Wednesday, 9 March 2011

Munchausen loses Court Case

Having penned a little piece in the Guardian about the Johns Case, reactions have ranged from nutter denunciations to thanks for saying what everybody felt but hadn’t got round to saying. Actually, the realities of this case were extraordinarily simple, summarized thus by the judge:
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 force Christians or adherents of other faiths into the closet. No one is asserting that the claimants are bigots. 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.
So...

You may think everybody is out to persecute your religion, but you can only get a court to stop them, if there is any evidence that could give substance to your fears. It is perfectly lawful in the UK to suffer real fear about religious discrimination. It does actually happen and may indeed happen to you. What you cannot expect is the blanket protection of a court against a specific instance of it without evidence that it has happened or is likely to happen to you.

Premature burial is a dreadful thing. Before a Court will injunct a local authority against doing this to you they will require some evidence that it is likely to, or indeed that you are dead in the first place. Since nobody brought any evidence in this case, the result can hardly surprise anybody.

What have we learnt?
  1. Courts don't make law, parliament does. Well, wasn’t that a surpise?

  2. If you require protection against an imaginary threat, go to an imaginary court. Using real courts as grandstands, an essential part of the lexicon of US Culture warriors of the Right, is still, understandably, frowned upon by English judges, who are busy bunnies.

  3. The conflation of a moral view held by a particular section of Christians into a banket phenomenon called “Christianity” that is then adjudged to be under threat doesn’t wash. It’s rubbish. Some Christians, for example, are profoundly sincere pacifists. In stark contrast to anti-gay campaigners, Christian pacifists could claim some sanction for their view from the teaching of Jesus. That doesn’t, however, make pacifism integral to Christianity, such that any court that refused to order the Grenadier Guards to lay down their arms could be held to be attacking Christianity.
Ah, but you may say, there are people out there who don’t like Christianity. There are, and there always were. Some English Christians seem hell bent on behaving like a persecuted minority, and who am I to try and stop them? They’ve obviously never been to Pakistan or anywhere else Christians really are persecuted as Christians.

Historic Christianity does have massive historic, cultural and legal influence in the UK, not least in the pursuit of ancient rights founded on the principles of Equity that gave rise to our human rights law in the first place. The surest way to destroy this influence is for a group of zealots to take upon themselves the role of being the “one prophet left,” and indulge in the legal equivalent of Munchausen’s Syndrome by Proxy.

31 comments:

UKViewer said...

Bishop Alan,

Thank you for bringing some common-sense into a debate where the perception of persecution seems to be embedded into some peoples psyche.

I do not feel persecuted, disadvantaged in any way, in fact, my becoming a Christian has had a really positive effect on my personally, but also wider socially and when I was working in that environment as well.

We will know when we are persecuted, when we are being killed for our faith, when our churches and books are attacked and burned, when speaking aloud about our faith is regarded as subversive and leads to arrest, beating and worse. When just being a Christian means death.

Just look at Pakistan, Nigeria, the Sudan, Zimbabwe etc. In reality, we have never had it so good to steal a Harold Macmillan phrase.

Revd John P Richardson said...

Just one comment: the statement "No one is asserting that Christians (or, for that matter, Jews or Muslims) are not 'fit and proper' persons to foster or adopt" (actually that should be 'neither the defendant nor the court' rather than the all-embracing 'no-one') is not the same - as was evident from the approach of Derby City Council - as saying that the particular views of Christians and Muslims will not, if effected in their care of foster children - render them unsuitable persons to adopt.

It is all a bit more complicated.

Graham said...

Thank you for this piece of common sense!

I do wonder how and why this 'narration of persecution' is growing among certain spheres of the Britsih evangelical world. With it's growth comes exaggeration and loss of careful listening (or indeed any listening).

I also note the previous comment: we s/he describes is persecution- we are not persecuted.

