By Mark McNaught
A cursory review of documents which have forged UK constitutional history amply demonstrates that sectarianism is a primary source of state legitimacy. We also observe laws passed by Parliament that have sought to codify religious dogma, to be promulgated through the established church.
The Westminster Confession of Faith of 1646 was an act of Parliament passed under the reign of Oliver Cromwell, setting out a new theology distinct from the Anglican Book of Common Prayer to create a Puritan state. It continues to serve as the principal subordinate standard for Church of Scotland theology.
The English Bill of Rights 1689, written in the wake of the Glorious Revolution, took a distinctly sectarian turn. It denied Catholics the rights it codified, and stated that “it hath pleased Almighty God to make [William of Orange] the glorious instrument of delivering this kingdom from popery and arbitrary power”.
The Coronation-Oath of 1689 explicitly states that in addition to executing the laws, the Monarch is to make the following promise: “Will you to the utmost of your power maintain the laws of God, the true profession of the gospel and the Protestant reformed religion established by law, and will you preserve unto the bishops and clergy of this Realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?” This oath is much the same as the one Elizabeth took in 1953, and likely to remain so assuming Charles takes it.
The Treaty of Union 1707 between England and Scotland states: “And that all Papists, and Persons marrying Papists, shall be excluded from, and forever incapable to inherit, possess, or enjoy the Imperial Crown of Great Britain, and the Dominions thereunto belonging, or any Part thereof, and in every such Case the Crown and Government shall from time to time descend to, and be enjoyed by such Person being a Protestant, as should have inherited and enjoyed the same in case such Papist or Person marrying a Papist, was naturally Dead according to the Provision for the Descent of the Crown of England, made by another Act of Parliament in England in the first Year of the Reign of their late Majesties King William and Queen Mary entituled An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown”.
The Church of Scotland Act 1921 is an adaptation of the Westminster confession. In it, the Parliament, in consultation with the General Assembly of the Church, legally codifies the theology of the Church of Scotland. It is striking that, less than a century ago, a Parliament would enshrine religious doctrine in law.
Taken collectively, these documents show that a principal function of the UK state, as well as the Monarchy, has been to promulgate and maintain the dominance of the Protestant Religion, and to keep Catholics in a socially inferior status. Since the legitimacy of Parliament and the Church have mutually reinforced each other, the UK civil religion has become synonymous with sectarianism, with the Monarch having the closest proximity to the divine.
Despite their implausibility, these documents are historically significant, and make for fascinating reading. Virtually no one still believes that God anointed the Monarch, that all men are predestined to salvation or damnation, or that Catholics are excluded from certain rights. Though most of the more unsavoury clauses have been rendered moot by subsequent legislation, these documents continue to reveal a disquieting sectarian basis for UK legitimacy. Why does tradition continue to eclipse modernity and equality?
While not yet trumpeted as a reason to vote ‘yes’ in the 2014 referendum, a wholesale rejection of these archaic bases of UK constitutional construction in an independent Scotland would go far in establishing a modern, tolerant, post-enlightenment state.
A preamble in a written Scottish Constitution could categorically affirm popular sovereignty as the sole basis for legitimacy. Aristocratic titles would be abolished. Assuming Scots vote to maintain the Monarchy after Elizabeth passes on, the Coronation Oath for Scotland would be changed so that her successor must vow to uphold the rights of all Scots, not just members of the favoured sect.
Scots would no longer live under the implied pretence that individuals are predestined to their social status. The theology of a disestablished Church of Scotland would not be statutory, but instead reside in the heartfelt convictions of the clergy and their parishioners. The Scottish state could definitively get out of the religion business, and let a thousand flowers bloom.
Catholics and other religions would no longer feel that the state apparatus, including the Monarchy, is legally bound to disfavour them. This could serve as a starting point to constructing a strong and inclusive sense of Scottish national identity, and perhaps eliminate sectarianism over time.
This could also serve the core of an emerging Scottish civil religion consistent with the Scottish character: a sense of justice, social equality, charity, tolerance, religious freedom, democracy, and human rights.
If not in 2014, when?
Mark McNaught is a member of the Constitutional Commission and an Associate Professor of US Civilisation at the University of Rennes 2 France. He also teaches US constitutional law at Sciences-Po Paris.