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.
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| 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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