An issue of Religion or Race? A UK Court decision

Here is a story that I missed back in December, but picked up due to a reference in Joseph Bottum’s Public Square column in First Things. Bottum had written:

With the way things are going in Britain, though, that is by no means assured. A few weeks ago, the U.K. Supreme Court ruled “that the admissions criteria of the Jewish Free School, which gave preference in the event of oversubscription to children who are Jewish according to Orthodox Jewish law (either by descent or conversion), were in the definition of the 1976 Race Relations Act, directly racially discriminatory” (from the press release of Chief Rabbi Jonathan Sacks). It’s been decades since the U.N. passed a resolution characterizing Zionism as racism; by their logic, if not by intent, the highest court in Britain has now all but defined Judaism itself as racism.

Here is the full story as it appeared on the JTA (Jewish News) website:

Supreme Court: London Jewish school discriminated
December 16, 2009

LONDON (JTA) — A Jewish school in London discriminated against a child denied entrance because his mother was not recognized as Jewish, Britain’s Supreme Court said.

The court on Wednesday narrowly rejected an appeal by the Jewish Free School against an earlier ruling stating that its admission policy was illegal and that the North London school broke the Race Relations Act.

An Appeals Court had ruled in favor of a 12-year-old boy, known as M, who claimed that the school’s rejection of his application was discriminatory. M’s father is Jewish and his mother converted to Judaism, but not through an Orthodox synagogue. The school rejected his application because he is not considered Jewish according to the office of the Chief Rabbi.

In a 5-4 ruling, the Supreme Court said the school’s admission criteria are discriminatory on the grounds of ethnicity. The ruling means that Jewish schools in Britain can no longer base their admission on whether a child is Jewish according to the Orthodox tradition.

The justices made it clear that they do not think that the school or the chief rabbi acted in a racist way, adding that they are free from moral blame.

The school said it was disappointed by the court’s decision but would work out a new admission policy for 2011.

British Chief Rabbi Lord Jonathan Sacks said the closeness of the decision illustrates the complexity of the case, adding that “I welcome the justices’ indication of the good faith in which the United Synagogue, the London Beit Din and our office had acted.”

Rabbi Tony Bayfield, the head of the Movement for Reform Judaism, was pleased with the decision.

“We are delighted that the admissions policy of the JFS, which actively delegitimizes our converts and our rabbis, has been confirmed as unlawful and unacceptable by the highest court in the land,” Bayfield said.

He did express reservations as to the applicability of the Race Relations Act to the issue of Jewish status and to the involvement of the courts in matters that should be dealt with by the Jewish community.

The Board of Deputies of British Jews was disappointed by the court’s decision, saying in a statement released Wednesday that “We will be exploring, as a matter of urgency and after consultation across the community, the possibility of a legislative change to restore the right of Jewish schools of all denominations to determine for themselves who qualifies for admission on the basis of their Jewish status, which we consider to be a fundamental right for our community and one with which the members of the Supreme Court had great sympathy.”

It seems to me that this could be an intra-Jewish issue – a division of opinion between Reformed and Orthodox Jews – as some seem to welcome the decision and others seem to reject it. But it certainly does raise very interesting questions about religious freedom, self understanding of a racial group, and questions of racial discrimination – AND the place of the law in the whole mix.

Here is a comment from the Chief Rabbi of Great Britain, Jonathan Sacks, in an article titled “The Pope is right about the threat to freedom”:

That is why using the ideology of human rights to assault religion risks undermining the very foundation of human rights themselves. When a Christian airport worker is banned from wearing a cross, when a nurse is sacked after a role-play exercise in which he suggested that patients pray, when Roman Catholic adoption agencies are forced to close because they do not place children for adoption with same-sex couples and when a Jewish school is told that its religious admissions policy is, not in intent but in effect, racist, we are in dangerous territory indeed.

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25 Comments

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25 responses to “An issue of Religion or Race? A UK Court decision

  1. matthias

    I think that it is an intra Judaism thing. Converts to the Liberal synagogues are not recognised by the orthodox synogogues and have to be baptised again. (Uhm sounds a bit familiar )
    However lord Sacks ‘s comment shows the depth of secularism to which Britain has descended under Labor and particularly under the Minister for Equality-Rob Hulls in drag?- Harriet Harman.
    the best analyst of current British society is the jewish journalist melanie Phillips,who bemoans the loss of Britains’s Christian heritage

    • Converts to the Liberal synagogues are not recognised by the orthodox synogogues and have to be baptised again. (Uhm sounds a bit familiar )

      Whatever do you mean, Matthias? I don’t know of any Catholic or Orthodox Church that rebaptises.

