Court rejects foster couple 'Christian discrimination' claim

By staff writers
1 Mar 2011

A Christian couple who said they were being discriminated against by Derby City Council because of their Christian beliefs, when they declared they were unable to tell young foster children that a homosexual lifestyle was acceptable, have had their claim to the High Court rejected.

Eunice and Owen Johns, who have fostered children in the past, and have been described as a "kindly couple", had been questioned about the impact of their views on children in their care in the light of statutory duties. They were not banned from fostering - as some press reports wrongly claimed - but made a joint application with the Council to the High Court for guidance.

This was rejected because, said the judges, "there is little by way of evidence and the question posed for our consideration – 'How is the Local Authority … required to balance the obligations owed under' various enactments and instruments – could hardly be more open.”

In a strongly-worded judgment in a case rigorously pursued by conservative lobbyists as part of a campaign alleging discrimination against Christians, Lord Justice Munby and Justice Beatson dismissed the claims of the couple's counsel.

The judgment says that Mr Paul Diamond's "skeleton argument opens with these words, 'This case raises profound issues on the question of religious freedom and whether Christians (or Jews and Muslims) can partake in the grant of 'benefits' by the State, or whether they have a second class status'. ... He identifies the issue before the court as being 'whether a Christian couple are 'fit and proper persons' (Counsel's use of phrase) to foster (and, by implication, to adopt) by reason of their faith' and 'whether Christian (and Jewish and Muslim) views on sexual ethics are worthy of respect in a democratic society.' The manner in which he chooses to frame the argument is further illustrated by his submissions that what is here being contended for is 'a blanket denial on all prospective Christian foster parents in the United Kingdom', indeed 'a blanket ban against all persons of faith', an 'irrefutable presumption that no Christian (or faith adherent) can provide a suitable home to a child in need of a temporary placement'.

Lord Justice Munby and Justice Beatson declare: “It is hard to know where to start with this travesty of the reality."

They continue: "All we can do is to state, with all the power at our command, that the views that Mr Diamond seeks to impute to others have no part in the thinking of either the defendant or the court. ... No one is asserting that Christians (or, for that matter, Jews or Muslims) are not 'fit and proper' persons to foster or adopt. No one is contending for a blanket ban. No one is seeking to de-legitimise Christianity or any other faith or belief. ... No one is seeking to give Christians, Jews or Muslims or, indeed, peoples of any faith, a second class status. On the contrary, it is fundamental to our law, to our polity and to our way of life, that everyone is equal: equal before the law and equal as a human being endowed with reason and entitled to dignity and respect."

Despite this, Christian Legal Centre spokesperson Andrea Minichiello Williams claimed afterwards, on the basis of the judges' ruling, that "Britain is now leading Europe in intolerance to religious belief", and the CLC claimed that "the High Court has suggested that Christians with traditional views on sexual ethics are unsuitable as foster carers, and that homosexual ‘rights’ trump freedom of conscience in the UK.”

In fact, the judges clearly said in their judgement that they were not ruling against particular beliefs - but against the discriminatory effects of some beliefs, religious or non-religious. They also said that no one set of beliefs can be used to justify discrimination in a plural society, and that claiming religious sanction for discrimination is not in itself sufficient or reasonable.

The judgment firmly backs previous case law, and says that it is not the function of the "laws and usages of the realm" to uphold Christianity and particular interpretations of it.

Lord Justice Munby and Justice Beatson declare: “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."

They add: “[R]eliance 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. And invocation of religious belief does not necessarily provide a defence to what is otherwise a valid claim.”

The Derby City Council social service department and children’s panel had not, in fact, made a decision about whether or not Eunice and Owen Johns would make suitable foster parents.

However, after social workers asked questions about how their strongly held anti-homosexual views might affect their response to a child who was gay, both the couple and the council decided to make a joint application to the High Court for guidance. The court judgment declined to make any declaration or order, but instead reaffirmed the law.

A Derby City Council spokesperson said: "It would be inappropriate for the Council to approve foster carers who cannot meet minimum standards. It would be difficult and impractical to match children with Mr and Mrs Johns if they feel that strongly." They denied that this had anything directly to do with them being Christians, and said the same standards applied to all, irrespective of belief.