Neither should we expect the state to protect 'us'. I think we have more integrity by being vulnerable and on the margins.
Thank you

Red said...

yes, well said UKV, and ofc ourse +Alan. The whole thing seems a bit nuts doesn't it? But I think there will always be people who 'feel' persecuted even when none is there. I teach my children that they don't have to 'take' an offence to anything. It is their choice to accept a criticism/insult or bad word against them. In bringing this case the Owens seem to have not only taken 'offence' but also brought the whole thing about in the first place!
red

Erika Baker said...

I suppose it's a characteristic of your British case law system.

Because I find it astonishing that it should be impossible to obtain clarification of the implications of a law (in this case the Equality law) before something turns into acrimonious ligitation.

And I thought the couple and the Council were quite mature in seeking a joint clarification before getting it wrong.

It seems a bit silly to say "I'm not telling you what you can and can't do until you've done it and then I'll happily tell you that one of you was wrong".

Or am I missing something here?

Anonymous said...

VG here.

Amen, Bishop Alan. You say it and say it loud and often.

I recently withdrew my support for a charity which decided to make Our Persecution As Christians In Britain their main campaigning issue for the year. I am delighted that the court and I are on the same side, and even more delighted that you are too.

Lapinbizarre said...

"Thanks", he said, yet again. Have added your "Using real courts as grandstands..." observation to my memory bank, with gratitude.

Bishop Alan Wilson said...

Thanks to all for comments and kindness. Erika, I think English courts try to be very disciplined about evidence, actuality and precision because that is part of the basis on which they can compel behaviour in a way that limits liberty. Our Anglo-Saxon Equity system does largely run on precedent, with the job of marking out legal ground in advance reserved for parliament, and this makes notional cases problematic in themselves.

Red, UKV, Graham, I honestly think this is a fabulous time to be a Christian in the UK - amidst moral uncertainty and panic induced by change, we have a firm foundation for hope in the rock that is Christ. That makes me feel like someone with a fridge full of cokes in a desert! How could we blow it? Well, one way is by ghettoising ourselves on the basis of fear. Especially in the light of what I learnt at last week's regeneration summit, it's vital not to do this. We don't have to, and if we do it's a self-inflicted wound.

John, I see what you mean. Thank you for pointing it out. Where we end up, though, is that if the excellent Johns family can't adopt (and Derby never actually said they couldn't, though it seems improbable perhaps) their views will be taken into account, but their religious motives are irrelevant per se, and their suitability will be judged on the standard paramountcy principle laid down in the Childrens Act. That's the legal point, and that's why it is wholly inappropriate for anyone to say anyone is persecuting anyone for their religion in itself. That assertion is just false, and observing the ninth commandment does actually commend the gospel!

Bishop Alan Wilson said...

Just posting a link to a critical reaction by Sndrew Carey on the Anglican Mainstream site. I see they don't allow comments on this, so it won't link if I don't. http://www.anglican-mainstream.net/2011/03/10/what-is-a-bishops-role/

Andrew asks, understandably, what is a bishop's role? I would say part of it is to try and protect the flock from making a fool of itself in a way that compromises our gospel witness, on however well-intentioned a basis.

I would also say in this case that the clear distinctiion of basically cultural issues from those covered in the Bible and creeds is very important, or everything gets conflated unhelpfully.

Christians, honourably, take a variety of points of view on important ethical issues, but if individual points of view about them get erected into shibboleths, people on the threshold of faith will think they have to get sorted on said peripheral culture issues before they can come to Christ. If I were the sort of Christian who banged on about the devil, I would say it was one of the old enemy's best techniques for keeping people out of the faith! Once people come to Christ and start reading their cutural issues, such as they are, in the light of Christ, everything can be worked out authentically for the person concerned.

Also, what comes first is loving thy neighbour as thyself regardless of culture factors — it's a very absolute commandment.

As long as we lead on peripheral cultural issues, people will think that's what the gospel is about; which it isn't. Making that point is very much part of a bishop's role. It's mission that matters, not culturally right wing hobby horses that can impede mission.

Erika Baker said...

Alan,
in that case, why didn't the court simply refuse to hear the case saying there was no case to hear, instead of writing a long analysis quoting extensively from other legal rulings... only to conclude that there is no case?

