Does equality for homosexuals trump religious freedom? The Case of Eunice and Owen Johns

Does equality for homosexuals trump religious freedom? The Case of Eunice and Owen Johns March 4, 2011

I have thought long and hard about whether to blog about a recent legal judgment that has made the headlines here in the UK, and about what I would want to say if I did. There has been much print spilled in some of our newspapers, many blogs written, and perhaps much confusion as a result. In particular there has been much attention drawn to a quote attributed to the Equalities and Human Rights Commission (EHRC) submission in this case, which apparently stated that children risk being ‘infected’ by Christian moral beliefs. The Commission has since apologized for this, stating:

Unfortunately a mistake within our legal submission led to an inference that we did not intend and which was misconstrued as suggesting that the Commission equates Christian moral views with an infection. This oversight was caused by a drafting error in our submissions to the court. This should have been picked up in our internal clearance process for the legal documentation and does not represent the position of the Commission in any way. . .

The Commission has written to Mr and Mrs Johns to apologise.

The Commission also provided a link to extensive documentation they have written explaining the Equality legislation. But they have declined to provide any further comment either on this case, or give guidance on the implications of the case and existing law for either foster carers or councils on this matter. The guidance on their website does not elaborate on precisely how a person with certain religious beliefs should interact with a child they are fostering.

As is always the case in legal proceedings there are both specific points, and general matters at issue. I am not a lawyer, and I am not so sure that I have the time or inclination to do a through job of entangling these. In the end, I decided that rather than spending time figuring out my own opinion about all this and commenting on it, I would link to the judgment itself (it took quite some digging to find that) excerpt some key quotes from it, and link to some opinion pieces available online.

One thing is certain, this whole case provides a window into an ongoing fault line in British society. Evangelicals on both sides of the Atlantic would do well to ponder this case carefully, and think about its implications. We have to consider wisely the changing environment in which we live, and what our response to that should be. How should Christian’s who believe the Bible is true react to 21st Century Western culture?

The BBC broadcast an edition of Question Time last night from Derby, the town at the center of the controversy. UK readers may well be interested to watch the debate on iPlayer (starting at around 36 minutes in). In the program, David Starkey said:

I am gay, and I am atheist, but I have profound doubts about this case. It seems to me that what we are doing is producing a tyrannous new morality that is every bit as oppressive as the old. When I grew up being gay was very difficult, it was frowned upon. . . but I am very very concerned that a new sort of liberal morality is as intolerant, oppressive and intrusive into family life. . . I do not support thought crime.

The full judgment is available here and is worthwhile to read in its entirety. Here are a few quotes that help to grasp the tone of the content:

Mrs Johns stated, ‘I will not lie and tell you I will say it is ok to be a homosexual. I will love and respect, no matter what sexuality. I cannot lie and I cannot hate, but I cannot tell a child that it is ok to be homosexual. (para 11)

The defendant says 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)

In his skeleton argument and in his oral submissions, Mr Diamond lays much emphasis upon various arguments, many of them couched in extravagant rhetoric, which, to speak plainly, are for the greater part, in our judgment, simply wrong as to the factual premises on which they are based and at best tendentious in their analysis of the issues. (Para 32)

Mr Diamond’s skeleton argument opens with these words, “This case raises profound issues on the question of religious freedom and whether Christians (or Jews and Muslims) can partake in the grant of ‘benefits’ by the State, or whether they have a second class status” (emphasis in original). He continues, “The advancement of same sex rights is beginning to be seen as a threat to religious liberty” . . . He identifies the issue before the court as being “whether a Christian couple are ‘fit and proper persons’ (Counsel’s use of phrase) to foster (and, by implication, to adopt) by reason of their faith” and “whether Christian (and Jewish and Muslim) views on sexual ethics are worthy of respect in a democratic society.” (Para 33)

It is hard to know where to start with this travesty of the reality. 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. (Para 34)

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. (para 38)

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. (para 39)

