Everyone has probably heard that the California Supreme Court has backed Proposition 8 which was a referendum held at the time of the US Presidential Election and which incorporated into the California Constitution a legal definition of Marriage as being between a Man and a Woman. The passing of Proposition 8 has stopped same sex marriages being performed in California.
Without going into the merits of all the arguments about same sex relationships i thought the following two legal points might be of interest.
The Mormon Church has been heavily criticised by gay rights activists over its support for monogamous heterosexual marriage but it is worth remembering that in the 19th Century Mormons were themselves forced to accept this legal definition of Marriage or face imprisonment, see Reynolds v. U.S., 98 U.S. 145 (1878). Mormons practiced Polygamous (or plural) marriage which was a requirement of their religion. In response to this action by the Mormon Church Polygamy was outlawed by the US Government which stated that only monogamous marriage could have legal status and the US Supreme Court defended this legal ban on polygamous marriage by reference to the historic understanding of marriage in western society. There is an argument, which is already being pursued in Canada, that if the historic definition of marriage as one man and one woman is no longer legally valid then laws against polygamy are similarly legally invalid.
Also it is worth noting that the argument is solely over the term "marriage" Californian law already permits Same Sex "Domestic Partnerships" which are basically the same as Marriage but without the name. In the UK we adopted the same approach with Civil Partnerships so Britain is neither better, nor worse, than California (except of course for being rather wetter)
Wednesday, 27 May 2009
Religious Freedom in England Today
( On the 20th May I gave a talk on Religious Freedom to the Young Catholics Group at the Brompton Oratory a number of people have asked me for a copy of what I said so here it is)
I begin by referring to a story that some of you may have heard of, a couple of years ago a Crematorium in Devon removed its crosses on the basis that they did not want to Cause Offence” to non Christians and in particular to Muslims. The subject of this Crematorium was subsequently discussed in the House of Lords during the debate on the 2006 Equality Bill when various speakers discussed ways of making Crematoriums “Muslim friendly”. Two points are worthy of note during this debate, firstly hardly anyone discussed the offence caused to Christians by the removal of the Cross, and secondly absolutely nobody in the debate was aware, or bothered to find out, that Muslims do not use Crematoria because cremation is against their religion. The moral of this story is that one should never underestimate the ignorance of public officials when dealing with religious issues also when actions are taken against Christianity and Christian symbols in the name of a multi faith society invariably these actions are taken in the name of minority religions but are not actually done at the request of those religions.
But let us look at some other stories in the media recently, a man who used to cut the grass outside his house has been told to stop because of “Health and safety fears”, a schoolgirl who asked her teacher if she could move to another group of girls because all the girls in her group were talking to each other in Urdu ended up being arrested, yes arrested, for alleged “racism” and finally a case I am sure you have all heard of the Nurse Caroline Petrie who was threatened with the sack for offering to pray for a patient. In theory only one of those three stories involve religion yet I would suggest that in fact they all demonstrate the same problem, petty minded officiousness, obsession with rules, a tendency to take offence at simple conversations, a lack of any sense of proportion, a lack of any desire to live and let live and in general a lack of simple old fashioned common sense.
And so the theme of my talk today is that the issue of religious freedom in this country cannot be considered in isolation from other issues of freedom in our society. I could regale you with tales of attacks on Christians and Christianity but to do so would I believe mask the real problem. These attacks on Religious freedom are symptomatic of wider attacks on freedom and of a lack of respect for the idea of freedom, and so if we want to defend freedom of religion then we have to defend the idea of freedom itself. Whether it is foxhunting, smoking, adoption agencies, or microchips in rubbish bins, we are in society which is increasingly intolerant, repressive, regulated and untrusting and in consequence we have officials who are dictatorial, interfering and untrustworthy.