      Rob Hulls in drag?- Harriet Harman

      Definitely. We are very “progressive” in Victoria. If someone else in the world is doing something spectacularly silly, we have to be doing it too.

      • matthias

        No i was thinking of those extreme Protestant churches that have re baptised people who have been “converted” to them ,such as the church of Christ International (not to be confused with the Churches of Christ) and the Mormons of course.

  2. Peregrinus

    It’s a very interesting case, which raises very difficult issues. A couple of points are worth noting.

    First, it has nothing to do with the recent UK Human Rights Act (the UK’s “Bill of Rights” under which parliamentary legislation can be challenged in the courts). The case invoked the Race Relations Act 1976, an ordinary Act of Parliament which has been around for more than 30 years. We may or may not like the outcome of the case, but it has nothing to do with power being transferred from elected politicians to unelected judges. The applicant in this case was not challenging parliamentary legislation; he was seeking to enforce it. We may on democratic grounds favour the retention of power in elected institutions rather than appointed institutions, but neither common sense nor historical experience suggest that this necessarily means better protection of human rights.

    Secondly, it may be relevant to note that, although the Jewish Free School is an Orthodox Jewish foundation, with an Orthodox Jewish character, an Orthodox Jewish Board of Governors and a formal role in its governance for the (Orthodox) Chief Rabbi, it’s a wholly state-funded school, which has voluntarily accepted the obligations that come with state funding. (Although, as it happens, the legislation invoked here would have applied just as much to a completely private school getting no state funding).

    Thirdly, this case is something of an outlier, in terms of relevance to other religious traditions. Judaism is unusual in defining religious identity in terms of descent, and Orthodox Judaism lays more stress on descent even than other Jewish traditions. The boy seeking entry to the Jewish Free School in this case lived with his undoubtedly Jewish father, was born of an Italian mother who had converted to Masorti (Conservative) Judaism before his birth, practised the Jewish faith, prayed in Hebrew, attended synagogue and was a member of a Jewish youth group. (This was why he wanted to go to a Jewish school.) The Masorti (Conservative), Reform and Progressive Jewish traditions all affirmed his complete and unqualified Jewishness.

    Only the Orthodox tradition denied his Jewishness, based on the fact that he was not descended from a woman was herself Jewish or who had, before his birth, undergone a conversion process which they would recognise. Conversely, if the boy had been a non-practising, secular Jew, or an atheist, or even a Christian or a Muslim, living with his Gentile father, the orthodox tradition would have affirmed his Jewishness, so long as his mother had been born Jewish, or had undergone a conversion ceremony which they would recognise before his birth.

    In other words, the school’s willingness to offer this boy a place was based entirely on his descent, and not at all on his religious practice, belief or formation.

    This is really the pointy end of the intersection between freedom of religious belief and practice on the one hand, and opposition to racial and ethnic discrimination on the other.

    The question seems to me to come down to this: although we normally do not tolerate discrimination in the provision of services on the grounds of racial, ethnic or national origin, do we make an exception to that rule for groups which attach a religious significance to racial, ethnic or national origin?

    I’m very keen on freedom of religious belief and practice and I’m tempted to say “yes, we should”. But I reflect that, if we do that, do we licence, say Christian White Supremacists, or the Church of the Aryan Nations, to discriminate against Jews and black people (and Catholics, incidentally)? These charming groups exist, and they would certainly discriminate against all three of the groups mentioned, if allowed to.

    I think everybody accepts that there must be limits to freedom of religious practice. We wouldn’t allow anyone to practice human sacrifice, say, no matter what religious significance they attached to it. I think when it comes to ethnic discrimination we must be getting very close to the line at which religious freedom reaches its limit. I’m honestly conflicted as to which side of the line it’s on.

    • it has nothing to do with the recent UK Human Rights Act (the UK’s “Bill of Rights” under which parliamentary legislation can be challenged in the courts).