It seems to be an odd muddle between ruling and not ruling, hearing and not hearing.

Revd John P Richardson said...

Bishop, may I ask, does right wing for you equate to 'wrong', and therefore, the words of Dire Straits, is it your view that "left becomes right"?

BlackPhi said...

It is worth anyone with an interest in this case reading the actual judgement: it's not that long and, in my view, it is surprisingly clear and readable. You can find it at http://www.bailii.org/ew/cases/EWHC/Admin/2011/375.html.

Erika: surely if the court is going to decline to make an order in a particular case, then it has to give reasons for doing so. This judgement carefully summarises the points of law involved, highlights the problems with the ways the two sides had formulated what they wanted from the court, and shows that the legal ground has already been fully covered. Then they decline to make an order. This seems reasonable to me.

Revd John P Richardson said...

I wonder if the present standards being applied by the courts would not also work in the case of the old Corporation Act. This was also based on an action, not a specified belief, namely receiving the sacrament of the Lord's Supper according to the rites of the Church of England.

Moreover, it applied 'equally to all' - thus affecting Jews as well as Catholics and Quakers.

The argument currently being maintained could therefore have been made, "This is not direct religious discrimination, because everyone is treated the same, not just one religion, and it is not about indirect religious discrimination because the point of the Act is to preserve the public good."

The precise situation may not be the same, but I believe the modern outcome may be effectively the same - the exclusion of one section of the population who hold a certain belief, from swathes of public office. (And if you doubt that, look what happened to Dr Hans-Christian Raabe.)

Erika Baker said...

PlackPhi

If there no case to answer because no case has been brought then it is irrelevant to cite points of law that would apply if a case had been brought and it is also irrelevant to show the legal ground that has already been covered and that would apply if a case had been brought.

Andrew Carey said...

Thanks for linking to my column in The Church of England Newspaper on the Anglican mainstream website.

I’m not sure that you’re fulfilling your role of protecting your flock from making a fool of itself when you use mockery and insults to describe them. Have you considered that it might be counter-productive to address them in such unloving terms.

You’re also ignoring an important pastoral issue. What do you say to the Johns? There’s a well-intentioned couple in front of you who have successfully given care and love to foster children only a few years in the past and now are told that views they have had all along now prevent them from opening their home again. They feel affronted, marginalised and hurt. Presumably you would just tell them to lump it because to do anything else would make mission difficult for you. What about their mission to show God’s care to needy five-to-10 year-olds in need of respite care?

I’ll just make one other point. It’s naïve in the extreme to believe that courts do not make law - only Parliament does? The fact is that the courts can strike down Parliamentary law under the human rights act 1998.

Bishop Alan Wilson said...

Erika, I think the loop your question has almost inevitably taken us round discloses exactly why attempts to wring fantasy injunctions from courts are such a pickle. Your formulation of the problem struck me as a pretty good summmary of the decision that was given! The reason the court took it on is that if Mr Diamond had brought anything other than hot air to the case it might have had merit. He didn't and it didn't, but the judges couldn't say he couldn't have without giving him his day in court. If any wrong had actually been suffered, a decision could have been judicially reviewed, but as it hadn't this was the only way of trogging his tendentious rehetorical proposition out in court. It was his choice to do this, not the court's.

Andrew, there is a public issue here arising from the way the petitioners' sponsors attempted to conflate their particular views with Christianity per se and then defend this by a rhetorical smokescreen in their press releases — all that twaddle and nonsense about future courts taking Christians' Children away from them, Roald Dahl style. The whole thing is a media circus that should be called out for what it is.

As to the pastoral issue I said nothing of the Johns except that the were fine people whose views on orientation per se are further to the right than the official pronouncements by the C of E. They are manifestly both these things. The setting up of such people as stalking horses for Mr Diamond's overblown rhetoric, in court or in the tendentious press releases that have followed the decison, is rather distasteful, to put it mildly.

The human rights act is an act of parliament. Courts can interpret it and have a duty laid on them by the act itself to determine the extent to which rights to which we are committed by parliament have been observed. Section 4 (6) of the act says the exact opposite of the Daily Mail about the force of Declarations of Incompatability. All the whole thing does is provide an onshore compliance mechanism for a pre-existing obligation.

