Right, I said I’d look at the legal side of the Playfoot’s case for religious discrimination under the Human Rights Act.
The basic contention is that the school’s decision to ban the wearing of chastity rings amounts to a breach of Playfoot’s rights under Article 9 of the European Convention on Human Rights, as enacted by the Human Rights Act 1998. Article 9 reads as follows:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Okay.
With that goes the comparisons drawn with the school permitting the wearing of Sikh religious artifacts, specifically a bracelet called a ‘Kara’, and headscarves in line with the Muslim practice of Hijab (modesty) but not these rings, which the Playfoots contend amounts to a breach of article 14:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Okay, lets start to unpick this by looking at article 9, the second section of which ‘qualifies’ the rights according the first section by noting that the “freedom to manifest one’s religion and beliefs shall be subject only to such limitations as are prescribed by law…”
And, no doubt, the Playfoot’s barrister has argued that these chastity rings are a means of manifesting a certain element of religious belief.
But, this qualification on the right to manifest one’s beliefs is a secondary clause, which implies clearly that the particular protected forms of manifesting religious belief covered by ECHR are specified by the primary clause, which is confirmed by this statement:
to manifest his religion or belief, in worship, teaching, practice and observance.
So, to qualify for protection under article 9, these rings have to constitute an act of worship, be an element in the teaching of religious beliefs, a religious practice or a religious observance.
Is an ring an act of worship? No. Going to church is an act of worship and prayer is an act of worship, but a not a ring – that’s an ‘artifact’ and fails to stack up even as an adjunct to worship, as one might argue in respect of Catholic rosary beads.
So that’s the worship proviso out of the picture.
What about teaching? Again, no. The mere existence of, or wearing of, a ring teaches one nothing whatsoever about religion or religious belief and, in any case, the term teaching implies not only an intellectual exercise but one conducted by an individual who is suitable qualified or experienced in their understanding of religious belief to reasonably be thought capable of imparting knowledge to others, which is hardly a faculty one would reasonably ascribe to a fourteen year old girl, not to mention that the qualification about protecting the rights and freedoms of others implies that any such teaching should be voluntary and not rammed down people’s throats whether they like it or not.
So that’s teaching out of the window.
What about a religious practice or observance, the last two options?
We’ll tackle these together as the dividing line between the two is perhaps a tad unclear. An observance is a rule or custom that followers are expected to follow – the Catholic Church define an observance in terms of it being a rule or discipline, while a practice is either the act of complying with an observance or simply an habitual action or custom.
So to be an observance, there must be some rule or discipline attached to wearing of these rings that, additionally, I would argue, has some basis in scripture or long-standing church tradition – one cannot simply have religions making up new rules on the spot and then claiming that they’re matters of religious liberty deserving of legal protection, such rules have to have some foundation is clerical tradition or a sound theological basis.
So one can argue that chastity itself could be thought a form of religious observance, and the school certainly aren’t banning kids from not shagging, but not the wearing of ring as a symbol of chastity, despite the Playfoot family’s fatuous attempts to draw parallels between their franchised baubles and wedding rings and the claim attributed to the father, which I saw in one report, that Christians have been wearing rings for centuries – that they undoubtedly have, and so too have lots of other people who aren’t Christians, which means there has to be more to it than merely the wearing of ring, the ring has to have clear, significant and scripturally mandated significance.
Damn that dozy St Paul for not mentioning rings!
Wedding rings have an established ritual significance in marriage practices stretching back into pre-history, and even though the practice was initially shunned by early Christians as a pagan ‘thing’ they came around to the idea quite long enough ago to make the whole business at least an accepted practice, if not a legitimate matter of observance given that rings play a part in the marriage ritual.
None of which is applicable to chastity rings, which originated in the United States in the 1990s.
The only other Christian tradition surrounding rings that has any real standing is the use as a symbol and seal of authority, as in the Catholic ‘Ring of the Fisherman’ (commonly called the Papal Ring) for which the earliest recorded reference dates to 1265, and the practice of rings serving as a badge of office, itself, derives from the common practice of mounting a seal (as in denoting the source and authenticity of documents type of seal) into a ring as a matter of convenience.
And as there’s no mention in any of this of young Lydia signing her homework in wax or having been annointed the high priestess of some latter day order of vestal virgins, I think we can rule that argument out as well.
The Playfoots can’t even try the old ‘nuns wear rings’ line of argument as the ritual significance of that is as a component of their presumed ‘marriage to god’ and not as a simple symbol of temporary chastity while awaiting the appearance of an all too corporeal husband.