      Except that it is driven by the same mentality. Afterall, the law upon which the judgement was based has been around, as you point out, for 34 years – why has it only happened now that the poor Orthodox Jews have had their fingers rapped for doing what they have done for thousands of years?

      nothing to do with power being transferred from elected politicians to unelected judges

      Again, you are right in terms of legislation, but wrong in terms of effect, for this is exactly the outcome of such decisions that aim at interpreting the law. As far as I know, the US never passed laws to hand over so much power to the judiciary there, either, but the reinterpretation of existing laws is what has had this effect (A mad hatter situation in which “A law means exactly what I say it means” etc…).

      it’s a wholly state-funded school, which has voluntarily accepted the obligations that come with state funding

      There seems to me to be a bit of a fallacy here, which is common in our own “progressive” society here as well. The fallacy is that if a school is funded by the State, it must be a State school. In fact, it is a partnership. By providing funding for faith based entities, the State accepts that it is entering a partnership arrangement. “Money” alone, although it is of paramount importance, does not make a school. The community which runs the school puts as much – if not arguably more – “capital” into the school as the funding body does.

      The Masorti (Conservative), Reform and Progressive Jewish traditions all affirmed his complete and unqualified Jewishness. Only the Orthodox tradition denied his Jewishness

      Yes, well exactly. So we (from the outside) say: Why don’t you be reasonable, you Orthodox Jews? Aren’t you splitting hairs? Why don’t you take a leaf out of your co-religionist’s point of view and act like decent human beings, instead of the racists that you are and acting how your fundamentalist interpretation of your faith requires you to act.

      Do you get it? What if the law told Catholics that we shouldn’t be so sexually discriminatory, and legally required us to take a leaf out of our protestant co-religionists’ book and ordain women as priests?

      In other words, the school’s willingness to offer this boy a place was based entirely on his descent, and not at all on his religious practice, belief or formation.

      But it WAS based on THEIR “religious practice, belief [and] formation”. This is my point. It isn’t just the boy’s religion that was in question. It was the Orthodox Jews religion as well. You could equally say of the Catholic Church that we refuse to ordain women just because of their sex, and not with referance to their gifts, talents and abilties to perform the ministry.

      As to the rest of your comments, and your final conclusion, I am with you. I cannot see how we can scientifically draw a line that will respect the rights of decent Catholics and Orthodox Jews and at the same time disallow the Christian White Supremacists or the Church of the Aryan Nations or the Pagan, Wiccans and Satanists for that matter.

      • Peregrinus

        Peregrinus: It has nothing to do with the recent UK Human Rights Act (the UK’s “Bill of Rights” under which parliamentary legislation can be challenged in the courts).

        Schütz: Except that it is driven by the same mentality. Afterall, the law upon which the judgement was based has been around, as you point out, for 34 years – why has it only happened now that the poor Orthodox Jews have had their fingers rapped for doing what they have done for thousands of years?

        Good question. I think there are two factors at work here.

        First, the particular fact situation that gave rise to the challenge only arose recently. The overwhelming majority of British Jews are Orthodox. The Masorti, Progressive and Reform congregations are a small (though I think rapidly growing) minority of British Jews, and a fairly recent one. There are only twelve Masorti synagogues in the UK. They are all small and even the oldest of them dates only from 1964. The number of gentile converts to Masorti Judaism in the UK is still probably measured in 10s, not 100s. The number of such converts with children seeking admission to the Jewish Free School is presumably very small indeed.

        (This, incidentally, suggests that your referenced to what Orthodox Jews have been doing for “thousands of years” may be a bit hyperbolic. The non-Orthodox traditions which claim to be fully Jewish are all fairly modern, but the facts of this case couldn’t have arisen before such traditions existed.)

        I think the second reason is that there is a growing human rights culture in the UK. As recently as 50 years ago, there was serious debate within the UK about whether it was proper for the law to prevent a landlord or an employer from specifying “no blacks”. The legal protection of human rights started out – and is still largely focussed – on protecting the individual against the abuses perpetrated by the state or its agents. The notion that it is the proper role of the law to prevent citizen A from ignoring or transgressing the fundamental rights of citizen B is a comparatively modern one.

        This is a fundamental philosophical shift, but it’s one that, as a society, we have made. It is generally illegal for a landlord or an employer to specify “no blacks”, and I think most of us would say that it is rightly illegal.

        That’s why a challenge of this kind would only arise in our times. Until relatively recently, the political and legal consensus would be that it is not the function of the state to tell private school governors on what basis they should admit children. But, given that it is now the function of the state to do that (school governors cannot specify “no black children”), we are still feeling our way towards the boundaries of this new role for the state.