Finally, John, Honi soit qui mal y pense. I don't mind left wing, right wing or no wing in the fields of culture or politics. It's a free country. I am slightly bemused as to why why right wingers in the UK seem so much less willing in England than in other parts of Europe to take responsibility for taking what are perfectly honourable positions, albeit of the right. Is that a folk memory of who was vindicated by the War, or something?

Erika Baker said...

Alan
I would like to take issue with your view that the couple's view is far to the right of the position of the Church of England.
I have already said this on Thinking Anglicans where your Guardian article was linked (for simplicity I hope you don't mind me copying the whole comment over):

I would also say that this is, precisely, how most people in the pew understand the CoE's stance on homosexuality.
The problem is that "It's ok to be something but it's not ok to live accordingly" is a distinction we don't usually make in life. It's a tortuous mental compromise the church makes with itself to justify an outdated stance on sexuality.

But people instinctively know that it really does mean "it's not ok to be who you are".

The only surprise is that this strange thinking has pervaded the hierarchy of priests and bishops to the extent that they really do not see the natural consequences their words have for most people.

Ann Memmott said...

All are aware of sexuality and our faith as a genuinely difficult and painful issue.

I've faced the dilemma from time to time in my roles within the CofE in various Dioceses, where it had been made plain to me on one occasion that I was welcome in that role if I remain married to a man. But if (heaven forefend) that marriage should cease, my role might have had to be rethought if I later took a female Civil Partner. Those were not clerical roles, either, but it was felt that such a person as me could perhaps not be seen to be an adviser to senior figures.

I respected this, but I can't begin to understand the thinking.

I worry greatly that we have a church that is sometimes tearing iself apart with concerns about this issue.

If Jesus could manage to share His life with people of every kind, can we afford to consider singling out some for different treatment because we are perhaps fearful of disapproval if we're seen to use their skills?

We'll never know the outcome of such a debate around me for sure - the treatment I'm having for cancer means that much of my work has stopped anyway. But I keep praying for clarity around LGBT issues within our church.

Bishop Alan Wilson said...

Many thanks, both for taking this issue out of the realm of the abstract and into real lives.

Erika, I think it is difficult to maintain an absolute distinction between who people are and what they do. Perhaps (thinking out loud a bit) there is a scale where over at one end is the idea that anything that arises from one's nature is ipso facto OK (or perhaps even worse, not OK?). At the other lies a tight restrictive view that one's nature should always be denied. I avoid extreme 1 because, as someone who is heterosexual I would not see that as in itself validating every behaviour that could arise from that identity. All is still under judgment, and under mercy.

The other extreme lies in a gnostic direction that implies that everything God made in Genesis was not somehow good enough; the kind of down on sex that led to clerical celibacy being imposed on all clergy in the medieval Western Church.

The place the Church corporately can draw the line is always going to be something of an average, or perhaps a median, but I think there is a line people draw in assessing the moral significance of how they live, given the nature they seem to have.

There is also the whole Foucault view of sexual identity as socially constructued with which I disagree mostly, but if it has any validity at all I partly make myself the person I am sexually by the ways I act to express my sexual identity.

I do think the distinction between who we are and what we do because of who we are is a difficult one for exactly the reason you give, but I don't think I can get away from the thought that as moral agents, personally or corporately, we're stuck with it in some way shape or form.

Ann I see exactly the dilemma you sketch in your third paragraph. Love thy neighbour as thyself is absolute, not conditional on what other people think. I very much share your final prayer. Is one of the problems that we're trading certainties, sometimes in semi-ignorance, rather than seeking clarity in all humility?

Erika Baker said...

Alan,
thank you for your comment.

The problem is that being heterosexual is being taken as natural way of being, a morally neutral category of humanness. And then you have several moral options for expressing what being heterosexual means. The morality of your life is not determined by your sexuality but by the way you live it.

