to appeal), but having read the judgment, I can’t see any prospects for a successful appeal. The surprise is that the Court didn’t throw the case out for incompetence. It is one of a series of misconceived test cases brought before the Courts recently in order to “prove” that British society (or the English legal system in particular) is anti-Christian. A previous case concerned the imagined “right” of a municipal employee to refuse to register a civil partnership – the closest England has got to “gay marriage” – on the ground that same-sex sexual relations were against her religion. When she was disciplined by her employers, she complained that she was the victim of religious discrimination. The case was dismissed because she was disciplined for not performing her duties, and not because of her religious beliefs. Even an atheist might object to homosexuality, and such a person in the same position as that Christian woman would have been disciplined in exactly the same way.

    (1) Take the headline in the AP piece:- “Couple lose foster care right over anti-gay stance”. There is no “right” to be a foster parent.(para. 103 of the judgment) Children without parents fall under the care of the State, and it is the State which has the right and duty to make provision for their care. This is done upon the basis of various principles all of which put the well-being of the child as the paramount concern. People who wish to apply to be foster parents must satisfy the relevant authorities that they accept those principles. The claimants never suggested any of those policies were illegal. One of those principles (known as “Standard 7″) is that support in relation to the sexual health of children in care should be provided regardless of the children’s sexual orientation, and should not be affected by the personal views of the care-giver.(para. 93)

    (2) Not only did the claimants not lose any imagined “right” to be foster parents, they had not even been rejected as potential foster parents by the local municipality; their application was midway through being processed when the claimants brought a claim asking the Courts to declare that the municipality’s behaviour in probing their beliefs as to homosexuality was unreasonable and discriminatory against them as Christians. Strictly speaking, the application was premature.(para. 107)

    (3) The first question the Court considered was whether a municipality was entitled to to take account of the attitudes taken by potential foster parents towards homosexuality. It held:-
    ” . . it is quite impossible to maintain that a local authority is not entitled to consider a prospective foster carer’s views on sexuality, least of all when, as here, it is apparent that the views held, and expressed, by the claimants might well affect their behaviour as foster carers . . The local authority is entitled to explore the extent to which prospective foster carers’ beliefs may affect their behaviour, their treatment of a child being fostered by them.”(para. 97)

    (4) The next question was “whether the treatment of their application by the defendant is because of their stance on sexuality or sexual orientation or because of their religious beliefs. If it is the former then, applying the established law . . there is no religious discrimination”(para. 98) The relevance of the municipal employee’s case (which had been decided in the Court of Appeal) is clear. The distinction is between the right to hold a belief (which is protected, provided it meets certain minimum criteria relating to public order, for example) and the right to manifest that belief in such a way that it impinges on or conflicts with the protected rights of other people. As to that, the Court confirmed that there is no hierarchy of rights.(para. 93) In other words, neither freedom of religion nor “gay rights” is supreme over all other rights. But the right to manifest religious beliefs is only a qualified right, and if someone voluntarily enters into a contract of employment or voluntarily applies to be registered as a foster-care giver they have to accept that they might find it difficult to comply with their religious beliefs in practice.(para. 102)

    (5) As for the nub of AP’s report (the idea that “gay rights” trump religious beliefs in England), all the Court decided was that there was a potential tension in the case “between equality provisions concerning religious discrimination and those concerning sexual orientation. Where this is so, Standard 7 . . indicates that it must be taken into account and in this limited sense the equality provisions concerning sexual orientation should take precedence”.(para. 93)

  • http://ingles.homeunix.net/ Ray Ingles

    From the ruling (thanks Chip!):

    They are also recorded as telling Ms Shaw that they would not feel able to take a child to a mosque.

    Anyone know what the laws in Britain are about that? Is a foster parent obligated to take a child in a certain faith to services of that faith, and/or further their education in that faith? Is it optional?

    For that matter, what are the laws in the U.S. about that? Where could I find out?

  • MJBubba

    Does this mean that the Court supports the child welfare agency in a determination that the Johns can no longer qualify as foster parents (they previously did qualify) because they are Christians? The agency investigation that the Johns objected centered on questions about the religion that children placed with the Johns would experience, so the concern must be that some child may turn out later to be gay, but would have been damaged by exposure while young to the idea that homosexual behavior is sinful.
    Wouldn’t that lead to a broad determination that Christians make unfit parents?

  • MJBubba

    Brad,
    I found no mass media coverage, but heard this story covered on Christian talk radio. They stressed that information was sketchy and did not want to speculate, but they did point out that British law does not have a counterpart to our First Amendment.

