Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, June 6, 2010

O'Neill on "Religion and the Judiciary"

This post, "Religion and the Judiciary" -- about the relevance of judges' religious faith -- from the "U.K. Supreme Court blog"("SCOTUK?"), by MOJ-friend Aidan O'Neill, is worthy reading and thinking about.  (Among other things, the post is a reminder that even someone as gifted as Ronald Dworkin will sometimes say shockingly unhinged things.  Aidan's post quotes an example.)  Aidan's interesting post closes with this:

What the religiously motivated find difficult to understand or accept is that the freedom from discrimination on grounds of religion or belief which has been afforded them by the law does not extend to giving the religious a general right to discriminate (on otherwise unlawful grounds such as sex, age, race, disability, or sexual orientation) on the basis of religion or belief.    There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue.   The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.

If the term "does not extend" is meant to be used descriptively -- that is, to report that, in fact, the laws in the U.K. are not understood to protect religiously motivated "discrimination" -- then, of course, I have to defer to Aidan, who knows far more about the laws in the U.K. than I do.  If, though, the suggestion is that the laws should not distinguish between (irrational, invidious, etc.) "discrimination," on the one hand, and "religiously motivated decisions about employment and related matters by religious institutions and authorities," on the other, then I'd have to disagree.

UPDATE:  Aidan wrote to me, and said -- in response to the above -- that "[t]he phrase 'does not extend'  from the passage you quote, was indeed being used being used be me purely descriptively rather than implying any prescriptive judgment on my part."  He added, "[t]he law is still very recent on all this and the case law has yet fully to develop.  At the moment however the relevant government quango intervening on matters of discrimination , the Equality and Human Rights Commission, seems very much to be running the line that religion cannot and should not be recognised as providing any kind of lawful basis for making choices in employment or service provision on the basis of the employee/service recipient’s sexual orientation.  But as you know in the UK we have a quite different history and perception of the right role of religion in society, favouring establishment and presuming state regulation of religious bodies, rather than assuming any strict separation between the two sphere which so marks out US jurisprudence on the issue."

https://mirrorofjustice.blogs.com/mirrorofjustice/2010/06/oneill-on-religion-and-the-judiciary.html

Garnett, Rick | Permalink

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Your last sentence contains a difference without a distinction.

If, though, the suggestion is that the laws should not distinguish between (irrational, invidious, etc.) "discrimination," on the one hand, and "religiously motivated decisions about employment and related matters by religious institutions and authorities," on the other, then I'd have to disagree.

The law cannot be expected to distinguish between these two 'hands'. Indeed most people would see no difference between them.