Another post for Halsbury's Law Exchange, published here.
In previous blogs on religion and the law, I have advocated the following classical liberal position (for which I claim no originality):
"[T]he state should adopt an entirely neutral stance towards religion, which involves permitting any form of belief or religion, but only to the extent that each is compatible with the law of the land. Thus there should be no religious exemptions to employment contracts (unless freely agreed between the contracting parties) or school uniforms (unless the school itself decides to permit it as part of its own policy on uniforms) or taxation. If a religion is undertaking charitable activities then those activities themselves should qualify for tax exemption, not the religious aspect. Nor should religious (or, equally, anti-religious) sensitivities be permitted to override freedom of speech, as in the Rushdie affair or any number of less extreme examples."
Adopting that straightforward principle would, among other things: not discriminate against any religion, not suppress any religion, give primacy to freedom of expression and the right not to be discriminated against, preclude discrimination in employment and save Byzantine arguments about how to define a religion.
Inevitably, however, a few grey areas remain. If a job is one in a religious institution then it would make little sense to preclude discrimination by the employer on religious grounds. A further problem was highlighted recently by a Christian couple who wished to become foster parents. They were open about the fact that their religious teachings shunned homosexuality. This apparently precluded them from passing the local authority's requirements since those banned any discrimination on the ground of sexual orientation. The couple plans to challenge the decision by way of judicial review in the High Court.
Here the approach I advocated above does not provide a simple answer. Assessing the suitability of people as foster parents is not like a normal job application. Presumably the authority would defend its position on grounds that homosexuality has long been legal in this country, and popular opinion has long moved away from discrimination on the ground of sexual orientation.
Yet there is a serious problem in the authority effectively becoming thought police. Discrimination on sexual grounds based on religion is hardly the only view considered obsolete or otherwise objectionable. Is there to be a spectrum of required political, social and religious views? What if, as the couple in this case appear to be, the candidates seem to be otherwise blameless good citizens? The number of views generally considered objectionable is limited only by the imagination. For example, how would the authority propose to deal with the following:
· Gay people who have openly disparaged practising Christians;
· Adherents of any particular religion who openly disparage non-believers;
· Adherents of any particular religion who openly discriminate against women in various respects;
· Representatives of any internecine ethnic, religious or territorial conflict anywhere in the world who have advocated aiding or abetting combatants,
Any of the above may be encouraging views that are unlawfully discriminatory at the least.
One point is that objectionable or controversial views of parents would not normally render parents unsuitable to the point where social services would be able to intervene and remove the children. That cannot be a complete answer, however, since the test to remove children has never been the same as the test to allow foster parenting and arguably should not be.
The answer, I suggest with a degree of diffidence, has to be that since people are entitled to freedom of worship in the private sphere, and freedom of expression generally, that there is no getting around the fact that parents of every kidney, be they natural, adoptive or foster, are bound to expose children to views which the majority would find unsavoury to say the least. The children will however have to be educated at a state-approved school and via that method at least ought to be made aware of discrimination and the law. Whilst there would be some cases where a parent’s views would be so harmful so as to justify precluding them from fostering children, there has to be a fairly wide mesh.
One parting shot though – the classical liberal view I have been arguing for may well preclude religious schools, on the ground that the state is responsible for education at a primary and tertiary level and is required under the liberal approach to be neutral towards religion. This would be a dramatic change for the United Kingdom, but I would suggest that observers of the Northern Irish troubles for a start would see some empirical justification. But that is an issue for a separate post – indeed many posts.
Post Script: The following comment by one SJH and my response appear below the article on HLE:
Nov 1st, 2010 :
While this does not appear to be an attack on Christianity, the local authority is implying that one viewpoint is correct and the other is wrong, ie Christian views are outdated and must be abandoned. Homosexuality must be accepted by all. To not accept it is prejudice. Let’s say for a moment that the state decided to take the other view: Christianity is correct and homosexuality is wrong – therefore, we shall not allow gay couples to adopt or foster children. Would people also be expected to accept this? The UK is now multi-cultural and we are constantly told to accept a ‘diverse Britain’ – that’s all fine but what does this mean? Will some people have to give up their own opinions and beliefs to make way for new ones coming through? While it’s important that society grows and develops, why must a person be forced to adopt a view or live a way which goes against their beliefs? As for the children – they will grow, change and will be able to form their own opinions. Or maybe by the time these children grow up society will have a whole new set of ‘guidelines’ for us which will discriminate against a whole new set of people, while they desperately attempt to be ‘politically correct’. Discrimination laws are changing and will start to clash – the question is: who will be deciding what is essentially right and what is wrong?
The point I was making was that assessing parents for fostering children isn’t really akin to an employment application. In an employment situation, as long as one does what one is contracted to, then one’s private life is no-one’s concern, unless they do something in public outside of the workplace that brings the employer into disrepute.
With potential foster parents, a rather more searching and personal assessment would be appropriate. But does this extend to their political and religious views? Without ruling it out completely (suppose the prospective parents spent their time exercising their right to freedom of expression by calling for ethnic cleansing of some form or another and attempting to form a modern vision of the long defunct British Fascisti), surely the permissible spectrum of views has to be wide indeed. There are any number of reasons for this, including that what the authority thinks is politically correct is likely to change over time, as you point out, and the fact that, like it or not, most people have any number of likes and dislikes, rational and irrational, that might irk some local authority functionary but does not render them unsuitable parents. The children, as you say, will gain their own views over time anyway.
Which brings one to the central question in this particular issue – the needs of the child, which (correctly) in law is the overriding question. In assessing whether it is in the interests of the child to be fostered by any particular household, the parents’ religious and political views are but one factor, and surely absent something fairly extreme not a decisive factor either. Except of course everyone agrees on fairness until it comes to defining it, and similiarly we can all agree on a wide spectrum of views until something is offered as being outside it.
James Wilson Nov 2nd, 2010 :