This conversation is closed.

Should a religious basis be reason for dismissal of a law by high courts in secular countries?

Should high courts in secular countries, such as the US supreme court dismiss clearly religiously based laws, such as the "Defense Of Marriage Act" (which forces Abrahamic views of marriage on government institutions and regulations) since such laws effectively turn purely religious views into secular law since the secular constitutions of secular nations advocate against theocracy?

I would answer "yes" to this question but am interested in potential backfiring of such a rule if people can come up with this. So debate away...

P.S. I know there are people who reject secular government altogether, this debate is not for them. The starting point of this discussion is that secular constitutions exist and are accepted by a majority of the population as well as supported by various ethical and logical arguments.

  • thumb

    Gail .

    • +2
    Jan 2 2013: Imposing religious law on those who don't share those values is extremely disruptive to a society. Look at what is happening in America today. Our country is so biased against certain groups (woman & homosexuals especially) that in most places, they have lost their fundamental human right to own their bodies and pursue happiness.

    I would not have thought that the consequences of turning religious law into secular law would have been so harmful to a society had I not moved to South Carolina last year and seen first hand how damning such laws are. People of the predominant religion here are hateful, arrogant, and self-righteous and they now have the law to back up their mistreatment of others.

    I think that the move to transform the US government from a secular government to a theocracy is the reason why Christianity and Judaism are in decline. Christianity should be an unimportant minority within 25 years. Most churches are filled with older people. They did this to themselves with their hate-speak and arrogance.

    I miss neighbors simply being neighbors without condemnation of those who believe that it is their moral right to condemn others and make life miserable for them. I may as well be living in Iran. My basic human rights have been stripped from me and other non-christians.

    That's what happens when thocracies replace secularism. It makes people stupid and unable to think for themselves. It gives far too much power to uneducated religious leaders who do not even know that there is a larger picture. It denies humans the right to think for themselves and to take actions that they believe are in their best interests.

    It is bad for society because it is bad for the individuals who make up that society.
  • thumb
    Jan 2 2013: I would have thought that marriage is right in there with baptism, communion, etc. it is a biblical tradition. Monogamous, lifelong union between a man & a woman. People are free to create their own forms of union, but marriage as such is clearly defined, so why call something that doesn't fit the definition marriage ?
    In a democracy we are empowered to replace our politicians. That is the system; if we don't like the laws, then replace the politicians. If we still don't like the laws, then we are probably in the minority. Not a perfect system admittedly, but again, in a democracy you are free to advocate for a better system. You are entitled to your opinion, & entitled to have your opinion heard. Looking round the world, I haven't seen a better system. There are lots of laws that I dislike, but I am grateful for living in the UK. (The US is cool too.)

    :-)
    • Jan 2 2013: "I would have thought that marriage is right in there with baptism, communion, etc. it is a biblical tradition."

      It's a tradition from every religion, including ones that do not have a problem with gay marriage and including ones that predate judaism by countless millennia, it's also a civil institution recognised and carried out by officers of the secular state that is legally tied to things like inheritance, taxes and visitation rights.
  • Jan 7 2013: I don't believe in gods whatsoever. However, I think that merely being inspired by religion is not a reason for rejection of a law proposal. However, if the only justification for a proposal is religious, then it should be rejected outright. The example you give is clear. It is stupid to even consider a law that enforces discrimination against some minority because some religion says so. Members of that religion are free to consider, say, gay marriage, a sin. It's their freedom to believe their crap. But they can't force a society into accepting that.

    Can I give an example that would back-fire as you request? Not now. Sorry. But I don't think that we should start wars over what motivated something instead of evaluating the something on its own merits once the religious motivation is ignored.
  • thumb
    Jan 6 2013: I can not speak to high courts in other secular countries. I can address the SCOTUS. That's the USA Supreme Court. The justices of this court consider law based on the US Constitution. Therefore, unless a "basis" religious or otherwise is addressed in the constitution the court could dismiss. There are situations where the court has upheld a law for compelling reasons or they have dismissed laws because the new law would infringe on an existing law. A case comes to mind that had religious interest "Roe vs Wade" . The court upheld a woman's ability to have an abortion based on her rights of privacy.

    In the context of this debate, the defense of marriage law was addressed. How would the court address this law? I have no idea. I would hazard a guess that it would be dismissed. Marriage or Spousal law is not addressed in the constitution. People have the right of association. I can not envision a compelling reason that would validate the law on constitutional grounds.
    However, the discussion of marriage has strong emotional response. When looking at the history of marriage or spousal law it's clouded. At the dawn of history, a young man cleared some land to grow crops.
    He soon found he needed help, children were the cheapest labor. He gather a couple of sheep, go down the road to an old farmer and trade the sheep for an excess daughter. During Roman times wealthy widows would join with an aspiring senator with a big party announcing to friends and family they were joined.
    During the dark ages, the Roman Church didn't hold much for spouses; women took a man's attention away from prayer. Things changed in the middle ages. All over Europe, this little kingdom was at war with that little kingdom. The Church had to stop the madness. So, a sacrament, the highest level of religious law was instituted for marriage. This kingdom's princess marries that kingdom's prince under God. War's over.
    Now, Ben wants to marry Jerry and the court looks at law and history...
  • Jan 5 2013: The laws only strength comes from being blind. It should not care about your colour, gender, sexual orientation or religious affiliation in rendering a summary
    Likewise the law itself is based on statements like the constitution (or the Magn Carta or what have you) that is a "vision statement" of the concepts and principles the society is based on.
    Law comes from these documents or is measured against these documents and accepted or rejected based on its own merit.
    Therefore you should not reject a law outright because of its origins, nor should you accept it outright because of it origins.
    If a law that has a religious origin but is a good law then it should be enacted.
    If it has a relgiious origin but excludes, biases a recognizable group or inhibits some freedom that would be otherwise allowed then it should be struck down.
    I believe the defense of marriage act is a gigantic piece of shit that needs to be burnt.
    • Jan 6 2013: "If a law that has a religious origin but is a good law then it should be enacted.
      If it has a relgiious origin but excludes, biases a recognizable group or inhibits some freedom that would be otherwise allowed then it should be struck down."

