Laws indicated in McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 that Christianity deserves no protection in law above other faiths. To privilege one religion would be "irrational, divisive, capricious and arbitrary". Going further, he commented that to give one religion legal protection over any other, "however long its tradition, however rich its culture, is deeply unprincipled and would give legal force to a subjective opinion, leading to a "theocracy".
His judgment features what the Times characterises as a "robust dismissal" of former Archbishop of Canterbury Lord Carey, who had warned that recent court rulings 'against Christians' could result in civil unrest. Carey's proposal for a specialist panel of judges to hear cases involving the practice of religious beliefs was "deeply inimical to the public interest".
Carey had given a witness statement in support of Gary McFarlane, who unsuccessfully sought permission to appeal against an Employment Appeal Tribunal ruling [txt] that supported his dismissal by relationship counselling service Relate Avon in 2008. McFarlane, a solicitor and member of a Pentecostal church, had lost his job after difficulties in dealing with gay clients. Relate Avon's Code of Ethics requires therapists to avoid discrimination on grounds of sexual orientation. The organisation's equal opportunity policy requires it to ensure "that no person ... receives less favourable treatment on the basis of characteristics, such as ... sexual orientation". McFarlane expressly signed up to that policy as part of his employment contract in August 2003. After dismissal he claimed discrimination on the ground of religion or belief, harassment, unfair dismissal and wrongful dismissal. He complained to the press that -
If I was a Muslim this would not happen. They would find a way to make the system work. But Christians seem to have fewer and fewer rights. Relate needs to be forced to work through stuff like this.Carey claimed that there was a -
disparaging attitude to the Christian faith and its values. In my view, the highest development of human spirituality is acceptance of Christ as saviour and adherence to Christian values. This cannot be seen by the Courts of this land as comparable to the base and ignorant behaviour. My heart is in anguish at the spiritual state of this country.Anguish perhaps fed hyperbole, with Carey going on to claim that -
It is, of course, but a short step from the dismissal of a sincere Christian from employment to a 'religious bar' to any employment by Christians. If Christian views on sexual ethics can be described as 'discriminatory', such views cannot be 'worthy of respect in a democratic society'. An employer could dismiss a Christian, refuse to employ a Christian and actively undermine Christian beliefs. ... I am concerned that judges are unaware of these basic issues on the Christian faith; further it is difficult to see how it is appropriate for other religions to be considered by the Judiciary where the practices are further removed from our traditions. ... The Judges engaged in the cases listed above should recuse themselves from further adjudication on such matters as they have made clear their lack of knowledge about the Christian faith.Lord Justice Laws stated that -
Lord Carey's observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as "disreputable". Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.In reinforcing that point he commented that -
In a free constitution such as ours there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian's right (and every other person's right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society. ...He explained that it was appropriate to address the comments by the former Archbishop because of Carey's seniority in the Church, "the extent to which others may agree with his views, and because of the misunderstanding of the law which his statement reveals".
[T]he 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.
