Thomas More Institute

Parents and religious leaders who want to express an opinion in favour of what is often called the ‘traditional’ family – a man, a woman and their children – tend to support their position either on religious grounds, or on the basis of empirical evidence, and there is indeed a wealth of evidence to support the claim that this mode of upbringing is best for children¹. It is important, though, not to neglect the strong case for this point of view that can be made by a simple appeal to logic and reason. A useful starting-point for such an approach might be to set out briefly some familiar and hardly controversial truths:

• first, that human reproduction is heterosexual is a fact of nature, not the product of law or social convention.
• second, that the new and counter-intuitive proposal that ‘family’ can be defined in both gender-neutral and non-biological terms is not a factual claim but a prime example of linguistic imperialism.
• third, that the case for abandoning the common understanding of motherhood and fatherhood as gendered concepts has never been coherently spelled out. It depends on another linguistic gambit – substituting for the primary meaning of ‘parent’ as a biological relationship the idea of ‘parenting’ as a purely social relationship.

It is against this background that I want to consider recent anti-discrimination legislation and to reflect on how a new orthodoxy on matters of family and parenthood has developed which poses problems for those whose moral or religious position is incompatible with it. But let me first make some very general remarks about marriage and the family as institutions. While being single is, for some, a life-style choice, many people feel a need for a close relationship that offers some guarantee of security and continuity. The prime example of this kind of relationship is marriage. Its definition has evolved over time. Roman law spoke of ‘the joining together of man and woman which we call ‘marriage’ [maris et feminae conjunctio, quam nos matrimonium appellamus] Later, the canon law of the medieval church, which was partly based on Roman law, made consent and consummation the only conditions that needed to be satisfied for a marriage to be recognised. Then the Council of Trent (1545-1563) added the requirement that consent had to be witnessed before a priest in the presence of other witnesses. Latterly, in the English legal tradition, a judge in a nineteenth century legal case provided a succinct and enduring definition of marriage as ‘the voluntary union for life of one woman and one man to the exclusion of all others².’ Interestingly, there is no explicit mention of children in these definitions although, in fact, marriage is implicitly regarded, almost universally, as having a procreative function and most European legal systems have seen marriage and family as necessarily connected – indeed, the two are invariably found together in international statements of human rights, as in ‘a right to marry and found a family³.’

However, in a remarkably short span of time, the contemporary period has brought some new conceptions of both marriage and family. While civil unions have been introduced to recognise partnerships between people of the same sex, the assumption that marriage is a relationship between a male and a female is under challenge, and with it the idea of family as a natural phenomenon that links us biologically and genetically to our forebears and our successors.

Equality and the family
I will argue here that this is the ideological switch that underpins much of the current controversy about equality and discrimination. In approaching this topic, I start from the premiss that discrimination is a matter not only of treating people differently who are the same in every relevant respect, but also of treating people who differ as if they were the same. As Aristotle put it: it is as unjust to treat equals unequally as it is to treat unequals equally.

This raises two important questions about equality in relation to the family, one concerning gender, the other biology. The first question is this: given that there is a significant difference between a man and a woman in relation to conception and child-bearing, might this not be expected to create a special relationship between a child and its mother which is different from the special relationship between a child and its father? This is not to imply that either is more valuable or more important than the other, but rather to ask why it should it be thought wrong or discriminatory to recognise the difference? Might it not even be the case that current assumptions about the interchangeability of adults in a child’s life are wrong, and that deliberately to deprive a child of either of these important relationships could itself be unjust and discriminatory?

The second question is scientific rather than social. It is this: is biological relationship itself important to us as human beings? The question needs to be asked because, if the link between a child and its biological parents is important, it would seem unjust to ignore this pertinent fact and treat unrelated others – legally and socially – as having identical rights or responsibilities. Of course, circumstances can make if difficult or impossible and, where violence or ill-treatment is involved, undesirable, to preserve family links. But in practice, and whilst recognising the importance and value of such essential institutions as adoption, kinship care or foster-care, most people would, if only on intuitive grounds, assume that there is something special about the biological relationship. In the past, the observation might have been seen as of no more than academic interest, but today, divorce, separation and re-partnering, together with the procreative possibilities stemming from the new technologies of reproduction, have created a number of real-life situations in which this apparently abstract point has had serious practical application in disputes about who can claim to be the ‘real’ parent, who has the obligations and who the rights, after partnerships have broken down.

