Aidan O’Neill QC’s timely and informative piece ‘Religion and the judiciary’ concludes by citing at length Lord Justice Laws’ stinging rebuke to Lord Carey who had lodged a witness statement in support of Gary McFarlane’s renewed application for leave to appeal in McFarlane v Relate Avon Ltd.

O’Neill endorses Laws LJ’s ruling on the substantive issue, concluding that the right to religious liberty does not include the right to discriminate against others on grounds of sexual orientation. In my view an equally plausible reading of the judgment has been offered by Lawrence West QC who holds that Laws LJ’s decision to prioritise the right not be discriminated against on grounds of sexual orientation over the equally important right to ‘manifest’ one’s religious beliefs is insufficiently justified and harbours illiberal consequences.

But my concern here is with Laws LJ’s provocative wider reflections on religion and law, which O’Neill also appears to endorse. These are especially interesting because Laws LJ is a practising Anglican, though in delivering judgement he is not, of course, speaking for any religious body. His discussion of this vital issue is, however, disappointingly brief and ambiguous and it is tempting to quote back at him his own rather lofty remark about Lord Carey, that his ‘concerns are formulated at such a level of generality that it is hard to know precisely what [he] has in mind’. Let me extract and assess four quite distinct propositions that seem to be implied in his remarks.

The first is that the state cannot itself determine the truth or falsity of any religious belief. This is the essential foundation of the principle of religious toleration. It is, however, overlooked by critics of Laws LJ such as Bishop Michael Nazir-Ali, who appears to conflate the protection of religious liberty with the constitutional privileging of Christianity. As Locke put it in his Letter on Toleration, ‘neither the right nor the art of ruling does necessarily carry with it the certain knowledge of other things; and least of all the true religion’. Contrary to religious critics of liberalism – and many of liberalism’s secular defenders – the principle does not imply a ‘secular state’, only a limited one.

The second, following from the first, is that the state cannot officially justify a law solely on the ground that it is founded on a particular religious belief held only by some citizens. Thus as Laws LJ rightly puts it, ‘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’ (though he adds a dash of quite gratuitous alarmism here by warning that if we go that route ‘our constitution would be on the way to a theocracy’ – a loaded and widely-misunderstood term he does not pause to define).

This proposition is valid if it refers to the de jure status of such precepts. But it is inevitably the case that some such precepts – and they may in fact be religious or secular – will, in some cases, exercise greater de facto influence on legislators or courts than others. In the USA a constitutional separation of church and state has existed alongside periods of quite substantial Christian influence on public policy via the normal channels of democratic mobilization. A de facto predominance of religious (or secular) precepts in a particular law may, as Laws LJ puts it, leave some citizens feeling ‘out in the cold’ but it does not make them ‘less than citizens’. It just means that they lost the democratic debate (for now).

The third proposition implied in Lord Justice Laws’ remarks is that the state can only justify a law on the grounds that it can be seen ‘rationally and objectively to advance the general good’ (I paraphrase). Obviously, no one would want to advocate a law that was seen to be irrational, based on subjective opinion, or inimical to the general good. But ‘seen’ by whom? What counts as ‘rational, objective and conducive to the general good’ is not self-evident but is the subject of ongoing democratic contestation among rival political visions, some of which may legitimately be religiously-inspired (the US Civil Rights movement, for example). This proposition does not in itself settle the question of the legitimacy of religious influence on law.

The fourth proposition is the most problematic. Lord Justice Laws asserts, without any argument whatsoever, that religious belief is, for everyone except the holder, merely subjective opinion, ‘incommunicable by any kind of proof or evidence’, the truth of which ‘lies only in the heart of the believer’. But, to start with, this is factually incorrect, at least with regard to Christianity. There are many non-Christians, and not only believers in other religions, who would recognise that at least some of the claims of Christianity – historical ones no doubt, or, perhaps, claims about universal moral values – are capable of successful communication to and indeed assessment by others. The assertion also happens to be inconsistent with Laws LJ’s own Anglican tradition, in which authority is widely held to arise not from the inaccessible subjective opinions of the individual but from a confluence of the publicly communicable and testable claims of ‘Scripture, tradition, and reason’.

By relying on a highly contestable – albeit widely, if unreflectively, subscribed to – epistemology, itself the product of the very kind of secularist ‘belief system’ he claims has no place in the justification of law, Lord Justice Laws has, I fear, obscured rather than illuminated the proper relationship between religion and law. In the process he has also thrown the question of the proper foundation for the protection of religious freedom in English law into even greater confusion than it was before.

Had he instead grounded his view of the relationship between law and religious belief simply on Locke’s more limited and better-established principle of the religious incompetence of the state, his critical response to Lord Carey would have gained in precision and lent itself more readily to the constructive debate we all urgently need about these increasingly neuralgic questions.

Jonathan Chaplin

Director, Kirby Laing Institute for Christian Ethics, Cambridge