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Introduction:
Ladies and
gentlemen,
Thank you for
inviting me to speak at the Regional Meeting of the Family Values Conference.
My topic is the question:- of whether the law is a friend or foe of the family
and the answer is disconcerting.
Recent Case Analysis:
In the last few
years, I have been instructed in a number of cases that would have been
unthinkable prior to 1997. There is a growing and deep hostility to Judeo
Christian values in modern society and a profound secularism. If I have been
told the nature of my legal practice some 13 years ago, I would have thought the
proponent of such a scenario as ‘insane’.
My practice now
reflects the deep social and political fault lines in the United Kingdom.
In April 2009,
I was instructed in the case of David Booker[1];
the poor man was about to lose his employment at a former Church of England
charity for the homeless. His disciplining was for discussing, in a private
conversation with a co worker, his Christian beliefs in marriage. He expressed
opposition to pre marital sex and same sex unions. The British employer reacted
as all good employers do, and found the comments discriminatory against couples
who lived together and same sex unions. In short, the expression of Judeo
Christian values was discriminatory, dangerous and hostile and such language
could not be tolerated in the workplace. In short, his position was remedied by
firm legal and media intervention.
Just consider
the following cases:-
• In the case of Hammond [2004] a 69 year
old Christian preacher was assaulted on the streets of Bournemouth in broad
daylight by heterosexuals and homosexuals. He was assaulted for expressing
Christian moral views on homosexuality. The British Police seeing an elderly
gentleman assaulted by a group of young people did the ‘natural thing’ they
arrested the 69 year old for inciting his own assault. Subsequently, he was
convicted for causing a public order offence.
•
In the case of McClintock [2007], I
represented a Judge who refused to place children in same sex unions. It was
held that Christian beliefs on the correct upbringing of children and the need
for a mother or father were not even a religious or philosophical conviction.
Accordingly, such views were unprotected and Judge McClintock could be removed
as he merely possessed a view on the efficacy on the upbringing of children.
Yet, in Grainger [2009], it was held that beliefs on ‘global warming’
were protected by the law. So religious views were ignored, and ‘trendy’
secular views protected.
•
In Ladele v Islington [2009], it was
held that employer can dismiss a Christian employee (and by logical
extrapolation, refuse to employ religious adherents) who refuse to violate their
religious conscience by facilitating same sex relationships. Ms. Ladele was a
marriage registrar who sought exemption from same sex marriage services; this
was completely feasible, but was refused by the employer on grounds of
principle! In Smith & Grady v United Kingdom, the dismissal of
homosexual servicemen was found to be a breach of their human rights, despite
the effect on military efficacy. Thus, Christian views on conscience can be
violated by an employer.
•
In the BA Cross Case, British Airways
(2006), the national carrier of the United Kingdom had a policy that permitted
the wearing of Hijabs, Sikh turbans and kirpans, and Hindu Siska (ponytail),
but forbid the wearing of a small Cross around the neck the size of a
penny. It was amazing that the majority religion of the United Kingdom could be
treated with such disrespect.
•
In another recent case in Canada, I want to
read to you a newspaper cutting[2]
which states:
‘British Columbia Supreme Court is being asked to decide
if polygamy should remain illegal in Canada, the provinces Attorney General
announced Thursday. AG de Jong said he believes polygamy is against the law and
should remain so, but he said the justice system needs clarity about whether
Canada’s law barring multiple marriages is constitutional. Two Canadian laws
stand in contradiction: Polygamy is banned, and religious freedoms are firmly
protected’
This case shows the crisis of the law. The Attorney General
does not know whether the laws on polygamous unions are valid or not; and the
body to decide this question is not the people of Canada (and the legislature),
but the Courts. It is reflective of future trends in litigation.
Rapid
Socio Cultural Change:
Since the mid
1970s, there has been rapid and unpredictable socio cultural change; we have a
new era of self defined ‘modernity’ and ‘progress’.
The salient
features of the new modernity are: the demise of the family (traditional and
extended), demise of community in all manifestations (secular, religious and
relational), the dominance of personal autonomy, and rise of Hume[3]
and the reason of the passions in which human reason does not restrain appetite,
but justifies it.