One of the areas where I have become increasingly aware of this tendency is advising Doctors, Nurses and Pharmacists who have conscientious objections to assisting in any way with Abortion referrals or the giving out of the “morning after pill”. Their right to moral conscientious objection is simply being dismissed as “imposing your morality on others” which ignores the fact that to make somebody do, or participate in, something they consider to be immoral is in itself to impose a view of morality. It is strange that during the war when our country was facing the danger of foreign invasion we accepted the right of conscientious objection yet today we are increasingly unwilling to permit conscientious objection. The case of the Marriage Registrar Lillian Ladelle is a case in point. She did not want to participate in same sex civil partnerships and so she made arrangements that ensured that others who had no moral objections dealt with those ceremonies whilst she carried out ordinary Marriages. It was agreed by her employers that no same sex couple had ever been disadvantaged by her actions and no civil partnerships were cancelled or delayed because of her nevertheless her employers refused to allow this pragmatic solution to continue. In simple terms they had no respect for her conscience and were not willing to show any tolerance or compassion towards her.
But this refusal to recognise the legitimacy of conscience and morality has consequences for our society that go far beyond the issues of Abortion or Homosexuality themselves. When we look at our current controversy over MP’s expenses the constant refrain that is coming back from so many MP's is that what they did was “in accordance with the rules” but what is missing in this response is that they never considered whether what they were was morally right or wrong and that I suggest epitomises a broader problem in our society; we are not showing respect for conscience and the desire not to do that which is morally wrong because we are no longer acknowledging the importance of morality itself and are instead fixated on mere legalism and rules. As a lawyer I am constantly dealing with the efforts of government to legislate on everything and the consequence is that politicians are infantalising us as a society by removing our ability to think in moral terms. The result is that we have more criminal legislation that ever before and more crime, more financial regulation and more fraud, more interference by government officials in all aspects of life and more government failure and incompetence.
Contrary to what several Christian organisations are saying I do not consider that we are in an era of anti-Christian persecution; indeed to suggest that we are demeans the word persecution and those many Christians who are suffering real persecution to the point of death. What we are in is an era of increasing government interference and regulation of what used to be regarded as private life and an increasing intolerance of those who disagree. We are in an increasingly authoritarian society and the Church is always the first victim of authoritarianism because the Church exists as an organisation that is, or should be, independent of the State and which has a basis for its motivation and thinking which is independent of the state.
That does not however mean that the Church does not respect or obey the laws of the state, on the contrary Christianity has always taught respect for the legitimacy of government and the civil authorities, “render unto Caesar that which is Caesars and unto God that which is Gods” is both a political and a theological principle. It is however a principle which depends on mutual recognition of mutual rights. What we have today is a governmental system which does not acknowledge the right of religion to have its own sphere nor does it respect the right of religious organisations to defend their own identity and to preserve their own integrity.
The new Equality Bill currently before Parliament epitomises this tendency. Nearly every form of Discrimination is banned even for private associations and Churches, or to put it another way, they are to lose the right to choose. Churches are to be banned from preferring Christians in their employment practices except in the employment of Priests or religious teachers, they are not going to be allowed to insist that employees live in accordance with the ideals or principles of the Church, and any employment or membership decision they take can be questioned and investigated by an unelected quango the Equality and Human Rights Commission.
All of this is done in the name of equality and with the clarion call by politicians that religions must not be allowed to discriminate however there is a gross hypocrisy at the heart of the non discrimination agenda because politicians are not imposing on themselves the principles that they insist on imposing on others. In simple terms it is perfectly legal to discriminate on the grounds of political opinion and political membership and political parties are free to discriminate in their recruitment policies, the Labour Party would not employ a member of the BNP in any capacity, and the Conservative Party would not employ a card carrying Communist, why then should a Church be obliged to employ people whose religion or lifestyle is incompatible with the beliefs or principles of that Church ? I make the point that I do not believe that Political Parties should be obliged to employ people whose political beliefs or activities are incompatible with their own; Political parties are entitled to preserve and defend their distinctive identity; I just make the point that religious organisations should be entitled to the same freedom to preserve their identity.
