(On the 28th April I was asked to speak in a Seminar at Lancaster University organised as part of the AHRC/ESRC Religion & Society Programme www.religionandsociety.org.uk . The theme of the Seminar was "Religious Rights in a Secular Society" and I set out my contribution below)
In many respects I feel I have come to this seminar on false pretences. I am here to take part in a Seminar on the role of Religion and Belief in a Secular Society and I am going to begin by questioning the entire philosophical basis of this Seminar namely the presumption that Britain is a Secular Society or that we even know or agree on what the term “a secular society” really means. Does it mean an Atheistic Society or a Multi-Faith Society, a society which is tolerant towards all religions or a society which sees religious belief as a form of deviation from the norm. To put it in the form of a question, if Britain is a Secular Society then does that therefore mean that religious believers are not truly part of British Society ?
Part of the problem therefore is defining what exactly we mean by a Secular Society. In general debate, and no doubt today the idea will be of an irreligious or perhaps anti religious society. Certainly in general debate Secularism and Secular seem always to be assumed to be alternatives to religious belief but I question whether that need to be the case. In many respects Christianity created the Secular idea with Roman Catholic parish priests being known as Secular Clergy because they live “in the world” as opposed to living in a religious community such as a Monastery. The general tradition of Western Christianity in all its forms recognises the legitimacy and independence of Secular Government which itself is required to recognise the legitimacy and independence of religion , ‘Render unto Caesar that which is Caesars, and unto God that which is Gods ’ is a foundational principle of western political as well as religious thought.
Therefore there is no inherent conflict between Secular and Religious unless we define ‘Secular’ in such a way as to mean anti-religious, and I suggest that that is indeed the way “Secular” is increasingly being interpreted especially in Europe. This point was noted by Pope Benedict XV1 in his 2008 visit to the United States when he praised American State secularism as “healthy secularism,” and “a fundamental and positive model” in contrast to an aggressive, and by implication European, Secularism which is anti-religious. So what form of Society is Britain, is it in fact a Secular Society and if it is does that necessarily mean that it must be an anti-religious Society ?
In deciding whether Britain is in fact a Secular Society one point cannot be ignored Britain is not a Secular State. This fact was noted by the Court of Appeal in the case of Shabina Begum . You may recollect that in this case Shabina took her School to Court under Article 9 of the European Convention on Human Rights (Freedom of Religion) claiming the right to wear the Islamic Jilbab in School, she lost in the High Court, won on a technicality in the Court of Appeal and lost resoundingly in the House of Lords. Part of the reason why she lost was because of the European Court of Human Rights case of Leyla Sahin which involved a Turkish trainee doctor who was not allowed to wear an Islamic Headscarf in Istanbul University. The European Court of Human Rights backed the Turkish ban as being necessary to protect the status of Turkey as an avowedly Secular (Laik) state and Shabinas’ School relied on the Sahin case in order to justify its ban on the Jilbab. The Court of Appeal however rejected the relevance of the Sahin case on the specific basis that Britain is not a Secular state (Paras 74, 94).
The House of Lords did overrule the Court of Appeal and applied the Sahin decision on the basis of the principles of legal precedent but nevertheless I do think the Court of Appeal were making a valid point; England and Scotland retain established Churches, throughout the UK Governments, both UK and Devolved, permit denominational schools, and the British Constitution requires the Head of State to be a Protestant Christian. All of these facts may be objectionable to many who would wish to see Britain become a formally Secular State but the point has to be faced that those who want to see Britain become a Secular State have not won their argument or achieved their objective and Britain has not chosen to become a Secular State. Therefore if the British people acting through their democratic institutions have never chosen to turn Britain into a Secular State why should this Seminar presume, without question, that the British people have nevertheless chosen to become a Secular Society ?
However even if Britain is not a Secular State it is equally clear that it is not a Theocratic State. On one occasion a leading Secularist did suggest to me that Britain was in fact a Theocratic State because of the presence of 26 Church of England Bishops sitting in the House of Lords; this seemed to me to ignore the fact that the Bishops of the Church of England are appointed by the Prime Minister whilst if Britain was in fact a Theocratic State then the Prime Minister would be appointed by the Bishops, however I digress. Britain is neither a Secular nor a Theocratic State what it is, is a State which endorses and protects Religious and Irreligious freedom.
This is not a mere theoretical quibble, as a lawyer I find the concept of “Religious Rights in a Secular Society” a highly dangerous concept which is far more problematic than the concept of Religious Rights in Secular State. Rights, whether religious rights or other rights, are legal concepts and to be meaningful rights have to be recognised and protected by law and if we were a formally Secular State then religious rights, or any restrictions on those rights, would be laid down and governed by the Constitution and laws of that Secular State. A Secular State is a legal concept but a Secular Society is not and therein lies the danger, who or what defines the limits and limitations of a Secular Society, we the intellectuals gathered in this room, the Commissioners of the Equality and Human Rights Commission or the Editor of the Guardian ? The concept of defining Religious Rights within the amorphous concept of a “Secular Society” seems to me to be fraught with difficulty and makes rights subordinate not to objective standards of law but instead subject to subjective personal opinion and arbitrary bureaucratic tyranny.
