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The English Religious Establishment

Published online by Cambridge University Press:  24 April 2015

James W. Torke
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It is commonplace for the English to regard their age and culture as “post-Christian.” What exactly is meant by this label is not always clear, but it seems meant to bespeak a hardheaded realism accompanied by a kind of wistfulness for a more certain, vibrant, robust past. So while supporting note is often taken of the low rate of church attendance in England, the sense of loss runs deeper, as if all that is left from the past is a kind of “domesticated pantheism” which somewhat ironically operates as a “bulwark against religion.” Reminders of this bygone culture are found in a countryside of handsome churches, cities landmarked by grand cathedrals, and a ceremonial clergy whose robes and scepters make for great spectacle and some good TV; but the churches are empty and the clergy are said to be mostly dispirited, effete, irrelevant, “enfeebled and unsure.” The term “post-Christian,” however, carries an even deeper charge insofar as it suggests something more about the state of English culture in the late twentieth century than simply the decay of the established Church as the institutional bearer of the main nourishment of Western civilization. In some sense, we are to suppose that, in England at least, the Christian world is dead and that the established Church of England remains but a many-branched museum, staffed with actors playing uncertain parts whose demise as a part of the apparatus of state is near at hand.

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Articles
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Journal of Law and Religion , Volume 12 , Issue 2 , 1995 , pp. 399 - 445
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Copyright © Center for the Study of Law and Religion at Emory University 1995

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References

1. See, for example, Sullivan, Andrew, London Diarist, The New Republic 50 (11 20, 1995)Google Scholar; Fraser, Kennedy, Straying From the Way, The New Yorker 48 (12 4, 1995)Google Scholar.

2. Fraser, , The New Yorker at 50 (cited in note 1)Google Scholar.

3. See Sullivan, The New Republic (cited in note 1).

4. The Times (Mar 11, 1995). One view of the present state of the Anglican clergy appears in David Hare's play Racing Demons, first presented in England in 1990 and lately in New York. See, Hare, David, Racing Demons (Faber and Faber, 1990)Google Scholar. See discussion at Part III, A, 3.

5. See, for example, Indiana Const, Art1, §§ 2-6.

6. Leonard Levy makes the point that in coming to an understanding of what establishment meant to the Framers of the First Amendment, it is best to focus on the religious establishments which existed in the colonies and early states. See, Levy, Leonard W., The Establishment Clause: Religion and the First Amendment, 76 (U North Carolina Press, 2d ed 1994)Google Scholar. I do not disagree that such examples provide especial insight into the Framers' understanding of what forbidden establishment was meant to consist. At the same time, these early establishments were themselves an outgrowth of or a reaction to European, especially, English, traditions and experiences, and, from a broader perspective of coming to understand the dangers in church-state relations, the European, and especially the English experience, then and now, can provide useful lessons in implementing and calibrating our own polity's solutions.

7. See discussion at Part III, A, 3 below. Recent discussion concerning the future role of the monarchy and royal family has included the proposal that all formal ties between the monarchy and the Church of England be severed. Indianapolis Star A7 (Aug 20, 1996).

8. Throughout, my focus will be general and descriptive. Close, lawyerly analysis of particular institutional issues or issues of religious freedom will be avoided in the interests of providing a broad sketch, although sources cited should provide any interested reader with plentiful resources for further, focussed study.

9. I will not attempt here to provide anything like a complete taxonomy of church-state relations. The brief survey which follows will provide a flavor of the evolution and centrality of church-state issues in Western history and will serve as a useful backdrop to the history of the English Church. The following brief history is drawn from a variety of general works. Particularly useful brief sources include, Hastings, Adrian, Church and State: The English Experience (Univ. of Exeter, 1991)Google Scholar; Woodruff, Douglas, Church and State in History (Burns & Oates, 1962)Google Scholar.

10. For useful descriptions of church-state relations in the American colonies, see generally, Ahlstrom, Sidney E., A Religious History of the American People (Yale U Press, 1972)Google Scholar; Levy, Establishment Clause (cited in note 6); Curry, Thomas J., The First Freedoms: Church and State in America to the Passage of the First Amendment (Oxford U Press, 1986)Google Scholar; Pfeffer, Leo, Church, State and Freedom (Beacon Press, rev ed, 1967)Google Scholar. For modern Europe, see id; Huegli, Albert G., ed, Church and State Under God (Concordia Pub House, 1964)Google Scholar; Sanders, Thomas G., Protestant Concepts of Church and State; Historical Backgrounds and Approaches for the Future (Holt, Rinehart and Winston, 1964)Google Scholar.

11. For a sampling, see, for example, Strauss, Leo and Cropsey, Joseph, eds, History of Political Philosophy (Rand McNally, 2d ed, 1972)Google Scholar.

12. See, for example, Woodruff, Church and State (cited in note 9).

13. See, for example, Huegli, , Church and State at 60 (cited in note 10)Google Scholar; Sanders, Protestant Concepts (cited in note 10).

