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Rivers on the Secularization of the British Constitution

Julian Rivers (U. of Bristol Law School) has posted The Secularisation of the British Constitution. The abstract follows.

In recent years, the relationship between law and religion has been subject to increased scholarly interest. In part this is the result of new laws protecting religious liberty and non-discrimination, and it may be that overall levels of litigation have increased as well. In all this activity, there are signs that the relationship between law and religion is changing. While unable to address every matter of detail, this article seeks to identify the underlying themes and trends. It starts by suggesting that the constitutional settlement achieved by the end of the nineteenth century has often been overlooked, religion only appearing in the guise of inadequately theorised commitments to individual liberty and equality. The article then considers the role of multiculturalism in promoting recent legal changes. However, the new commitment to multiculturalism cannot explain a number of features of the law: the minimal impact of the Human Rights Act 1998, the uncertain effect of equality legislation, an apparent rise in litigation in established areas of law and religion, and some striking cases in which acts have been found to be unlawful in surprising ways. In contrast, the article proposes a new secularisation thesis. The law is coming to treat religions as merely recreational and trivial. This has the effect of reducing the significance of religion as a matter of conscience, as legal system and as a context for public service. As a way of managing the ever-deepening forms of religious diversity present within the United Kingdom, such a secularisation strategy is implausible.

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Today’s Argument at the ECtHR: Highlights

Today in Strasbourg, a chamber of the European Court of Human Rights heard oral argument in four consolidated cases from the United Kingdom: Chaplin v. UK, Eweida v. UK, Ladele v. UK, and McFarlane v. UK. The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

For an American watching the webcast on the ECtHR’s website, today’s hearing offered some surprises. First, the argument was about two hours long, and the judges waited patiently to the end before asking any questions. A note to our readers in Europe: in an American courtroom, the judges would have interrupted in two minutes! Substantively, the counsel for the UK, James Eadie, made some claims that strike an American lawyer as remarkably broad. For example, he argued that Article 9 does not even cover the practice of wearing crosses. Article 9, he argued, only protects religious practices that are “generally recognized” within a religion, and there is no consensus in Christianity that adherents must wear crosses. I’m not aware of any analogous principle in American law. In response to Eadie, Eweida’s attorney, James Dingemans, scoffed at the idea that a practice must be “generally recognized” or “scripturally Read more

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ECtHR Broadcast of Hearing in British Christians’ Cases to Begin Shortly

This morning in Strasbourg, a chamber of the European Court of Human Rights held a hearing in four consolidated cases concerning religious freedom in Britain. The applicants are British Christians who allege that UK employment law does not sufficiently protect their rights to wear crosses at work and to refuse duties that, in the applicants’ view, condone homosexual activity. The court will post a broadcast of the hearing on its website shortly, starting at 2:30 pm local time. For the ECtHR’s press release summarizing the issues in these cases, follow the links here.

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Ahdar & Leigh, “Religious Freedom in the Liberal State”

This December, Oxford University Press will publish the second edition of Religious Freedom in the Liberal State by Rex Ahdar (University of Otago Faculty of Law) and Ian Leigh (University of Durham, Durham Law School). The publisher’s description follows.

Examining the law and public policy relating to religious liberty in Western liberal democracies, this book contains a detailed analysis of the history, rationale, scope, and limits of religious freedom from (but not restricted to) an evangelical Christian perspective. Focussing on United Kingdom, the United States, Canada, New Zealand, Australia, and EU, it studies the interaction between law and religion at several different levels, looking at the key debates that have arisen.

Divided into three parts, the book begins by contrasting the liberal and Christian rationales for and understandings of religious freedom. It then explores central thematic issues: the types of constitutional frameworks within which any right to religious exercise must operate; the varieties of paradigmatic relationships between organized religion and the state; the meaning of ‘religion’; the limitations upon individual and institutional religious behaviour; and the domestic and international legal mechanisms that have evolved to address religious conduct. The final part explores key subject areas where current religious freedom controversies have arisen: employment; education; parental rights and childrearing; controls on pro-religious and anti-religious expression; medical treatment; and religious group (church) autonomy.

This new edition is fully updated with the growing case law in the area, and features increased coverage of Islam and the flashpoint debates surrounding the accommodation of Muslim beliefs and practices in Anglophone nations.