Whether this whole ring business has been wrapped up in cant and ritual by its supporters is entirely immaterial – if you are going to lay claim to the religious rulebook argument then there still has to be some long-standing foundation or basis for your rules, otherwise what’s to stop someone getting a priest to say a few of blessing over a teapot and then proclaiming that the blessed teapot has to be on permanent display on your school desk at all times or your religious freedoms have been infringed. The idea is nonsense, as is the claim that the wearing of chastity rings should attract the protection of human rights law.
So, that said, what of the discrimination claim in regards to the school permitting the wearing of the Kara or observance of the practice of hijab.
More nonsense.
The Five Ks of Sikhism, Kesh (uncut hair) and Kanga (wooden comb – together these account for the religious significance of the wearing of the turban), Kara (bracelet), Kachhera (cotton underwear) and Kirpan (curved sword or dagger) are expressly mandated matters of religious observance and articles of faith, as commanded by the tenth Guru, Guru Gobind Singh – hence they attract the full protection of article 9.
Hijab, which actually refers to the Islamic practice of modesty and not to a specific garment, is similarly mandated in both the Qu’ran and under Islamic law and jurisprudence, and although there are a number of variant cultural interpretations of the precise requirements of sartorial hijab within in Islam, the practice itself is, again, a matter of religious observance in which the practice of women covering their hair is more than sufficiently widespread and commonplace as a tradition, if nothing else, for these garments to fall legitimately under the definition of a religious practice, if not for them to be entirely regarded as a matter of observance (and then only because in some Islamic countries, such as Tunisia, the covering of the hair at all time is not part of local interpretation of the practice.
In no sense is the wearing of a ring as a symbol of chastity comparable to either the 5Ks or the practice of Hijab – for this to be the case the Playfoots would have to show that the wearing of rings as a symbol of chastity is either mandate in the Bible or rooted in the teachings of a major theological or historical figure in the history of the Chrisitan faith. Sainthood would almost certainly be the minimum qualifying requirement, and even then the expectation would likely be that the individual in question and, therefore, their teachings would have to be pretty well known and accepted as a core element or major contribution to Christian teaching – we’re looking here at the level of Jesus, the biblical apostles, St Paul and his immediate associates and then maybe the likes of Patrick, Augustine, Aquinas, Luther, Calvin, etc.
(The latter two would probably have loathed the idea of chastity rings and considered them to be idolatrous examples of errant Popery in line with the whole business about Moses and graven images)
Find a reference to chastity rings in amongst the theological heavy hitters, and you might have a marginal case. Without such a reference there’s no case, no infringement in religious freedom and no discrimination, just a bunch of evangelists on the make and wasting the time of our courts and the money of the school (taxpayers’ money, of course) on a futile, publicity-seeking exercise in self-aggrandisement.
Here endeth the lesson…
Great post.
It’s most certainly an attempt to pass fringe evangelical practices as mainstream Christianity. The rhetorical twist being used is the claim of “creeping secularism,” as if the introduction of chastity rings wasn’t the wholly new development.
I’ve also noticed that some versions of Lydia’s decision to wear the ring are a response to worryingly secular sex education – i.e. she started wearing the ring not because she wanted to symbolise her commitment to chastity, but because (to quote the Mail) “there was nothing about sexual abstinence, nothing about Christian teachings, and I felt that was missing.”
Would the stated decision to wear the ring in order to make a statement also undercut the claim that it’s a religious observance?
I speak as one who is religious thanks for this post some element of reason. As I understand it in terms of law Article 9 is also a qualified right, meaning it can in certain instances be breached in the event of a sufficient balancing test.
Anyway, I’ve only discovered this blog recently but it has been added to my feed list.
I find it interesting the practice of hijab is defended as a vaguely religious observance based upon a (questionable? patriarchal?) interpretation of a religious text and parsed through cultural traditions but there’s no concession that maybe the silver ring thing is worthy of the same defence. Perhaps it’s that hijab has still exists in parts of the world whereas cultural requirements of this type for western women began to fade with the enlightenment. Perhaps it’s an issue of longevity and the silver ring thing has to put a coupla hundred years behind it first. Perhaps requirements and standards for religious observance have a higher threshold of plausibility when they originate from a modern developed country rather than a third world developing area. The assumptions used should always be stated.
Perhaps it’s a numbers thing. After all there are 1 billion muslims in the world but only a few hundred thousand SRT adherents. But even on conservative estimates the SRT, as a christian sect, has many more adherents than the B’hai faith thus it should be treated with equal respect by both the law and this august publication.
I personally think that the SRT is a very silly thing that has nothing to do with christian theology; indeed I believe it denigrates christian theology in its approach. But if someone (or several hundred thousand someones) wishes to make it their observance then we must apply the same methodology to our critique as we do elsewhere. Otherwise we don’t provide a rational critique but rather merely apply cultural (and quite possibly irrational) politically correctness more appropriate to a dinner party, and which in this context becomes simply a post-modern form of bigotry.