14. Id, esp at 288-89.

15. See, for example, Hastings, , Church and State at 2 (ctied in note 9)Google Scholar; Panikhar, Riamundo, Religion or Politics: The Western Dilemma, in Merkl, Peter H. & Smart, Ninian, eds, Religion and Politics in the Modern World 44 (New York U Press, 1983)Google Scholar.

16. See esp id. Panikhar suggests that the Western dilemma concerning the proper relationship between church and state reflects a Cartesian dualism between spirit and matter which has informed Western thought since the seventeenth century. He argues that such a dualism is an unhappy departure from the traditional Christian concept of Christ as spirit incarnate.

17. See, for example, Figgis, John Neville, Churches in the Modern State (Longmans, Green and Co, 2d ed, 1914)Google Scholar, describing how the “common sense” of Western culture has shifted. At one time, before the rise of the positive state, the concept of establishment, or nonestablishment, could hardly exist as a category of thought.

Figgis also provides a useful reminder: “established” need not mean “created,” for church and state have separate provenances, and, as we shall see, the English Church historically is not a “creature” of the state. Yet within the modern positive state which lays claim to all sovereign powers, it is difficult not to think of the church as existing only at the sufferance of the civil authority.

18. See, for example, Montefiore, Hugh, Christianity and Politics; the Drummond Lectures 1989, esp chs 1 & 2 (Macmillan, 1990)Google Scholar.

19. See, for example Pannenberg, Wolfhart, Christianity and the West: Ambiguous Past, Uncertain Future, First Things: A Monthly Journal of Religion and Public Life 18 (12 1994)Google Scholar. See also, Berman, Harold J., Faith and Order: The Reconciliation of Law and Religion ix (Scholars Press, 1993)Google Scholar; Berman, Harold J., The Interaction of Law and Religion 136, 39 (Abingdon Press, 1974)Google Scholar.

20. Yet in the modern state which resists sharing sovereignty, the legal status of churches is something of a puzzle: Are they but one of several voluntary associations which the state recognizes and tolerates, or are they somehow sui generis? Then, too, we must ask what the proper stance of the church within the state should be. Is it to be prophetic and intermeddling, or priestly, salvific and heritage-bearing? Is the church a refuge, an escape, or a fully engaged player? Is the church aligned with or against the public culture? All of these factors must be considered in describing the nature of a particular exemplar of church-state relations. See, for example, McConnell, Michael W., Christ, Culture and Courts: A Niebuhrian Examination of first Amendment Jurisprudence 42 DePaul L Rev 191 (1992)Google Scholar; Gill, Robin, Prophecy and Praxis: The Social Function of the Churches (Marshall, Morgan & Scott, 1981)Google Scholar; Sanders, , Protestant Concepts at 1 (cited in note 10)Google Scholar.

21. There is no shortage of useful historical narratives. The following sketch is drawn largely from these sources: Edwards, David Lawrence, Christian England 4 (3 vols) (W. B. Eerdmans Pub Co, 1989)Google Scholar; Cornwell, Peter, Church and Nation (Basil Blackwell Pub Ltd, 1983)Google Scholar; Hastings, Church and State (cited in note 9); Hastings, Adrian, A History of English Christianity: 1920 - 1990 (Trinity Press Intl, 3 ed, 1991)Google Scholar; Norman, Edwin, Church and Society in England 1770 - 1970 (Oxford U Press, 1976)Google Scholar; Rodes, Robert E. Jr., Law and Modernization in the Church of England; Charles II to the Welfare State (U Notre Dame Press, 1991)Google Scholar; Welsby, Paul A., A History of the Church of England: 1945 - 1980 (Oxford U Press, 1984)Google Scholar; Woodruff, Church and State (cited in note 9); Calvert, Harry, An Introduction to British Constitutional Law (Financial Training, 1985)Google Scholar; Keir, David Lindsay, The Constitutional History of Modern Britain Since 1485 (London, Black, 9 ed, 1969)Google Scholar; Forrest, G. A. and Ridges, E. W., Constitutional Law (London, Stevens, 8 ed, 1950)Google Scholar.

22. Royal Titles Act 1953 1 & 2 Eliz c 9 § 1. Act of Supremacy 1558 1 Eliz c 1. See also, Gibson, Edgar C. S., Thirty-nine Articles of the Church of England (Methuen, 4th ed, 1904)Google Scholar; Briden, Timothy and Hanson, Brian, Moore's Introduction to English Canon Law 10 (Mowbray, 3d ed, 1992)Google Scholar.

23. See discussion at Part II, C.

24. See discussion at Part III, A, 3.

25. For the most part, the following description relies on secondary sources. Although, for illustration, statutory references are frequently provided. Readers seeking more specific data and information may find them in the various cited resources, primary and secondary.

26. Rodes, , Law and Modernization at 318 (cited in note 21)Google Scholar. This is the third of the three volume work by Rodes, , This House I Have Built: A Study of the Legal History of Establishment in England (U Notre Dame Press, 1991)Google Scholar.