Of course, given favourable circumstances – and even without them! – a child can survive and flourish without these close relationships. It is possible to succeed in life without a father, or without a mother, or indeed without either parent; but the question for family lawyers and also for those who make decisions in the context of fertility treatment, is whether it is right deliberately to deprive children of these important relationships. If we consider the historic position of international law on this, it clearly suggests that this is seriously to wrong the child. For example, Article 7 of the United Nations Convention on the Rights of the Child, drafted at a time when the term ‘parents’ could have had only a biological meaning, refers to the right of a child to know and be cared for by its parents.

Recently though, states have been taking a more and more intrusive role in the intimate lives of their citizens – even to the extent of claiming for the state itself a right to determine who is a parent and what is a family. In some countries, including the UK, this has meant overriding nature-based assumptions to decide these matters by legal fiat. This is possible because states have a hitherto unchallenged role in the registration of births and in issuing birth-certificates. This crucial advantage enables them to use their authority to override the standard assumption that a birth registration is a genetic record, as far as is known, of the newborn’s history and genetic identity. The reason that a number of jurisdictions in the West, including Canada, Spain, the Netherlands and parts of the USA, have felt impelled to move forward in this way stems from the denial of relevant difference embedded in new equality legislation – a situation which makes it now possible for two people independent of gender or biological connection to be listed without qualification as parents on a birth-certificate and to acquire – for good or ill – all the legal consequences that flow from that status.

An underlying paradox – an example from the USA
I have suggested that there is something paradoxical – indeed contradictory – in the thinking behind these developments. While I want to focus here on the link between equality law and new conceptions of family, it might be useful to begin by taking an example which is not directly concerned with family issues, but rather with a broader attempt to bring together for legal prohibition a number of different kinds of discrimination. Members of the American Philosophical Association (APA) were recently engaged in a dispute about what they saw as the discriminatory educational and administrative practices of some faith-based academic institutions and, in 2009, the Association adopted a non-discrimination statement condemning as unethical all forms of discrimination. But they aimed at a compromise by which it would continue to be possible to recognize in a limited way the special commitments and roles of institutions with a religious affiliation. The outcome of this dispute was a statement that attempted to reconcile these conflicting aims by allowing religious foundations to be selective in certain narrowly defined professional areas where a specific religious affiliation could reasonably be required, so long as the practice of the religion in question did not itself require or allow discrimination in respect of other protected categories⁴ . The categories listed by the APA were race, colour, religion, political conviction, national origin, sex, disability, sexual orientation, gender identification and age.

But here is the problem – in some ways this resembles the famous paradox of Epimenides who pointed out that a Cretan who asserts ‘All Cretans are liars’, makes his own statement false. The paradox involved in the contemporary version is that, while discrimination on grounds of religion is banned, several of the categories to be protected from discrimination may be linked to beliefs and practices that are incompatible with some religious teachings. The confusing result is that, in order not to discriminate against one category, it may be necessary to discriminate against another. In the APA case, the argument flared up around the issue of whether a religious institution might, for example, be able to refuse employment to an atheist or, more broadly, to anyone who held views opposed to its religious and educational aims. The paradox here, in what ultimately emerges as a conflict between religious groups and their secular opponents, is that the former will regard religious freedom as under attack if a faith-based educational institution is not allowed to stand for its founding principles and offer an education that is consistent with them. The secularist, in contrast, may see freedom as requiring a form of moral and religious neutralism, especially in relation to sexual and family matters, that is inconsistent with the institution’s ethos and religious beliefs. Here lies the problem, for a religion typically embodies a whole way of life, and attitudes to relationships, marriage and family are an integral aspect of that way of life. Recently a number of high-profile cases have highlighted the dilemma. It may be useful to look at one or two of these to illustrate how that dilemma is being played out in a European and specifically UK context.

Some cases
One of the most well-publicised recent cases concerned Caroline Petrie, a nurse who was suspended from her job on the ground that she had violated principles of equality and diversity by offering to pray for a patient she was caring for⁵; in another case, which concerned social services, an experienced foster-parent was barred from further employment as a foster-carer because a Muslim girl in her care had chosen, when she reached the age of sixteen, to become a Christian ⁶

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The education area also has the potential to generate difficult choices. A new code of conduct for teachers was recently issued in England (General Teaching Council, 2009). This requires teachers to be active in challenging discrimination and in promoting diversity in all their professional relationships and interactions. Depending on how it is interpreted, this requirement could pose a challenge for any teachers who might have a principled objection to homosexuality as a practice, whether or not they accept it as a matter of orientation. Indeed, the offence need not be understood in negative terms as opposition to certain lifestyle choices, but simply as having a positive commitment to the institution of marriage as commonly and historically understood. For teachers with a specifically Christian commitment who see this as an essential aspect of their faith, this could have the effect of forcing them to choose between their profession and their conscience.

