An evangelical Christian fostering agency that lost a part of a High Court case over its policy of only placing children with heterosexual married couples has made a bid to overturn the decision at the Court of Appeal.
Cornerstone (North East) Adoption and Fostering Service took Ofsted to court after the watchdog downgraded the agency’s rating from “good” to “requires improvement” after it said the agency discriminated against lesbians and gay men by only working with evangelical Christian carers in mixed-sex marriages.
However, Mr Justice Julian Knowles ruled in Ofsted’s favour and said Cornerstone “must change its recruitment policy to allow gay men and lesbians who are evangelical Christians to apply to become prospective foster parents and it cannot lawfully refuse to do so”.
Cornerstone, which is a small independent fostering and adoption support agency based in Doncaster, is now appealing the High Court judge’s ruling.
Aidan O’Neill QC, for Cornerstone, argued the judge wrongly said that their foster carer policy was unlawful discrimination.
In written arguments, he said there was an “intimate link between evangelical identity and an acknowledgement that sexual intimacy is to be enjoyed exclusively within a marriage between two persons of the opposite sex”.
On Tuesday, the barrister argued the ruling was “incoherent” as the original judge said Cornerstone’s policy that applicants are evangelical Christians does not breach the Equality Act but did breach the act “insofar as it requires applicants to refrain from homosexual conduct”.
Mr O’Neill told the Court of Appeal: “If we do accept that Cornerstone’s policy is objectively justified… that a fostering agency should be allowed to restrict its services to persons holding the same faith, it is not then for the court to tell them what that faith really is and ‘if you only understood your own faith better, you would be welcoming gay people as carers’.”
“If you accept that the religion and belief requirements are justified and lawful, that is the end of the matter,” he added.
The court was told the original judge had tried to “reconcile the irreconcilable” by saying Cornerstone would have to accept gay evangelical Christian foster carers.
“You cannot be an evangelical Christian whose lifestyle is one which endorses same-sex activities,” Mr O’Neill argued.
He continued: “We say if we were forced to adopt those who claim they subscribe to evangelical beliefs but do not conduct their lives in accordance with traditional biblical morality, then that would be undermining of those who have signed up to Cornerstone for its Christian evangelical ethos.”
Mr O’Neill said the Christian ethos of the agency encouraged people to come forward due to the “specialist faith-based support” and had high success rates for adopting children.
The barrister said there were other agencies gay men and lesbians could use to adopt or foster children, particularly as local authorities would be prohibited from discriminating against them.
Ofsted, who are expected to make their arguments on Wednesday, are responding to the appeal.
Sir James Eadie QC, for the watchdog, said the High Court judge was correct in his ruling.
In written arguments, he said: “Cornerstone contends that the recruitment policy does not distinguish between prospective foster carers because of their sexual orientation, but rather sets out behaviour that is required of all.
“The purported distinction between sexual orientation and sexual behaviour is not tenable.”
Sir James said that while Cornerstone required marriage, the criteria were applied differently to potential foster parents based on whether they were in a same-sex or mixed-sex marriage.
He added: “The religious beliefs of Cornerstone are themselves discriminatory in that they do not recognise same-sex marriage as being equivalent to opposite-sex marriage, albeit that such discrimination may in certain circumstances be justified.”
The hearing before Lord Justice Peter Jackson, sitting with Lady Justice Asplin and Lady Justice Nicola Davies, is due to conclude on Wednesday.