As the Governments proposals stand I, as a Roman Catholic, would be entitled to apply for the post of General Secretary of the Muslim Council of Britain and to sue if I was not appointed and a card carrying member of the National Secular Society would be entitled to apply for the post of Secretary to the Catholic Bishops conference. It is lunacy and more than lunacy it is dangerous to freedom and democracy because democracy requires not just individual freedom but also freedom of association, we need to defend the principle of civil society in which associations and organisations as well as individuals have rights and are allowed the freedom to preserve their distinctive nature and contribution to society as a whole and it is no coincidence that the first thing any totalitarian state does is to regulate and control associations, organisations and churches. We need to be alert to this danger and we need to defend the rights of Churches and other organisations not simply in order to defend religious freedom but in order preserve freedom itself.
In addition to defending freedom of association we also need to defend freedom of speech and in particular the freedom of private conversation. Some years ago I had the privilege of representing Joe and Helen Roberts a retired couple in Fleetwood in Lancashire who rang up their local Council to complain about its decision to put gay friendly literature in public buildings. Instead of the local council regarding this as a legitimate expression of opinion the diversity officer of the Council reported Joe and Helen to the Police who sent two large Police officers equipped with stab vests and handcuffs to lecture Joe and Helen for 80 minutes and to threaten them with prosecution for a non existent “Hate Crime”. Recently there was the case of a social worker in a care home who was suspended following a private conversation about homosexuality, and of course the well known case of Carol Thatcher and her Golliwog conversation, I ask myself and I ask you, what happened to the idea of a private conversation, what happened to the idea that this is a free country where people are entitled to their own opinions ?
We as Christians cannot separate ourselves from the society in which we live nor should we want to do so, similarly we cannot separate the defence of our religious freedom from the defence of freedom itself.
If you read the history of life in Nazi Germany, or the Soviet Union or the East German Stasi one point is very clear and consistent totalitarian states do not recognise or respect the distinction between private and public life, in a totalitarian state there is no such thing as a private conversation. In George Orwells great novel 1984 the hero Winston Smith describes how everyone lives with the knowledge that everything they say can be monitored, the smallest deviation from the official orthodoxy will be reported and everyone lives with the fear that one day they will be visited by the thought police. The novel is set in Britain1984 but it too close for comfort to the reality of Britain 2009.
1984 was, of course, written in 1948 just after the war when people were aware of the price of freedom and the fact that freedom needed to be defended. In 1945 a film was released called “ A Matter of Life and Death” it involved David Niven as an RAF pilot who is supposed to die in his plane but who survives and who subsequently has to argue with God for his right to continue to live. Part of the film involves a trial in heaven with an argument about England and freedom, and one of the main characters says “In England a man can think and speak as he likes on religion and politics”. As I said the film was released in 1945 and so it was made at a time when British people were fighting and dying to defend an England where “a man can think and speak as he likes ”, this is a noble vision of England as a nation of free people but it is an England that we are allowing to die and it is a England we need to fight to defend because an England where freedom is protected and respected is an England worth fighting for.
I begin by referring to a story that some of you may have heard of, a couple of years ago a Crematorium in Devon removed its crosses on the basis that they did not want to Cause Offence” to non Christians and in particular to Muslims. The subject of this Crematorium was subsequently discussed in the House of Lords during the debate on the 2006 Equality Bill when various speakers discussed ways of making Crematoriums “Muslim friendly”. Two points are worthy of note during this debate, firstly hardly anyone discussed the offence caused to Christians by the removal of the Cross, and secondly absolutely nobody in the debate was aware, or bothered to find out, that Muslims do not use Crematoria because cremation is against their religion. The moral of this story is that one should never underestimate the ignorance of public officials when dealing with religious issues also when actions are taken against Christianity and Christian symbols in the name of a multi faith society invariably these actions are taken in the name of minority religions but are not actually done at the request of those religions.
