The courts are secular, says top family judge
The law has a neutral view of religious belief, the president of the Family Division said today, stressing the secular nature of the judges’ job.
In a keynote address to the first annual conference of the Law Society’s family law section, on the theme ‘the sacred and the secular’, Sir James Munby (pictured) said that the courts and society as a whole face ‘enormous challenges’ in today’s largely secular and religiously pluralistic society.
‘We live in a society, which on many of the medical, social and religious topics that the courts recently have to grapple with, no longer speaks with one voice,’ he said. ‘These are topics on which men and women of different faiths or no faith at all hold starkly different views. All of these views are entitled to the greatest respect, but it is not for a judge to choose between them,’ he said.
Although historically the country has an established Christian church, Munby insisted judges sit as ‘secular judges serving a multicultural community of many faiths sworn to do justice to all manner of people’.
‘We live in this country in a democratic and pluralist society in a secular state, not a theocracy,’ he said, in which judges have long since ‘abandoned their pretensions to be the guardians of public morality’.
Religious belief is not the business of government or of the secular courts, although the courts will pay great respect to peoples’ religious principles, he said. The starting point of the common law, said Munby, is respect for the individual’s religious principles coupled with ‘an essentially neutral’ view of religious beliefs and a ‘malevolent tolerance’ of cultural and religious diversity.
He warned: ‘A secular judge must be wary of straying across the well-recognised divide between church and state.’ It is, he said, not for a judge to weigh one religion against another, stressing the court recognises no religious distinctions and generally speaking, passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society.
‘All are entitled to equal respect, so long as they are “legally and socially acceptable” and not “immoral or socially obnoxious” or “pernicious”,’ he said.
Strasbourg jurisprudence, he stressed, is to the same effect, forbidding the state to determine the validity of religious beliefs and imposing a duty of neutrality and impartiality.
Within the limits of the law, said Munby, our system will tolerate things which society as a whole may find undesirable.
For example, he said: ‘A child’s best interests have to be assessed by reference to general community standards, making due allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very divergent views about the religious, moral, social and secular objectives they wish to pursue for themselves and for their children.’
That said, reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. However, Munby accepted that where precisely the limits are drawn is often a matter of controversy.
‘There is no “bright-line” test that the law can set. The infinite variety of the human condition precludes arbitrary definition.’ Some things, he stressed, are ‘beyond the pale’, including forced marriage, female genital mutilation and ‘so-called, if grotesquely misnamed honour-based domestic violence’.
He said there are some aspects of ‘mainstream religious belief’ that may fall foul of public policy. Munby cited a recent Court of Appeal case which held, on public policy grounds, that a marriage valid under both sharia law and the lex loci celebrationis , despite the manifest incapacity of one of the parties, was not entitled to recognition in English law.
In addition, he said, in cases regarding the religious upbringing of children, while the courts will have regard to the views of parents, they will be given effect by the court only if they are in accordance with the child’s best interests.
Munby said there are many examples of the working out of these principles in the family courts, for example in cases regarding blood transfusions for the children of Jehovah’s Witnesses and breakdown of parental relationships in situations where the parents have different religious beliefs or follow different religious observances.