Whatever we make of the substance of Judge Andrew Rutherford's ruling in the Cornish private hotel case, his citation of a striking and controversial opinion by Lord Justice Laws, delivered in another religious freedom case in 2010, is worth pausing over. The owners of the Chymorvah hotel were found to have discriminated against a gay couple by refusing them a double-bedded room. They had appealed to their right to manifest their religious belief by running their hotel according to Christian moral standards. Given the drift of recent legal judgments in cases where equality rights are thought to clash with religious freedom rights, it is no surprise that the gay couple won their case. But quite apart from the merits of the case, judges should be warned off any future reliance on the ill-considered opinions about law and religion ventured last year by Lord Justice Laws. Laws rightly asserted that no law can justify itself purely on the basis of the authority of any religion or belief system: "The precepts of any one religion â€“ any belief system â€“ cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other." A sound basis for this view is Locke's terse principle, in his Letter on Toleration, that "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". But Laws seemed to ground the principle instead on two problematic and potentially discriminatory claims. One 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). The question is, seen by whom? What counts as rational, objective and publicly beneficial is not at all self-evident but deeply contested, determined in the cut and thrust of democratic debate and certainly not by the subjective views of individual judges. Religiously inspired political views, such as those driving the US civil rights movement of the 1960s or the Burmese Buddhists today, have as much right to enter that contest as any others. In this sense law can quite legitimately be influenced by religion. Laws' other claim is that religious belief is, for all except the holder, "incommunicable by any kind of proof or evidence", and that the truth of it "lies only in the heart of the believer". But many non-Christians, for example, recognise that at least some of the claims of Christianity, historical ones, no doubt, or claims about universal moral values, are capable of successful communication to and critical assessment by others. Laws' assertion is also inconsistent with his own Anglican tradition, in which authority has never been seen as based on the subjective opinions of the individual but rather on the claims of "scripture, tradition and reason" acting in concert. By relying on a dated epistemology, itself the product of the very kind of secularist "belief system" he claims has no place in the justification of law, Laws has obscured the proper relationship between religion and law. Judges would be well advised to give his opinions on law and religion a wide berth. Instead they should rely on Locke's more limited and better-established principle of the limits of what the state can know. That principle won't in itself resolve any future equality rights cases, but it will mean that controversial rulings on the scope of religious freedom will not be discredited by resting on an erroneous view of religious belief.
January 22, 2011