[UPDATE 4th March: this has now been posted on Ruth Gledhill's 'Articles of Faith' blog where it is available free.]
Following widespread misreporting that a Christian couple had been ‘banned’ from becoming foster carers (provoking an inevitably mistaken outcry), we now have an opposite (and equally mistaken) reaction from those who are saying there is really nothing here to get excited about.
The couple concerned, Owen and Eunice Johns, had gone to court over the unwillingness of Derby City Council to grant them approval as foster carers — a rôle they had previously undertaken during the 1990s — due to their own views on homosexuality and a change in the Council’s formal standards reflecting new legislation on sexual equality.
The Johns’ views are explicitly based in their Christian beliefs. Even so, the first clarification they sought from the court carefully avoided mentioning their specific faith, referring instead to “Persons who adhere to a traditional code of sexual ethics”. It was any and all of these, they argued, who “should not be considered unsuitable to be foster carers for this reason alone.”
They also sought assurances that foster carers could be regular churchgoers (another question raised by the City Council) and that the particular views of foster carers on homosexuality ought only to be considered in the case of a specific child, rather than more generally.
Derby City Council, meanwhile, counter-claimed that, “A fostering service provider may be [originally they stated “would be”, but changed this in the course of the action] acting lawfully if it decides not [sic, to] 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.”
These were the issues on which both sides agreed to seek “declaratory relief” — (in layman’s terms, ‘a court ruling that one or the other was basically right’).
In the event, the judges refused to do this, which means it is now up to the Council to consider the Johns’ case further and come to a decision. However, they also refused to grant the Johns’ permission to apply for a judicial review and in doing so, clearly took the side of the Council over the issue of the criteria they could apply to foster carers.
Moreover, in reaching this decision, they laid great emphasis on the cases of Islington London Borough Council v Ladele and McFarlane v Relate Avon Limited. It was the latter case in which Lord Justice Laws was so dismissive of the interventions of Lord Carey, the former Archbishop of Canterbury, and Laws’s words are extensively quoted in the present ruling.
Thus it is quite clear that a legal precedent in these matters has been established, and is now being followed by the courts, which comes down to this: if a body acts against a Christian in a way that it could lawfully act against anyone else, this is not a case of direct religious discrimination.
Now at first blush this might seem reasonable. The legal criteria would be the outward behaviour common to all, not the inward motivation specific to the individual. Indeed, the ruling (rather ostentatiously, given the context) denied “seeking to open windows into people’s souls”, emphasizing,
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.
But then, as we have seen, the Johns themselves did not seek to make this first matter an exclusively religious issue, which might seem to support the judges’ ruling in this respect.
The problem is, as the Council’s counter claim demonstrates, the only position that will be legally tolerated in this particular instance is one which expresses no “objection to”, but only “positive attitudes” towards, homosexuality and same-sex relationships. The range of behaviour and treatment that will be tolerated is thus apparently strictly limited.
This, therefore, is rather like the individual whose ‘balanced personality’ consists of having a chip on both shoulders. The equality of application is not necessarily a justification for the outcome. However, as the law currently stands, it would seem that the first anxiety expressed by the Johns is justified.
In a recent article in The Times, Emma Satyamurti identifies as a key question whether the Johns had a right to manifest their beliefs in the context of fostering a child. The initial answer would appear to be ‘no’. Adhering to the view that sexual union outside lifelong heterosexual marriage is morally undesirable is (because of its negative connotations regarding homosexuality) indeed sufficient grounds for the Council to discriminate against an application to become a foster carer.
Nevertheless, there was an interesting claim put forward by the Council that they had approved other foster carers who were, in their words, “very committed Christians who hold to orthodox beliefs and devout Muslims who are similarly committed to their religion”, yet who were apparently “able to value diversity notwithstanding their strongly held religious beliefs.”
No evidence was actually offered in court as to what this entailed, but one might wonder whether they offered the approaches of these couples to the Johns as ‘worked examples’ of how they might be able to comply with the Council’s standards.
Is it acceptable, for example, for these couples, if asked, to express their own “orthodox beliefs” to the children in their care? In that case, what the Council means by ‘evincing antipathy’ is not necessarily what might be assumed.
On the other hand, of course, if such carers are actually required to operate a ‘don’t ask, don’t tell’ policy, then we are indeed in a position where only one view may legitimately be expressed in this context, which for the Johns and those like them comes to the same thing as discrimination.
However, this only deals with direct discrimination. The ruling also touched on the question of indirect discrimination. If one’s faith required one to adopt and express the views held by the Johns, is not this an example of indirect religious discrimination and therefore contrary to the European Convention on Human Rights?
Here, the quoted words of Lord Justice Laws are decisive:
... in various contexts the law allows indirect discrimination where, in a carefully controlled legislative setting, it can be shown to have justifiable effects. (Para 53)
In the present case, the judges ruled that there was not even indirect discrimination. Nevertheless, they added this caveat:
However, on the assumption that such a requirement or requirements [of the Council] are indirectly discriminatory, it is clear ... that compliance with anti-discrimination legislation ... will amount to justification ... [of indirect discrimination].
The problem is that what Article 9 of the European Convention gives with one hand (paragraph 1), it takes away with the other (paragraph 2), declaring firmly that it is for the state to decided what is,
... 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.
And as we are seeing, issues of ‘personal rights’ legally trump issues of ‘public morals’.
Any suggestion that there is, after all, nothing for Christians to worry about here, is thus misplaced. Satyamurti, for example, is technically correct when she says that “was no direct discrimination against [the Johns] on the basis of religious belief”, but that is only because the same discrimination would have applied to everyone holding their views on traditional morality. Whether one is hung for stealing a lamb rather than a sheep because one prefers one’s meat tender, the actual hanging comes to the same thing.
But for exactly the same reason that justified the universal direct discrimination, indirect discrimination would in any case be allowed, even on the grounds of religious belief. Thus the ruling states that
... Article 9 only provides a “qualified” right to manifest religious belief and ... interferences in the sphere of employment and analogous spheres are readily found to be justified [...]. (102)
Somewhat controversially, the ruling adds that,
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 [...].
At least on the face of it, this would seem to imply that strict adherence to traditional sexual morality might be just such a belief!
Thus the claim by the Christian blogger, Peter Ould, that ‘Christians with Traditional Moral Views can still be Foster Parents’ is, unfortunately, somewhat premature. Strictly speaking, the issue has yet to be decided. Derby City Council was reduced to saying that they may be acting lawfully in discriminating against people expressing anything other than positive views on homosexuality and same-sex relationships, and that may still be challenged.
As it stands, however, the law would certainly uphold any ‘ban’ they did impose on the grounds to which they have appealed, provided it applied equally to all, and would certainly not allow a claimed exception on the basis of religious belief.
In what ought to be doom and gloom for orthodox Christians, however, there is one chink of light. In their own deliberations, Derby City Council had generously acknowledged that this was not just a matter of Christian beliefs since, “there are homophobic people that are non-Christian” (para 11). Taking a different view, however, the Johns had sought a ruling that it should actually be unlawful for a public authority to use this description of people like themselves.
Oddly enough it is Lord Justice Laws who comes to the rescue, for in his response to Lord Carey, he also stated the following:
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. (53)
This would seem to suggest that, at least in this regard, the Johns’ claim ought to have been upheld. According to Laws, the Christian condemnation of homosexuality ought not to be called ‘homophobic’, neither is the position disreputable, nor are its adherents bigots. Perhaps Derby Council (and others!) could take note of this, at least.
John P Richardson
3 March 2011
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3 March 2011