So, if I read this right, it means that according to article 9 of the European Convention on Human Rights, my daughter can go to school in full pirate regalia, despite the fact that her school has a fairly strict dress code, because she is (or claims to be) a worshipper of the Flying Spaghetti Monster. FSM’s worshippers are exhorted to wear this regalia because it will reduce global warming (of course).
Dressing like a pirate is in fact an act of worship, possibly an example to others (teaching), definitely a religious practice (since it dates from the religions foundation), and an observance. Consequently this is protected by the full force of European law.
All of which goes to show how ridiculous this religious stuff is.
Last time I checked, though, we don’t live in a theocracy. Thus if someone wants to wear a certain something because of religion, then someone else should be able to wear a similar something in the name of of free expression. So if SRT members can wear rings, why can’t members of the Gold Sovereign Ring Thing (which I just made up, but who’s counting?) wear theirs, too?
Irreligiouslee:
The assumptions are simple. In deciding what consitutes a legitimate religious practice or observance in British law, the courts should seek to establish the provenance of the claimed practice/observance with due reference to scriptural references, canon law and accepted theological discourse.
Thus one could consider the wearing of the Catholic rosary a matter of practice and observance, because the rosary has a defined religious function in established Catholic practice.
Likewise, the wearing of wedding rings would be covered as the serve a ritual function in Anglican marriage ceremony, which has included the line ‘With this rung I thee wed’ since the introduction of the standard ceremony in the Book of Common Prayer.
The crucifix issue didn’t end up in court in the end and is rather a tricky one as, other that in the form of the rosary, there is no sense in which the wearing of one is established as clear and specific religious practice or observance – there is no requirement in either scripture or canon law that says that Christians must wear one, the simply have the choice of doing so or not as they see fit.
As regards hijab and is variant interpretations, the courts in this country will pay due regard to the reference to the general practice of hijab in the Qu’ran and the manner in which that has been interpreted within the 1,400 year tradition of Islamic law, scholarship and jurisprudence, and then balance that against the qualifications for public safety, preservation of the rights of others, etc. which is why the courts ruled, last year, against a bid to gain legal protection for the wearing of the niqab (full veil) in schools having deemed that the school’s uniform policy was both consistent with prevailing mainstream practice of hijab and that the niqab would prove problematic in the context of the classroom.
So, in my view, and in what I suspect will be the view of the court given past rulings, the assumption is that for something to qualify as a religious practice or observance there must be evidence to support the view that it has a mandated religious function or purpose or is integral to the performance of a specific religious activity or ritual – neither of which has, in my view, been established in the case of these rings, because the element of practice/observance is maintenance of chastity, itself, and not the advertising of chastity by wearing a ring.
A chastity belt or vaginal ‘plug’ might be a different matter in terms of function, would fall foul of the preservation of rights qualification – not to mention our child protection laws – if applied to a 14 year old girl.
So the courts are the arbiters of what’s acceptable religious practice and what isn’t? How very American. But these assumptions allow a wide and contradictory swathe of judgment.
To wit, St Paul very clearly allowed for personal conviction to arbitrate behaviour *within* the framework of an overall christian stance (some respect holidays, others don’t; some eat meat offered to false gods, others don’t…) thus the SRT would be perfectly legitimate as religious expression or observance within a strictly scriptural interpretation. Canon law is observed strictly only within certain liturgical sects of christianity. Does this mean Methodists, Free Church, Pentecostalists, Baptists, etc, are free of its constraints or are subject to it in spite of it not being a part of their creed? And how would the human rights act view the imposition of the latter? And “accepted theological discourse?” Are the courts going to step into that quagmire?
Of those looking at the issue dispassionately it seems to be a split between those who believe the state and its courts that decide the value of a persons beliefs and those who feel people are intelligent enough to make up their own minds and the reach of the state is just a wee bit too far if otherwise. As a related matter there’s an interesting debate on the merits and legality of imposing school uniforms on school children. Sadly it’s taking place outside of the UK.
What about Article 10 ECHR?
>>> So the courts are the arbiters of what
Article 10 – Freedom of Expression.
Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Q. Is a ring really essential or necessary for the purpose of expressing the idea of chastity or providing information about chastity?
A. No.
Q. Is she (Playfoot) prevented from expressing those ideas by the school’s policy on jewellery?
A. No.
Q. Does the school have the right in law to set a uniform policy and discipline/exclude pupils who persistently fail to, or refuse to, comply with it?
A. Yes
Case Dismissed.
Is there a legitimate claim of religious discrimination here?
