Religion and State in a Scottish Constitution: Secularism, Pluralism and Neutrality.

W. E. Bulmer

One of the most delicate problems facing constitutional designers in an independent Scotland will be to regulate the relationship, on the constitutional level, between religious organisations and the State.

The problem is delicate because it touches core values and identities, matters on which compromise and accommodation with others are hard to achieve. Some favour a strictly secular state; others, with equal or even greater vehemence, insist that the state be tied, in some more or less formal way, to Christian institutions and values. A further difficulty is that religious identity in Scotland cuts two ways. As well as the divide between those who actively practice a religion and those who do not, there is a deeper, underlying, sectarian divide between those (whether actively religious or not) with Protestant and Catholic cultural backgrounds.

In an earlier age, Protestant ascendency, and a general deference to religion and religious values, could be assumed. A draft Constitution for Scotland produced in 1964 contained the provision that:

“The national church is the Church of Scotland by law defined in the Act for the Security of the Protestant Religion and Presbyterian Church Government in the Kingdom of Scotland, 1707, and the Articles Declaratory of the Constitution of the Church of Scotland in Matters Spiritual, 1921.”

At the time, this was unremarkable. The national church was one of the great conduits which connected Scotland to its earlier pre-1707 statehood, and its General Assembly was, for three hundred years, the closest thing Scotland had to a representative body of public opinion (although not, it should be said, the opinion of all: the kirk never, even in its heyday, claimed the active allegiance of more than a bare majority of the people).

Such a constitutional provision is not necessarily unthinkable, even today. Similar provisions, connecting the State to a national church on a constitutional level, exist in the Constitutions of other modern, high quality democracies. Even the recently secularised Norwegian Constitution still requires the King to be an ‘Evangelical Lutheran’. The new draft Constitution for Iceland, likewise, maintains a formal and constitutional connection between the state and church.

However, as I have argued elsewhere, those forging a new Constitution for an independent Scotland must take care to ensure that the Constitution can belong equally to all members of a diverse democratic society. This means we should be wary of entrenching special privileges for certain religious groups: for everyone whose values and identities are thereby recognised, there could well be another who regards these provisions as exclusionary and divisive.

Secularists would argue that the way to ensure this equality and universal inclusion is to establish a secular state. For many who maintain a strong religious identity, however, secularism is a word with negative connotations. Rather than protecting the equal rights of all, some religious people perceive secularism as exclusionary, as an attempt to delegitimate their contributions, rob them of their identity, and drive religious voices out of the public square.

In part, this difference of perception reflects the fact that religious people are no longer in the position of cultural dominance that they once were – their previously unassailable fortress of prestige and power is being challenged on many fronts, and many of them feel beleaguered by a society that no longer accepts, or understands, their worldview. ‘Secular’, in such a mental landscape, smells suspiciously like the  sulfurous calling-card of the Enemy.

Varieties of Secularism

The difference of perception also stems from a confusion over the word ‘secularism’. Ran Hirschl, a leading constitutional scholar, who has devoted much attention to church-state issues, identifies various forms of secularism. For simplicity, it makes sense limit the discussion here to three: French-style ‘Laïcité’, American-style ‘separation-as-neutrality’, and Canadian-style ‘pluralist accommodation’.

French laïcité is the most aggressively secular of these three forms. It is actively suspicious of religion. While respecting the right of consenting adults to practice religion in the privacy of their own churches, it seeks to exclude religion from public life, and most of all from public education. A child in a French public school cannot wear a cross, because the school is a laïc institution, a secular temple to the universal values of the Republic: Liberty, Equality and Fraternity.

United States-style ‘secularism-as-neutrality’ takes a different tack. The state is not actively suspicious of religion. Religion is essentially a private affair, as in France, but the state does not attempt to insulate itself from religious influence, nor to exclude religion from public life. A child in an American public school can wear a cross, because freedom of religion extends, unlike in France, through the school gates. The state does not use the school to enforce ‘secular’ values: it simply maintains a careful neutrality in the ever-bubbling religious free-market.

The weakest form of secularism is the Canadian model of ‘pluralist accommodation’. The state does not actively favour or encourage any religion, and, as in France and the USA, it respects personal freedom of religion. The state does, however, make accommodation to various religions, on a pluralistic, non-discriminatory basis. The public funding of religious schools would be unconstitutional in France and the United States, but is permitted in Canada – or at least in parts of that very large, decentralised, mosaic country. From 1867 to 1997, the Constitution even required separate Protestant and Catholic school boards in Quebec.

I’d argue that most of the hostility to secularism from religious communities is, in fact, hostility to a French model of secularism. This was product of the Revolution and of a particular strand of deeply anti-clerical thought: the Third Republic needed to protect itself against clerical reaction, and only a militant secularism could achieve this. Scotland has no equivalent of this tradition, and there is little prospect of such a divisive and exclusionary form of secularism being acceptable here. It is just as exclusionary, in its own way, as those who would wish to maintain a Protestant ascendency, or give special privileges to one national church over all others. In a pluralist, diverse society, where religion is vitally important to some and a laughable irrelevance to others, any Constitution based on such fragmented foundations is unlikely to stand stable for long.

The real debate, in establishing a model of religion-state and inter-religious relations in Scotland, is therefore between: (i) those who favour US-style neutral secularism; and (ii) supporters of Canadian-style pluralist accommodation. Those who are religious have nothing to fear from either form of secularism, provided that they are willing to accept that their own personal brand of religion is not going to get any privileges or favours not extended on equal terms to all others.

