“...the laws and usages of the realm do not include Christianity, in whatever form”
This was the rather disconcerting, not to say utterly astonishingly ignorant judgment in the High Court yesterday of Lord Justice Munby (left) and Mr Justice Beatson (right), in the case of Eunice and Owen Johns, from Derby, who went to court after a social worker for Derby City Council expressed concerns when they said they could not tell a child a ‘homosexual lifestyle’ was acceptable.
His Grace is not going to go recount the details of the case: he has done so previously in 2008 and 2010, and the summary facts are reported in both The Daily Telegraph and The Daily Mail.
His Grace wishes instead to focus on two aspects of this judgment, which raise important issues of considerable concern for religious liberty.
A few years ago, the Supreme Court ruled on what it is to be Jewish: a court which has existed for just a few years presumed to overturn 3,500 years of Jewish orthodoxy and tradition by divorcing ethnicity from Judasim.
Yesterday, the High Court swept aside 2,000 years of Christian orthodoxy and tradition by divorcing sexual ethics from Christianity.
Lord Justice Munby and Mr Justice Beatson ruled that there was no discrimination against Mr and Mrs Johns as Christians because they were being excluded from fostering 'due to their sexual ethics and not their Christian beliefs'. It is a manifest falsehood for High Court judges to claim that a believer’s moral beliefs about sex have nothing to do with his or her Christian faith.
While not dismissing the incontrovertible fact that Christians have diverse beliefs on the issue of homosexuality, it is equally incontrovertible that there is a canonical context for believing that homosexual behaviour meets with divine disapproval. And, unlike matters such as slavery and the subordination of women - concerning which there are tensions between the Old and New Testaments and counterposed witnesses - the biblical witness against homosexual practices is univocal.
That is not to say that exegesis is straightforward and that there are not hermeneutic problems in drawing out a Christian theology of homosexuality, not least because it is an utterly minor, not to say peripheral concern compared to, say, economic injustice. But half-a-dozen references is sufficient to formulate a biblical ethic. Of course, we must be mindful that these scriptures may be and are variously interpreted, but that is not the issue here. For Lord Justice Munby and Mr Justice Beatson ruled that Mr and Mrs John were unsuitable to be foster parents ‘due to their sexual ethics and not their Christian beliefs’, as though those beliefs are not causal; as though the ethics are not informed by or contiguous with the faith.
It is a matter for the Johns as to whether they appeal, but this aspect of the judgment against them is easily refuted. Genesis 19:1-29, the story of Sodom and Gomorrah, is actually irrelevant to the topic (being concerned with gang rape and sex with angels [cf Jude 7]), but it has often been adduced throughout church history as being concerned with homosexuality. Leviticus 18:22 and 20:13 are more useful, being quite obviously concerned with homosexual behaviour and being unremittingly negative in their judgment. To insist that obedience to these scriptures may not constitute a Christian ethic on homosexuality must mean that the traditional beliefs on adultery, incest and bestiality (Lev 20:10-16) may also not constitute a Christian sexual ethic. It is to be observed that ‘lying with a man as with a woman’ is categorically proscribed. This is an unambiguous legal prohibition which stands as the foundation for the universal rejection of same-sex intercourse within Judaism.
Of course, quoting levitical law does not settle the question for Christian ethics. But the early church did consistently adopt the Old Testament’s teaching in matters of sexual morality (1 Cor 6:9-11; 1Tim 1:10; Acts 15:28f). The fact that malakoi and arsenokoitai are mentioned as wrongdoers who will not inherit the kingdom of God is sufficient in itself to refute the assertion of Munby and Beatson. Yes, the terms are open to interpretation, for neither translates directly as ‘homosexual’. But malakoi is pejorative Greek slang for ‘passive’ sexual partners – often young boys – in homosexual activity. And arsenokoitai has traditionally been interpreted as a male who lies with a male, directly linking it to Leviticus 18:22.
But perhaps the most crucial text for Christian ethics concerning homosexuality is Romans 1:18-32, which sets condemnation of the act in an explicitly theological context. This is also the only passage that refers to lesbianism. Rebellion against God leads to depravity, among which is listed sexual activity between members of the same sex. For Paul, homosexual acts are sinful and, indeed, evil.
When you set these scriptures in the context of God’s creative intention for human sexuality (Gen 1; Mk 10:2-9; 1Thess 4:3-8; 1Cor 7:1-9; Eph 5:21-33; Heb 13:4), it is as clear as the light of day that Christian beliefs can determine a particular ethical stance on homosexuality. Ergo this part of the Munby-Beatson judgment is profoundly in error.
But they further said:
We sit as secular judges serving a multi-cultural community of many faiths. We are sworn (we quote the judicial oath) to "do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will." But the laws and usages of the realm do not include Christianity, in whatever form. The aphorism that 'Christianity is part of the common law of England' is mere rhetoric; at least since the decision of the House of Lords in Bowman v Secular Society Limited  AC 406 it has been impossible to contend that it is law.It is interesting that they designate themselves ‘secular judges’, since, as judges, they have sworn an oath ‘...by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will’.