But let us look at some other stories in the media recently, a man who used to cut the grass outside his house has been told to stop because of “Health and safety fears”, a schoolgirl who asked her teacher if she could move to another group of girls because all the girls in her group were talking to each other in Urdu ended up being arrested, yes arrested, for alleged “racism” and finally a case I am sure you have all heard of the Nurse Caroline Petrie who was threatened with the sack for offering to pray for a patient. In theory only one of those three stories involve religion yet I would suggest that in fact they all demonstrate the same problem, petty minded officiousness, obsession with rules, a tendency to take offence at simple conversations, a lack of any sense of proportion, a lack of any desire to live and let live and in general a lack of simple old fashioned common sense.
And so the theme of my talk today is that the issue of religious freedom in this country cannot be considered in isolation from other issues of freedom in our society. I could regale you with tales of attacks on Christians and Christianity but to do so would I believe mask the real problem. These attacks on Religious freedom are symptomatic of wider attacks on freedom and of a lack of respect for the idea of freedom, and so if we want to defend freedom of religion then we have to defend the idea of freedom itself. Whether it is foxhunting, smoking, adoption agencies, or microchips in rubbish bins, we are in society which is increasingly intolerant, repressive, regulated and untrusting and in consequence we have officials who are dictatorial, interfering and untrustworthy.
One of the areas where I have become increasingly aware of this tendency is advising Doctors, Nurses and Pharmacists who have conscientious objections to assisting in any way with Abortion referrals or the giving out of the “morning after pill”. Their right to moral conscientious objection is simply being dismissed as “imposing your morality on others” which ignores the fact that to make somebody do, or participate in, something they consider to be immoral is in itself to impose a view of morality. It is strange that during the war when our country was facing the danger of foreign invasion we accepted the right of conscientious objection yet today we are increasingly unwilling to permit conscientious objection. The case of the Marriage Registrar Lillian Ladelle is a case in point. She did not want to participate in same sex civil partnerships and so she made arrangements that ensured that others who had no moral objections dealt with those ceremonies whilst she carried out ordinary Marriages. It was agreed by her employers that no same sex couple had ever been disadvantaged by her actions and no civil partnerships were cancelled or delayed because of her nevertheless her employers refused to allow this pragmatic solution to continue. In simple terms they had no respect for her conscience and were not willing to show any tolerance or compassion towards her.
But this refusal to recognise the legitimacy of conscience and morality has consequences for our society that go far beyond the issues of Abortion or Homosexuality themselves. When we look at our current controversy over MP’s expenses the constant refrain that is coming back from so many MP's is that what they did was “in accordance with the rules” but what is missing in this response is that they never considered whether what they were was morally right or wrong and that I suggest epitomises a broader problem in our society; we are not showing respect for conscience and the desire not to do that which is morally wrong because we are no longer acknowledging the importance of morality itself and are instead fixated on mere legalism and rules. As a lawyer I am constantly dealing with the efforts of government to legislate on everything and the consequence is that politicians are infantalising us as a society by removing our ability to think in moral terms. The result is that we have more criminal legislation that ever before and more crime, more financial regulation and more fraud, more interference by government officials in all aspects of life and more government failure and incompetence.
Contrary to what several Christian organisations are saying I do not consider that we are in an era of anti-Christian persecution; indeed to suggest that we are demeans the word persecution and those many Christians who are suffering real persecution to the point of death. What we are in is an era of increasing government interference and regulation of what used to be regarded as private life and an increasing intolerance of those who disagree. We are in an increasingly authoritarian society and the Church is always the first victim of authoritarianism because the Church exists as an organisation that is, or should be, independent of the State and which has a basis for its motivation and thinking which is independent of the state.
That does not however mean that the Church does not respect or obey the laws of the state, on the contrary Christianity has always taught respect for the legitimacy of government and the civil authorities, “render unto Caesar that which is Caesars and unto God that which is Gods” is both a political and a theological principle. It is however a principle which depends on mutual recognition of mutual rights. What we have today is a governmental system which does not acknowledge the right of religion to have its own sphere nor does it respect the right of religious organisations to defend their own identity and to preserve their own integrity.
