But it was perhaps fortunate that the judge chosen to decide whether McFarlane should be granted permission to appeal was Lord Justice Laws. As the Guardian was to discover, "Laws could scarcely be more Anglican if he tried". Even so, his response to Carey's plea for a special court was as devastating as it was brief: "I am sorry that he finds it possible to suggest a procedure that would, in my judgment, be deeply inimical to the public interest," Laws said.
But although McFarlane's argument had been doomed because of the Ladele decision, Laws prepared a reserved judgment out of respect for Carey's broader argument. In the former archbishop's view, judges had condemned Christian teaching on sexual ethics as "discriminatory" and therefore bigoted.
Not so, explained Laws. Discrimination law looks at outcomes, not motives: a person might be guilty of discrimination whatever his intentions. In any event, the law permits discrimination in certain cases; it therefore cannot be equated with bigotry. He then moved on to the Human Rights Convention, which respects freedom of thought, conscience and religion. This also protects freedom of religious action but this is limited by the need to protect the rights and freedoms of others.
As the judge explained, the law cannot protect a position held on purely religious grounds because we no longer live in a society where people share uniform religious beliefs. For example, I might believe it is wrong to work on the Sabbath but I cannot expect the law to enforce that belief in Britain — not least because you and I might celebrate the Sabbath on different days.
But Laws's ruling failed to impress religious commentators. He was accused of confusing secularism with neutrality by Melanie Phillips of the Daily Mail and Standpoint (and to whom I have been married for 36 years). Michael Nazir-Ali, the former Bishop of Rochester, argued that the law should continue to respect an individual's conscience as well as the Judaeo-Christian tradition underpinning British society.
Both courts and clerics are right, though neither side seems to understand what the other is saying. If Cameron and Clegg can work together, can it be so difficult to achieve a common understanding between faith leaders and judges?