[2009] EWCA Civ 1357, [2010] 1 WLR 955 (dismissing an appeal from the decision of the Employment Appeal Tribunal: [2009] ICR 387), and in McFarlane v Relate Avon Limited [2010] EWCA Civ 880, [2010] IRLR 872 (refusing permission to appeal from the decision of the EAT: [2010] ICR 507). (Para 45)

“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

(para 46)

“Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an application may need to take his specific situation into account.” (para 82)

Article 9 only provides a “qualified” right to manifest religious belief and that interferences in the sphere of employment and analogous spheres are readily found to be justified, even where the members of a particular religious group will find it difficult in practice to comply: see Sahin v Turkey (2005) 44 EHRR 99. This will be particularly so where a person in whose care a child is placed wishes to manifest a belief that is inimical to the interests of children (para 102)

A child or young person who is homosexual or is doubtful about his or her sexual orientation may experience isolation and fear of discovery if their carer is antipathetic to or disapproves of homosexuality or same-sex relationships. The material also indicates that there is support in the literature for the view that those who hide their sexual orientation or find it difficult to “come out” may have more health problems and in particular mental health problems. (para 106)

The attitudes of potential foster carers to sexuality are relevant when considering an application for approval. (para 109)

Here are some quotes from articles that express varied opinions on this case:

British Humanist Association: “There is no question of the right to freedom of belief being infringed on, there are legitimate restrictions on the right to manifest those beliefs, where the manifestation maybe damaging or harmful to others, or contrary to the requirements of the service in which they are employed.”

Stonewall:‘We’re delighted that the High Court’s landmark decision has favoured 21st-century decency above 19th-century prejudice. In any fostering case the interests of the 60,000 children in care should override the bias of any prospective parent. Thankfully, Mr and Mrs Johns’s out-dated views aren’t just out of step with the majority of people in modern Britain but those of many Christians too. If you wish to be involved in the delivery of a public service, you should be prepared to provide it fairly to anyone.’

Christian Law Center: “High Court Judgment suggests Christian beliefs harmful to children. Fostering by Christians now in doubt.”

Christian Concern“The High Court has suggested that Christians with traditional views on sexual ethics are unsuitable as foster carers, and that homosexual ‘rights’ trump freedom of conscience in the UK.”

Gavin Drake: “It appears that rather than a trial of the legal issues the court was used as a debating chamber to argue for the kind of law people would like rather than a challenge of the law that actually exists. . . That’s the decision of the High Court today – to not make a decision on what appears to be a badly thought out, badly argued, badly presented case.”

BBC News: “The court discriminated between kinds of Christianity, saying that Christians in general might well make good foster parents, while people with traditionalist Christian views like Mr and Mrs Johns might well not.”

The Guardian: “The case was the latest to be brought by conservative evangelicals, led by the Christian Legal Centre, over their supporters’ right to discriminate specifically against gay people and not be bound by equality regulations. All the cases have so far been lost.”

“I cannot lie and I cannot hate, but I cannot tell a child that it is ok to be homosexual” (attributed to Mrs Johns by The Guardian)

Cranmer: “It is a manifest falsehood for High Court judges to claim that a believer’s moral beliefs about sex have nothing to do with his or her Christian faith.”

Peter Ould: “One consequence of this is that Christians need to grow up and realise (a) that they no longer live in a country which gives the Christian faith a pre-eminent position in the jurisprudence of the land (the judgement in para 30 recognises that this has been the case for at least a century) and that therefore (b) there is an obligation, as Jesus instructs us, to render unto Caesar things that belong to Caesar.”

Rt Rev Michael Nazir-Ali quoted in the Telegraph: “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.”

Alison Pearson in The Telegraph: “If it were up to the local council, how many of us would be considered suitable to foster our own children? I only ask because the sad case of the devout Christian couple, Eunice and Owen Johns, makes me wonder how any person with the normal range of frailties and prejudices can possibly live up to the current requirements.”

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