Ecclesiastical Law and Equality

by Philip Jones

R (Johns) v Derby City Council (2011) EWHC 375 (Admin)

Mr and Mrs Johns were foster carers, whose Christian beliefs on homosexuality apparently conflicted with the Council’s ‘fostering standards’.  The administrative court declined to grant the declaratory relief that Mr and Mrs Johns had sought.

However, the case is of interest on account of the court’s thesis on the relationship of law to religion.  The court held that ‘well understood principles’ (para 36) show that

(1) English law ‘do[es] not include Christianity, in whatever form’ (para 39), and is ‘essentially neutral’ in matters of religious belief (para 41) and

(2) law and religion are strangers to each other, with the result that religious belief is always a question of fact to be proved by evidence (para 35).

Thus religious freedom and equality demand that the court be ‘neutral’ in religious matters (cf para 48).  Neutrality in turn demands ignorance.   The court cannot know anything of religious belief other than what is proved in evidence before it in the particular case.

This thesis does not sit comfortably with ecclesiastical law.  The court made the briefest of references to the existence of an ‘Established Church’, but did not stay to consider the legal implications of this.

The ‘Established Church’ is so called because it is constituted (i.e established) by law, English law.  The Church’s legal function is to administer the Christian religion in England.  The religion that it administers is defined by law.

The English law which principally defines Christian doctrine today is the Worship and Doctrine Measure 1974.  S.5(1) of that Measure provides that that doctrine is found in the 39 Articles, and the Book of Common Prayer (‘BCP’) and Ordinal of 1662 (collectively known as the ‘historic formularies’).  A Church of England Measure is primary legislation with ‘the force and effect of an Act of Parliament’ (Human Rights Act 1998, s.21(1) and Church of England Assembly (Powers) Act 1919, s.4).

The Worship and Doctrine Measure 1974 is therefore just as much a part of English law as the ‘equality’ laws.  The effect of s.5(1) is that the Church’s formularies are incorporated into English law, rather as the European Convention on Human Rights is incorporated by the 1998 Act.  This means that the doctrine found in them cannot be dismissed as merely the private belief of individuals.

The 1974 Measure further provides that all liturgy should be consistent with the Church’s doctrine, and that ecclesiastical officials, including ecclesiastical judges, may be required to make a formal assent or subscription to doctrine (s.5).

The court did refer to the ‘well-recognised divide between Church and state’ (para 41).  However, it may not have recognised the ‘divide’ correctly.  ‘The state’ comprises both the ecclesiastical state and the secular state.  It is wrong to identify the state with the secular state alone.  The Church / ecclesiastical state comprises those institutions and offices whose function is the administration of religion.  It may be described as the ecclesiastical system.  Just as the legal system exists to administer justice, so the ecclesiastical system administers religion.

Even secular law, not just ecclesiastical law, contains some recognition of Christianity.  The Monarch is required to ‘join in communion’ with the Church of England, under the Act of Settlement.  Bishops retain the right to sit in the House of Lords.  The Church (albeit with other ‘faith groups’) retains rights over the teaching of religion in secular schools.

The court’s ‘well-understood principles’ therefore require significant modification:

(1) English law is not ‘neutral’ in matters of religion.  On the contrary, the state continues to assert the right to define and to administer the Christian religion.  It is true, however, that the administration of religion is the function of the ecclesiastical state, not the secular state.  Secular judges are therefore correct to decline a responsibility which does not belong to them.  A secular judge who assumed a responsibility for administering the Christian religion would not be infringing any state ‘neutrality’, but he would be exceeding his constitutional authority.

(2) Law and the Christian religion, though they are not the same thing, are not strangers to each other.  Because the historic formularies are incorporated into English law, the existence of the Christian doctrine stated in them should not have to be proved by evidence.  Evidence will only be required where there is a dispute as to what the formularies teach on a particular matter.

The formularies affirm the Christian doctrine of sexuality (in the marriage service) and the moral law divinely revealed in the Old Testament (Article 7).  Certain passages might have been relevant to Mr and Mrs Johns’ case, that children should be brought up ‘in the fear and nurture of the Lord’ and ‘virtuously brought up to lead a godly and a christian life’ (marriage and baptism services).  Another passage holds that ‘My duty towards my neighbour  is … to keep my body in chastity’ (BCP catechism).

This last passage might have been relevant to the earlier case of McFarlane v Relate Avon (2010) Industrial Relations Law Reports 872, which clearly influenced the court’s ‘neutrality’ thesis in Mr and Mrs Johns’ case.  Mr McFarlane was dismissed when he declined on religious grounds to provide ‘psycho-sexual therapy’ to homosexual couples.  His claims of unfair dismissal and religious discrimination were dismissed.

Lord Justice Laws rejected the plea of a former Archbishop of Canterbury, who had supported Mr McFarlane, for the appointment of  ‘a specialist panel of judges … [with] a proven sensitivity and understanding of religious issues’ (p.876).  The Lord Justice himself  could certainly not be accused of undue sensitivity to traditional Christianity, despite sitting on the editorial board of the Ecclesiastical Law Journal

Like the court in Johns, Laws LJ made only the briefest reference to ecclesiastical law, when he observed that ‘the liturgy and practice of the established Church are to some extent prescribed by law’ (p.877).  So they are, but he failed to mention that the law prescribes the Church’s doctrine as well.

Laws LJ held that the state cannot ascertain religious truth.  This may be true, but the state can receive and accept religious truth.  Ecclesiastical law is the constitutional means by which the state continues to receive this truth, even into the 21st century.  

Despite its inability to ascertain truth, Laws LJ stressed the importance of the (secular) state ‘thinking for itself’ and being ‘reasonable’ and ‘objective’  (presumably in contrast to religious belief, which is irrational and subjective), but this rather begs the question, what is objective reason?  By what values and methods is it to be discerned, if religious values are to be disregarded?

The policy of religious ‘neutrality’ assumes that only an irreligious state is capable of not discriminating against religious minorities.  Yet it is questionable whether the state can ever be truly neutral in matters of religion.  If the state affects a religious neutrality, it merely constructs a religion-substitute or ideology of its own, which takes the place of traditional religion, and which may be far from tolerant of religions which contradict it.

The ‘equality’ laws, and their interpretation by the courts, demonstrate this process with painful clarity.  But the equality laws have not, as yet, succeeded in doing away with ecclesiastical law!