Parents, as well as teachers, can be drawn into this controversy. A case in Devon involved a school receptionist, Jenni Cain, and her 5-year-old daughter Jasmine⁷. In January 2009 Jasmine had been reprimanded by a teacher for a playground conversation in which she talked about her faith and beliefs with another child. The reprimand upset the child to the extent that her mother sent a private email from her home to her friends asking for their prayers. The email was seen by the school’s headmaster and, as a result, Mrs Cain was suspended and became the subject of a misconduct investigation which could have led to the loss of her job, although she was in fact subsequently offered reinstatement.

Many other cases could be cited: the situation of Catholic adoption agencies is well-known and unresolved, and it seems that there are a number of professional areas where longterm competent employees can lose their livelihood if they have a conscientious objection to applying new equality-based requirements. In many of these work-place issues, a simple internal readjustment of roles could be possible. And yet, rather than seeking such an accommodations, opponents of freedom of conscience are increasingly open in voicing the view that the onus is on workers in occupations where faith-based convictions pose a problem to choose a different career.

In more mutually supportive times, disagreement about the enduringly contentious issue of abortion found a compromise work-place solution in allowing medical staff to continue working free of any compulsion to participate in procedures they saw as morally objectionable. Should we expect, under new equality laws, a less conciliatory approach? For what seems to be happening in the case of recent applications of these laws is a failure to distinguish the public sphere from the personal. But as long as it remains a defining feature of a liberal society that the opinions individuals hold about personal conduct are their own business, the principle that should surely apply in the case of work-place issues is that people should not be forced to choose between their livelihood and their conscience.

A number of the most contentious recent cases involve, directly or indirectly, points of view on marriage, civil partnerships, personal relationships and the family. These are complex and contentious matters and charges of homophobia and political lobbying often stand in the way of open debate. But I do not see support for the natural family as an implicit condemnation of other ways of life – love and friendship can take many different forms. My argument, then, is not intended as a challenge to gay and lesbian recognition or practice – on the contrary, it is part of a general moral position that supports the legal and social liberty of individuals in such matters. The concerns the cases raise are rather about the current pressure on people whose views differ from the new orthodoxy on sexual matters to hold, retain, and express their opinions, and indeed to live by their principles.

This is especially important when the opinions or principles under threat are part of a coherent and long-established religious perspective. The issue now is that the generalised principle of toleration of diversity (non-discrimination) is being used to criminalise religious and moral objections to practices about which it is quite possible for opinions to differ. In other words, tolerance has been turned on its head. But contrary to what some commentators have said, the democratic and libertarian principle that people should be free to make their own choices about how to live their lives, and particularly that people should not be stigmatized because of their sexual orientation, can and must be made to coexist alongside support for freedom of thought and freedom of conscience.

One important reason to attempt this harmonization is that education, together with the principle that a child’s upbringing is primarily a matter for parents and family to determine, has also been dragged into the debate. What started as a morally worthwhile endeavour to protect minorities, has itself become a challenge to other minorities and to long-established principles of tolerance and liberty, of freedom of religion and freedom of thought and speech.

The cases these changes continue to generate are an illustration of the way in which even the worthiest ideals may sometimes be incompatible with each other – that in some cases, it may not be possible to tolerate one thing without discriminating against another. But they are also signs of the emergence of an increasingly powerful form of secularism that is not only intolerant of religion but also of its embodiment in particular ways of life, including family life. As far as education is concerned, it brings in its wake an implicit claim on the part of the state to a right to replace parental values, particularly where these favour traditional family life. So parents with this point of view may find themselves challenged by an approach to children’s moral education that is based on quite contrary ethical assumptions to their own – possibly even on the belief that no way of life is any more valuable than any other. But many people do believe some ways of life are more valuable than others. Indeed, that is why the issue of moral education is important and why the message it carries can affect their children’s lives.

It is noticeable that it is mainly Christian belief that has been the target in this debate and that other religions tend to be accorded rather more tolerance. Voltaire is often cited as the standard-bearer for toleration and, if we follow him, we will, of course, want to stand for the right of dissidents, atheists and unbelievers to express their views. But a present-day Voltaire faces the reverse task: that of persuading unbelievers to stand for the rights of religious communities and individuals—including Christian ones—to live and speak according to their conscience.

Of course, secularism does not need to be confrontational in this way. It is possible to be non-religious without being anti-religious, and while some secularists are opponents of religion in all its forms, others are not. The problem lies with the form of secularism that is essentially intolerant of religion in any form and also intolerant of any disagreement with its own ‘way of life’ agenda.