  • http://demographymatters.blogspot.com Donald

    Deacon: The right of vulnerable non-heterosexual foster children to be placed in homes where they will not be tormented shouldn’t be made secondary to the desire of some foster parents to be foster parents regardless of what their beliefs might do, right?

    MJBubba: If you want to decide all Christians as homophobes, sure. That’s not the obvious case here: there are plenty of Christian denominations which don’t see any contradiction.

  • Bain Wellington

    The municipality (the City of Derby) did not make a determination that Mr and Mrs Johns were unfit to be foster parents, and the Court accepted at face value a statement made on behalf of Derby “that it has approved foster carers who are very committed Christians who hold to orthodox beliefs – whatever that means – and devout Muslim carers who are similarly committed to their religion, but who in both instances are able to value diversity notwithstanding their strongly held religious beliefs”(para.22)

    Freedom of religion in Britain is not at stake here.

    As for the Johns’ past status as care-givers, they were approved foster parents between August 1992 and January 1995 and the last time they had fostered a child was in September 1993. In 2004 they made a new application to be approved, which they withdrew for personal reasons. In mid-2006 they again expressed interest in short-term fostering (so-called “respite” fostering which usually means over a weekend) and their current application was made in January 2007.(para.4) During discussions that occurred in July 2007 to explore the Johns’ suitability they were expressly asked if “they would be able to support a young person who, for example was confused about their sexuality” (Standard 7). The answer was in the negative.(para.6)

    Surely to goodness there is no point in debating the impact of a Court judgment unless one has read the judgment, or at least read a reliable and comprehensive summary of it.

  • http://demographymatters.blogspot.com Donald

    @ Chip:

    Paragraph 8 of the judges’ ruling

    “I discussed with Eunice, four possible scenarios, and asked how she might support the young person:

    1 Someone who is confused about their sexuality and thinks they may be gay.

    2 A young person who is being bullied in school regarding their sexual orientation.

    3 A young person who bullies others regarding the above.

    4 Someone in their care whose parents are gay.

    Eunice’s response to the first situation was that she would support any child. She did not offer any explanation as to how she would go about this. On a previous occasion when the question had been put to Owen, he responded by saying that he would “gently turn them round”. In the second situation, Eunice said she would give reassurance and tell the child to ignore it.

    In response to the third situation, Eunice said she didn’t know what she would do. In the case of someone whose parents are gay, Eunice said that it wouldn’t matter, and that she would work with any one.”

    Paragraph 8 of the judges’ ruling–”Mr Johns’s response to the first postulated scenario is, it might be thought, particularly revealing. There can be no doubting the meaning and significance of his reference to “turning” such a child round.”–is worth noting.

  • Dave G.

    a potential tension in the case “between equality provisions concerning religious discrimination and those concerning sexual orientation. Where this is so, Standard 7 . . indicates that it must be taken into account and in this limited sense the equality provisions concerning sexual orientation should take precedence.”

    No matter how one slices or dices it, this is the part that is bothering folks. It may not seem like much, but it often doesn’t until it’s too late.

  • http://ingles.homeunix.net/ Ray Ingles

    Dave G., Stoo started a discussion about the substance of the ruling at the coffehouse. The name of the thread is, er, unmistakable.

    I quote a section of the ruling that directly addresses that ‘tension’, and discusses the principle the court used to make their decision.

  • http://demographymatters.blogspot.com Donald

    @ Dave: Inasmuch as the British state is obliged to offer safe spaces to the children under its care, I’m not sure why the beliefs of these people–leading, as they’ve said, to action–are supposed to take precedent over the security of the children they’d like to take care of.

    The different Jones said that they’d try to fix non-heterosexual childrens’ sexuality, tell them to ignore homophobic bullying (as opposed to doing something about it), and were at a loss to imagine what to do if a child under their care was engaging in homophobic bullying him/herself. It’s not their beliefs that are problematic, rather, what they’d do with their beliefs to the children. Their potential to inflict serious harm on children under their care would disqualify them as viable candidates.

    No?

  • http://demographymatters.blogspot.com Donald

    @ Brad: Apart from the actions that they told the interviewers they’d take–things likely to lead to harm to children under their care or to third parties–there’s the simple question that young children don’t know their sexual orientation. Being placed in an environment where they can’t question it safely, before they’re able to properly articulate cause for concern, is … problematic.

  • Julia

    Bain pointed out:

    Even an atheist might object to homosexuality, and such a person in the same position as that Christian woman would have been disciplined in exactly the same way.