27. Calvert, , Introduction at 87 (cited in note 21)Google Scholar.

28. Hastings, , Church and State at 68–69 (cited in note 9)Google Scholar.

29. Act of Supremacy 1558 1 Eliz. c 1 § 8. See also, Submission of Clergy Act, 1533, 25 Hen 8 c 19.

30. See 10 Halsbury's Statutes, Preliminary Note 6 (Butterworths, 4th ed, 1995)Google Scholar. See also statutes cited in note 22.

31. Act of Settlement, 1700, 12 & 13 Will 3 c 2, § 2, 3. See also, Coronation Oath Act, 1688, 1 Will & Mar c 6.

32. Act of Settlement, note 31, sec. 2. Of course, this view of the insidious threat of the Roman Church has somewhat lessened lately. Indeed, within the last two decades, the Pope and the Archbishop of Canterbury have exchanged visits. Moreover, a substantial part of the Church's ecumenical efforts have been directed towards Rome. Recently, the Queen was reported to have worshiped at Westminster Cathedral in London, the seat of the Roman Catholic Archbishop, Basil Cardinal Hume.

33. House of Commons (Clergy Disqualification) Act, 1801 41 Geo 3 c 63 § 1.

34. See Hastings, , Church and State at 53 (cited in note 9)Google Scholar. See Parliament Act, 1911, 1 & 2 Geo 5 c 13. See generally, Keir, , Constitutional History at ch VIII, esp pp 481–85 (cited in note 21)Google Scholar.

35. The Church was disestablished in Wales in 1919. See, Welsh Church Act, 1914, 4 & 5 Geo 5 c 91.

36. 14 Halsbury's Statutes, Preliminary Note 5, states that by “ecclesiastical law” is meant “the whole of the law relating to the Church of England” as well as statutes “relating to other religious bodies.” See also, Doe, Norman, Part I: Canonical Jurisprudence in Norman Doe, Legal Framework of the Church of England: A Critical Study in a Comparative Context (Oxford U Press, 1996)Google Scholar, and Hill, Mark, The Nature and Sources of Ecclesiastical Law, in Hill, Mark, Ecclesiastical Law: A Contemporary Source Book (Michie, 1994)Google Scholar, for useful discussions of the scope and nature of “ecclesiastical law.”

37. See discussion at Part III, A, 2.

38. Church of England Assembly (Powers) Act, 1919, 9 & 10 Geo 5 c 76. For a full description of the Church's lawmaking authority, see discussion at Part II, B, 2. The spirit which informed this transfer of day-to-day power is captured in the Archbishop's Committee on Church and State Report 1916, at 39 (the Selbourne Report):

The main defect of the present situation … is that, whereas no considerable reform can be achieved without Parliamentary action, Parliament has neither the leisure, fitness or inclination to perform efficiently the function of an ecclesiastical legislature. The remedy which lends itself to [this] committee is to give to the Church the right to legislate and, at the same time, to provide a means by which full powers of scrutiny, criticism and veto are reserved to the State.

39. Church of England Assembly (Powers) Act (cited in note 38).

40. See, Hill, , Ecclisastical Law at 19 (cited in note 36)Google Scholar. See also, Doe, Legal Framework ch 3 (cited in note 36); Briden, and Hanson, , Moore's Introduction at 7 (cited in note 22)Google Scholar; Phillimore, Robert Sir, The Principal Ecclesiastical Judgments Delivered in the Court of Arches, 1867-1895 (Rothman, 1981, reprint, Remington, 1876)Google Scholar; Welsby, History of the Church of England, esp ch X (cited in note 21).

41. Ecclesiastical Licenses Act 1533, 25 Hen 8 c21, §13. See also, for example, Act of Uniformity 1662 14 Car 2 c 4 §15, to which is attached as a Schedule, The Book of Common Prayer.

42. See generally, 14 Halsbury's Statutes Part 3: Clergy Benefices and Pastoral Schemes. A useful and thorough general discussion can be found in Doe, Legal Framework at chs 6 and 7 (cited in note 36).

43. See Deacons (Ordination of Women) Measure 1986; Priests (Ordination of Women) Measure 1993.

44. See, 14 Halsbury's Statutes Part 5: Property. A useful and thorough discussion can be found in Doe, Legal Framework at chs 15, 16, and 17 (cited in note 36).

45. See, for example, Cathedrals Measure 1976.

46. See, for example, Prayer Book (Tables of Lessons) Act 1871 34 & 35 Vict c 37. The law governing the liturgy is fully considered in Doe, Legal Framework at chs 9 and 10 (cited in note 36).

47. See discussion at Part II, B, 2.

48. For useful accounts of the Prayer Book controversy of the 1920's, see Rodes, Law and Modernization at ch 5 (cited in note 21): Hastings, Church and State, at ch 11 (cited in note 9).

49. See Prayer Book (Versions of the Bible) Measure 1965. For a general account of the second Prayer Book controversy, from the standpoint of An MP, see, Field, Frank, The Church of England and Parliament: a Tense Relationship, in George Moyser, ed, Church and Politics Today: Essays on the Role of the Church of England in Contemporary Politics, Chap 3 (T. & T. Clark, 1985)Google Scholar.