        Peregrinus: . . . nothing to do with power being transferred from elected politicians to unelected judges

        Schütz: Again, you are right in terms of legislation, but wrong in terms of effect, for this is exactly the outcome of such decisions that aim at interpreting the law. As far as I know, the US never passed laws to hand over so much power to the judiciary there, either, but the reinterpretation of existing laws is what has had this effect.

        The U.S. certainly has done this. The did it a long time ago. In 1783 they adopted a constitution, by reference to which the courts can and do strike down both legislative and executive acts. In 1791 they added a Bill of Rights to the Constitution. The U.S. government only has the powers that the Constitution gives it, and if it attempts to exceed those powers the courts will (if asked) intervene. So the courts can and frequently do strike down legislation and executive acts on the basis that they infringe the rights specified in the Constitution.

        It’s on that basis, for instance, that the US Supreme Court has struck down a government decision to deny unemployment benefits to a Seventh Day Adventist forced out of her job because she would not work on a Saturday; upheld the right of parents to home-school their children in conformity with their religious beliefs; upheld the right of Jehovah’s Witnesses to proselytise through distributing pamphlets in a public place; upheld the rights of Jehovah’s Witnesses not to be required to salute the flag or recite the pledge of allegiance; upheld the rights of religious groups to slautghter animals in accordance with their ritual practices, upheld the rights of students in public schools to pray and to express religious views, etc, etc. In nearly all these cases the courts were opposing the legislative or executive acts of elected politicians; in a few, the acts of private citizens.

        Schütz: (A mad hatter situation in which “A law means exactly what I say it means” etc…)

        It’s pretty much the core job of the courts to interpret laws; that is, to say what they mean when applied to specific facts.

        The law in this case, the Race Relations Act 1976, does say, in as many words, that “a person discriminates against another . . . if on racial grounds he treats the other less favourably than he treats or would treat other persons.” And it goes on to say that “racial grounds” includes colour, race, nationality and ethnic or national origins. Finally, with specific reference to maintained schools, it says explicitly that it is unlawful for the governors of a maintained school (which includes the Jewish Free School) to discriminate against a person in the terms on which it offers to admit him to the establishment as a pupil. These are the words of Parliament, not the courts.

        Given these words, it was the job of the court to decide whether, in refusing this boy a place because his mother was Italian and had not completed a conversion satisfactory to the Chief Rabbinate when they would have admitted him if his mother had been ethnically Jewish regardless of her religious beliefs, practices or affiliation (or his), the school was treating him less favourably on the grounds of his ethnic or national origin.

        This wasn’t an easy decision. Five of the nine judges who heard the case – the UK Supreme Court is clearly not short-staffed – felt that the school had directly “discriminated” against him (in the sense of “discriminate” defined in the Act), two felt that it had “discriminated” against him only indirectly, and two felt that it had not “discriminated” against him at all. But, whatever we think of the decision, it is flatly untrue to suggest that the court is simply saying that “the law means exactly what I say it means”. If anything, that is the error committed by those who assume that a law enacted by Parliament couldn’t possibly forbid this particular form of discrimination

        Schütz: There seems to me to be a bit of a fallacy here, which is common in our own “progressive” society here as well. The fallacy is that if a school is funded by the State, it must be a State school. In fact, it is a partnership. By providing funding for faith based entities, the State accepts that it is entering a partnership arrangement. “Money” alone, although it is of paramount importance, does not make a school. The community which runs the school puts as much – if not arguably more – “capital” into the school as the funding body does.

        Sure, it’s a partnership. But it’s not a partnership the terms of which are unilaterally dictated by the school governors. (Such a relationship would hardly be a partnership in any meaningful sense.) As pointed out above, it’s an explicit requirement of UK law that a grant-maintained school should not “discriminate”, in the Race Relations Act sense, in the terms on which it admits pupils. Whether it should be such a requirement is another matter, but it is. That’s one of the terms of the partnership. And that it should be a term is a decision of Parliament, not of the courts.

        Peregrinus: The Masorti (Conservative), Reform and Progressive Jewish traditions all affirmed his complete and unqualified Jewishness. Only the Orthodox tradition denied his Jewishness

        Schütz: Yes, well exactly. So we (from the outside) say: Why don’t you be reasonable, you Orthodox Jews? Aren’t you splitting hairs? Why don’t you take a leaf out of your co-religionist’s point of view and act like decent human beings, instead of the racists that you are and acting how your fundamentalist interpretation of your faith requires you to act.

