From the Thomas More Legal Centre: The Church must take the adoption fight to the courts
Neil Addison says it will be disastrous if dioceses pull out of adoption work without a legal battle - Catholic Herald 2 May 2008
The dioceses which have closed their agencies made the decision because they felt they had no alternative. But a cynic might be forgiven for thinking that past enemies of the Church shouldn't have bothered with "dungeon, fire and sword" and should have relied upon statutory instruments instead.
The Church must, of course, obey the law. But I find it sad that the Church appears to be acquiescing in the most fundamentalist interpretations of the SORs when it could be questioning these interpretations and engaging in the process of deciding what the SORs really mean.
The SORs cannot be looked at in isolation. You also have to consider human rights protections for religious belief, equality legislation prohibiting religious discrimination and, finally, the Adoption Act itself, which makes the welfare of the child the primary consideration. Many questions remained unanswered. For example, is a decision by a Catholic adoption agency only to approve adoption by married heterosexual partners a "homophobic" decision? Or can it be shown objectively to be in the best interests of children? Would a refusal by a local authority to approve a Catholic adoption agency be legal under religious discrimination law? And would a requirement that a Catholic agency approves single-sex parents be a breach of religious freedom protected by Article 9 of the European Convention on Human Rights?
When you have such a cocktail of law and competing rights you have ample scope for legal argument, negotiation and compromise.
I do not say that the Church would win every legal challenge to its adoption agencies. But I do believe that the issue is not clear-cut. Even if the Church did not win a case outright it might well win significant points which would allow Catholic adoption agencies to continue while operating in a way which is acceptable to Church teaching.
The law in our country develops through case law and that means that individuals and organisations must be willing to challenge officialdom and official interpretations of legislation. So, when the law affects the Church, the Church must be willing to challenge the application of the law. By choosing to close its adoption agencies the Church appears to be giving up and walking away. If the Church is seen to do that, without at least arguing its case in court, then it will look as if it is unwilling to defend its own principles. That is dangerous for the future of the Catholic Church and Christian involvement in our society. The Catholic Church has been involved in child care for 2,000 years and if the Church in Britain is not prepared vigorously to defend its continued role in this area then what area of Catholic activity will be picked on next?
The Prussian military historian Carl von Clausewitz famously said that "warfare was politics by other means"; the Church must accept that in the modern world litigation has become politics by other means. Personally, I do not like this development but it is a reality. Gay rights activists achieved most of their successes through the courts, not through conventional politics. Other religions have shown a willingness to go to court where necessary to defend their activities. The Catholic Church in Britain has not generally resorted to law to defend itself because it has, in the main, operated in a benign political environment where general Christian principles were accepted and Christianity seen as part of the background culture. That benign political environment can no longer be relied upon and the Church needs to adapt its attitudes accordingly.
I am not suggesting that the Church should adopt an aggressive "I'll see you in court, I know my rights" attitude. Such an attitude would alienate people and also be profoundly unChristian. But there is a difference between being peaceful and failing to challenge where challenge is right. The danger is that, if the Church does not put up a legal fight over the SORs, it will give the appearance of meekly surrendering at the first sign of political pressure. On a more fundamental level, if the Church does not stand up on this issue it will be failing to play its full part in British society and to influence how our society develops.
"For evil to triumph all that is required is for good men to do nothing" is a cliché, but it is nevertheless true. With the great range of anti-discrimination and "hate crime" legislation which has been put into force in a relatively short period of time, we are engaged in a great social experiment: namely, to discover to what extent can a free society tell people what they cannot do or say and still remain a free society. Pope Benedict touched on this paradox in his recent encyclical Spe Salvi; he argued that, when a state tries to create a perfect society and abolish all evil, the state itself becomes the only arbiter of morality - and that way lies totalitarianism. Nobody, I think, denies that we live in a secular society where the Church is one voice among many. But what we as a society are still sorting out is what model of secular society are we to follow: that of America or that of Soviet Russia? That choice is going to be decided in the courts.
When I and others realised that many of the decisions about the place of the Church in our society would be decided in court we chose to found the Thomas More Legal Centre. The Centre provides individuals and organisations with legal advice and help to defend their right to freedom of conscience and Christian practice. We also realised that individual Catholic charities, adoption agencies and so forth, could not take on the financial risks of litigation on their own. Whether through our Centre or in some other way, Catholic charities and the Church itself need to ensure that Catholic organisations are supported collectively in defending their principles. The effect of one Catholic organisation winning or losing a case will affect all other Catholic organisations.
The Church cannot withdraw from its social activities without compromising its essential nature and being seen as irrelevant. But that means that the Church and its organisations must be willing to fight to defend their right to provide services in accordance with Catholic principles. The Church may not win, but if Catholic agencies are to be closed down and children are to be deprived of these services, let that be done, and be seen to be done, by the Government -_and not by the Church. To surrender the Catholic adoption agencies without legal challenge is unjustifiable and could have grave implications for the future of Catholic life in this country.
Neil Addison is a barrister, author of Religious Discrimination and Hatred Law and national director of the Thomas More Legal Centre