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UK Court: Child of Divorced Parents May Convert from Judaism to Christianity Despite Mother’s Objections

What a wrenching — and in its implications for how civil courts understand minority religious traditions, fascinating — case. An English judge has ruled that a 10-year old Jewish girl may be baptized over the objections of her mother, who wishes the girl to remain Jewish. The girl’s father and mother divorced two years ago. Both parents were Jewish, but after the divorce the father converted and joined the Church of England. The parents shared custody of the girl, and, on the weekends he had custody, the father took the girl with him to church. The girl eventually told him she wished to be baptized; unsure of her commitment, he put her off. The girl then approached a minister on her own and also raised the issue with her mother, who quickly filed a court application to stop the process.

In a judgment made public last week, the judge decided that the girl’s interests were best served by allowing baptism to go forward. As in any such case, the judge considered many factors, including the fact that the father and mother had not been observant Jews during the marriage; that since the divorce the mother had neither taken the  girl to synagogue nor arranged for Jewish religious instruction; that the father had not, as the mother and all four grandparents alleged, “brainwashed” the girl; and that baptism, which in the Anglican tradition is only the start of one’s relationship to the church, would not prevent the girl from changing her mind later.

Reading the judgment, one senses how painful this situation has been for all concerned and how hard the judge tried to do the right thing. I don’t wish to intellectualize matters inappropriately, but I was particularly struck by the judge’s reasoning with respect to the girl’s religious upbringing. It seems to me the judge understood Judaism in very Christian terms – or perhaps in very liberal, Western terms, which, in this case, turns out be the same thing. For the Read more

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Church of England Rejects Proposal to Legalize Same-Sex Marriage

In a report today, the Church of England rejected as “flawed, conceptually and legally,” the Cameron government’s proposal to legalize same-sex marriage. Conceptually, the report argues, the proposal would “alter the intrinsic nature” of marriage as a union between one man and one woman. Notwithstanding the “genuine mutuality and fidelity” often found in same-sex relationships, the report states, the C of E felt bound to resist the proposal both for reasons of Christian faith and the Church’s “commitment, as the established church in England, to the common good of all society.”

The report argues that the government’s proposal, which purports to apply only to civil marriage, raises serious legal questions. The distinction between “civil” and “religious” marriage, an innovation in English law, is likely to be untenable in the long run, the report predicts. English law grants any resident, regardless of his or her religious affiliation, the right to marry in the local C of E parish (a great illustration, by the way, of Grace Davie’s point about religion’s public role in Europe). Once Parliament defines marriage to include same-sex marriages, could a parish church deny this right to same-sex couples? The C of E is doubtful. Even if Parliament were to allow C of E parishes to refuse to perform same-sex marriages, the ECtHR might not. Under existing ECtHR caselaw, once a state legalizes same-sex marriages, those marriages are covered by article 12 of the European Convention, which grants a right to marry, and article 14, the Convention’s anti-discrimination provision. Under these articles, a state church could justify a distinction between “civil” and “religious” same-sex marriages only by “very weighty reasons.” The report is skeptical that the ECtHR would ultimately allow the distinction to stand.

Critics immediately characterized the report as alarmist. Maybe it is. Given the recent vote of the Danish parliament requiring the Church of Denmark to perform same-sex marriages, though, it’s hard to completely dismiss the report’s concerns. It’s possible that, in time, either Parliament or the ECtHR would require the C of E to solemnize same-sex marriages, whatever the C of E’s religious objections. Of course, the problem may lie in the concept of the state church itself; the autonomy of a private church on religious questions would likely be more secure, particularly in light of the ECtHR’s recent Fernandez Martinez decision. But the Brits decided all that under the Tudors.

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Throne and Altar

Judging by church attendance and the percentage of people who say religion plays an important role in their lives, Europe is a secular place. And yet, as sociologists of religion have observed, Christianity continues to have a major cultural and legal role. Nowhere is this clearer than in Britain, where the Monarch is the “Supreme Governor” of the state church. Britain today commemorated the Jubilee of Queen Elizabeth II with a Thanksgiving service in London’s St. Paul’s Cathedral. The Prime Minister read from the New Testament and the Archbishop of Canterbury delivered a sermon praising the Queen for manifesting the values of St. Paul himself:

Dr Rowan Williams paid tribute to the Queen’s selfless devotion, saying: “I don’t think it’s at all fanciful to say that, in all her public engagements, our Queen has shown a quality of joy in the happiness of others; she has responded with just the generosity St Paul speaks of in showing honour to countless local communities and individuals of every background and class and race.”