      I agree, but my idea was about laws that are entirely grounded in religion, if they were "good" laws for secular reasons as well then they would not be entirely grounded in religion. Maybe what I wrote wasn't clear but the idea was that a law could be dismissed if there were no secular arguments for it. Laws that have both religious and secular arguments for them don't have to be dismissed.
      • Jan 6 2013: Yes. That is what I was implying. A law that is entirely ground in religion should, in a secular society, not even be considered, whereas one that has some secular arguments, reworked until it removes the religious biases out of it and only the secular parts remain.
        • Jan 7 2013: Right, so do you agree that a law being entirely grounded in religion should itself be a reason for dismissal of that law by a high court?
      • Jan 7 2013: Yes. In a secular society, religious law has no place.
  • thumb
    Jan 2 2013: I did science in secondary school, and we were taught about the reproductive system. The anus was never listed as part of it; so for me, science provides the strongest arguement and loudest voice against gays.
    • Jan 2 2013: Do you also believe people who are infertile, have gone through menopause or have been sterilized should not marry? Would you let gay people marry if they adopted a child, had one from an earlier relationship or used a surrogate mother or sperm donor to gt a chilld?

      Why do I ask even though I already know your answer? To expose that your "argument" is nothing but an attempt to hide the indefensible bigotry from leviticus (and I bet you do eat shellfish).
      • thumb
        Jan 3 2013: Gay people have a right to their relationships. I just believe that marriage is between a man and a woman; homosexual relationship should have another name.
        Would you not be bothered if dictactors and communists call themselves democrats?
        • Jan 3 2013: "I just believe that marriage is between a man and a woman"

          It is your right to believe that, it is not your right to enforce that belief on other people. Anyway, why did you pretend to care about reproduction when you retreat from that issue the moment someone starts prodding? Why was it so hard to admit you have no logical reason to oppose gay marriage?

          "Would you not be bothered if dictactors and communists call themselves democrats?"

          Wow, what an analogy, immediately thinking of dictators and anal sex when an LGBT topic comes up, is that what passes for "love thy neighbor" these days? I wonder what the hindus and animists would think of your puppyish religion (not even 2000 years old) usurping ownership of the word "marriage".
        • Jan 5 2013: "Would you not be bothered if dictactors and communists call themselves democrats"
          Yet it would, but it would not bother me if they called themselve Republicians.
  • thumb
    Jan 2 2013: I believe you shouldn't assume that the laws against gay marriage are clearly religiously based. And actually, I don't even believe you should assume that a law in the Bible is religiously based, or solely religiously based, there are good practical reasons for laws in the Bible.
    • Jan 2 2013: In all the years I've been debating it I have never encountered a person who was opposed to gay marriage and didn't ultimately base that opposition solely on leviticus. Sure they always try to state other reasons but once you cut through that BS they always return to leviticus. Of course it will be up to the high courts to decide this but I cannot think of a clearer example than opposition to gay marriage. There simply aren't any logical arguments against it: all opposition comes from religion.
  • Jan 2 2013: You are stating a broad principle in rather vague terms, and these decisions must be made on a case by case basis.

    Laws against murder have a religious basis.

    I would argue that, in the USA, all marriage laws have been based on the Abrahamic religions since the Constitution was adopted. I would further argue that government should not be involved in marriage in any way. Historically, the Supreme Court has not agreed with my viewpoint, and there is no reason to believe that the Supreme Court will invalidate all marriage laws any time soon.

    It seems to me that the Supreme Court has not used "religious basis" as a reason to dismiss laws. Rather, the criteria seems to be whether a law establishes a religion, or religious practice. Even then, if a religious practice overlaps with secular practice, as marriage does, the Supreme Court finds it acceptable. This loophole is why the decisions must be on a case by case basis.

    What is a religion? Years ago I read an article about a tax case. A bar owner filed papers to have his religion recognized, so it could not be taxed. His religion worshiped Bacchus, the god of wine and wine making. He established regular rituals for the worship of Bacchus, and his religion was very similar to other religions. His application was rejected, and the courts confirmed the rejection. To the courts, religion is like pornography, in that they know one when they see one.
    • Jan 2 2013: "Laws against murder have a religious basis.

      Even then, if a religious practice overlaps with secular practice, as marriage does, the Supreme Court finds it acceptable. This loophole is why the decisions must be on a case by case basis."

      The idea is not to dismiss laws that overlap with religious ideas, the idea is to dismiss laws that are clearly based in only religion, that's why I used the example of gay marriage and not the law against murder. The former is not supported by any secular principles, the latter is.

      ANd yes, what I propose could mean marriage becomes detached from Abrahamic traditions, so that for example polygamy and polyandry become legal, but so what? Does it hurt me in any way if two men and two women decide to enter a communal marriage? No, it doesn't and it's none of my business.

      "It seems to me that the Supreme Court has not used "religious basis" as a reason to dismiss laws. Rather, the criteria seems to be whether a law establishes a religion, or religious practice."

      There is no difference between the two: any law that's solely based on religion forces that religion's ideas on the rest of the population.
  • Jan 2 2013: John,
    I like your point that it depends.