Clearly not – these rings have no more status than, say, a friendship bracelet given by one child to another.
Can the school make arbitrary uniform rules?
Pretty much, yes.
Does the claim that the ban on rings is a heath and safety issue make sense?
No, it’s complete garbage. Out of all the things I ever did at school, there are precisely two things that I wouldn’t wear a ring for (rugby and sailing) for safety reasons, and one thing (pottery) that I would take a ring of for because otherwise it would get gunked up with clay.
What about the other great excuse – the “we don’t want to deal with your valuable property being stolen, so leave it at home” claim?
Well, this one’s pretty much garbage, too. Schools, by and large, tend to encourage the wearing of watches to help pupils get to the right place at the right time. If you need to take a ring off and put it somewhere (eg. for school sport…) you’ll need to take a watch off, too. There will be plenty of watches in the school that cost more than the 10 quid that Miss Playfoot’s ring is worth.
I’d ask whether these people had heard of personal repsonsibility, but they’re a state school, so the answer is that they’d like to pretend it doesn’t exist.
Frankly, I’d class this kind of uniform rule in the same category as that of requiring girls to wear official school knickers. I think Miss Playfoot should be free to wear her ring if she likes – but it’s not a religious freedom issue.
“Case Dismissed.”
Thus proving the weakness of the ECHR. I’m also loving the attention you are giving me on here and on Nick Robinson – have I rattled your cage somehow? Last time I did that to a socialist I was branded “petty” by a democratically elected representative.
“I think Miss Playfoot should be free to wear her ring if she likes – but it
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pps your clock is an hour out and your graphics make this blog much less readable than it might otherwise be…!
1. Attention?
You raised a point about ECHR, I responded – and I had no idea that was you at Nick’s blog, I merely noted that you were wrong in thinking that it was Jacqui Smith rather than Hilary Armstrong that miss called the numbers on a Commons vote that went against Blair?
2. Rattled?
My we are flattering ourselves today.
I take it your reference to the ‘weakness’ of ECHR stems from your effort to make a comparison between article 10 and the US First Amendment on your own blog, which really points up your own lack of understanding of the background to ECHR (written primarily by British lawyers based on principles of British justice and the common law and pushed through the Council of Europe by Winston Churchill), the differences between Article 10 and the First Amendment and how both operate in practice.
If you look at how ECHR article 1O is qualified, it covers:
a) national security – can’t claim freedom of expression as cover for revealing state secrets or incitement to terrorism/armed insurrection.
b) territorial integrity or public safety – territorial integrity may be simply standard boiler plate or may refer to jurisdictional matters, not sure how it applies (anyone have an example) but public safety is the classic shouting ‘Fire!’ in a crowded theatre scenario.
c) for the prevention of disorder or crime – covers incitement offences, threats, etc.
d) for the protection of health or morals – one area in which it is weaker than the 1st Amendment, but even under that a number US states have prohibitions on hate-speech.
e) for the protection of the reputation or the rights of others – cover libel and defamation.
f) for preventing the disclosure of information received in confidence – Doctor/Patient and Client/Lawyer privilege
g) for maintaining the authority and impartiality of the judiciary – contempt of court and sub-judice rule.
Only one of the qualifications is materially weaker in scope and protection afforded that that offered by the First Amendment, in which the major plusses are its explicit references to the non-establishment of religion and freedom of the press, neither of which are referenced in an explicit way in ECHR.
Other than that, the only major problem with ECHR comes if cases end up in the European court, which can introduce civil code interpretations at odds with our common laws traditions, which is why it better that human rights cases are dealt with in British courts if at all possible.
Rattled implies you have a worthwhile line of contrary argument, something I’ve yet to see any evidence of.
e) for the protection of the reputation or the rights of others – cover libel and defamation.
f) for preventing the disclosure of information received in confidence – Doctor/Patient and Client/Lawyer privilege
you mean the US doesn’t manage this?
I agree with most of the rest of your post. Thanks for visiting my blog.
The US manages both, in fact its libel laws are markedly more liberal than those of the UK because of its First Amendment, which client privilege is backed up by other aspects of the Bill of Rights, particularly the fourth and fifth amendments which prohibit arbitrary searches and provide for absolute right to silence.
Perhaps I should have been a little clearer in pointing out that what appear as qualifications in ECHR are, for the most part, matters that are qualified in the US by judicial interpretation of the legitimate scope of the First Amendment, but for the odd wrinkle here and there.
One might almost take the view that the having been written largely by British lawyers well-versed in our common law, many of the qualifications in ECHR were included for the benefits of our European cousins so as to be sure that their respective civil codes were suitably mindful of our long tradition of judicial common sense.