Does the Kirk need to be constitutionally enshrined?

Why box yourself in with straight-talking, when a bit of obfuscation might open a door?

On Monday 20 May 2013, the Church of Scotland General Assembly adopted a compromise approach to ministers in civil partnerships — rejecting the choice of two well-articulated and legally vetted proposals in favour of a third, internally contradictory option, supposedly cobbled together mid-debate. Proponents of inclusion (as well as commentators) described this as “a foot in the door”, even if not the unambiguous endorsement they hoped for.

With one portal thus occupied, the Assembly continued the trend by knocking on another: seeking (to my Anabaptist-schooled eye) to ensure “establishment by the back door” in any new constitutional arrangements for an independent Scotland.

To its credit, the Church of Scotland regards itself as “a national church” (indefinite article), in the words of its Articles Declaratory, rather than 'the' (definite article) national church. Given the history of the Christian Church in Britain, this distinction represents a reasonable trajectory – and one I think has much to commend to the Church of England as it evolves within its own constitutional environment. But an independent Scotland is a chance to “do a new thing” – revolution rather than evolution, even if we muster at the ballot box rather than the barricades.

The Joint Report of the Church and Society Council, the Committee on Ecumenical Relations and the Legal Questions Committee on the Implications for the Church of Scotland of Independence for Scotland, whose recommendations were accepted by the Assembly with little debate, states unequivocally that “the call to be a national Church is not one of privilege, prestige or superiority, but a call to ensure that the whole of Scotland is served”. The report to goes on to affirm: “If Scotland were to become independent, it would be best served by constitutional arrangements which were neither ‘religious’ nor ‘secular’ – but which were ‘pluralist’ in that they recognised religion without establishing it.”

Sadly, what it then calls for is enshrinement of what can only be regarded as a privileged place for the Church of Scotland within any new Scottish constitution – including formal recognition not simply of “the role of religion in general” but of “the Church of Scotland in particular”.

This would include (and it is the joint committees which put this first, not me) retaining the monarch as head of state in Scotland, with a Scottish coronation or investiture to “symbolise … in particular his or her role with regard to the Church of Scotland”.

Further, it is proposed, “the lawfulness of the Articles Declaratory should be acknowledged in any constitutional settlement” and “the relationship between church and state should be affirmed by recognising that the role of the Church of Scotland in civic life should be maintained, in particular in the provision of prison chaplains, the conduct of marriages, and the appointment of Church Representatives on Local Authority Education Committees”.

Such entrenchment of a particular church within a new national constitution is arguably the modern equivalent of establishment, at a time when we would have an opportunity to remove the remnants of that privilege.

It must be possible to recognise “the value and wisdom of the Christian tradition and its long influence upon Scotland” as well as “acknowledge the belief of many of Scotland’s people that the State is accountable to God, from whom its power and authority derives”, without concluding (as the report does) that this “creates a legitimate context for that belief to continue to be expressed in constitutional and civil rituals, ceremonies and institutions” (emphasis mine).

To be fair, the report does state that this should not “exclude the recognition or inclusion of other non-religious and minority religious beliefs” – but these alternative contributions would be “in ways determined by due democratic process”.

In other words, the constitution should ensure that these other beliefs (and, in fact, other churches) have 'a' right to negotiate their “presence and influence in the public sphere”, while giving the Church of Scotland 'the' right to a recognised place in national life.

With a minor quibble, sadly overwhelmingly defeated, as to whether it was premature to opt for a monarchy, these recommendations were nodded through the Assembly in even fewer minutes than allotted.

When the Church appears to take its “particular” place in national life virtually for granted, worthy of neither the time nor the consideration it is willing to devote to internal wrangles over, for example, who may be ordained, the non-Church world will inevitably continue to question whether it deserves that place.

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© Carla J. Roth is a lawyer based in Edinburgh, Scotland, who provides research and consultancy to Ekklesia and several other NGOs. An Episcopalian from a Mennonite background, she has professional experience in journalism, the church/voluntary sector in Britain, and as a policy lobbyist on women's and human rights issues in Washington DC. She has recently contributed to the SCOLAG (Scottish Legal Action Group) Law journal.

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The General Assembly of the Church of Scotland is meeting in Edinburgh from 18-24 May 2013. Ekklesia co-director Simon Barrow and consultant Carla J Roth are there all week, reporting, liaising and commenting.

* Ekklesia reports and commentary from the 2013 Kirk General Assembly, plus those from 2012 and 2011: http://www.ekklesia.co.uk/kirkgeneralassembly