Finding a way forward
I am inclined to conclude from these reflections that the contest between religion and secularism is an unnecessary and avoidable aspect of the debate about family and personal relationships. The contemporary attempt to re-shape views and customs as far as that debate is concerned is a surprisingly recent innovation. It is easy to forget that only a few generations separate the life-style of today’s Western societies from a time when opinions about conduct, modes of dress, male and female modesty and public display in publications and art would not have opened up such a wide gulf as we find today between the opinions and practices of the religious and the religiously uncommitted.

Even so, today’s debate is not so much about religious doctrine, as about some of the permanent concerns of human beings – the aspiration for personal happiness and self-fulfilment, combined with respect for the personal happiness and fulfilment of others. This means that the conclusions reached from the perspective of religion on these matters, at least within the Judaeo-Christian tradition, can be reached, too, from a viewpoint many would describe as ‘secular’ – that is, a commonly accepted morality that takes as its goal the common good. It is here, I suggest, that we need to seek the middle ground between, on the one hand, intolerance of difference that places oppressive and uncompromising cultural or religious constraints on individual lives and, on the other, an equally oppressive and uncompromising secular re-shaping of ancient beliefs and assumptions about family and personal life.

What I have tried to draw attention to here is a new and influential secularist message that seeks to conceal its fundamentally anti-family ideology under a newly-constructed language of parenthood and human relationships that resists any reference to gender or biology. Strong cultural and media influences promote this view, and yet it is possible that the new orthodoxy has not yet succeeded in stifling the ordinary person’s intuitive sense of what the family really is. For this deeper sense of family still reveals itself at crucial points in the lives of many ordinary citizens who do not own to any particular ideological perspective – take, for example, the joy of siblings or of children and parents who find each other after decades of separation brought about by war or other contingencies. So while many assume that there is a popular demand for new modes of family formation, and while sometimes different structures can meet a genuine need, the fact is that most people will still seek the security of the kind of family relationships provided by nature rather than the laboratory or the law-courts. As the philosopher Hume wrote, perhaps recalling the dedication and devotion of his own widowed mother, the blood relationship ‘creates the strongest tie the mind is capable of in the love of parents for their children⁸.’

A common view not unlike that of Hume is shared by many of the world’s mainstream religions and also by many non-religious people, and it is reflected in many of the international conventions adopted in the aftermath of events which saw the fracturing of so many families by war and persecution. So there is, I suggest, a strong libertarian case for resisting the re-writing of natural family relationships by the state – a process in which a number of jurisdictions in the Western world are currently engaged⁹Oxford, Oxford University Press, 2006, 2008.]. But it often turns out that the fate of bad laws is to be ignored, and it is a reasonable guess that people will continue to use and understand gender-marked terms like mother, father, husband, wife, grandmother and grandfather, even if books and public documents are rewritten in a zealous attempt to replace them with anodyne alternatives. For common sense tells us that a biological understanding of family makes sense for us as members of the natural world, and that the new socially-constructed interpretation of family has no foundation in either reason or science. It is simply a preference, and increasingly a politically imposed preference. Whatever the practice, however, the principle is clear: a state that draws up and seeks to enforce laws that interfere with the personal and relational bonds that have typified human communal and social living for recorded history has vastly exceed its remit. From a considered and reflective libertarian perspective, such laws transgress the boundaries of licit and acceptable law-making.

Currently, legislators and educators are creating an inevitable conflict for religious believers, forcing them to choose between compliance and conscience, especially where matters of family and sexual relationships are concerned. In insisting on unqualified compliance in matters where there is reasonable moral controversy, the state is demanding that its own moral conclusions should be imposed on everyone. Many of the most controversial cases, however, could be resolved by applying as a simple rule-of-thumb the principle that people should not be forced to do or to advocate what they believe to be wrong, unless the issue is one where not doing it would itself be wrong.

In general, however, where it would be possible for dissenters to argue their case on practical rather than religious grounds, as is the case with many of the most contentious ‘family’ issues, it would be better, and also more likely to lead to a satisfactory outcome, if they were to do so. But it should be recognised that many faith perspectives are in the end rooted in the recognition of the reality of the natural family, quite independently of any views their members may have about the morality, or religious permissibility, of different types of adult sexual relationships. It seems to me that the new challenges I have discussed here go beyond this simple factual observation and risk the creation of a new Leviathan – a state that, whether religious or secular, sees the family as its rival for the hearts and minds of the next generation of citizens. From whatever direction this pressure comes – doctrinaire religious leaders or dogmatic secularists – I believe the liberal democracies will have to curb this tendency if they are to maintain the family’s role as an important locus for passing on the values of tolerance and trust that are part of a truly liberal society.

Brenda Almond
January 2011