Lord Carey’s complaints about secularist oppression of Christians and call for “faith-sensitive” judges have received an unusually direct response from Laws LJ in his Court of Appeal ruling refusing permission to appeal in McFarlane v Relate Avon, the unfair dismissal and religious discrimination claim that Lord Carey had supported:
The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. 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 the liturgy and practice of the established Church are to some extent prescribed by law. But the conferment of 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, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since 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. 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. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.
So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.
I agree with Laws LJ completely; Lord Carey’s observations were indeed misplaced, and his response is a total refutation of them. I can understand the urge to set out plainly the clear and incontestable case for secular courts and law dispensing equal justice to all. So I support him. But I’m a bit surprised by this, to be honest, and I wonder how wise it is. No one who believes Christians are oppressed in this country is likely to be persuaded by anything anyone says to the contrary, however sensible. But by in effect publicly debating with them, Laws LJ risks lending credibility to campaigning fundamentalists. Some well-meaning people in the muddled middle, who don’t yet realise this case and Lord Carey’s intervention are part of a shrill, atavistic campaign of religious self-assertion, may be told and perhaps even believe that Laws LJ has taken a non-neutral stance. Certainly, if religious activists are (as I suspect) about to start trying to have judges removed for supposed anti-Christian bias, Laws LJ has given them their first target. I note Lord Carey hasn’t been slow to attack again.
It might have been better to ignore Lord Carey and simply rule on the case itself, which was the worst, most hopeless and absurd kind of religitigation. Gary McFarlane tried to claim not only the personal right to discriminate against gay couples in his counselling work, but apparently the additional right to resile from a personal assurance that he would not discriminate. Mind you, perhaps Laws LJ felt he needed to include ten paragraphs about Lord Carey just to bulk up the judgment a bit, which otherwise would have been an embarrasingly short dismissal of a silly attempt at an appeal.
Finally, as an atheist, my views on church leadership may be of no account, but even I would like to be able to admire and look up to religious leaders as impressive men and women of moral principle. Unfortunately Rowan Williams, in his appeasement of bigotry and flirting with sharia, personifies unprinciple; and now Lord Carey has lent himself to a narrow, mean-spirited and selfish cause. If Christians feel their faith is held in contempt, perhaps they should look to themselves and the leaders who make it contemptible.