50. See, Church of England (Worship and Doctrine) Measure 1974.

51. On the nature and role of the General Synod, see discussion at Part II, B, 2.

52. See generally, Doe, Legal Framework at ch 10 (cited in note 36). By § 3 of the 1974 Act (cited in note 50), a majority of 2/3 is required in the General Synod with respect to matters affecting worship and doctrine.

53. Id at § 1(1). See also Doe, , Legal Framework at 290 (cited in note 36)Google Scholar.

54. See, for example, Appointment of Bishops Act 1533 25 Hen 8 c 20.

55. The current practice is usefully described in Welsby, History at ch X (cited in note 21). See also, Hill, , Ecclesiastical Law at 235Google Scholar and following (cited in note 36); Doe, Legal Framework at ch 6 (cited in note 36); Briden, and Hanson, , Moore's Introduction at 17 (cited in note 22)Google Scholar

56. Doe, , Legal Framework at 505 (cited in note 36)Google Scholar.

57. See discussion, at Part III, A, 2.

58. The following discussion is drawn from a variety of sources. The best single source is Doe, Legal Framework (cited in note 36). The great virtue of the Doe book is its detailed consideration of the internal rules and workings of the Church. The comparative perspective with the Roman Catholic Church which it offers is interesting but a sidelight to its real focus. See also, Hill, Ecclesiastical Law (cited in note 36); Welsby, History (cited in note 21); 1995 Church of England Yearbook; Crockford's Clerical Directory; Briden and Hanson, Moore's Introduction (cited in note 22); Moyser, ed, Church and Politics (cited in note 49; The Canons of the Church of England (Church House, 5th ed, 1993)Google Scholar. See also, 14 Halsbury's Statutes; Robilliard, St. John Anthony, Religion and the Law: Religious Liberty in Modern English Law ch 5 (Manchester U Press, 1984)Google Scholar. It should be noted that the central structures of the Church are presently under the study of the Turnbull Commission. See Hill, , Ecclesiastical Law at 30 (cited in note 36)Google Scholar.

59. The Church in Wales and in Northern Ireland has been disestablished. See, Welsh Church Act, 1914, 4 & 5 Geo 5 c 91; Welsh Church (Temporalities) Act, 1919, 9 & 10 Geo 5 c 65; Irish Church Act, 1869, 14 Halsbury's Statutes, Preliminary Note, Part 6 (Butterworths, 4th ed. 1995)Google Scholar. The establishment in Scotland is distinct, and while the Queen is its head, it is not subject to parliamentary control and so provides an alternative model of establishment.

60. See generally, Hill, , Ecclesiastical Law at 102–04 (cited in note 36)Google Scholar; Rodes, , Law and Modernization at 167 (cited in note 21)Google Scholar; Doe, Legal Framework at Ch 4 (cited in note 36). See, for example, City of London (Guild Churches) Act, 1952, 15 & 16 Geo & 1 Eliz 2 cxxxviii.

61. Church of England Assembly (Powers) Act 1919 9 & 10 Geo c 76.

62. Synodical Government Measure 1969.

63. See discussion at Part III, A, 3; Part III, B. General Synod has, for example, a Legislative Committee, a Board of Education, a Board of Mission, a Board for Social Responsibility, and a Central Board of Finance. See generally, Hill, , Ecclesiastical Law at 21Google Scholar and following (cited in note 36). For consideration of various positions taken by General Synod and its committees on matters of public importance, see Moyser, Church and Politics (cited in note 49); Reeves, Donald, ed, The Church and the State (Hodder & Stoughton, 1984)Google Scholar.

64. See Church of England Convocations Act 1966. Each province has a convocation. The convocations predate Parliament and were once the bodies through which the church taxed itself. Modernly, the convocations are a gathering of bishops and representative clergy divided into upper and lower houses, and, like Parliament, are summoned by the Queen. Their legislative powers have passed to the General Synod. Resolutions passed after discussion may, however, carry great weight within the Church. See Briden, and Hanson, , Moore's Introduction at 21–23 (cited in note 22)Google Scholar.

65. See Hill, , Ecclesiastical Law at 344 (cited in note 36)Google Scholar. See also, Rodes, Law and Modernization (cited in note 21) for a general account of the gradual diminution of the Church's civil authority.

66. See discussion at Part II, B, 2, c.

67. General descriptions of the Church's judicial structure and power may be found in Doe, Legal Framework at ch 5 (cited in note 36) and in Hill, Nature and Sources at ch VI (cited in note 36). See Care of Churches and Ecclesiastical Jurisdiction Measure 1991; Ecclesiastical Jurisdiction Measure 1963: Part 1: The Ecclesiastical System. See also, Canons of the Church of England Part G (cited in note 58); Briden and Hanson, Moore's Introduction at ch XIV (cited in note 22); Welsby, History at ch XIV (cited in note 21); Robilliard, Religion at ch 5 (cited in note 58).