    This is key.

    It’s not the Christian religion, it’s what those particular Christians would do or not do concerning a foster child.

    To my knowledge Christianity doesn’t require the Christian to bully or hate or “turn around” or desparage or criticize or mock homosexual people or those who think they might be. Most communities in the US (and probably the UK) have groups or counselors where a child might be referred if the foster parents feel unable to counsel the child as the law required.

    On the other hand, if a potentional foster parent has a deep-seated abhorence of homosexual people, that’s a different story whether it’s due to religious belief or otherwise.

  • Patrick Lynch

    Donald: “It’s not their beliefs that are problematic, rather, what they’d do with their beliefs to the children. Their potential to inflict serious harm on children under their care would disqualify them as viable candidates.”

    Sort of why they call it a ‘nanny state’ huh?

    Also, why do we unquestioningly accept the pretense that parents with religious anthropology inimical to homosexuality are necessarily going to harm children with possible same-sex attraction? There’s a qualitative difference between belief and bigotry which all families, Christian and otherwise, must work out in love, and no government has a right to discriminate amongst families based on a misapprehension of that fact. It’s prejudice to declare someone incompetent to love and care for a gay child because you disagree about what love is in the first place.

  • Donald

    Patrick: “Also, why do we unquestioningly accept the pretense that parents with religious anthropology inimical to homosexuality are necessarily going to harm children with possible same-sex attraction?”

    In this particular case, the putative foster parents _said_ that they would undertake activities based on their religious beliefs on sexual orientation that could do harm to children placed under their care or children that these would interact with. Again, check para 7 in the ruling linked above.

  • Patrick Lynch

    “In this particular case, the putative foster parents _said_ that they would undertake activities based on their religious beliefs on sexual orientation that could do harm to children placed under their care or children that these would interact with. Again, check para 7 in the ruling linked above.”

    It’s that potential for harm that I find questionable to begin with; I don’t think it has been established that the outcome of their acting on their beliefs would endemically harmful to children with some same-sex attraction, and as this hasn’t been demonstrated (and cannot be demonstrated to satisfaction), the ruling finds against their beliefs, not their actions. Would there be clear harm done to a child if she were to turn out a convinced, traditional Christian instead of a lesbian? Who knows how a such a child would turn out in their custody?

    We, for instance, don’t restrict Muslim families in the US from raising their kids the way they believe, and we don’t restrict their access to adoptable children to be raised in their customs and to the Islamic conscience – headscarves, chaperones and all. Should we, and on what grounds?

  • Bain Wellington

    Patrick: first, the issue is (temporary) foster care – that raises issues entirely different from full-time permanent parenting/ adoption. The Court placed no particular reliance upon the fact that the claimants were applying to be “respite” care-givers (typically over a weekend), but it is doubly important that children not be shuttled from one brief and temporary environment “which is open to diversity” to another which is not only not open to diversity but which would seek to “turn the child around” (as Owen admitted).

    The Court also noted that it is not simply the sexual orientation of the child which is in issue: the child may have siblings, relatives or friends whose sexual orientation is at odds with the beliefs of the temporary care-givers. In these circumstances it is not helpful for a child to be exposed to a temporary environment which can potentially estrange them from their friends and relations.

    Precisely the same arguments would apply to exclude militant atheists from acting as foster-parents if it became clear that they were not “open to [religious] diversity” and would attempt to “turn around” a Christian child committed to their care for the weekend.

  • http://demographymatters.blogspot.com Donald

    Patrick: “Would there be clear harm done to a child if she were to turn out a convinced, traditional Christian instead of a lesbian?”

    At this point, all I can say is that it really doesn’t work that way. What Bain said about the likely reaction if Owen said he’d try to switch Christians to the right path.

  • http://www.guardian.co.uk/belief Andrew Brown

    There has been quite a lot of coverage of this case in the Guardian (for which I work), whether or not you consider that part of mainstream British media.

    It really is important to read the whole judgment, which is nothing like the AP version, or the PA (british press agency) one either.

    Derby Council made no ruling at all about the couple’s suitability. They were not banned from anything. They were advised — very badly advised — to bring a court case demanding a pre-emptive statement from the council that it would not consider their views homophobic. In fact they wanted a statement of principle that their views were no bar to fostering. This is as a matter of law simply impossible. That has been repeatedly established in three previous cases brought by the same barrister. So he has a quarrel with parliament, not with the law. Even the Evangelical Alliance, which represents many of the pentecostal churches in the country and ceretainly most of the “evangelical” ones, has said the case should never have been brought.


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