Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Sunday, May 1, 2011

On being a papist in the United Kingdom

I appreciate Michael’s and Marc’s recent postings dealing with various aspects of Friday’s royal wedding between Prince William and Catherine, the Duchess of Cambridge. Their respective postings encouraged me to examine the Act of Settlement (1700-01) [the “Act”] concerning the religion of the British Sovereign and his or her spouse and the provisions addressing religious freedom and non-discrimination in Charter of Fundamental Rights of the European Union, of which the United Kingdom is a member.

With these words, the Act prohibits the sovereign from being a Catholic and the spouse of the sovereign from being of that religion:

...all and every Person and Persons then were or afterwards should be reconciled to or shall hold Communion with the See or Church of Rome or should profess the Popish Religion or marry a Papist should be excluded and are by that Act made for ever incapable to inherit possess or enjoy the Crown and Government of this Realm...

A further provision might entitle a Catholic to remain as sovereign by converting to Anglicanism, or else. As the Act further states:

That whosoever shall hereafter come to the Possession of this Crown shall joyn in Communion with the Church of England as by Law established...

As many will recall, when Her Royal Highness, the Duchess of Kent entered the Catholic Church in 1994, she had to renounce her claim to succession of the throne due to the provisions of the Act. Of course, by that time, the United Kingdom was a member of the EU and is therefore subject to the provisions of the Charter of Fundamental Rights of the European Union (the Charter). It is also a state party to the International Covenant on Civil and Political Rights (the ICCPR). Both of these texts have provisions addressing religious freedom and prohibitions against religious discrimination. Here I shall concentrate on the EU Charter and suggest why it and the Act are in tension with one another insofar as the religions of the British sovereign and the sovereign’s spouse are concerned.

First of all, Article 10 of the Charter specifies that everyone has the right to freedom of thought, conscience, and religion. Included in this general provision are the attending rights to change one’s religion and to manifest religious beliefs and practices in private and public. The ICCPR accords with these principles. Article 21, a non-discrimination provision of the Charter, prohibits any discrimination based on religion.

Of course, interpretation and enforcement of the Charter are dependent on both the state member of the EU as well as the enforcement and juridical branches of the EU. While acknowledging this complication about the application of the Charter, I would argue that both the plain meaning as well as the intent and purpose of the EU Charter provisions on religion conflict with the Act. Moreover, I do not see anything in the articles of the Charter dealing with the its scope and the extent of the rights and protections guaranteed that would enable the Act to remain inviolate.

I realize that the decision-making authorities within the EU do not always have the best track record when it comes to matters dealing with religious liberty and non-discrimination based on religious grounds. It is clear that the plain meaning and the underlying intent and purpose of the Act are discriminatory against Catholics—and Papists, and those who profess the Popish religion, and those who are in communion with the See and Church of Rome. While the sovereign must be a member of the Church of England—of which he or she would be the head, the spouse need not be an Anglican as long as he or she is not a Catholic. Interestingly, the Sovereign’s spouse could be a member of the Free Church, a deist, a Jew, a Muslim, anything else or professing no religion at all. Moreover, should the UK move beyond its present state of registering civil partnerships, I would imagine that there is nothing in the Act to prohibit the sovereign from entering into a “same-sex marriage.” Catholics in the UK are no longer subject to many of the prohibitions and discriminations they faced even into the twentieth century. I realize that the Church of England’s opposition to repealing the Act may be based on the concerns associated with having a non-Anglican being the supreme head of the church in England. However, this issue takes us back to the time of Henry VIII: did he really have the authority to proclaim the sovereign as such? This may well be a case demonstrating that two wrongs clearly do not make a right.


RJA sj



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