The same doesn't apply to gay people. There is, in the eye of the church, no healthy and moral way to live a gay sexual life. There is only the option of complete self denial.

That view automatically creates the deep suspicion that there is something wrong about being gay. If there wasn’t, then surely, there would be a healthy and moral way of living a sexual gay life, just like there is for straight people.

For as long as you measure gay and straight with a different moral yardstick you will automatically make your listeners understand that there is an intrinsic moral difference between being gay and being straight and that being gay is, intrinsically, inferior and possibly immoral.

That truly is the message the church is giving out loud and clear.

Bishop Alan Wilson said...

Erika, thank you so much for explaining why there isn't an easy parallell between the ways morality is applied to gay and straight people. Without wanting to make it worse, I think there is also an Anglo-Saxon tendency to define what being gay means not in personal terms, but in terms of lifestyles or partcular behaviours Once the person is interpreted almost solely in terms of what they ae supposed by other people to do, the labelling is almost hopelessly complete. And that's before anyone has done anything. I think that's part of the reason there can be such anger directed against people who start to try and dev elop a moral yardstick around concepts of permanence, faithfulness, stability and the like. It threatens because it breaks the mould that made it possible to define them as "the other."

There is, of course, a healthy and moral way to live as a gay person or a straight person. But the discussion about the latter is much more enriched and nuanced than about the former.

My other thought is that your words are directing me to something I am directing increasing amounts of research and learning time to; Equality. Unless our moral yardsticks are applied with the Amos-type plumb line, all kinds of wacky exceptionaism very easily clouds the vision and, at worst, makes religion part of the problem rather than the solution. So I;m exploring human rights and equaity, with a particular bug about why ten years ago if you said "Christianity and Human Rights" everyone's first mental image was Martin Luther King or Desmond Tutu. Say it today, and everyone thinks of B&B owners who dont ike gay people sharing bedrooms. There's a really tragic loss in this re-framing that needs to be redressed.

Erika Baker said...

Thank you Alan.
Yes, it comes down to equality. That true, deep equality that arises out of really seeing the Other, seeing Christ in other people.
I firmly believe that once you genuinely see others as people in their own right, as moral agents as free and responsible as you are, you will not longer be capable of setting yourself up as their rightful judge with yourself as benchmark.

"Equal but different" has never been anything other than the dying end of the battle before we have truly seen the humanity in those we label to be different.

Bishop Alan Wilson said...

This is incredibly helpful to me, Erika, as tomorrow I have a short interview for a R4 show on Gay Rights v Religious Rights.

You've articulated exactly why I see this as a false set of alternatives. From a Christian point of view respect for the particularity of the other person should be a matter of treating people the way Jesus did.

Christians set difference against equality if they haven't really understood equality. But when we are called out for failure to respect others' human rights, it could it be we are not having secularity imposed on us, just being challenged to be more Christlike?

Erika Baker said...

Alan,
I’m so glad they’ve asked you to be interviewed!
Could you let us know when the show will be broadcast?

BlackPhi said...

"Treating people the way Jesus did" - calling them 'Satan' or a 'nest of vipers'? Praising a sinful woman (Luke 7) or telling her 'leave your life of sin' (John 8)? I don't remember Jesus explicitly dealing with people in terms of 'Gay Rights vs Religious Rights', so does it all come down to picking your own preferred parallel from the Gospels?

It seems all very subjective; how do you avoid the 'WWJD: obviously Jesus would agree with me' trap?

The Johns case highlights that situations judged under the law are basically simple: are you obeying/following the law or aren't you - if not, religious belief, or its lack, is no excuse. There might be a corresponding simplicity to situations judged under Grace, but expressing that simplicity analytically doesn't seem to work so well.

BlackPhi said...

Apologies; I've expressed that really, really badly. Reboot:

Yes, I agree (with what I think you are saying) that people are unique individuals who should be treated as such, not as an example of some group or class - which seems to have been Jesus' approach to dealing with people. But I'm not sure where that goes to in terms of a supposed dichotomy between the rights of 'gay people' and the rights of 'religious people'.

