Is religious freedom compatible with the law?
God is a big deal. This is true, not just in the literal sense but also the influence that God, gods and religion have over nearly every society, nation and individual. Many believers have very sincere beliefs, be it surrounding abortion in the Catholic Church, or the wearing of head coverings in certain sects of Islam but what happens if these come into conflict with the law? Which authority should take precedence, the religious or the judicial?
To examine this issue deeper, it needs to be understood where the real issue lies. To use the theology I understand best, that of the Roman Catholic Church, Catholics believe that there is a tiered system of laws which must be followed according to the hierarchy. At the top of this hierarchy is Eternal Law – in effect the base code of the Universe which decides what does what: how plants develop, how gravity functions and importantly what is morally good or bad. Beneath that is the Law of the Divine – scripture and teachings which show glimpses of the Eternal Law to mortals, comparable to the Torah or Quran in Judaism and Islam. Beneath this is the Natural Law – the understanding that is intrinsic to rational humans as to what is moral and immoral, which has been pre-set according to the Eternal Law and finally beneath that Human Law – the rules and regulations put into place by humanity in order to govern the day-to-day functions of society.
But should the Law respect this hierarchy? An interesting case in the United Kingdom which points towards a possible answer is that of the Ashers Baking Company in Northern Ireland. The basic facts of the case are thus: on the 8-9th May 2014, Gareth Lee, a gay man and organiser with the LBGT+ group QueerSpace ordered at Ashers Baking Co. a cake with a logo on promoting gay marriage, which was at the time and as of April 2017 remains unrecognised by the law in Northern Ireland. On 12th May Mr Lee received a call from Ashers stating that the order would not be fulfilled by the bakery due to their religious beliefs meaning they were not prepared to fulfil the order as they believed that marriage is a sacred institution between a man and a woman. Mr Lee brought legal action in November against the bakery on grounds of direct discrimination by sexuality and without delving into the details, the Bakery was found to be acting illegally against Mr Lee and was obliged to pay £500 damages which was later donated to charity.
In causing a nationwide furore as to the limits of religious freedom, the case provides an excellent framework to examine the clash of Eternal and Human Law and to ask which is superior. The family which ran Ashers claimed that they could not fulfil the order as to do so would be in breach of their religious beliefs. Undoubtedly their beliefs, as are many people’s with regards to their faith, were devout and entirely sincere. To them the intrinsic moral law of the Universe was being flouted by their customer in what they were asking him to do and to follow would be in breach of a superior law than to that of the Courts of Northern Ireland and the United Kingdom. In the same way, a nurse may refuse to take part in abortions, even if her contract states that she must partake in the activities of her hospital; or a Sikh be non-party to laws surrounding the mandatory usage of motorbike helmets because he cannot remove his turban. In choosing between two sources of deontological authority, it is completely understandable and expected that the Laws controlling all of creation should come before the Laws of corrupt politicians and fallible judges.
Except, should it? Looking at the theoretical aspect of law enforcement and the law as a concept of two ultimate authorities, one human and one spiritual is a nightmare and practically impossible to enforce.
The real problem is that whilst laws passed down by Governments or by Courts have a grounded, rational authority – usually through a democratically elected government or through traditional common law systems – religious authority can only be based in faith which is by definition irrational and impossible to prove. Whilst an individual may have a sincere and devout belief that they are believing in a true eternal law, such as the family of the Ashers Bakery Co., this cannot alone form the basis of reasoning to circumvent laws with grounded authority.
If we accept that sincere and devout beliefs provide grounds for get-out clauses and freedoms within the law, where is the line drawn and what constitutes a ‘real’ belief in religious authority. Theoretically any truly held belief could be used to justify exemption from the law without rational proof – from declaring yourself morally bound not to pay tax to being bound by your belief in an eternal law which states that you don’t need to be bothered by speed limits. These abstract beliefs hold, legally, just as much authority as religious beliefs, except they do not have churches nor clergy behind them. In theory therefore, as no religious belief can be proven and not all can be right and as well as the fact that they hold no true legal authority compared with the societal authority of human law, surely none of them can be allowed to have special dispensation?
In summary, what I have proposed is this: in theory religious freedom is incompatible with the law of states because to accept that multiple religions can have dispensation from the law is to:
- Accept that there is an authority higher than that of human justice which has the ability to circumvent laws despite having no rational nor provable source of its authority
- Accept that multiple versions of the Eternal Law exist (through granting religious freedoms to multiple religious groups) despite this being logically impossible
- Accept that any devout and sincere belief should hold exemption from the law, even if it has no legal nor rational authority supporting it
Again, I will say that this is theoretical and that in reality religious freedom clauses do allow for useful and practical ways in which religious believers can exercise their faith, but surely, in theory, isn’t there still something not quite right?
Thank you for reading this week’s blog! I haven’t been too well in the last few days, so this may be slightly less organised than usual but I still hope it has provided food for thought all the same!
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