Setting aside that it is a strange secularist that swears by Almighty God: it is of more immediate concern that they have sworn allegiance to the Queen, whose Coronation Oath demands the maintenance of the Protestant Reformed Religion established by law.
Perhaps the High Court might remind itself that the XXXIX Articles of Religion as found in the Book of Common Prayer still constitute the law of the land. And Article 37 is quite clear:
The King's Majesty hath the chief power in this Realm of England, and other his Dominions, unto whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign Jurisdiction.This has not been repealed and forms part of the British Constitution through the Act of Settlement 1701 and the Act of Union 1707. The clergy of the Church of England are still required to acknowledge that the Articles are ‘agreeable to the Word of God’ (Canon C15 of the Declaration of Assent). And clergy are also obliged by law to baptise, marry and bury. And as Church courts are courts of the Realm, and Measures of the General Synod have the effect and status of Acts of Parliament, this part of the Munby-Beatson ruling is quite bizarre.
In fact, you really don’t need an LLM in Canon Law to determine that they are utterly wrong on this matter also.
But their judgment follows that of Lord Justice Laws last year, who, sweeping aside the centuries-old Anglican Settlement and the constitutional position of the Queen (not to mention manifesting scant comprehension of the Christian faith), determined: ‘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.’
It is becoming increasingly evident that the ‘aggressive secularism’ of which Pope Benedict XVI spoke on his visit last year is becoming even more aggressive.
The Christian faith is intricately bound with the constitutional and legal basis of British society. Our values and virtues stem from a Judaeo-Christian foundation. The Laws-Munby-Beatson judgments fly in the face of our history, our institutions and the Constitution.
It is ironic indeed that we are winding back the clock on the 1689 Act of Toleration and 1829 Roman Catholic Relief Act, and moving towards the reintroduction of a religious bar to holding office. Political candidates are sacked for supporting the Act of Settlement or for articulating an orthodox Christian (and Jewish and Islamic) view about homosexuality. Christian magistrates, registrars, paediatricians, GPs, teachers and nurses are finding it increasingly difficult to manifest their faith without risk of disciplinary action, dismissal or prosecution for offending the ascendant secular religion.
Interestingly, Munby and Beatson dismiss the application of Article 9 of the European Human Rights Act, as this only provides a ‘qualified’ right to manifest religious belief, which is ‘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’.
If traditional Christian sexual ethics are ‘inimical’ to the interests of children, what does the law say about the millions of parents who seek to bring up their children in accordance with the precepts of their faith? Are Christian schools inimical to these interests? Are church youth groups?
The Equality and Human Rights Commission thinks so. They intervened in the Johns’ case, suggesting to the Court that a child should not (in their words) be ‘infected’ with Christian moral beliefs. The suggestion that Christian moral beliefs on sexual morality could ‘infect’ children is an extraordinary position for a taxpayer-funded statutory body to take.
You can just imagine the outcry if the EHRC had referred to Jewish or Muslim religious beliefs ‘infecting’ children.
What is clear from this judgment is that freedom of religion is now universally subordinate to the rights of homosexuals, and we see the long-prophesied triumph of the Act of Sexual Uniformity. Munby and Beatson have stated unequivocally that laws protecting people from discrimination because of their sexual orientation ‘should take precedence’ over the right not to be discriminated against on religious grounds.
This court ruling appears to suggest that, should the Government proceed with its plans to permit the blessing of civil partnerships in places of worship, and should that place of worship refuse, then ministers and bishops may be liable to prosecution because of this precedent. If the upholding of the traditional Christian view on homosexuality does not constitute a religious belief, then there is no basis in law for an exemption for any religion and no guarantee of protection from prosecution, whatever Parliament may say or however they may expressly word the Act.
Yesterday, His Grace was concerned to observe that, although the Church was subject to Parliament, Parliament may not re-write Scripture by redefining marriage. Today, he observes that Scripture is being interpreted and church history revised by the Courts.
It is ironic that while, on the one hand, the Government is overhauling the adoption guidelines to ensure thousands of children go into loving homes irrespective of ethnicity, yet on the other, the Courts are preventing children from going into loving homes on the basis of religion.
Michael Gove said only last week:
"Every day they wait is a day they're denied the loving home all children deserve. But politically correct attitudes and ridiculous bureaucracy keep many of those children waiting far too long. Edicts which say children have to be adopted by families with the same ethnic background, and which prevent other families adopting because they don't fit leftwing prescriptions, are denying children the love they need."If it is morally right for a politically-correct policy of ethnic restriction in child adoption and fostering to be reversed, a fortiori it is morally right for an unjust policy of religious restriction to be reversed.
For if Christian morality is harmful to children and unacceptable to the state, how long will it be before our children are forcibly removed from us, lest they be ‘infected’ with Christian moral beliefs?