Mr Johns is a particular individual who reportedly would want to tell a child that homosexuality is always wrong; that child is a (currently hypothetical) particular individual who might find that message particularly unhelpful; Ms Shaw is another particular individual trying to navigate her way through a minefield of competing demands and pressures to find positive placements for local children in need of foster care.

It may be important not to lose the particular individuals in the overall issue; but they are up in Derby and churchgoers feeling persecuted, and homosexuals feeling persecuted, appear to be all over the place. Maybe wood and trees both matter.

Ann Memmott said...

Bishop, that's a good question re whether the problem is that some people think they 'know' right from wrong (if I understand what you've asked correctly). And that they 'know' what God wants and are sure that they are better than others.

Who was it who said (paraphrased) that 'you can be sure you've invented a God of your own when He agrees entirely with you and disapproves of all the same people'.

Some in our churches truly do believe that there's no persecution in the UK and that all are free to worship. For some of us, we are indeed free to enter any church and worship there...if we hide who and what we are. We might not get killed, but goodness me a few in our churches know how to ostracise and criticise until a person leaves in shame.

There is a real sadness in some when senior figures in the church elsewhere use language about 'moral bankruptcy' when describing negotiations with the gay community, for example. I know of so many truly loving, caring, gentle Christians who give much to our churches and are in committed relationships with someone of their own gender...If theirs is moral bankruptcy, how are we judging people?

Humility - that we all sin and all fall short of God's mark - that we are saved by His love and His caring for us - is sometimes in short supply in a few individuals. Let's be honest, sometimes we all fall short of that mark. I guess the test is whether we can admit it and apologise, which I try to do.

Cancer is a great leveller...the things that used to scare me don't do so as much now - there may not be a heck of a lot of time left, after all. But it would still take all the courage I have to stand up in front of unknown clergy and tell them who and what I am...and that saddens me. Perhaps my own prayer needs to be for more courage...

Francis said...

The thing is on the John's case we need to remember this: by the time any kid they adopted was 20 or more they would love them whatvere happened! But then again this depends on the development of debates on faith, race, cohesiona nd justice such as those that Ive started blogging about at www.theprincipledsociety.com

Bishop Alan Wilson said...

Francis, thanks for the link, which I'll check out. Ann there are all sorts of pressures on people from others, and I take your point. Only the kind of culture that genuinely respects others as who they are can gie them the space we all need and follow the golden rule. It means we have to be very creful with labels, especially when the effect is to tell people they are wrong about who they are. This doesn't mean, of course, that ay of us aren't slightly wrong all the time about who we are, and in need of others apart from ourselves to help us place ourselves. These are murky waters.

For me, Phil, wood and trees really do matter. The trouble with notional cases about thngs that haven't happened is that in the end they turn almost entirely on rhetoric. The court simply refused to play this game, rightly so, IMHO. Everyone deserves respect and protection, including the notional child. Respect for the other person's particularity is what squares the circle and prevents e everything simply being a circus of competing rights played off against each other.

Bishop Alan Wilson said...

John, re Comment 13 above thanks for a fscinating parallel to the old test and corporation acts of 1662. There are, of course, very significant differences with the position we are now in legally:
(1) the discrimination, if there was any, was directed at a religiously motivated view of an ethical issue bearing on the welfare of the child. It could have applied equally to a pair of devout Quakers who were desperately keen on Gay rights and pushy with the child, if such a thing can be imagined, in that direction. T&C acts were based on the taking of the Sacrament, a religious act at the centre of religious practice, not an ethical issue, such as pacifism or vegetarianism which, whilst religiously motivated is not by any manner of means centrl to the practice of the religion, and on which a majority of co-religionists take a more lax or contradictory view. Had declaratory relief been granted no authority could have taken any consideration arising from this issue an issue in future. Imagine, for example, a Jehovah's Witness couple who refused a child a blood transfusion. That was cocered by the CIC by the phrase "mainstream church" but that, of course, is a meaningless term in legal terms.

Jack Wellman said...

Well said. One rotten apple can spoil anyones appetite for apples forever. Great work.

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