The new Equality Bill currently before Parliament epitomises this tendency. Nearly every form of Discrimination is banned even for private associations and Churches, or to put it another way, they are to lose the right to choose. Churches are to be banned from preferring Christians in their employment practices except in the employment of Priests or religious teachers, they are not going to be allowed to insist that employees live in accordance with the ideals or principles of the Church, and any employment or membership decision they take can be questioned and investigated by an unelected quango the Equality and Human Rights Commission.
All of this is done in the name of equality and with the clarion call by politicians that religions must not be allowed to discriminate however there is a gross hypocrisy at the heart of the non discrimination agenda because politicians are not imposing on themselves the principles that they insist on imposing on others. In simple terms it is perfectly legal to discriminate on the grounds of political opinion and political membership and political parties are free to discriminate in their recruitment policies, the Labour Party would not employ a member of the BNP in any capacity, and the Conservative Party would not employ a card carrying Communist, why then should a Church be obliged to employ people whose religion or lifestyle is incompatible with the beliefs or principles of that Church ? I make the point that I do not believe that Political Parties should be obliged to employ people whose political beliefs or activities are incompatible with their own; Political parties are entitled to preserve and defend their distinctive identity; I just make the point that religious organisations should be entitled to the same freedom to preserve their identity.
As the Governments proposals stand I, as a Roman Catholic, would be entitled to apply for the post of General Secretary of the Muslim Council of Britain and to sue if I was not appointed and a card carrying member of the National Secular Society would be entitled to apply for the post of Secretary to the Catholic Bishops conference. It is lunacy and more than lunacy it is dangerous to freedom and democracy because democracy requires not just individual freedom but also freedom of association, we need to defend the principle of civil society in which associations and organisations as well as individuals have rights and are allowed the freedom to preserve their distinctive nature and contribution to society as a whole and it is no coincidence that the first thing any totalitarian state does is to regulate and control associations, organisations and churches. We need to be alert to this danger and we need to defend the rights of Churches and other organisations not simply in order to defend religious freedom but in order preserve freedom itself.
In addition to defending freedom of association we also need to defend freedom of speech and in particular the freedom of private conversation. Some years ago I had the privilege of representing Joe and Helen Roberts a retired couple in Fleetwood in Lancashire who rang up their local Council to complain about its decision to put gay friendly literature in public buildings. Instead of the local council regarding this as a legitimate expression of opinion the diversity officer of the Council reported Joe and Helen to the Police who sent two large Police officers equipped with stab vests and handcuffs to lecture Joe and Helen for 80 minutes and to threaten them with prosecution for a non existent “Hate Crime”. Recently there was the case of a social worker in a care home who was suspended following a private conversation about homosexuality, and of course the well known case of Carol Thatcher and her Golliwog conversation, I ask myself and I ask you, what happened to the idea of a private conversation, what happened to the idea that this is a free country where people are entitled to their own opinions ?
We as Christians cannot separate ourselves from the society in which we live nor should we want to do so, similarly we cannot separate the defence of our religious freedom from the defence of freedom itself.
If you read the history of life in Nazi Germany, or the Soviet Union or the East German Stasi one point is very clear and consistent totalitarian states do not recognise or respect the distinction between private and public life, in a totalitarian state there is no such thing as a private conversation. In George Orwells great novel 1984 the hero Winston Smith describes how everyone lives with the knowledge that everything they say can be monitored, the smallest deviation from the official orthodoxy will be reported and everyone lives with the fear that one day they will be visited by the thought police. The novel is set in Britain1984 but it too close for comfort to the reality of Britain 2009.
