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The US Supreme Court began its new term recently with consideration of an interesting case – Salazar v. Buono – that goes to the heart of separation of church and state in the United States of America.
In 1934, the US Veterans of Foreign Wars erected a Christian cross on public land in the Mojave National Preserve near San Bernadino, California. The cross became a gathering place for local Christians who have celebrated Easter services there since the mid-thirties. Now this was on publicly-owned land – and the US Constitution stipulates strict separation of church and state. A decade ago, a request to build a Buddhist shrine near the location of the cross was denied by the National Parks Service.
The First Amendment of the US Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Madison and Jefferson saw this principle as so important that they placed it ahead of even “or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble” when constructing the text of the First Amendment – so important that even a fairly obscure case about a cross on a far-flung part of publicly-owned land in California is deemed worthy of being debated by the highest court in the land.
Separation of church and state has very deep roots in America. Many of the original settlers were from non-conformist religious groups seeking a land where they could practice their religions freely. Liberty of religious conscience has been a cornerstone of American identity from the earliest days.
All of which got me thinking that this is one area where there is a huge difference between the United Kingdom and the United States – and indeed between the UK and sister democracies which share a similar parliamentary heritage, such as Canada, Australia, the Irish Republic and New Zealand. (While Commonwealth Realms such as Canada, Australia and New Zealand are subject to the Act of Settlement, they do not have an established church.)
In the United Kingdom there is no separation of church and state – to this day, the Church of England retains 26 ‘Lords Spiritual’ seats in the House of Lords. Only bishops of the Church of England, and of no other religion, sit as Lords Spiritual in the House of Lords. Meanwhile, the Act of Settlement specifically excludes Catholics from becoming monarch, and furthermore bars the monarch from marrying a Catholic or converting to Catholicism:
“And it was thereby further enacted, that all and every person and persons that then were, or afterwards should be reconciled to, or shall hold communion with the see or Church of Rome, or should profess the popish religion, or marry a papist, should be excluded, and are by that Act made for ever incapable to inherit, possess, or enjoy the Crown and government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same…”
As an assertive geo-political power-play in the cut-and-thrust of early 18th century diplomacy, the Act of Settlement may have made sense in it’s historical context. But it makes no sense whatsoever in the pluralist, inclusive United Kingdom of today.
Moves have been afoot in recent years to repeal the Act of Settlement, on the grounds that in a modern Union with citizens of all religions and none, it’s archaic and unfair to elevate one religion above all others – or, in the case of the odious anti-Catholic language used in the Act of Settlement, one religion beneath all others. Cardinal O’Brien – leader of the Catholic Church in Scotland – correctly calls the Act “state-sponsored sectarianism”.
As British citizens, we can justifiably be proud of the fact that our unwritten constitution has developed ‘through evolution not revolution’ and that we have largely escaped the violent revolutionary upheavals which, at one time or another, have engulfed most of our European neighbours over the past 250 years. But perhaps a downside of ‘evolution not revolution’ is that we have not had the kind of periodic cleaning-out of the ‘bad bits’ of our constitution that our neighbours have experienced. We still have the sectarian flotsam and jetsam of the late 17th and early 18th centuries lodged in the heart of our 21st century constitution.
To my mind, repeal of the anti-Catholic elements of the Act of Settlement is a no-brainer. A very significant portion of the UK population is Catholic – including 40% in Northern Ireland, 16% in Scotland and 9% in England & Wales. With the Union under threat from separatist political forces in all four of it’s constituent parts, surely pro-Union political advocates across the country need to ensure that our constitution is fit for purpose in the 21st century – rather than reflecting the outdated prejudices of times gone by?
One of the main objections raised to removing the ban on a Catholic head of state is that it would, sooner or later, mean disestablishment of the Church of England, because you couldn’t have a Catholic head of a Protestant church. Now this would probably be a case of much later rather than sooner, given that there’s scant prospect of a Catholic being in line for the throne in the foreseeable future. So you could get rid of the ban on Catholics now, and not have to worry about disestablishment for decades to come.
However would it not be best to bring about disestablishment at the same time as we amend or repeal the Act of Settlement? Why not have a full separation of church and state and bring our constitution into line with those of most other modern democracies? After all, the Churches of England and Scotland are surely strong enough to stand on their own two feet. The Church of Ireland has been doing just fine since it was disestablished way back in 1871, and has recently been enjoying unprecedented growth in the Irish Republic.
The very fact that the Act of Settlement is being actively debated indicates that the spirit of the times is to shake some of the centuries-old dust out of our constitution, and ensure that it’s suitable for the realities of the 21st century – a spirit entirely in keeping with the idea of ‘evolution not revolution’. Evolution doesn’t always have to be in baby steps, we’ve shown we’re capable of great leaps as well – such as the Great Reform Act of 1832, the post-war creation of the NHS and the modern welfare state and the post-1997 devolution to Scotland, Northern Ireland and Wales.
Separation of church and state would also represent a clearing of the decks for what may be the greatest leap of all, a move to a British Republic. The pros and cons of transitioning from a United Kingdom to a United Republic would take up a blog piece (or several) in and of themselves so that’s something it would be best to come back to at a future date – there’s also a solid argument that disestablishment would in fact strengthen the constitutional monarchy by broadening it’s appeal to members of the non-established religions.
So… abolishing the ban on Catholics being Head of State, disestablishment of the Churches of England and Scotland, full separation of church and state in the UK – the comments section is open for your thoughts!