Ben Summerskill, chief executive of the LGBT rights' NGO Stonewall, declared: "In any fostering case the interests of the 60,000 children in care should override the bias of any prospective parent. If you wish to be involved in the delivery of a public service you should be prepared to provide it fairly to anyone."

Simon Barrow, co-director of the Christian think-tank Ekklesia, commented: "This is a clear and fair judgment which clarifies the law, refuses a misleading 'clash of rights' perspective, follows the Court of Appeal position, upholds equal rights for all irrespective of differing beliefs, and rejects exaggerated and inaccurate claims about discrimination against Christians as 'wrong as to the factual premises on which they are based and at best tendentious'."

He added: "Counsel for the Johns pursued and lost the same points as in the case of McFarlane v Relate Avon Ltd and Islington London Borough Council v Ladele, subsequently losing in the Court of Appeal over Ladele, also. This High Court judgment by Lord Justice Munby and Justice Beatson makes it plain that such claims are unsubstantiated."

"The argument of the socially conservative Christians who are pursuing these cases to seek to demonstrate 'discrimination' or 'persecution' against Christians in the UK appears to rest on two false premises. The first is that theirs is the only Christian view and should be backed up by law, irrespective of the dignity and rights of others. The second is that discriminatory actions justified on religious grounds should provide immunity from fulfilling legal requirements over equality and justice towards others in the public sphere. That cannot be right

"It is wrong to call this judgment a 'landmark ruling', since it does not lay down any new principle but upholds and affirms the law, emphasising its case- and fact-sensitivity and refusing sweeping or hypothetical generalities. However, it does further confirm what we at Ekklesia have been arguing for many years - which is that the era of Christendom, when Christian institutions and beliefs might be given special privilege, regard and exemption denied to others, is now over. For many - including Christians who wish to recover the levelling core of the Gospel message - that is good news, not a threat," concluded Barrow.

Naomi Phillips, head of public affairs at the British Humanist Association (BHA) said after the judgment: "Fostering is an important public service, giving care and support to some of the most vulnerable children and young people in the country. When we take on jobs of public service to others, particularly to vulnerable children, we need to understand that our own prejudices and preferences come second to the needs and rights of those we are helping. This judgment supports that principle and makes clear that this case has nothing to do with treating religious people unequally, or forcing anyone to go against their beliefs, or about religious discrimination, as was claimed in court."

She added that in ruling on cases of alleged discrimination against Christians brought by lobby groups, "the courts have invariably found that while there is no question of the right to freedom of belief being infringed on, there are legitimate restrictions on the right to manifest those beliefs, where the manifestation may be damaging or harmful to others, or contrary to the requirements of the service in which they are employed. Instead of accepting that there is no legitimate case for religious discrimination, [these] groups go on to claim instead that the whole system of law discriminates against them and that the whole of the law should shift to accommodate their prejudices. Theocratic arguments like this, advanced in the name of equality for Christians, need to be exposed for what they are."

In their conclusion, Lord Justice Munby and Justice Beatson also raised serious questions as to why the case was brought in the first instance, writing: "[T]he parties have: (a) been unable to agree on an appropriately focused question for the court to address, (b) each identified questions that do not raise a question of law that can be answered with anything approaching a simple ‘yes’ or ‘no’, and (c) furnished the court with no evidence.

“On behalf of the claimants it is said that the material the [Equality and Human Rights] Commission filed in evidence is highly controversial, but no rebutting evidence has been filed. Mr Diamond has sought to rely on material which is unsupported by any evidential evaluation. We are not in a position to assess, let alone evaluate, any of the material relied on. This, together with the difficulties we identify in has meant that such conclusions as we have been able to reach in must be seen as qualified in the light of the nature of the material before us and the way the case was presented. For the reasons given we have concluded that we should make no order.”

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Admin/2011/375.html

[Ekk/3]

Creative Commons LicenseThis work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 England & Wales License. Although the views expressed in this article do not necessarily represent the views of Ekklesia, the article may reflect Ekklesia's values. If you use Ekklesia's news briefings please consider making a donation to sponsor Ekklesia's work here.