68. Id at 92. At one time, there was a specialized ecclesiastical bar, specially trained in Doctors Commons and known as Proctors. Today, a number of lawyers still specialize in ecclesiastical law. See generally, Rodes, , Law and Modernization at 115 (cited in note 21)Google Scholar.

69. For a general discussion of the faculty jurisdiction, see Hill, Ecclesiastical Law at ch VII (cited in note 36) and Doe, , Legal Framework at 142 and ch 15 (cited in note 36)Google Scholar.

70. See Rodes, , Law and Modernization at 167 (cited in note 21)Google Scholar.

71. Land which is consecrated and all things upon it are brought under the authority of the diocesan bishop and are thereby set aside for sacred uses. Land consecrated cannot be used for secular purposes without an act or measure of Parliament or by special statutory procedures. See, Briden, and Hanson, , Moore's Introduction at 86 (cited in note 22)Google Scholar; Doe, , Legal Framework at 412–13 (cited in note 36)Google Scholar.

72. 14 Halsbury's Statutes, Part 3(b): Benefices and Pastoral Schemes; Part 5: Property; Part 9: Tithes. See also, Canons, Part F. See generally, Doe, Legal Framework at chs 15-17 (cited in note 36).

73. See note 69.

74. See generally, Doe, Legal Framework at ch 15-17 (cited in note 36).

75. Id at 463-64.

76. State funds pay for the salaries of prison, hospital and military chaplains, and also have been used for the maintenance of some historic church buildings. See Welsby, History at ch XII (cited in note 21); Doe, , Legal Framework at 474 (cited in note 36)Google Scholar.

77. See Rodes, Law and Modernization at ch 3 (cited in note 21).

78. Id.

79. See, for example, Queen Anne's Bounty Act 1714 1 Geo 1 stat 2 c 10. See generally, Hill, , Ecclesiastical Law at 27–30 (cited in note 36)Google Scholar; Rodes, Law and Modernization at ch 3 (cited in note 21).

80. Id at 167.

81. The Church of England and other religious bodies are generally exempt from local taxation. See Briden, and Hanson, , Moore's Introduction at 90 (cited in note 22)Google Scholar; Robil-Hard, Religion and the Law at ch 4 (cited in note 58).

82. The Central Board of Finance of the General Synod also exerts influence on the Church finances. See Ecclestone, Giles, The General Synod and Politics, in Moyser, , Church and Politics at 107 (cited in note 49)Google Scholar.

83. Id.

84. Church Commissioners Measure 1947, 10 & 11 Geo 6 No 2. See also, Hill, , Ecclesiastical Law at 29Google Scholar (cited in note 36). The Church Commissioners came into existence in 1947 through a combination of the Ecclesiastical Commissioners, a body first created in 1836 and Queen Anne's Bounty, established in 1704 to aid impoverished clergy.

85. Church Commissioners Measure 1947 10 & 11 Geo 6 No 2, § 5, Second Schedule.

86. See The Times 4 (02 8, 1995)Google Scholar.

87. See discussion at Part III, A, 1 and 2. Also see Hastings, History at ch 4 (cited in note 21).

88. A single exception — that the monarch, who is, after all, Head of the Church, and her consort must be members of the Church.

For a chronology of acts removing religious disabilities, see Robilliard, , Religion and the Law at 199Google Scholar (cited in note 58), Appendix. Since 1974, Roman Catholics are no longer ineligible for the office of Lord Chancellor, ending one of the few disabilities that survived into the twentieth century. See, Tenure of Office and Discharge of Ecclesiastical Functions Act 1974.

89. Church of England (Miscellaneous Provisions) Measure, 1976, § 6(1). See generally, Doe, Legal Framework at ch 14 (cited in note 36).

90. While civil law permits remarriage after divorce, the incumbent of a given parish may, in recognition of Church law, refuse to marry such persons. See, Hill, , Ecclesiastical Law at 303Google Scholar (cited in note 36); Doe, Legal Framework at ch 13 (cited in note 36); Welsby, History at ch 12 (cited in note 40).

91. See note 90. See generally, Doe, Legal Framework at ch 14 (cited in note 36); Welsby, History at ch VI (cited in note 21); Robilliard, , Religion at 92Google Scholar (cited in note 58); Briden, and Hanson, , Moore's Introduction at 35, 74 (cited in note 22)Google Scholar.

92. Welsby, History at ch 7 (cited in note 21); Hill, , Ecclesiastical Law at 85–86Google Scholar (cited in note 36). For a full discussion of the role and power of the laity, see Doe, Legal Framework at ch 8 (cited in note 36).

