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Religious and Secular Legal Systems

  1. Aug 30, 2015 #1
    Is it viable to use the law of religion under a secular court? Catholic priests aren't allowed to marry (which is under their religious law), and thus removing his right to marry, for example. So, if the priest were to file a case stating that he was not allowed to marry, is it sensible? Of course, legal investigation is possible, but it will be proven that they're not really allowed to marry. Can the Catholic church use its laws on these kind of cases?

    Sorry, I couldn't think of a better example. Thank you in advance!
  2. jcsd
  3. Aug 30, 2015 #2
    Catholic priests are not allowed to marry, but married men are allowed to become catholic priests!

    It would be interesting if religious "rules" were vigorously challenged in court. I could imagine that the secular argument would nearly always overide religion in highly secular coountries (northern Europe) and you would might end up stoned to death in sharia-law countries like Saudi Arabia.
  4. Aug 30, 2015 #3
    This is not about just Catholics though, religion in general. But if something like this were to happen, is it possible, with the separation of church and state being implemented?
  5. Aug 30, 2015 #4
    it really depends upon the nation.

    If, in the UK or Scandinavia, you took a church to court for - example - inhibiting your human rights; then you would have a good chance of winning. The history of laws in such country has been a continual retreat of religion and continual increase of secular ideas. Try in a country where the courts are religious, you are on a hiding to nothing.

    However, the courts are very loathe to restrict the right of organizations to organise themselves as they see fit. For example, if you had a women's football team, and you wanted to join - as a male - it would be unlikely that you would win an argument of sex discrimination in court!

    However, if you are provding a service to the general public, you would likely lose if you discriminated due to religious beleif.


    It all boils down to where you are (sadly).
  6. Aug 30, 2015 #5
    But doesn't this only work for major religions? If Islam, for example, is called to court in a country which has its majority as Christians?
  7. Aug 30, 2015 #6
    Surely it depends upon the country?

    Many secular countries recognise the rights of minor religions just as equally as major religions. This leads to issues where certain actions are illegal, but some groups have exemptions. For example halal and kosher butchery (one of the few issues I can think of where Jews and Muslims work happily together - the enemy of my enemy is my friend) is allowed (tolerated?) in the UK depsite being (strictly) contradictory to animal welfare law. It is illegal in Denmark - an instance where religious law cannot trump secular law. Scandinavia tends to lead the secualar way.
    Last edited: Aug 30, 2015
  8. Aug 30, 2015 #7


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    In the UK, the Church of England is the State, and the Monarch is its temporal head, or Supreme Governor. That's the definition of an establishment of religion. The spiritual head of the church remains the Archbishop of Canterbury, but the Monarch appoints the Archbishop on advice from the Prime Minister. Of course, the Monarch must be a member of the Church.

    Norway and Sweden both had national establishments of religion, but these churches have only recently been granted greater autonomy and less entanglement in the affairs of state. Denmark still retains its officially established church, but other religions are free to practice.

    Taking disputes arising from disagreements with canon law into a court of civil law usually gets short shrift from the latter. Courts are generally quite jealous of their respective jurisdictions and generally see no advantage in meddling outside their own realms.

    In the US, the courts have generally let churches resolve their own internal disputes about religious doctrine according to their respective canons and codes. Where religious practice might conflict with criminal statutes, the record is a little less clear cut, but the courts still tend to err on the side of allowing freedom to practice religion, as in the cases where certain Indian tribes wished to continue using hallucinogens without running afoul of laws concerning possession or use of illegal drugs.

    As one justice said about the US Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final."

    IIRC, only certain married men are allowed to become RC priests, generally those who were ordained in another church where clergy are permitted to marry, but then who decided to convert to Catholicism after marriage. The Church reportedly allowed this due to a dearth of priests coming from its own seminaries.

    You can challenge all you want, but the courts themselves are the final arbiters of which cases they decide to hear and which they decide to dismiss. If the courts decide a plaintiff is filing numerous frivolous nuisance suits, they will put such a party in jail, or fine them, or both.
  9. Aug 30, 2015 #8

    That is NOT the case.

    The church of England is the established church in England; NOT the other nations of the UK.

    Scotland has a Kirk, for example, and the Kirk is NOT a state church. The COE is not established in Scotland, Wales and NI, nor self governing territories like the Isle Of Man.

    The COE is certainly not the state of the UK. That statement means nothing because it confuses more than two unrelated concepts (what the UK is, and what an established church of one nation within that state is)

    Parliament is sovereign in the UK, and Parliament has control over laws governing the church of England. In practice, Parliament confers day-to-day authority to the COE synod (but the appointment of archbishops etc are by the Prime Minister.) - so long as the synod operates within English law. The COE was created for exatly that reason - so the sovereign (which is now parliament) made the rules governing the church, not the other way round.
    Last edited: Aug 30, 2015
  10. Aug 30, 2015 #9
    Depends on country and time. There is a tendency nowadays (in the West from maybe late XVIIIth century) towards an uniform, secular law. But you know, your mileage can vary.

    I'd bring an interesting example - marriage. In Poland before WW2 was considered as part of religious law with consequences under civil law. So if your church was not allowing divorce - you couldn't do that, unless you change religion. Some hard line Catholic writers from that era were mocked for being technically speaking Lutheran. Even our semi-dictator from that era had to change his denomination to remarry.

    Funny, old history?

    OK - so you have the same in most of Muslim countries nowadays with religious and family law governed by religion, they are tolerant enough that Christian would be govern by their own.

