The President of the Family Division on family law, morality and religion

On 29 October the President of the Family Division, Sir James Munby, gave the keynote address, entitled “The sacred and the secular: religion, culture and the family courts“, at the Law Society’s annual Family Law Conference. I do not propose to summarise it here because it is not very long and it very much merits reading in full. However his conclusion, in a nutshell, is that secular judges “must be wary of straying across the well-recognised divide between church and state” and that

“… reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. Where precisely the limits are to be drawn is often a matter of controversy. There is no ‘bright-line’ test that the law can set. The infinite variety of the human condition precludes arbitrary definition”.

Reactions have been predictable. Sir James’s speech raised howls of protest from what might be termed the Religious Right. The alternative (pseudonymous) Cranmer, in a piece entitled “Sir James Munby – High Priest of Secularism“, asks “What are the foundations of British notions of virtue and morality if they are not Christian? What is the basis of English law if not Christian?” and goes on (with a sideswipe at Laws LJ) to rail against judges who “empowered by EU Enlightenment … are becoming judicial activists in their aggressive secularism”. Melanie Phillips complains that “today’s judges see it as very much their business to enforce secular beliefs”. She claims that “traditional moral codes have merely been replaced by the modern religion of human rights, of which the English judiciary is its high priesthood” and that, “far from secularism being value-neutral, it promotes hyper-individualism”.

Equally predictably, Sir James’s lecture was welcomed with open arms by the President of the National Secular Society, who said that “The days of judges using their benches to preach Christianity and claim that the Book of Common Prayer is the basis of British law are gone, and not a moment too soon”.

In short, all good, clean(-ish) fun  but the question it raises in my own mind is this: if people really want “Christian” law, then precisely what kind of Christian law do they want? A virtually total ban on abortion, as in Ireland as, for example, in A, B and C v Ireland [2010] ECHR 2032 and the tragic case of Savita Halappanavar? The restoration of the right of parents on religious grounds to allow teachers to beat their children on the principle “spare the rod and spoil the child” as in Williamson & Ors, R (o t a) v Secretary of State for Education and Employment & Ors [2005] UKHL 15? The return of the laws against Sunday trading? (In England and Wales, that is: to the best of my knowledge there has been no law in modern times in Scotland against shops opening on Sundays.) The repeal of the Sexual Offences Act 1967 and the subsequent legislation on male homosexual relations? Some Christians would no doubt sign up to some or all of these; equally, other Christians would be appalled at the prospect.

And if what people are arguing for is law based on some kind of “Christian principles”, precisely to what principles are they appealing? The principles of truth, equality, justice and care for the weak and powerless  which almost all mainstream Christians in the UK would sign up to  derive as much from the Old Testament as the New and would have equal support among Muslims, Sikhs, Hindus, Buddhist, Baha’i and the rest as among Christians and Jews. When one starts applying them to specific cases, however, broad principles tend to come under strain.

Across the mainstream Christian Churches easily the two most difficult and divisive issues of the last fifty years have been the place of women and issues of sexuality. So is it or is it not “Christian” to have a society in which homosexual relations are not only legal but are given recognition in statute law? Or, for those (and there are many) who hold to the principle of “male headship”, how far should the law reflect that principle  and are the Equality Act 2010 and its predecessor legislation “Christian”?

I guess it depends on whom you ask. If there can be no bright-line test for limiting the reach of the secular law into matters religious, there can, equally, be no bright-line test (at least in my submission) for what is “Christian” and what is not. Human sacrifice, definitely a “no”. Likewise slavery (pace St Paul and the Nederduits Gereformede Kerk under apartheid). But how about participation in armed conflict? Abortion? Capital punishment? Divorce (which was unavailable in Ireland until the Family Law (Divorce) Act 1996 and in Malta until 2011)? Further restrictions on immigration? Regressive taxation? Loans from Wonga and the like at a representative 5853% APR?? Many devout Christians would have diametrically-opposed views on most of these.

Laws LJ dealt with the issue in a very similar way in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 (in which Mr McFarlane claimed religious discrimination after he had been dismissed after refusing to give psycho-sexual counselling to same-sex couples)  and had not the former Archbishop of Canterbury, Lord Carey of Clifton, entered a witness statement in Mr McFarlane’s support it is highly unlikely that he would have felt obliged to engage with the matter at all:

“23. … The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty … But 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.

24. 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. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself” [emphasis added].

In short, what Sir James said in his keynote address is very much in line with what Sir John said in the Court of Appeal – and it is difficult to see how, in a liberal, democratic state under the rule of law, it could be otherwise.

For another view, see the latest post on Cum Lazaro.