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British Appeals Court Rejects Plea For Special Panel To Adjudicate Religious Rights Cases

By Howard M. Friedman

Yesterday in Britain's Court of Appeal, Lord Justice Laws sharply rejected charges that the regular judges of the court do not understand Christianity or other relgious faiths. He reiterated an earlier decision of the court to refuse to allow an appeal of a controversial employment discrimination case. Last November, the Employment Appeal Tribunal upheld the right of a counseling service to require employees to serve all clients. Counselor Gary McFarlane was dismissed after he refused on the basis of his Christian religious beliefs to counsel same-sex couples. The EAT rejected McFarlane's religious discrimination claim. (See prior posting.) After the Court of Appeal in January rejected an application to appeal, McFarlane, backed by Lord Carey, the former Archbishop of Canterbury, petitioned for appointment of a special Court of Appeal panel of five judges who understand religious issues to hear McFarlane's appeal and future appeals involving religious rights. (See prior posting.) Rejecting that request, in McFarlane v. Relate Avon Ltd., (Ct. App., April 29, 2010), the court said:

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.... 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.

... 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.

So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials.

The London Daily Express , The Independent and the Daily Mail all report on the decision.

Full post as published by Religion Clause on April 30, 2010 (boomark / email).