Thursday, November 15, 2012

Holy Days and Civil Rights

Today I'm publishing the latest Position Paper, number 13 in the series, this one is about Holy Days of Obligation. Go over there to read it.

Here I'm publishing separately Appendix C, to draw it more to people's attention, since I think it warrants it. Probably most people reading this will agree that for Holy Days to be moved to Sunday, as three of them were by the English and Welsh Bishops in 2006, was a mistake: they are important feasts, and celebrating them on their proper days is an essential part of taking them seriously. The situation since then, with most of the remaining ones moving to Sundays when they fall on Saturday or Monday, is that there are now so few Holy Days of Obligation on weekdays that the very concept of the Holy Day is in danger of being lost from the consciousness of the average Catholic.

But here is a quite different argument. If you are Catholic employee, if you are at school, or if you are enjoying Her Majesty's hospitality in one of her prisons, by moving the celebrations to Sunday, or removing the obligation to attend Mass, the bishops are making it much harder for you to make the case to your colleagues and superiors that you be allowed to attend Mass, a few times a year, during the week. The bishops may say: we mustn't be too hard on Catholics, they have busy lives, let's not require they go to Mass on too many days. By doing this they are not making life easier: they are making it harder for Catholics to get to church when they might want to.

I have run this argument past lawyers specialising in this field, and I am very grateful for their help. If there are any mistakes here, they are mine. But the basic idea - with variations for those wishing to appeal to the US First Amendment and those wishing to appeal to Article 9 of the European Convention on Human Rights - is sound.
A celebration of the Feast of Epiphany on 6th January, SS Gregory & Augustine's, Oxford
Appendix C: Holy Days and Rights Legislation

The right of religious freedom enshrined in international law, treaties, and national constitutions, typically creates a non-absolute right of religious believers to follow the teachings of their religion, most obviously in relation to worship. Since for practical purposes this right has often to be balanced against the convenience of others, it is natural for courts and others to give greater weight to the religious observances which are most important to the believer, and to look to official religious bodies for guidance as which observances are really important. We will illustrate the point briefly with regard to two important jurisdictions: the United States of America, and England and Wales, subject as it is to the European Convention on Human Rights and the European Court of Human Rights.

In the Constitution of the United States of America, the First Amendment is as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Since 1947 this obligation has been extended to the States, as well as the Federal Government.[1] A relevant precedent was set in 1963, that a Seventh Day Adventist should not be deprived of unemployment benefit on account of refusing to work on Sundays.[2] Under a Federal statute,[3] the Federal Government must justify actions which ‘unduly burden acts of religion’ by a ‘compelling interest’, even if the action in question does not target religious practice.

In the European Convention on Human Rights, Article 9 reads as follows:
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of  public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
This applies not only to government bodies but private persons, such as employers. In applying this article, courts distinguish obligatory and non-obligatory ‘manifestations’ of a religion.

Thus, the English Courts have ruled that Sikhs have the right to wear the ‘Kara’, a bracelet,[4] and female Muslims a Hijab,[5] at school. In the latter case the Courts ruled explicitly that the Hijab can be considered as a ‘requirement’ of the Muslim faith. By contrast, a Christian who wished to wear a cross with her uniform lost her case against her employer.[6] The Courts based their decision, in part, on the fact that ‘there is no mandatory requirement of the Christian Faith that a Christian should wear a Crucifix.’[7]  Again, in finding against a Marriage Registrar who refused to register same sex Civil Partnerships, the Court of Appeal based its decision in part on their finding that ‘her view of marriage, ...was not a core part of her religion.’[8] Though the factual basis of these findings can be questioned, the fact remains that Courts do take into account whether any particular practice of religion is a ‘requirement’ of the religion or is merely a personal religious practice.

For both the United States and England and Wales, and other jurisdictions with similar legal principles, it follows both from these legal considerations, and also from the more general culture which they foster, that attempts by the Church to make life easier for Catholics by minimising their obligations, or by making them more flexible, can have the paradoxical result that Catholics will find it harder to observe the practices in question. Furthermore, since the strongest obligations have the most chance of making a difference to the practices of large employers, schools, universities, and prisons, the less demanding the Church becomes, the less impact she can expect to have on public culture.  For bishops’ conferences to decide that a Holy Day of Obligation is no longer a day of obligation has secular legal implications for the Civil rights of Catholics, as well as arguably reducing the spiritual benefits of Holy Days, and their important role in stimulating and defending a distinctive and strong Catholic Culture. 

[1] The precedent was set by the case Everson v. Board of Education in 1947.
[2] Sherbert v. Verner, 1962
[3] The Religious Freedom Restoration Act, 1993
[4] The dispute between a Sikh schoolgirl, Sarika Singh, and Aberdare Girls’ School in South Wales: Watkins-Singh, R (on the application of) v Aberdare Girls’ High School & An or [2008] EWHC 1865(Admin) (29 July 2008)
[5] Begum v Denbigh High School  [2006] UKHL 15
[6]  Nadia Eweida, who was sacked by British Airways for wearing a cross on her uniform in 2006, lost her   Employment Tribunal and  subsequent Appeal case, where she alleged Religious Discrimination and breach of Human Rights: Eweida v British Airways Plc [2010] EWCA Civ 80 (12 February 2010).
[7] Chaplin v Devon & Exeter NHS Trust, ET Case No: 1702886/2009, and Eweida v British Airways [2010] EWCA Civ 80
[8] Ladele v London Borough of Islington [2009] EWCA Civ 1357

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