By Mark McNaught
The recent naming of Justin Welby as Archbishop of Canterbury has reminded UK citizens that that they are members of a state with an official religion, regardless of the degree to which the British practice or believe it.
Although the Church of Scotland and England are technically separate, Queen Elizabeth II is officially the head of the Anglican church and therefore in some sense held to be an intermediary between the British people and God. Coronations, royal weddings, and other official UK ceremonies are granted legitimacy by the Anglican church.
In the case of independence, are Scots to still accept this as part of their civil-religious apparatus?
A second religious question which confronts Scotland in the event of independence is sectarianism. While by no means as polarised as it has been in the past, nor as deadly as it has been in Northern Ireland, this issue remains bubbling not far below the surface. Too many Catholics and Protestants continue to live in largely separate neighbourhoods, growing up with a worldview forged in distrust, misunderstanding, a sense of besiegement, and hatred of the other group.
While not pretending that centuries of strife can be wiped away by independence, mechanisms could be included in a Scottish written constitution which could progressively move Scotland towards not only further disestablishment, but also alleviating and perhaps even eliminating sectarianism in the future.
A first element is to simply not have any church established as the official church of state, even nominally, and for the functions of the Scottish government to remain secular. This will help to assure all religions that they are tolerated and welcome, and there is no favoured church in the eyes of the state.
There should also be a free-exercise clause, guaranteeing an absolute individual right to practice, or to not practice any religion, without fear of discrimination.
There must also be clauses to sweep away the last vestiges of dual spheres of law, religious and civil. For centuries, the clergy has been at least partially exempt from civil law, and religious law has been imposed on parishioners which is inconsistent with civil law. The paedophile priest scandal which has played out in so many countries clearly demonstrates the perils of this lack of civil jurisdiction over the clergy.
This is not to entirely exclude use of religious law or dictates in resolving civil issues. For example, if a Jewish couple is getting divorced in Scotland, religious precepts could be employed in resolving certain issues. However, under no circumstances could the resolution violate civil law, or bring about a less equitable outcome than it would under civil law. Simply stated, absolute equality before the law should be constitutionally guaranteed, regardless of social status.
There must also be sustained efforts to harmonise civic education throughout state and religious schools, to promote a greater understanding and cooperation between religious groups. In addition, the curriculum in all schools must be brought up to the same high standards to eliminate any disparity in educational quality between state and religious schools.
The objective unvarnished history of sectarian conflict in Scotland must be taught to all, that young Scots understand that there is no ‘true’ or ‘false’ religions, and that much of the conflict is more tribal than religious in nature. All schools must promote understanding and tolerance, and no longer be institutions which reinforce rather than alleviate sectarian divides.
Finally, there must be strong constitutional measures to reveal and eliminate discrimination based on ethnicity, religion, gender or sexual orientation in employment, housing, and all other areas of civil society. While inclusion of constitutional clauses does not automatically eliminate prejudice, effective legal means for redress must be extended to all who suffer discrimination. Scots regardless of religion must feel that they can practice freely, without suffering any societal disadvantages.
Old prejudices die hard, and there is no magic bullet for eliminating sectarian conflict. However, independence provides scope for the adoption of constitutional clauses and policies which could pave the way towards a future of religious tolerance, disestablishment, and greater harmony among the Scots. It is not utopian to suggest that one of the possible benefits of independence is to move beyond long-standing prejudices, turn over a new leaf, and structure the political system to provide equal opportunity and legal equality for all, regardless of religious affiliation.
It is also important to recognise the dynamic and free society that the UK parliament has helped to foster over the centuries, emerging from the darkness of absolute monarchy and coercive ecclesiastical local control. An independent Scotland can take it further, creating an even more fair, disestablished, tolerant, egalitarian, and prosperous society.
Mark McNaught is a member of the Constitutional Commission, and Associate Professor of US civilisation at the University of Rennes 2 France, and teaches US constitutional law at Sciences-Po Paris.