93. The following discussion is drawn from a variety of sources. For the historical development of the English school system, see esp, Evans, Keith, The Development and Structure of the English School System (Hodder & Stoughton, 1985)Google Scholar; Hastings, History, at ch 29 (cited in note 21); Rodes, Law and Modernization at ch 2 (cited in note 21). Statutory law governing education is collected in 15 Halsbury's Statutes 1–1201 (Butterworths, 4th ed, 1994 Reissue)Google Scholar which provides useful annotations. For helpful discussion of the present situation, see Bradney, Anthony, Religions, Rights and Laws ch 4 (St. Martin's Press, 1993)Google Scholar; Cox, Edwin & Cairns, Josephine, Reforming the Religious Clauses of the 1988 Education Reform Act (University of London, 1989)Google Scholar; Evans, Development and Structure (cited in this note); Robillaird, Religion at ch 10 (cited in note 56). See also, Khan, Anwar, Daily Collective Worship and Religious Education In British Schools, 24 J of L & Ed 601 (1995)Google Scholar; Waddington, Robert, The Church and Educational Policy, in Moyser, , Church and Politics at 221 (cited in note 49)Google Scholar.

94. Oxford University Act 1854 17 & 18 Vic c 81 § Cambridge University Act 1856 19 & 20 Vic c 88, § 45.

95. Universities Tests Act 1871 34 & 35 Vic c 26.

96. See Hastings, History at ch 29 (cited in note 21).

97. Education Act, 1944, 7 & 8 Geo 6 c 31.

98. Public Schools Act 1868 31 & 32 Vic c 118.

99. Education (Schools) Act 1992 c 38.

100. Education Act 1944 § 9, 15. See also, Further and Higher Education Act 1992. “Grant-maintained” schools exist independently of Local Education Authority control. See Education Act 1993, Part II.

101. See Hastings, History at ch 29 (cited in note 21).

102. Education Act 1944, § 15.

103. Education Reform Act 1988, Part I, Chapter IV § 52-104, Schedule 5, reenacted as Part II of the Education Act 1993, §§ 22-155, Schedules 3-8.

104. See Evans, , Development and Structure at 14, 16, 221 (cited in note 93)Google Scholar. Muslim schools have only recently been able to obtain state funding. Id at 16; New York Times, January 10, 1998 at A4; National Public Radio, Morning Edition 7:45AM, EST (04 6, 1994)Google Scholar; Bradney, , Religion at 67 and following (cited in note 93)Google Scholar.

105. Education (No 2) Act 1986 § 3, 4. Also see Cox and Cairns, Reforming (cited in note 93); Evans, Development and Structure (cited in note 93).

106. See note 97, esp § 26-29, Schedule 5.

107. Education Reform Act 1988, § 2. The “basic” curriculum is to be distinguished from the “core” curriculum. The latter curriculum contains those subjects subject to testing as a precondition for further or higher education.

108. Education Act, 1944, § 26.

109. Id § 27.

110. Id § 28.

111. Education Act, 1988 § 11.

112. For general overviews, see Bradney, Religions, Rights and Laws at ch 10 (cited in note 93); Cox and Cairns, Reforming (cited in note 93); Waddington, , Church and Educational Policy in Moyser, , ed, Church and Politics (cited in note 49)Google Scholar.

113. Education Act 1988 § 9.

114. Education Act, 1944, § 30. It should be noted that both Bradney, Religions (cited in note 93), and Robilliard, Religion (cited in note 56), express some skepticism about how widely known these provision are among parents, and whether they are quite so effectively protective as they were intended to be. See discussion at note 181.

115. Education Act, 1988, § 6. See generally, § 6-9. It should be noted that § 7 of the ‘88 Act tightened things up somewhat, emphasizing Christianity, in part because of what was thought to be somewhat lax enforcement of the ‘44 Act provisions. Whether current practices are any more in compliance is doubtful. See generally Cox and Cairns, Reforming (cited in note 93); Bradney, Religions at ch 4 (cited in note 93); Robilliard, Religion at ch 10 (cited in note 56).

116. Education Act, 1988, § 7(1).

117. Id § 7 (2).

118. Id § 7 (6).

119. On the unreliability of such statistics, see Gill, Robin, The Myth of the Empty Church, esp ch 1 (Society for Promoting Christian Knowledge, 1993)Google Scholar; see also, Moyser, George, The Church of England and Politics: Patterns and Trends, in Moyser, , Church and PoliticsGoogle Scholar at ch 1 (cited in note 49) Moyser provides estimates of 10,000 clergy and 2,000,000 members.

120. Yearbook of theChurch of England 1994. While in a bar in Winchester, I engaged several local residents in a conversation about their city. When I asked what the population of Winchester might be, They all seemed nonplussed, finally offering estimates between 45,000 and 250,000. They then explained that, unlike Americans, they didn't see the value of such statistics.

121. See The World Almanac and Book of Facts 1996. According to Witaker's Amanac 1996, in 1991 England's population was only 46,382,050.

122. Church and State: Report of the Archbishop's Commission (The Chadwick Report) 4 (1970; 1985 reprint)Google Scholar. The Report estimates that in the 1960's, 13-14% of the English were Methodists, 9% Roman Catholic, 11-22% other and none.

123. Yearbook of the Church of England 1994. For those years, baptisms amounted to 564, 424, 180 respectively; confirmations numbered, respectively 181, 197, 55.

124. See, Sleeman, John, The Church and Economic Policy, in Moyser, , Church and Politics at ch 11 (cited in note 49)Google Scholar.