        Do you get it? What if the law told Catholics that we shouldn’t be so sexually discriminatory, and legally required us to take a leaf out of our protestant co-religionists’ book and ordain women as priests?

        In other words, the school’s willingness to offer this boy a place was based entirely on his descent, and not at all on his religious practice, belief or formation.

        But it WAS based on THEIR “religious practice, belief [and] formation”. This is my point. It isn’t just the boy’s religion that was in question. It was the Orthodox Jews religion as well. You could equally say of the Catholic Church that we refuse to ordain women just because of their sex, and not with referance to their gifts, talents and abilties to perform the ministry.

        You’re right, of course. I don’t think it should, or can, be the job of the state to say who is, and who isn’t, Jewish. Only Jews can say that and, if there are divided opinions among Jews about that, well, that’s a reality the state has to live with. Once the decision is taken that the state should fund a Jewish school – and I completely agree with that decision – then the maintenance of the Jewish character of the school has to be a matter for the Jewish community institutions that sponsor the school. If the state takes control of that, it’s not a Jewish school any more; it’s just a state school with lots of Jews in it. Which effectively reverses the decision to grant-maintain a Jewish school.

        I think it’s telling that a lot of Masorti, Reform and Progressive commentators, whose religious traditions will benefit from this decision, still expressed deep disquiet about the fact that the state was enforcing the decision. They wanted this decision, but they wanted the school governors to make it – and to have the right to make it.

        Schütz: As to the rest of your comments, and your final conclusion, I am with you. I cannot see how we can scientifically draw a line that will respect the rights of decent Catholics and Orthodox Jews and at the same time disallow the Christian White Supremacists or the Church of the Aryan Nations or the Pagan, Wiccans and Satanists for that matter.

        Should I read into that that you would let the Christian White Supremacists, etc, do what they will do, as the price that must be paid for religious freedom?

  3. Peregrinus

    Oh, and one further point. As Matthias says, Orthodox Judaism does not recognise conversions to other Jewish traditions, but this is not a problem which can be solved simply by being “baptised” again. Before applying for entry, the father of the boy in this case did make enquiries about the boy converting to Orthodox Judaism, but was advised that this would take years, and was not a practical way of securing entry to the school. Conversion to Orthodox Judaism requires the absorbtion and internalisation of an entire culture, and cannot be rushed. The (Orthodox) Chief Rabbi has compared it to a British persion become, say, Italian “not just legally but linguistically, culturally, behaviourally”.

  4. Matthias

    Thank you for that Peregrinus and for the elaboration about the contextwithin which this case is set. I would have assumed that becomming an orthodox jew would be easier for a person from another stream of Judaism,but then i realised that besides all the cultural aspects there would also be a completetly different absorption of how one interpreted the Talmud and which version-the Babylonian or the Palestinian version. Not to mention the interpretation of the Torah

    • Peregrinus

      Converting to Orthodoxy from a background of Masorti, Reform Judaism is somewhat easier, but it’s pretty unusual. Most non-Orthodox Jews are Jewish by descent, so from an Orthodox perspective they have no need to convert; they can just rock up to an Orthodox congregation and join, if so minded. It’s only converts to, e.g., Masorti Judaism who would have to convert to become Orthodox since, from the Orthodox perspective, they’re not Jews; they’re Gentiles.

      Given that they would already have a very good formation in Jewish theology, scripture, Law, practice, etc, you’d think the “learning curve” side of conversion could be accelerated for them.

      But the fundamental importance of the step they are taking is unchanged. And the Orthodox instinct would be to counsel them to consider very carefully, and to take a very mature judgment, before making such a commitment. PE could no doubt speak with a great deal more experience and authority on this than me, but I think that if a twelve-year old Gentile turned up seeking to convert to Orthodox Judaism, even with the formation of a Masorti Jew and with the support of his ethnically Jewish father, he woudl be welcome, invited to stick around and participate in community life in so far as a Gentile can, and counselled to defer any decision about conversion for several years until he could approach the question with an older and wiser head. [Pretty much what I think the Catholic church would say to a twelve-year old seeking baptism, in fact.]

