Robert Verkaik: Lord Carey's proposal is a step back to medieval days

Analysis

It is out of profound respect for Lord Carey that a senior judge yesterday went to such obvious trouble of dignifying the former Archbishop of Canterbury's question with an answer.

The Anglican prelate's self-serving proposition that there should be a law that imposes a special duty on the judiciary to be sympathetic to the teachings of the Church of England, or indeed any other religion, is risible.

Yet Lord Justice Laws devoted more than 1,000 words of his judgment to dissecting Lord Carey's argument, before concluding that he found it "deeply unprincipled". The judge also said that it was irrational, divisive, capricious and arbitrary.

Let us consider the logic of what Lord Carey is proposing. He suggests that the Lord Chief Justice should create a specialist panel of judges to hear cases engaging religious rights. These judges, he says, should have a "proven sensitivity and understanding of religious issues".

A founding principle of English justice is that it is blind to those who come before it. Lord Carey's formula for a panel of religious judiciary is a step back to the dark days of the medieval Star Chamber when the outcome of every case was a forgone conclusion before a single word of evidence had been spoken.

In the case before the High Court, the judge was told that Gary McFarlane had a fear of hell and believed that "sin will have eternal consequences". It was argued that he believed that those who practised gay sex would go to hell and that was why he could not advise homosexual couples on their relationships.

The consequences of eternal damnation, or any other theological abstract, are matters that should be decided by the ecclesiastical courts and not the secular tribunals of England and Wales.

In recent years, the Church of England has secured special opt-outs on the employment of gays and lesbians while their Catholic brethren have won a similar battle over the rules of adoption agencies. But on the wider issue of discrimination, Lord Carey and his supporting bishops have badly misjudged the legal landscape and any further challenge will only serve to try the patience of the judiciary.