Church and State in Western Society

Established Church, Cooperation and Separation

Edward J. Eberle

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317166269
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

The role of religion as a contentious and motivating force in society is examined here through the lens of the church-state dynamic in countries with three very different approaches to this crucial relationship. Focusing on the United Kingdom, where there is official recognition of one religion by the state, the United States, where law imposes a separatism between religion and the state and Germany, where there is cooperation between the church and state, this book compares these three models. It describes the components of each model, illustrates their operation and uses case law to examine what each model might learn from the other. Controversial and timely issues such as the refusal of medical treatment on religious grounds, the wearing of Islamic headscarves and ritual animal slaughter are discussed with new insight, providing a comprehensive review of varied approaches to law, government and religious freedom.

Chapter 1
History

United Kingdom

As with most European countries, in the pre-Christian era there were indigenous religions that practiced their own religious rites, such as celebrations at monuments like Stonehenge. Christianity was a religious mission that influenced and took root in the UK starting in the second or third century. During Anglo-Saxon times, the line between church and state was not so clearly drawn. With the Norman invasion of 1066, the English church was given new life and brought more in line with the form of church in continental Europe. Christianity was known as Catholic (meaning universal). A squabble between Henry II and Thomas Becket, appointed by Henry II as Archbishop of Canterbury, over who would have supreme authority—the state or the church—led to great dissension and, ultimately, the murder of Thomas Becket in Canterbury Cathedral in 1170.1 Henry II was appalled by the murder. In 1167 the first English university was founded, Oxford, based on the influence of the first Western university founded in Bologna, Italy.2 Oxford and later Cambridge University would ultimately also play a large role in influencing religion in the UK. Vernacular translation of the Bible began in the Middle Ages, notably with Wycliffe.

The Catholic Church remained in effect in the UK until Henry VIII broke off from the Roman Catholic Church because of the refusal of the Church to grant him permission to divorce and remarry. With his divorce, Henry VIII formed the Church of England, in 1534, breaking off from Rome and Catholicism. The monarch would now be in charge of religion. In 1535, Henry VIII shut down the monasteries. Church money had to go to the state. The first English Bible was published in the 1530s, a consequence of the Martin Luther-led Reformation. In 1554–55, there was an attempt to reconcile with Rome during the Counter-Reformation. This movement was successful for a very short period, restoring much of the medieval church. But the Counter-Reformation was short lived. Roman Catholicism was restored only for a short time under the rule of Mary (1553–58). At this time, the country was divided into three religious groups: Catholics, Protestants, and a middle group, the Church of England, which strove for no servility to Rome or Geneva, the main influence of Protestantism in the UK, and a cleansing of the abuses gathered from the Middle Ages.

In 1559, the Act of Supremacy restored the monarch as the supreme leader of the church, allowing the monarch to control the church and appoint officials to religious offices.3 In 1570 a Papal Bull was issued finalizing the separation of the Church of England from Rome. A Papal Bull is a type of letter, patent or charter, with a metal seal, issued by the Pope for the granting of a decree or document. Ultimately, the separation of the Church of England from Rome led to the Spanish invasion of England; the English easily defeated the Spanish fleet, preserving the independence of the Church of England.

With the formation of the Church of England, the UK generally favored Protestants and treated less favorably Catholics, Jews and other denominations. Catholics’ and other denominations’ civil rights were severely curtailed, including rights to own property or inherit land, burdened with special taxes, could not generally vote and Catholics could not send their children abroad for Catholic education. Roman Catholic priests were sometimes liable for imprisonment. Many Catholics retreated to isolation from the Protestant mainstream.4

The tensions came to a boil in the seventeenth century, when the Stuart dynasty succeeded the Tudor dynasty, as Queen Elizabeth I had no children. Much of the grounding of the Church of England goes back to Queen Elizabeth I, who wanted a unity of church and monarch.5 The Stuarts were from Scotland and wanted to reestablish the divine right of kings, a concept that had origins in English history. James, the first Stuart king, was Protestant, and suspicious of Catholics and Puritans. Still, he did not want to persecute Catholics and tried to restore some form of reconciliation with Catholics. In 1605, this led to the Gunpowder Plot, when a group of fanatics tried to blow up the Parliament building with the king, lords and members of the House of Commons present. The plot, which failed, led to the requirement of an oath for repudiation of Papal claims.