As far as the
Anglo Saxon world is concerned, the period 1950 -75 was a period of decline in
Judeo Christian values; since 1975 the socio cultural change has been so
pronounced that the inter generational culture gap is significant in a whole
rate of relational norms. Do we understand the sexual mores of our own children
and young persons?
The pressures
financial and social on the family need to be reversed. Firstly, the economic
pressure on the family is unacceptable. The family unit in the 1950s would have
consisted of one breadwinner (the father) whose income would have supported the
entire family. In modern Britain, both parents must work; not only work, but
the working hours have increased and include unsocial hours (shift, week end,
evening, and Sabbath working). The introduction of Sunday trading in 1992 ended
that day as a ‘family day’ in the United Kingdom.
The social
pressure is also very considerable. The power of mediums such as television and
advertising need to be respectful of Judeo Christian values. Further, the
movement to same sex unions and child rearing is a recent development that would
have concerned policy makers in the 1950s; further, it is contrary to reason
itself[4]
where the evidence shows that the traditional family secures the most beneficial
outcomes for children. The issue is what does reason support; and reason
supports the family.
We must
anticipate similar rapid change in the next 30 years and anticipate unforeseen
changes. We need to use our intellectual and theological resources to meet this
challenge and be bold in our thinking.
Further, we
need to recognise that this autonomous ideology will be exported throughout the
international fora by means of international law, international institutions,
development aid and political pressures.
It is safe to
predict that the recent future will involve the attempt to reject Judeo
Christian values, there will be the coercive use of State power to enforce new
‘moral’ norms by means of the political tool of Human Rights to oppress peoples.
Liberal toleration will be granted to tolerant liberals only.
As Judge
McConnell wrote (now a Professor at Stamford University)[5]:-
It seems obvious that something has changed. Today, there is
a widespread sense not only that the government should be neutral, tolerant and
egalitarian, but so should all of us, and so should our private associations.
Open mindedness, not conviction is the mark of the good liberal citizen.
Indeed, there is something suspect in those who are sure they are right ... For
this and other reasons, the ideal of the liberal citizen conflicts with the
ideal of belief in religion or in any other comprehensive faith or ideology. To
the extent that the State pursues this new version of the liberal citizen, and
enforces its version by force, religious freedom is gravely endangered.
Legal Problems:
We are facing
a number of structural legal problems in the rule of law. The rule of
law is one of the (many) most important gifts of the ancient Jews and upon which
ordered and civilised society rests. Regrettably, the Courts are using a number
of legal tools to undermine family values and weaken the rule of law.
The first is
Judocracy; this is the Judges imposes their own personal predilection of the
meaning of law. They give effect to their own views on socio cultural change,
masquerading as the rule of law. This is highly unsatisfactory as Judges
lack any democracy legitimacy and so their acts can undermine freedoms
generally. Why should their view on social issues have any primacy over the
views of the London Taxi driver?
Secondly, there
is the growth of Constitutionalism. Rights are repeatedly classified as
fundamental and not civil. In short, they move beyond the purview of the
legislature, are irreversible and undermine further our freedoms. Fundamental
freedoms are unchangeable and civil rights are for the political process.
Finally there
is the ‘gerrymandering’ of the law. I have discussed this in my case
list above. It is clear that there is no legal principle to ascertain the legal
basis of the decisions. This is compounded by the every widening classes of
groups discriminated against on every widening grounds of discrimination.
Conclusion:
In reply, we
need to seek laws and policy structures that strengthen the family and
relational networks. The law is powerful and has an influence and does not
merely reflect social change. We need to strengthen our values; and whilst
respecting the individualism of autonomy, recognise the countervailing interest
of community.
It is important
that there is political engagement, judicial engagement and media engagement by
all of us who wish to support the family.
Endnotes:
[1]
Telegraph.com.uk,
Charity worker suspended over 'religious debate' with work colleague
http://www.telegraph.co.uk/news/
[2] Huston Chronicle of 22nd
October 2009.
[3] David Hume Philosopher 1711-
1776.
[4] Dr. Dean Byrd ‘Gender
Complementarity and Child-rearing: where tradition and Science Agree.’
[5] 21 Cardozo Law Review.
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