For those who haven't been following the case, a Christian working for the charity Relate had refused to provide marital counselling for same-sex couples and been dismissed for that reason. The Christian had appealed the decision on the grounds that it represented religious discrimination, and the judgement this week was to reject that argument. In other words, as seems very reasonable, a charity set up with explicit provision to provide guidance for same sex couples had the right to dismiss an employee that didn't agree with the purposes of that charity - so far so straightforward.
Lord Laws, however, in his judgement, went a little further than that – partly because the former ABC made a rather public intervention in the process. Lord Laws said this:
“...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...”
Let's leave aside his frankly rather quaint adherence to Modernist philosophical categories, especially his naïve use of “subjective” and “objective”, and look at the underlying logic. For I wonder how far this can be pushed.
The first thing to point out is that actually we are a theocracy – more so than Iran – for our head of state is also the head of the established church! Is the monarch guilty of discrimination when he or she takes the coronation oath? The church is involved in that, after all:
The Archbishop of Canterbury: "Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolable the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?"
The Monarch: "All this I promise to do. The things which I have here before promised, I will perform, and keep. So help me God."
The second point is that his judgement applied to Relate – a secular agency with secular purposes – what about adoption agencies? If there are Catholic agencies with Catholic purposes, are they allowed to only employ Catholics or those who accept a Catholic agenda? Or is that discrimination? How about issues such as abortion – at present a Christian doctor is allowed to refuse an abortion – will that always be the case, or will a Christian doctor be required, by virtue of working in a secular institution, to carry out procedures that he finds abhorrent – and what about euthanasia? The same thing applies. Does it even apply to a nurse offering to pray with a patient? Put differently, is the secular state in the business of mandating and enforcing a division between care of the body and care of the spirit that medical practice itself would not acknowledge? I once read that in the future christians will be marked out as the people who don't kill babies and don't kill old people – I think that there is something in that
What is at issue here is the purported neutrality of the state, an intellectual position which Lord Justice Laws seems to hold but which is, at the very least, open to question. According to the rhetoric the state is able to hold the ring as a safe space within which different interests can operate – but the rhetoric disguises two things.
1. The state has a definite agenda, a secular agenda, and it is intolerant of dissent. Following the somewhat misnamed wars of religion and the peace of Westphalia the state has progressively centralised power, and it is ultimately ruthless in eliminating opposition (for various reasons, mostly associated with the fact that our society is crashing into the limits to growth, I think that historical period is over, and the future belongs to resilient local communities like transition towns – but that's a whole other story) What we see with Lord Justice Laws is simply an echo of that position.
2. For specific historical reasons our political settlement can't really cope with assertive religious believers. This is seen most particularly at the moment with issues around the Muslim faith. The philosopher John Locke, who stands at the origin of this process, put in place the framework by which the ethics of religious belief were judged by the state – and in England, this had the consequence that all enthusiasm became suspect. If you were actively and sincerely religious then you were not quite sound, you couldn't quite be trusted – the danger perceived was that you might be tempted to pick up a mace and break open your opponents head. All sorts of cultural habits have followed on from that, and the Church of England has been happy to accept a position of pampered privilege – sadly at the price of proclaiming the gospel.
So am I arguing that Christians are suffering from persecution? If we are, then only very mildly. As Archbishop Rowan has pointed out with his customary good sense and profound spirituality, for Christians in the West to bleat about persecution at a time when more Christians in the world than ever before are being executed for their faith – this betrays a profound sense-of-proportion failure.
Nevertheless, I don't see any reason to hold back on criticisms of our political culture, mild though the situation is. To do so is simply to accept the role of neutered house pet which the political settlement imposed on the church, and very unnatural it is too. To be a Christian is to be political – as one of my favourite theologians once put it, "If you ask one of the crucial theological questions--why was Jesus killed?--the answer isn't `because God wants us to love one another.' Why in the hell would anyone kill Jesus for that? That's stupid. It's not even interesting. Why did he get killed? Because he challenged the powers that be. The church is a political institution calling people to be an alternative to the world. That's what the cross is about." (Hauerwas)