The SNP’s 2002 Draft Constitution: Neutrality and Pluralism.

It is interesting to note that the SNP’s 2002 draft Constitution for Scotland omits all mention of a national religion. It limits itself to protecting freedom of religion and freedom from discrimination, in accordance with the provisions of the European Convention on Human Rights.

This silence is two-edged.Although the SNP’s 2002 draft Constitution does not constitutionally recognise any national religion, it does not deny or prohibit the sub-constitutional recognition of any national religion either. It leaves the status-quo of church-state relations constitutionally undisturbed, but unentrenched. So, for example, it does not constitutionally protect the public funding of religious schools, but neither does it prohibit such funding if Parliament agrees to continue it. Whether to fund, or not to fund, religious school is not a constitutional matter, but a matter of public policy.

In other words, the 2002 draft does not take a stance on secularism. The choice between secularism-as-neutrality, pluralist accommodation, and even weak forms of vestigial establishment, is not decided in the Constitution. Provided the freedom of religion and non-discrimination conditions are met, future Parliaments of Scotland would be able to shape religion-state relations by ordinary legislation, and would be able to adapt the form and level of policy and legislative secularism in response to changing public desires.

The 2002 draft can no longer be taken as an authoritative statement of the SNP’s, or the Scottish Government’s constitutional policy. It does, however, provide a good example of what a workable Scottish Constitution might look like. This studied silence on religion-state relations may well turn out to be one of its best features. Likewise, it maintains silence on questions such as the termination of pregnancy and end-of-life issues, on which similarly intense religious divisions may be manifest. By focusing on the structural institutions of government and on fundamental rights, the Constitution protects democracy while permitting intensive disagreement in these tricky and divisive areas to be resolved and channeled through democratic processes.

Religion and the Monarchy

Religion in the UK is closely tied up with the monarchy. The current British State is ultimately the Hanoverian Protestant State, formed in the late seventeenth and early eighteenth centuries and never fundamentally reassessed since.

The SNP’s constitution policy is, and always has been, to keep the monarchy in an independent Scotland – until such time, if any, as the people vote against in a future constitutional amendment. This gives rise to much confusion. How, it might be asked, could a monarch who is Supreme Governor of the Church of England, also be head of state of a Scotland in which, at least on the constitutional level, there is no established church?

The answer is very simple. Although there would be the same Queen, the monarchy in Scotland, under a written Scottish Constitution, would not be the same monarchy as that now existing, or that which might continue to exist south of the border. There would be one Queen, but two very different crowns, based on different constitutional principles.

That is to say, the Scottish monarchy would not be the British, imperial, Protestant, monarchy, which derives its ‘legitimacy’ from the religious and dynastic struggles of the seventeenth century, but instead a Scottish democratic monarchy, which derives its legitimacy from the Constitution endorsed by the sovereign people. It is significant that the 2002 draft Constitution never refers to the Queen as ‘sovereign” (a word reserved  only for the whole people acting in its constituent capacity), but only as ‘head of state’. The queen would hold the public office of ‘ceremonial ribbon-cutter’ in a state which is, for all practical purposes, a democratic republic. She wouldn’t ‘reign’ as Elizabeth II of the United Kingdom, but instead ‘hold office’ as Elizabeth I, Queen of Scots.

The genius of the SNP’s draft is that it would enable that Scottish, democratic, even non-religious monarchy (the office) to be held, for the time being, by a British, imperial and Protestant monarch (the person). It would allow it, but, crucially, it would not require it: the office would not be defined by Constitution, and not by the person.

The Parliament of Scotland would be able, under this Constitution, to determine its own law of succession, its own oaths of office, its own qualifications and exclusions for holding the office of head of state. There is no reason to necessarily assume that the personal union which initially exists at the time of independence would be maintained forever.

By having a written Constitution, a division between constitutional and sub-constitutional matters would be created in Scotland that does not exist in the UK. In the UK, the religion of the monarch and the status of the religious establishment are ‘constitutional’ matters (in as far as any matter can be ‘constitutional’ in the absence of proper Constitution). They are treated as integral to the state, and are thereby politically and culturally, if not juridically, entrenched.

The very act of having a written, democratic Constitution, and of having a monarch who holds a strictly limited public office under the people’s Constitution rather than being a repository of inherent sovereignty, changes the status of these historical politico-religious ties, changing them from the pillars of the regime on which the whole thing rests (and which are therefore virtually impossible to change in the UK)  into relics which an independent Scotland could – if it so wished, and if the proposal had sufficient support – chose to do away with, without undermining the whole constitutional order.

Constitutional Neutrality and the Healing Power of Silence

Many religious people attest to the power of silence. In silence there is no argument. Scotland’s future Constitution-makers could learn much from the careful silence of the SNP’s 2002 draft on matters of religion, church-state relations, and other such deeply divisive issues. Scotland’s new written Constitution does not have to come down on one side or other of the secularism debate, or commit the future Scottish state to any particular model of church-state relations. Rather, the Constitution should be neutral and silent on matters of religion, restricting itself to provide the institutional structures and procedures which guarantee freedom for all in a pluralist, open, and democratic society.

Let’s not allow the constitutional debate – the best chance we have for a democratic renewal of Scottish society – become side tracked by endless, bitter discussions on the role of religion. There will be plenty of time for that once we have a good Constitution in place.

 

 

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