Friday, 30 April 2010

Secularism and Religious Rights

The former Archbishop of Canterbury, Lord Carey, has once again been intervening in public debate. The case in point concerned the dismissal of Gary MacFarlane who was dismissed from a job for the marriage guidance counsellors Relate due to his refusal to engage with gay couples. MacFarlane's appeal against this dismissal consisted in the claim that dismissal on these grounds violated his rights since, as a committed Christian, he could not endorse people living "in sin".

The tribunal that judged MacFarlane's case argued fiercely against the claim that there was a religious right here that had been violated but was even clearer in making a specific attack on Lord Carey. Carey had called for the case to be tried by a special panel of judges who had "proven sensitivity and understanding of religious issues". This call, when coupled with Carey's support for viewing the case as one of religious rights led Carey to claim that the case was one of competing rights where the right of gay couples to equal treatment is one that needs to be balanced against the rights of religious believers.

Carey's arguments betray deep confusions concerning the nature of rights, confusions that partly grow out of the unfinished secularisation of the British state and partly reflect the pandering to notions of religious rights that have been reflected in the behaviour of the Labour government since 1997. The historic basis is the fact that Carey is a member of a state church that retains a specific place in the British constitution enabling its bishops to act as legislators in a manner not granted to other religious believers, its schools to receive unprecedented state aid and state ceremonies to be held in its buildings. This historic basis to a view that Anglican Christians have special rights has been buttressed by the promotion of "faith schools" on the part of the Labour Party.

Given this background it is less surprising than it would otherwise be that Lord Carey should have the view that he does. It is still the case however that his view is deeply and grievously wrong. The judge who presided in the tribunal Lord Justice Laws made many correct statements in striking down the appeal in the case. Laws states that the precepts of no religion or belief system have any special place in law as, if they did, those who did not have such convictions would be less than citizens under the law. In following up on this claim Laws stated that there is a distinction between the law's protection of the right to hold and express a belief on the one hand and protection of that belief's substance and content on the other. This distinction is the core of the argument. It is due to the fact that Lord Carey assumes that religious rights involve protection of the substance and content of belief that he believes there is a conflict of rights, a view that he has been given support in due to the government's promotion of faith schools. Should there be protection of the substance and content of belief then one of two impossible situations will result. Either the protection would support one religion or belief system or it would support all. If the former is the case then, as Laws rightly stated, the step towards theocracy would be very large. Should the latter however, be the case, then the contradictory nature of distinct belief systems would create an insoluble problem.

Further, Carey's specific request for tribunals based on tests of sensitivity to religious beliefs is intrinsically unjust. Such tests of belief would have to favour one view of such beliefs hence would be sectarian in nature and guided by an evaluation that had nothing to do with the possession of rights. Carey argues that the result of this case is to move Britain in the direction of a "secular" rather than a "neutral" state but gives no definition of the latter. By a "neutral" state one can only mean a state that is not guided by the promotion of a given belief system and is impartial with regard to all. This is precisely what a consistent secularism involves. Secularism does not mean state embrace of irreligion but instead lack of preference to any religion. Given that Britain has historically given preference to Carey's religion then it is true that the drift of law now is towards a notion of the state that is no longer sectarian as it historically was. This is also why it is plausible to speak of the head of state of Britain being something other than an Anglican. The logical thing is systematic and clear separation of church and state, the same as occurred in the founding of the United States. The head of the National Secular Society correctly stated that the judgment enforces the view that anti-discrimination laws apply to people not to holders of beliefs. There is no "conflict of rights" as there is no right to the substance and content of a belief being given any special status and Carey's arguments against betray a reactionary desire to maintain a special status for a state church whose time of dominance in Britain is due to end and whose special legal rights are not only an anachronism but an offence.

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