One would think such ceremonies, to borrow the phrase from American law, send a message of exclusion and disparagement that religious minorities resent, but that is apparently not the case, or at least not typically. It’s not the American way of doing things, but, as Joseph Weiler has written, “there is something inspiring and optimistic by the fact that even though the Queen is the Titular Head of the Church of England, the many Catholics, Muslims and Jews, not to mention the majority of atheists and agnostics, can genuinely consider her as ‘their Queen’ too.”

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Anglican and Catholic Bishops Oppose UK Government’s Plan to Legalize Same-Sex Marriage

Lots of law-and-religion news out of Britain this weekend. Here’s another story: in Catholic parishes in Britain today, worshipers heard a pastoral letter from Archbishop Vincent Nichols, the Catholic primate, warning about the dangers of legalizing same-sex marriage. The letter follows similar statements by Anglican bishops, including Archbishop of Canterbury Rowan Williams and Archbishop of York John Sentamu; Williams is quoted as saying that legalization would force “unwanted change on the rest of the nation.” The bishops’ statements follow reports that the coalition government of Prime Minister David Cameron is considering introducing legislation to legalize  same-sex marriage in Britain. It’s not clear from the reports whether the legislation would  authorize only civil same-sex marriages or actually alter the articles of the Church of England — adopted by act of Parliament — to authorize religious same-sex marriages as well. I assume the former, but I don’t know enough about Parliament’s role in setting doctrine in the Church of England.

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The Americanization of British Religion

As I wrote last week, Americans think of Britain as a very secular place. I suppose most Britons do, too. Now and then, though, one gets the sense that religion, specifically Christianity, is not completely passé and may, in fact, be making a comeback. Peter Oborne has an interesting piece in The Telegraph this week, “The Return to Religion,” in which he argues that churchgoing is again becoming a “national pastime” in Britain, particularly in London. He gives several examples. Oborne attributes the renewed interest to economic austerity and the sense many Britons have that the materialism of the past generation has let them down.

I’m not sure what to make of this. Oborne may be looking at isolated examples. Or perhaps the rise in religion is only a temporary phenomenon that will be lost in the larger and more lasting move away from religion. We’ll just have to see.

One trend that is apparent in Oborne’s piece is how “American” British religion is becoming. Much of the new success results from American-style marketing. Anglican parishes no longer wait for neighborhood people to come: they reach out with niche programming like actors’ groups. “Church plants” like ChistChurch London, whose website makes it look a lot like an American urban evangelical megachurch, are increasingly prominent. Oborne also notes the rise of Pentecostalism, a form of Christianity that began in twentieth-century Los Angeles, which appeals to immigrants from Africa. Observers have been writing about the Americanization of world religion for some time; recent books by journalists John Micklethwait and Adrian Wooldridge, and by French scholar Olivier Roy, come to mind.  Oborne’s essay suggests that these writers are really on to something.

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Secular Britain?

Contemporary Britain, Americans understand, is a secular place. Weekly church attendance is quite low. Although in surveys majorities continue to identify themselves as “Christian,” most observers dismiss this as evidence of merely vestigial attachments, like the crosses on the Union Jack (left). When Americans think of religion in Britain, they tend to think of stories like sociologist Peter Berger’s, about the time he asked a London hotel concierge for the nearest Church of England parish. Not only did the concierge not know where the parish was; he didn’t know what the Church of England was.

It’s always a little surprising for Americans, then, when Britain’s Christian identity reasserts itself, as it did on two occasions this month. On Sunday, the BBC broadcast the traditional Queen’s Christmas Message, which ended with a meditation on the “great Christian festival” of Christmas and a prayer “that on this Christmas day we might all find room in our lives for the message of the angels and for the love of God through Christ our Lord.” Not so secular.

Now, the Queen is the Supreme Governor of the Church of England, and I guess most people, if they thought about it, would expect her Christmas message to be, well, Christian. Earlier in the month, though, Prime Minister David Cameron gave a remarkable address, on the 400th Anniversary of the King James Bible, which also highlighted Britain’s Christian identity. “We are a Christian country,” he declared, “and we should not be afraid to say so.” He did not mean to minimize the contributions of Britons of other faiths, or of no faith, he insisted. But there was no reason to hide the fact that the Christian tradition, including especially the King James Bible, had helped shape British culture and values. Cameron rejected state “secular neutrality” as “profoundly wrong,” both in its Read more