      In other words, he couldn’t accomplish his conversion in time to secure admission to an Orthodox Jewish secondary school.

  5. Terry Maher (Past Elder)

    Catholics, and not just Catholics, may best understand the political implications of this wrt to the matter of having to provide abortion services in their hospitals. If abortion is a medical option which women have the right to choose, may a hospital deny that option based on religious belief whether the hospital accepts public funds or not?

    Not a race relations matter at all, but rather both intersect with the idea of religious freedom. In addition to the matters Peregrinus has laid out well, in modernist revisionist “Judaism” matrilinear descent is not even held to any more, at least here in the US, and having a Jewish father also is held to be determinant of being a Jew by birth.

    Rabbi Sacks is completely right. Religious practice, belief and formation does not make one a Jew. Nor are there several equally valid “traditions” about this, Orthodox being just one of them.

    • Yes, exactly, PE. I used the example above of women’s ordination. You use the example of abortion services. Either – and other cases – could show that the Catholic Church is (as she often is accused of being) an enemy of human rights rather than the defender of human rights. What is in question is what Rabbi Sacks points out: What really IS a human right, and what is ideology?

  6. matthias

    Schutz not all Protestant co religionists ordain women :
    the Presbyterian church of Australia
    the Presbyterian Church of eastern Australia
    the Reformed Churches
    The LCA ( at the moment) do not
    The (uh) Exclusive Brethren -no they keep them in subjection and split families when there is a falling out. Sorry i have utter distaste for this group,having seen its nefarious impact up close

    certainly do not ordain women. In fact if you read the Prebyterian Church of Eastern Australia, who have an effective leader/pastor in Dr Rowland Ward,you will see that they state that eldership is only open to men.

  7. matthias

    That ‘s meant to be “if you read the PCEA’s website”.

  8. Terry Maher (Past Elder)

    I think our host refers to not whether a denom has chosen to ordain women, but whether the state may find it in violation of the law if it doesn’t.

  9. Matthias

    Whatever the case PE the above churches along with THE CATHOLIC CHURCH,THE CATHOLIC CHURCH, will be seen as being enemies of human rights. Goodness knows how the orthodox churches and the Orthodox jews will be treated.

    • Peregrinus

      Not necessarily.

      In the US, where PE lives, moves and has his being, there is a strong legal human rights culture, and absolutely no question of the government ever mandating that any denomination shall, or shall not, ordain women. There is no doubt that any such attempt by the state would be instantly thrown out by the courts.

      Why? Because the US legal culture of human rights explicitly includes not only a prohibition on the government establishing any religion but also a prohibition on the government preventing the free exercise of religion. These provisions are enforceable in the courts against the state and federal governments, and a long series of cases makes it abundantly clear that the idea that the government can dictate who shall, and who shall not, be a priest or a pastor is completely repugnant to the Constitution.

      For the same reason it would be absolutely unthinkable in the U.S. that the government could, say, order ministers of religion to celebrate gay marriages. The debate about gay marriage rages furiously in the US, as we all know, but such a thing is never mentioned as a serious possibility by either side. It’s not possible, and anybody who suggests that it is marks himself as somebody whose views need not be taken seriously.

      The Australian constitution, surprisingly, contains identical provisions, but (a) they only restrict the Commonwealth government, not the Staates, and (b) they are the only part of the US Bill of Rights to have been reflected in the Australian Constitution. It’s tucked down towards the bottom, after a prohibition on the states coining their own money. For these reasons, there isn’t the same culture of protecting human rights through litigation in Australia as there is in the US.

      In so far as people take seriously the view that an Australian government might order churches not to discriminate between men and women in their ordained ministry, or celebrate gay marriages, or such, they are effectively conceding that religious freedom is less well protected in Australia, which lacks a strong legal human rights culture, than in the US, which has one.

      The point about a legal human rights culture is that it mostly protects unpopular, minority views and standpoints, marginalised groups, etc. If Christians feel that their views, beliefs and values are counter-cultural, out of step with the prevailing secular ethic, not “politically correct”, etc, then, really, they should want a strong legal culture which can protect their rights. What they should be concerned to do is not to oppose a Bill of Rights, but to ensure that there is a strong Bill of Rights, and that freedom of conscience, belief and religious practice are among the rights it explicitly protects.

      • Terry Maher (Past Elder)

        I wish I were as optimistic! Many things that were one regarded as unthinkable, un-American, un-Constitutional, etc, are now the way it is.