Despite my reservations about the concept of a Secular Society I accept that there clearly are issues within British Society about where Religion fits in and what its role and rights are and in principle that is a natural and desirable development as the demographic, racial and religious nature of our society develops and changes. What is however a questionable development is the fact that the legitimacy of religious opinion per se is now coming into question in a way that has not been seen since the repeal of the Anti-catholic Test Acts in 1829. This can be seen in the way in which the right of Ruth Kelly to be the Equalities Minister was repeatedly questioned because of her Catholic faith and more prominently in the refusal of the European Parliament to accept the appointment of Italian Politician Rocco Buttiglione as a European Commissioner because he stated, in response to a direct question, that he believed Homosexuality was a sin. Can I lay stress on the word “sin” which is a religious and not a Secular concept.
It is perhaps worth noting that what happened to Rocco Buttiglione would be contrary to the principles of the Virginia Statute for Religious Freedom which was drafted by Thomas Jefferson and passed by the Virginia legislature in 1777 and which states
“the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right”
It does seem therefore that the European Parliament in 2004 had a lower commitment to Religious Freedom than the Virginia Assembly of 1777
The relevance of the Virginia Statute is that the United States is the oldest Western Secular State with the separation of Church and State laid down in the 1st amendment to the US Constitution and the views of Jefferson, who also drafted the Declaration of Independence, are still regarded as relevant in determining the meaning and intent of clauses in the US Constitution.
Britain, of course, is not governed by the 1st Amendment but has its European equivalent in Article 9 of the European Convention on Human Rights which was incorporated into UK law by the Human Rights Act 1998. It is perhaps significant that much of the Article 9 Case Law has come from Turkey and France which are both avowedly Secular States which have successfully argued for a view of Article 9 which both the Court of Appeal and the House of Lords have accepted as “erring on the side of strictness” . I have already referred to the Turkish Case of Leyla Sahin regarding the wearing of the Islamic Veil in Istanbul University and there is also the recent case of Mann Singh supporting a French rule prohibiting a Sikh from wearing his Turban in his driving licence photograph. However though Britain has incorporated Article 9 into our law we are not a Secular State like France or Turkey and we do not necessarily follow their restrictions, Sikh Police Officers, for example, happily wear the Sikh Turban as part of their uniform and, more controversially, Muslim Police women are allowed to wear the Hijab as part of their uniform, though not in America.
I return to the point that Britain is not a Secular State and we restrict our thinking if we talk in terms of “Religion within a Secular Society” which is, I suggest, an inherently divisive and confrontational concept because it implies that religious believers are separate from the rest of society and that any accommodation to Religious beliefs is contrary to the interests of society as a whole. Also what model of secularism do we follow, French ‘Laicite’ and Turkish ‘Laik’, the 1st Amendment of the US Constitution or Article 124 of the Constitution of the USSR which recognised “Freedom of religious worship and antireligious propaganda”. The supreme Court of the USA has protected the 1st Amendment and thereby the Secular nature of the United States for over 200 year but has never implied that because the US is a Secular State that means that America must also be made into a Secular Society. As Mr Justice Douglas said in Zorach v Clauson
“We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma”
I suggest that it is significant that USA only set out to create a Secular State whilst the USSR set out to create a Secular Society with inevitable consequences of Totalitarianism and restrictions on all forms of freedom not just religious freedom. There is a danger, and I put it no higher than that, of the concept of “Religious Rights in a Secular Society” being interpreted so as to justify a repressive and intolerant attitude towards religions and religious believers who are subtly defined as outsiders from Society, at best merely tolerated, at worst sidelined and silenced.
I suggest that the idea of “Religious Rights within a Secular Society” is fundamentally inconsistent with the idea of legal rights as such and changes the meaning of religious freedom which ceases to be part of the general freedoms enjoyed by all citizens and instead become mere concessions to a minority group which are at the mercy of the majority. I suggest that it would be more constructive to concentrate on the idea of “Religious Freedom within a Free Society” and to see Religious Freedom not as something apart from but rather an integral part of the general freedoms enjoyed by every Citizen. We will never agree whether we are, or indeed should be, a Secular Society or what that title means however I think we can all agree that we are, or we aspire to be, a free society. A Free Society is a Society in which religion, atheism and secularism exist, each has their part to play and all are regarded as integral parts of Society as a whole.
