'In the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence' said Lord Justice Laws in a recent case. He was ruling against Gary Macfarlane, a Christian relationship counsellor who was sacked because he refused to give sex therapy sessions to a homosexual couple, because of his beliefs. The judge also said that no religious beliefs could be protected under the law. '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.[It would set] our constitution on the way to a theocracy, which is necessarily autocratic'.(Taken from the Daily Telegraph 30th April).
Well, well. Lots could be said and Rt Rev Dr Michael Nazir-Ali says some of it very well in a comment in the same paper. I shall just put out a few thoughts:
1. Has not freedom of religion long been regarded as a fundamental human right?
2. Does that not entail the protection of such beliefs under the law?
3. This protection is not on the basis of the objective verifiability of such beliefs or their 'rationality' but on the presupposition that in a society which respects the individual (which idea, we may say, is a development of Christianity - Calvinistic Christianity no less) people should be able to worship as they wish without interference from the state.
4. Presumably Laws, LJ, knows this and would not stop Mr Macfarlane worshipping in his church on Sunday; so the issue then is not about his faith as such but about the practice of Mr Macfarlane's religion in the public square from Monday to Saturday.
5. It is therefore a question of morality more than religion in itself; a matter of the moral implications entailed in Mr Macfarlane's Christian faith. To the Christian this is inseparable from the faith - as it would be for any serious religious adherent.
6. Presumably then the judge's objection is that this moral stance of Mr Macfarlane cannot be seen to be based on any 'objective' criteria, anything 'rational'. Putting it another way, it appears (from the scanty material to which I have had access) that had Mr Macfarlane's moral stance been based on some objectively verifiable criteria, he would have had his rights protected.
7. But what could that be? What could be an objective basis for morality which would have passed Lord Justice Laws' test? Would it need to show some obvious public benefit (a utilitarian test)? Or be 'scientifically' proven (a positivist test)? Lord Justice Laws does not seem to have based his judgement on the rightness or otherwise of homosexuality - indeed that has not come into it. So Mr Macfarlane would presumably not be required to show that his morality was 'superior' to that which either tolerates or promotes homosexuality. The basis of the judge's argument is not the merits of the content of Christian morality but its lack, apparently, of objective grounds.
8. Are we at the stage therefore where we have to be prepared to go to court in such matters prepared to 'prove' the 'truth' of Christianity (a matter on which Dr Nazir -Ali gives a few useful hints)? Surely courts are not qualified to judge such matters!Surely judges would not want to try! Could courts be flooded with church historians, theologians, philosophers and Christians with a testimony wheeled in as expert witnesses? But how else can one show the objective validity of a faith? Laws LJ presumably thinks no religion could ever do that. In a sense he is right; one can produce evidence for its goodness and usefulness, in principle and in history, and why should not that be allowed? However it would not amount to the establishing of an objective basis for the morality. Could evidence ever do more than show that the morality was practically beneficial? Could anything less than the proof of God's existence ultimately satisfy Laws LJ's test in the Macfarlane case? And is any court seriously going to want to try to adjudicate that?
9. But then - what objective basis ultimately is there for any value system? If Laws LJ were asked to provide objective, rational criteria by which his own presumably secular morality could be established - from where would it come? Does not the quest for all 'objectivity' finally resolve itself into a faith issue?
10. In conclusion, a fascinating bundle of questions is being raised by these cases and it is hoped that this will go to a higher court - which would have to be the Supreme Court. Left as it is, Laws LJ seems to have left the protection of religous rights, even to worship, quite apart from the practice of Christian principles in the work-place, without a foundation that the law would recognise. This would seem to undermine some fundamental and widely entrenched rights legislation in Europe. Did he mean to go that far? He has also left all rights in a state of uncertainty - for what is the objective basis for any protection of rights? What is the objective basis for example for freedom of speech? Or the right of association?
11.It also leaves Christians able to hold their faith privately but unable to express it publicly in any situation where it comes into conflict with popular mores, without fear of legal sanctions. Whether or not we call this persecution, it is certainly creating an environment in which persecution is inevitable.