There was also great contention among Protestants, as separatists believed that the Church of England was corrupt. Many separatists were purged and forced to emigrate to other countries, such as Holland, and ultimately migrated to the United States, with Puritans forming the Massachusetts Bay Colony. This led to great controversy and the outbreak of civil war, pitting the Parliament, whose members were mainly Protestant, against Charles I, the successor to King James, the first of the Stuart kings. The war started when Charles I was desperate for cash and reconvened Parliament, which he had suspended a number of times, and had not been in session for 11 years. His attempt to arrest five members of parliament sparked the civil war. Charles I wanted to purge the country of all Calvinists and Puritans and restore it more along his religious ways. The parliamentary forces won the war, leading to the continuity of Protestantism and the end of the Church of England as the official state church and the end of the Book of Common Prayers. Charles I was beheaded in 1649.

In 1658, the monarchy was restored as was the Church of England as the official state church. The Book of Common Prayer was reintroduced and later revised. The Clarendon Code included the 1661 Corporation Act, which required those holding civic office to renounce the Solemn League and Covenant and to swear not to take up arms against the monarch and also to be communicants of the Church of England. The Act of Uniformity (1662) and Conventicle Act (1664) prohibited anyone over the age of 16 from attending any religious assembly other than the Church of England. The Five Mile Act (1666) mandated that nonconformist ministers are forbidden to live or visit within five miles of any place they had previously worked. In 1673, England passed the Tests Act, requiring any holder of a civil or military office to take an oath of allegiance to the Crown and the sacrament according to the rites of the Church of England, and to denounce the doctrine of transubstantiation. The goal of the Tests Act was to prevent and force from office Catholics, who were viewed as a danger to the country. In 1681, the Exclusion Act took effect, prohibiting Catholics from assuming the crown. Many prominent English philosophers, such as Thomas Hobbes and David Hume, believed religion to be a divisive force and wanted the government to control it.

Movement toward more equality with Catholics started in the 1680s, with King James II, a Catholic. In 1687, James II issued his Declaration of Indulgence, suspending penal laws against Catholics. The English Act of Toleration (1689) guaranteed certain religious freedoms to believers who were not members of the Church of England. The Act was modeled on John Locke’s 1688 Letter of Toleration. The Act was not that protective of non-Anglicans; it mainly allowed them to exist in society as dissenters, but they were yet treated as second-class citizens. Catholics were not covered by the Act. Ultimately, James II fled in 1688 and was succeeded by William and Mary, who were Calvinists and restored Protestantism as the key religion. Under English law, the possessor of the crown must still be Protestant and cannot be married to a Roman Catholic, established under the Act of Settlement of 1700.6

In the 1740s there was an evangelical revival, similar to what occurred in the United States. In 1778 a Catholic Relief Act allowed Catholics to own property, inherit land and join the army. Other reforms allowed the Catholic clergy to operate more openly.7 In the 1790s Methodists numbered about 70,000 and led the fight to abolish the slave trade. Toleration expanded in the nineteenth century, including the removal of civil restraints on Unitarians in 1813; Catholics in 1829; and Jews in 1846. In 1828 the Corporation and Tests Act were repealed.8 Catholics were now allowed to have voting rights and to hold government offices. Jews were allowed to be members of parliament in 1858, and atheists in 1888. These Acts allowed these religious groups to serve in other government offices as well.9 In 1833–54, the Oxford movement, Anglican inspired, helped reform politics (especially the House of Commons) and religion (mainly the Church of England) and also elements of Catholic theology.10

In the post Second World War era, especially the era of the 1990s and now the twenty-first century, the UK is much more tolerant of other religions, including other Christian denominations, Muslims, Sikhs and others. The Race Relations Act of 1976 forbids discrimination in the workplace over color, race, nationality, or ethnic origin. Ethnic origin is widely considered to include religious affiliation, such as Sikhs, Jews, and gypsies, but not Rastafarians or national groups.11

Blasphemy had a long tradition in the UK. It applied only to blasphemy against Christianity. These were mainly common law offenses and originally part of canon law.12 The last attempted prosecution under blasphemy laws was in 2007 when the fundamentalist group, Christian Voice, sought a prosecution against the BBC over the broadcasting of the show Jerry Springer: The Opera, which included a scene depicting Jesus, dressed as a baby and thought to be a bit gay. The courts rejected all the challenges. The last successful blasphemy prosecution was Whitehouse v. Lemon in 1977, when the editor of Gay News was found guilty. The last person to be imprisoned for blasphemy was John William Gott, on 9 December 1921. He was punished for publishing two pamphlets which caricatured the biblical story of Jesus, Matthew 21:2–7, comparing Jesus to a clown. In 2008, an amendment was passed to the Criminal Justice and Immigration Act of 2008, which abolished the common law offenses of blasphemy in England and Wales.13

Today, acts of the Church of England must be approved by parliament, although this is a formality. Bishops and the Archbishop of Cant...