125. See esp, Gill, Myth at Introduction and 296 and following (Tables) (cited in note 119).

126. Id.

127. Id. And see, Hastings, , History at chs 2, 31, p 459 (cited in note 21)Google Scholar.

128. Mandatory attendance laws had been only laxly enforced for at least a century or more before their abolition in 1846. See Rodes, , Law and Modernization at 53 (cited in note 21)Google Scholar.

129. See Hamilton, Bernard, The Medieval Inquisition 15 (Holmes & Meier, 1991)Google Scholar, suggesting that the Pope's Thirteenth Century interdiction which closed church doors throughout England raised little outcry from the people. See discussion at Part II, A.

130. See esp Gill, Myth (cited in note 119); the Chadwick Report, (cited in note 122); Rodes, , Law and Modernization at 373 (cited in note 21)Google Scholar; Hastings, , History at 665 (cited in note 21)Google Scholar.

131. See Yearbook of the Church of England 1994; Sleeman, The Church and Economic Policy (cited in note 49).

132. Palmer, R.R., ed. Rand McNally Atlas of World History 193 (Rand McNally 1965)Google Scholar.

133. The Times (Apr 21, 1995). My personal observations confirm what this last statistic may be supposed to show: while the number of churchgoers is small, those who go to church are deeply dedicated to it. This is reflected in the fastidious upkeep of most churches as well as in the welcoming face which parishioners show to guests.

134. See note 87. See also, Hastings, History at ch 2 (cited in note 21); Gill, Myth (cited in note 1119).

135. See Hastings, , History at 53 (cited in note 21)Google Scholar.

136. Id. And see Gill, , Myth at 296 (Tables) (cited in note 119)Google Scholar.

137. See Hastings, History at ch 4 (cited in note 21). The sort of anxiety this has caused among concerned clergy is vividly depicted in the play, Racing Demons. See note 4; description accompanying note 150.

138. Hastings, History at ch 42 (cited in note 21); see also, Moyser, Church and Politics (cited in note 49).

139. Id.

140. Rodes, , Law and Modernization at 242 (cited in note 21)Google Scholar.

141. Id.

142. Temple, William, Christian Faith and the Common Life, in Church, Community and State 47 (Oxford Conference on Church, Community and State, 1937)Google Scholar. See also Hastings, , Church and State at 72 (cited in note 9)Google Scholar.

143. See, for example, The Chadwick Report, at 8 (cited in note 122); Temple, , Christian Faith at 47 (cited in note 142)Google Scholar; Dyson, Anthony, Little Else But the Name-'Reflections on Four Church and State Reports, in Moyser, , Church and Politics at ch 12 (cited in note 49)Google Scholar.

144. See Temple, Christian Faith (cited in note 142).

145. See note 143.

146. Id.

147. Hastings, History at ch 42 (cited in note 21); Reeves, Church and the State Introduction (cited in note 63).

148. The Times (Mar 11, 1995) quoting from Cleverly Ford, Preaching What We Believe (Mowbray, 1995).

149. See Reeves, Church and the State Introduction (cited in note 63).

150. Hare, Racing Demons (cited in note 4).

151. See Gill, Myth esp ch 1 (cited in note 119).

152. Id. See also note 15 at ch 1; Reeves, Church and the State at Introduction (cited in note 63): Rodes, , Law and Modernization at 242 (cited in note 21)Google Scholar.

153. See Plant, Raymond, The Anglican Church and the Secular State, in Moyser, , Church and Politics at ch 13 (cited in note 49)Google Scholar.

154. See discussion in Part III, B, 2.

155. See, for example, Reeves, Church and the State at Introduction (cited in note 63); Gill, Myth at ch 1 (cited in note 119); Montefiore, , Christianity at 77Google Scholar (cited in note 18); Dyson, Little Else But the Name in Moyser, Church and Politics (cited in note 49); Field, The Church of England (cited in note 49).

156. See discussion regarding the future of establishment at notes 171 to 177.

157. See, Gill, , Myth at 114Google Scholar (cited in note 119); Montefiore, , Christianity and Politics at 28Google Scholar (cited in note 18); Temple, William, Christianity and Social Order (Shepheard-Walwyn, 1942)Google Scholar.

158. Moyser, Church and Politics (cited in note 49).

159. Temple, Christianity (cited in note 157).

160. Id at 58.

161. Montefiore, , Christianity and Politics at 81 (cited in note 18)Google Scholar; also see id at 25, 79.

162. Erstwhile Vicar of St. Mary the Virgin Church in Oxford, now a Roman Catholic, Peter Cornwell, who has argued for disestablishment, depicts the Church's inclusiveness as forced, empty and hollow. See Cornwell, , Church and Nation at 16 (cited in note 21)Google Scholar. See discussion following note 172.

163. Hastings, History at ch 2 (cited in note 21).

164. See Newsome, David, The Convert Cardinals: Newman and Manning (John Murray, 1993)Google Scholar.

165. See, for example, Oddie, William, The Crockford File: Gareth Bennett and the Death of the Anglican Mind (Hamish Hamilton, 1989)Google Scholar.