    Out of (almost) civilized countries - Israel - there are no secular marriages there. The closest idea is to go to Cyprus to marry, and have later a foreign marriage recognized under local law. (Israel also has a weird law concerning right of return - they refused citizenship to a Holocaust survivor because the family that was hiding him brought him as Roman Catholic and he refused to renounce his faith.
  11. Aug 30, 2015 #10
    Churches are expected to follow all of the laws, religious belief does not exempt one from this.

    Specific exemptions and protections may be made for religious beliefs (for instance, the First Amendment's Establishment Clause), and religious groups are allowed to exercise institutional control within the confines of the law.

    For example, in the USA you are legally allowed to have an abortion. But if you're a Catholic, your church is within its rights to excommunicate you (not that I think this would ever actually happen in 2015, but still). The fact that you are Catholic does not mean that the law changes for you based on what Catholics are and are not allowed to do within the Catholic religion. They are not, however, allowed to imprison you, fine you involuntarily, or inflict corporal punishment on you.

    But no, there is nowhere in the world where the law may be superceded by religion, where the rules of your church might come before the laws of the country.

    When the laws of the country are directly informed by the tenets of a specific religion, this is called theocracy, and it's the norm in such lovely and forward-thinking places as Saudi Arabia, Iran, and increasingly, the Southern United States.
    Last edited: Aug 30, 2015
  12. Aug 30, 2015 #11

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    This is not the way things work. As far as the state is concerned, a Catholic priest can marry anyone he wants. However, if he does so, there will be consequences with the Church. There is a right to marry, but no right to avoid the consequences of marriage. (A statement that is true in general - despite people trying for centuries to do just that)

    The most likely consequence is that the priest in question will be removed from the clergy. The Obama administration argued, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission that they get to determine who is and who is not a member of a church's clergy, under the argument that a church is an employer, like any other. This was rejected 9-0 by the US Supreme Court.
  13. Aug 30, 2015 #12

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    Catholics under 21 are allowed to consume sacramental wine, for example, and there is a whole back-and-forth history of the use of peyote in native American churches. You have the history of peace churches and the draft. And so on.
  14. Aug 30, 2015 #13
    Which would be a form of exemption under the right to free expression of religion, not a case of religious rules having supremacy over laws.
  15. Aug 30, 2015 #14
    The example of halal and kosher butchery is one such example where this is not the case

    The Slaughter of Animals (Scotland) Act 1928 and the Slaughter of Animals Act 1933 demands that animals are stunned before slaughter. Halal and kosher butchery is exempt on religious grounds. I don't know the case in the USA, but I would not be suprised that halal and kosher butchery is exempt from animal welfare laws too.
  16. Aug 30, 2015 #15
    the difference is not clearly defined.

    If I slit an animals throat I would be breaking the law; if I could show that it was for Jewish food, I would be exempt from the law.
  17. Aug 30, 2015 #16
    Right, because that's an exemption to an existing law, not supremacy over laws by religious tenets.

    Supremacy is specifically the property that, when two laws are in conflict, the "supreme" law is what applies. For instance, if state law says that there is no minimum wage but federal law says that minimum wage is $7.25 per hour then the federal law is what is enforced.

    If religious tenets had supremacy over laws, then it wouldn't be a question of exemption but rather that religious laws would take priority in terms of what must be followed. If religious laws had supremacy over government laws in the same way that federal laws have supremacy over state laws, then you'd be legally obligated to follow religious laws and the government would be able to punish you for failing to do so. It wouldn't be theocracy either because we'd be talking about any given person's particular religion coming first over the law rather than a single religion being the basis for all laws.

    The government could make an exception to a law based on your right to practice your religion and that would be an exemption. The government could make a law based on the tenets of religion and that would be theocracy. And lastly what we're talking about, where the government could say that you're legally obligated, not just allowed, to abide by the rules laid down by your particular religion (if you're Catholic, the government would force you to go to Mass, if you're Jewish, the government would force you to eat Kosher), which to my knowledge has never happened.

    It's a subtle difference, but very solid.
  18. Aug 30, 2015 #17

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    If you are going to define any counter-example as an "exemption", your statement is tautologically true, and therefore of little help in understanding the issue. No true scotsman puts sugar on his porridge!
  19. Aug 30, 2015 #18
    But that's not what I'm doing, I'm distinguishing between exceptions being made to state laws (a Kosher cook may slightly violate certain health standards because the state law granting him free expression of religion was decided to trump those standards) due to interpretations of those laws, the case where state laws are made based on religious tenets (theocracy), and the OP's hypothetical case where the religious tenets of the church you belong to apply to you in the same way as state laws by virtue of your being a member of that church and take priority over state laws. Kind of like when "sovereign citizens" try to claim that the laws of their state or county take priority over federal laws, except with churches.

    If you're in court being tried for a crime, and your defense is that you reasonably acted within the bounds of free expression of religion, then you claim that you are following a state law. On the other hand, I thought that OP was asking about whether church rules may carry any kind of legal weight or have superiority over state laws, which is false, as per your example of Catholic priests having the legal right to marry despite the Catholic church's command that priests be celibate; priests are not legally banned from marriage based on their membership in the Catholic church.

    I cannot go off and join a church and therefore say that a different set of rules applies to me. I can request that exceptions be made to pre-existing laws based on the law guaranteeing me the right to free expression of religion, but in so doing I would still be following the laws. That is not the same thing as religious doctrine overriding state law.
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