        Christianity would not be seen as a minority or marginalised group, but part of the repressive past from which the ongoing progress of Man is being freed, thus something to be cast off rather than protected.

        In this mindset then, I cannot say but what the day might come when, for example clergy not just performing weddings as clergy of their respective denoms but also as legally empowered to do so by the state, may have that legal power denied unless they would perform same-sex marriages under state law. Or lose tax-exemption, say, if they are part of a clerical structure that refuses ordination of women. IOW, even if they may continue to perform whatever within their denoms, it would have no legal significance, couples they marry not being legally married and therefore not covered by marriage re taxes, beneficiary status etc.

        • Peregrinus

          I wish I were as optimistic! Many things that were one regarded as unthinkable, un-American, un-Constitutional, etc, are now the way it is.

          Ah, look, there is no legal or constitutional mechanism which can unconditionally guarantee that humam rights will be respected. We only have to look at the reality of slavery in the U.S. to see that. My point is just that constitutional protection of human rights can still be substantially useful and effective, and there are abundant instances in U.S. history where the Constitition was successfully invoked in the courts to defend religious freedom. Those religious people who oppose the idea of a “Bill of Rights” are undermining their own religious freedom.

          I’m not thrilled about the way in which you bracket “unthinkable, un-American, un-Constitutional, etc” as though they were all similar categories, by the way. They ain’t.

          Christianity would not be seen as a minority or marginalised group, but part of the repressive past from which the ongoing progress of Man is being freed, thus something to be cast off rather than protected.

          That doesn’t really affect my point. If Christianity (or any other particular religion, or religion generally) is in popular disfavour, or in disfavour with the political establishment, that is precisely the circumstance in which Christians do not want to be relying on politicians to defend them, and when legally entrenched protection of their rights becomes most important.

          In this mindset then, I cannot say but what the day might come when, for example clergy not just performing weddings as clergy of their respective denoms but also as legally empowered to do so by the state, may have that legal power denied unless they would perform same-sex marriages under state law. Or lose tax-exemption, say, if they are part of a clerical structure that refuses ordination of women. IOW, even if they may continue to perform whatever within their denoms, it would have no legal significance, couples they marry not being legally married and therefore not covered by marriage re taxes, beneficiary status etc.

          The government could, I think, cancel the tax exemptions and concessions of all churches, or revoke recognition of marriages celebrated by them. But any attempt to do this only to some churches, distinguishing them on the basis of what they believe and practice, would face enormous difficulties in the Supreme Court, given the non-establishment and free exercise clauses. That’s my point.

          • Terry Maher (Past Elder)

            My point is, such a distinction would not at all be held to be on the basis of what they believe and practice, but on the basis that not ordaining women, not to mention not therefore admitting them to seminary etc, violates US employment and equal opportunity laws. Or that refusal to offer options that women have a right to choose violates the law. Religion does not admit a free exercise to violate the law, and these hypothetical examples would come to pass not as religious matters at all, but as violations of the law.

            • Peregrinus

              Terry, not ordaining women would be one of the things they practice, wouldn’t it? And that practice would only violate US law if US law attempted to regulate who a church could ordain, and who it couldn’t. And a law which attempted to regulate that would seem on the face of it to conflict directly with the non-establishment and free exercise clauses, so it would face a major, major hurdle in the Supreme Court.

              You seem to be assuming that any practice which is a violation of the law is not the “exercise of religion” for the purposes of the US constitution. Be assured, that’s not how the Supreme Court sees it.

              • Terry Maher (Past Elder)

                It would not be seen as trying to regulate a church. Rather, ordained ministry, whatever else it may be to private belief, is a job, and a job that enjoys some legal privileges. On that basis, what is to prevent saying an institution may not offer a job with built in violations of equal opportunity laws? Granted that would represent a shift from the present, however there have been many such shifts in my lifetime.

                • Peregrinus

                  The First Amendment doesn’t protect the free exercise of religion, except when it comes to offering jobs. It protects the free exercise of religion, period. I still say that the First Amendment presents a very substantial obstacle to the state doing what you suggest, and that this is a good thing.

  10. Terry Maher (Past Elder)

    Well put us down then too — we do not ordain women and we oppose elective abortion.

    But the problem is, at what point does the state, seeing these positions as you say as affronts to human rights, compel change under the law.