A Judicial Perspective on The Sacred in Society

Abstract

The primary virtue of establishment is the Church's duty under law to minister to anyone at all who may turn to it, including the ungodliest. Establishment does not imply a religious State, that is a State whose law requires subservience by the citizens to the State religion; if it did, it would be barbarous (but contrast the Black Rubric in the Book of Common Prayer). Establishment does not entail State control of the Church. The legal characteristics of establishment are as follows. (1) The law of the Church of England is part of the law of the land. (2) Bishops and some other office-holders are appointed by the Queen on ministerial advice. (3) 26 diocesan bishops sit as legislators in the House of Lords. (4) The Queen as Supreme Governor acts as monarch for the Church as she acts as monarch for the State. The Church of England is not a “congregational” church: its forms of worship are prescribed by law, and are not at the liberty of the community worshipping in any particular church. The bishops' resolution which authorised the use of the 1928 revision of the Book of Common Prayer in face of the will of Parliament (which was the lawful authority in the matter) was a lamentable disobedience to the law which it was their duty to uphold. Such a legal transgression might possibly nowadays be subject to correction by the High Court on judicial review, though that would require departure from earlier high authority. However that may be, it has to be recognised that there is no room, in the practice of an established Church, for the notion that conscience might justify disobedience to the law. The conscience of the believer is worth no more than the conscience of an unbeliever. The established Church possesses two immeasurable virtues: first, that religion is no tyrant: belief is not compulsory; second, that the Church's ministration is available to everyone. Their unified effect is a great force for good.