Carey had gone to the trouble of submitting an affadavit in McFarlane's support, in which he called among other things for a specially-constituted panel of senior judges "who have a proven sensibility to religious issues" - in other words, who would interpret the law in a manner more keeping with his own prejudices. Even by Carey's standards, it was a remarkably duff idea. Who would appoint these special judges, and on what grounds? Him, probably. Laws commented that such an idea was "deeply inimical to the public interest". He also expressed himself "sorry that he finds it possible to suggest" such a procedure. I think that's a very polite way of calling Carey an idiot.
The judge reproduces most of Carey's bizarre affadavit before elegantly fisking it. "My heart is in anguish at the spiritual state of this country" wails the archbishop, apropos of nothing in particular, before accusing judges who dismiss demands for religious exceptionalism of having "clear animus to Christian beliefs". He even prophesies "a future civil unrest" should his demands not be met. Perhaps he's been taking advice from Lord Ahmed, who obtained a temporary ban on Geert Wilders by announcing that ten thousand angry Muslims would descend on Westminster to protest against the Dutch populist. In the event, of course, it was just Anjem Choudary and friends. In any case, Lord Justice Laws is made of stronger stuff than Jacqui Smith.
Carey had taken particular objection to the word "discriminatory". Accusing Christians of being discriminatory was tantamount to calling them bigots, he reasoned, and thus in itself - well, discriminatory. It's worth looking closely at his reasoning - or lack thereof:
The description of religious faith in relation to sexual ethics as 'discriminatory' is crude; and illuminates a lack of sensitivity to religious belief. The Christian message of 'love' does not demean or disparage any individual (regardless of sexual orientation); the desire of the Christian is to limit self destructive conduct by those of any sexual orientation and ensure the eternal future of an individual with the Lord.... The descriptive word 'discriminatory' is unbefitting and it is regrettable that senior members of the Judiciary feel able to make such disparaging comments.
... The comparison of a Christian, in effect, with a 'bigot' (ie a person with an irrational dislike to homosexuals) begs further questions. It is further evidence of a disparaging attitude to the Christian faith and its values. In my view, the highest development of human spirituality is acceptance of Christ as saviour and adherence to Christian values. This cannot be seen by the Courts of this land as comparable to the base and ignorant behaviour.
Carey appears to believe that merely by applying the law judges are guilty of making "disparaging comments" about Christianity. Laws has a neat answer to that. The archbishop doesn't know what the word "discriminatory" even means:
It is possible that Lord Carey's mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination (such as are provided for by paragraph 3(1)(b) of the 2003 Regulations, which is centre stage in the present case) the law forbids discriminatory conduct not by reference to the actor's motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey's position.
Subtle and devastating. Discrimination is a fact to be discerned, not a value judgement. The purpose of the law is not to make windows into people's souls. That's Carey's job, presumably, though it's questionable whether he has had much success at it.
At that point Carey's entire whinge collapses. But Laws is just warming up. He then turns to Carey's complaint that judges are insufficiently respectful of Christian belief - concerns that are "formulated at such a level of generality that it is hard to know precisely what Lord Carey has in mind." McFarlane's lawyer had apparently argued that "The fear of hell is central to the appellant's religious belief; and individuals ought to be informed of the consequences of hell." This seems to mean that he didn't merely want to be able to refuse to counsel gay clients, he wanted to be able to tell them that they were going to Hell. What a charming man. Anyway, this leads Laws to the conclusion that:
There is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian's right (and every other person's right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society.
Spot on. Or, to put it another way, if you want to believe in fairies, that's fine. But if you take a job as a gardener don't expect the court to protect you when you refuse to weed a flowerbed that you believe hosts a thriving colony of elves.
Laws describes as "deeply unprincipled" the idea, implicit in Carey's utterances, that the law should give special effect to Christian beliefs simply because they have been around a long time. This would "impose compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion." Religious beliefs, he points out, are not objectively demonstrable: that's what makes them beliefs rather than scientific facts.
In the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.
We do not live in a society where all the people share uniform religious beliefs. 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. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.
As a statement of the proper role of the legal system in dealing with competing truth claims and demands for "respect" (which tends to mean capitulation) this can hardly be bettered.
Another classic from the judge who granted Simon Singh leave to appeal in such forthright terms a few months ago.