The online Christian world has been all a-flutter today about a decision from Bristol County Court. For those of you to whom this is news, don’t let me spoil the fun of you googling it for yourselves. But I’ll give you a link to the Judgment in case you’re interested.

I’m afraid that if you’re looking for a stereotypical Christian or anti-Christian rant about sexuality and religion this post will disappoint you. But google will come to your rescue I’m sure, if that’s what you’re after. 

Instead, I want to focus on just one wee section of “obiter dictum” (by the way remark) by Judge Andrew Rutherford.

He then says - quite rightly - that much of England’s common law was based on Judeo-Christian roots (para 3). He then says that “those Judeo-Christian principles, standards and beliefs... are no longer so accepted,” but that things have “radically changed”.

Jurisprudentially, I remember being taught at law school that apparent “changes” in common law are not that at all. Common law simply “is” - it’s an underlying natural justice, and what its application by the courts does is to express it more accurately over time, so that a decision being overturned by the Appeal Court represents an acceptance that the Appeal Court misstated what the law really was rather than changing it.

The problem though, is that as well as the common law we have a body of law grounded in statute; that is, laws passed by our government and applied within their own terms by the Courts. These don’t do away with the existence of common law. Rather, they represent ways in which we’ve chosen, often for good reason, to augment it.

The ongoing importance of the common law (with all its Judeo-Christian roots) has recently been underscored by the Scottish Bible Society, who have undertaken to ensure that every single Sheriff Court and Court of Session in Scotland has a Bible, as a symbol of its importance in our justice system. The Courts are accepting them, so they at least seem not to think the Bible is irrelevant.

We live in a “parliamentary democracy”, says Judge Sutherland. Right again. So we are empowered to vote for a government in whom power is vested to create laws to which we will be held to account. The interesting undercurrent this case points to is the fact that such statutory law creation “reflect[s] the social attitudes and morals prevailing at the time they are made”.  Statutes are man-made. We should be unsurprised when they are fallible.  The law can, in fact, be an ass (and no, that’s not a comment either way on the case in point).

By granting leave to Appeal Judge Sutherland has clearly identified the importance of the issue at stake in this case to different groups of people. It’s about whether the statutory protection provided to this couple unwittingly catches something it ought not to, or accurately reflects the social mora of our time. The difficulty is that even if the Courts disagree with legislation, only parliament can alter the legislation that judges are tasked to enforce. Perhaps the decision in this case is right, Maybe it’s not. But either way, we as a democratic people put it there, and we have to deal with it. How often do we think of law-passing on this kind of issue when we vote? Maybe we should..?

What today’s judgment has left me thinking about is: what do we base our laws on? Whence come our values? Are we getting it right? Don’t be fooled by either side of the debate into thinking this is an easy question to answer

If you’d like to comment on this, email me. I’ll post any non-offensive remarks on request...