There has been much academic debate in recent years about religion. While sociologists, anthropologists and historians, among others, dispute and debate the function, form, revival or decline of religion and religiosity, one thing is clear – there has been a revival of religion in law. Until recently, if religion was studied at all from a legal perspective it was studied as part of the past. At one time, in Scotland as in other western European jurisdictions, religion had a well-established and legitimate place in law, most obviously through Canon law and church courts, but an apparently clear break at the Reformation severed those links. Aside from legal historians, few lawyers have maintained much interest in the regulation, influence or place of religion in contemporary secular systems of law. Or at least that was the case until recently. Driven by a combination of different and quite separate forces religion has re-emerged in law as a complex and highly contested concept.
It has been assumed that law and state are secular. The modern liberal state was based on the notion that, while religious individuals may ‘believe’ what they like in private, in public they must be citizens who act and interact according to public reason. Religious values may have continued to underpin legal rules but to a large extent the vestiges of such values were removed by a programme of modernising law reform from the late 19th century onwards. Legal certainty in the secular and the public/private divide is, however, increasingly challenged in various ways: by the protection of religious thought and belief through human rights and equality legislation; by the strong sound of religious voices in public debate and political consultation and by the visible presence of migrant communities who wish to live according to their own religion. These are developments which not only spark off heated public debate but they also lead to legal actions in court. With increasing regularity, judges are being faced with very difficult decisions: what is religion, how should it be defined and how, if it all, can or should it be distinguished from other forms of belief; to what extent should religious employees be permitted to wear the symbols of their belief at work; should civil courts take account of religious arbitration in resolving family disputes and how should religious beliefs be measured against the belief in equality? When a baker, with strong religious beliefs, refuses to bake a wedding cake for a same sex couple, with equally strong but very different beliefs, how should the law decide?
Scots law and lawyers are ill equipped to deal with this largely unanticipated religious revival and the complex and unexplored dilemmas it presents. To some extent they may fall back on historical analysis of religion and an understanding of the place it once held in law. But it is increasingly clear that the religion of contemporary concern is very different to the familiar religion of the past. A review of the place of religion in Scots law is long overdue.