1984 was, of course, written in 1948 just after the war when people were aware of the price of freedom and the fact that freedom needed to be defended. In 1945 a film was released called “ A Matter of Life and Death” it involved David Niven as an RAF pilot who is supposed to die in his plane but who survives and who subsequently has to argue with God for his right to continue to live. Part of the film involves a trial in heaven with an argument about England and freedom, and one of the main characters says “In England a man can think and speak as he likes on religion and politics”. As I said the film was released in 1945 and so it was made at a time when British people were fighting and dying to defend an England where “a man can think and speak as he likes ”, this is a noble vision of England as a nation of free people but it is an England that we are allowing to die and it is a England we need to fight to defend because an England where freedom is protected and respected is an England worth fighting for.
Sunday, 10 May 2009
Religious Symbols v Religious Beliefs
The judgement in the case of Ghai v Newcastle City Council [2009] EWHC 978 (Admin) is now available. Mr Ghai wanted the right to have his body cremated in the open air once he died. His claim that the Cremation Act 2003 was unlawful under Article 9 of the European Convention was, not surprisingly, rejected but I do have a lot of sympathy for him. He wasn't asking for the right to have a Cremation in his back garden but that the law should allow there to be places in Britain where open air cremations can be held. It wasn't an unreasonable request and it is sad that the Government hasn't done anything to meet it.
At the same time as Mr Ghai was losing the strange case of Sanatan Dharma Maha Sabha v Attorney General of Trinidad and Tobago [2009] UKPC 17 was being reprted. In this case the Privy Council agreed with an earlier decision of the High Court of Trinidad and Tobago that a particular award "The Trinity Cross of the Order of Trinity" was discriminatory to Muslims and Hindus under the provisions of sections 4(b), (d) and (h) of the Trinidadian Constitution on the basis that the Cross is a Christian Symbol. The name "Trinidad" is of course itself Christian being the Spanish for "Trinity" and therefore a reference to the Holy Trinity. The case could conceivably have implications for British awards such as the Victoria Cross, George Cross, Military Cross etc. Interestingly both the Trinidadian Court and the Privy Council took a very different approach to that of the US Courts in the case of American Atheists Inc v Utah Highway Patrol Association (US District Court November 20 2007) where an attempt to have memorial crosses declared "unconstitutional" because they represented a Christian Symbol was rejected, the court holding that the cross was not an exclusively religious symbol
What these two cases have in common is that they both seem to lack any sense of proportion. Allowing properly organised outdoor Cremation would not be difficult or cause problesm but it remains banned, meanwhile the fact that historically awards have, for centuries, been expressed as Crosses, the VC, MC, DFC etc is ignored. What next will the Royal Navy have to change the White Ensign because it bears the St George Cross ? In my view cases like this do nothing but harm to Community relationships.
At the same time as Mr Ghai was losing the strange case of Sanatan Dharma Maha Sabha v Attorney General of Trinidad and Tobago [2009] UKPC 17 was being reprted. In this case the Privy Council agreed with an earlier decision of the High Court of Trinidad and Tobago that a particular award "The Trinity Cross of the Order of Trinity" was discriminatory to Muslims and Hindus under the provisions of sections 4(b), (d) and (h) of the Trinidadian Constitution on the basis that the Cross is a Christian Symbol. The name "Trinidad" is of course itself Christian being the Spanish for "Trinity" and therefore a reference to the Holy Trinity. The case could conceivably have implications for British awards such as the Victoria Cross, George Cross, Military Cross etc. Interestingly both the Trinidadian Court and the Privy Council took a very different approach to that of the US Courts in the case of American Atheists Inc v Utah Highway Patrol Association (US District Court November 20 2007) where an attempt to have memorial crosses declared "unconstitutional" because they represented a Christian Symbol was rejected, the court holding that the cross was not an exclusively religious symbol
What these two cases have in common is that they both seem to lack any sense of proportion. Allowing properly organised outdoor Cremation would not be difficult or cause problesm but it remains banned, meanwhile the fact that historically awards have, for centuries, been expressed as Crosses, the VC, MC, DFC etc is ignored. What next will the Royal Navy have to change the White Ensign because it bears the St George Cross ? In my view cases like this do nothing but harm to Community relationships.
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