166. Rodes, Law and Modernization at ch 4 (cited in note 21).

167. See discussion at notes 47-53.

168. See esp Hastings, History at Afterthoughts (cited in note 21).

169. See discussion at Part II, B.

170. See Rodes, Law and Modernization at chs 4 and 5 (cited in note 21).

171. See Dyson, , Little Else But the Name, in Moyser, , Church and Politics (cited in note 143) for a critical discussion of the reportsGoogle Scholar.

172. The Chadwick Report (cited in note 144).

173. Moyser, , Church and Politics at 23 (cited in note 49)Google Scholar.

174. For general discussion of the issue of disestablishment, see the four Church Reports discussed in Dyson, , Little Else But the Name, in Moyser, , Church and Politics (cited in note 143)Google Scholar; Hastings, Church and State at ch 4 (cited in note 9); Hastings, History (cited in note 21). Arguments favoring disestablishment can be found in Cornwell, (cited in note 143); Cornwell, Peter, The Church of England and the State: Changing Constitutional Links in Historical Perspective, in Moyser, , Church and the State at ch 2 (cited in note 49)Google Scholar; Williams, Shirley, The Church and Politics, in Reeves, , The Church and the State at ch 2 (cited in note 63)CrossRefGoogle Scholar; Tony Benn, A Case for the Disestablishment of the Church of England, in id at ch 5. Arguments against disestablishment can be found in Owen Chadwick, The Link Between Church and State, in id at ch 3; Mark Santer, The Freedom of the Gospel, in id at ch 9. Santer argues that the issue of disestablishment is peripheral to the main need for true independence of the secular powers.

Curiously, there appears to have been little formal discussion of just what disestablishment might consist of. Presumably, the Church would lose its places in the House of Lords. So also the special prominence given to the Archbishop of Canterbury in his ceremonial role would cease. Church courts would no longer be courts of the realm entitled to enforcement of their decrees in the civil courts. Similarly, it may be supposed that the vaster amount of statutes and measures would be repealed, perhaps becoming part of the canons and by-laws of the Church, at least until the Church saw fit to change them. Perhaps most problematic would be the status of the Church's vast holdings, especially the many historic places and relics which belong to it, but also to the English people. It may be ventured that the lack of serious attention to these problems is an indication that talk of disestablishment is, so far, mostly idle.

175. Id. Norman Doe has noted that the state intrusion into Church matters is both facilitative as well as burdensome. See Doe, , Legal Framework at 505 (cited in note 36)Google Scholar.

176. Hastings, , History at 665 (cited in note 21)Google Scholar.

177. Rodes, , Law and Modernization at 363, 373 (cited in note 21)Google Scholar. See also, Rodes, Robert, Pluralist Establishment: Reflections on the English Experience, 12 Card L Rev 867 (1991)Google Scholar; Gilles, Susan, Worldly Corruption’ and ‘Ecclesiastical Depredations:’ How Bad Is An Established Church? 42 DePaul L Rev 349 (1992)Google Scholar. But compare, Bush, Jonathan A., ‘Include Me Out:’ Some Lessons of Religious Toleration in Britain, 12 Card L Rev 881 (1991)Google Scholar.

178. See discussion at Part II, B.

179. See Oaths Act, 1888, 51 & 52 Vict c 46. (Since repealed and replaced by Oaths Act 1978, 1978 c 19.) See generally, Robilliard, , Religion at 199 Appendix (cited in note 58)Google Scholar. See also Rodes, , Law and Modernization at 178 (cited in note 22)Google Scholar.

180. See discussion at Part II, C, 1. See also note 7.

181. See discussion at II, C, 3, b. See also Khan, 24 J of L & Ed 601 (cited in note 93); Bradney, Religions at ch 4 (cited in note 93); Robilliard, Relgion at ch 10 (cited in note 58).

182. See Khan, 24 J of L & Ed at 606, n 38 (cited in note 93).

183. See discussion at page 426.

184. See Bradney, , Religions at 63 (cited in note 93)Google Scholar.

185. See James, Eric, In the Global Village, in Reeves, , Church and the State at ch 7 (cited in note 63)Google Scholar. James estimates that from a nonwhite population in 1949 of .2%, the 2000, 6.7% of the population will be nonwhite. In Juss, Satwinder S., The Constitution and Sikhs in Britain, 1995 Byu L Rev 481, 482Google Scholar, it is estimated that 5.6% of the population qualify as minorities.

186. See discussion at note 104.

187. See Bradney, , Religions at 108Google Scholar and following (cited in note 93). On Sunday laws, see also, Robilliard, Religion at ch 3 (cited in note 58); regarding problems of religion in the workplace generally, see id at ch 11. In fact, such protection as exists is afforded in the Race Relations Acts, 1965, 1968, 1976. See Juss, at 521-22 (cited in note 185).

188. See, John Neville Figgis, Churches in the Modern State (cited in note 17).

189. 23 & 24 Vict C 32, § 2. See Robilliard, , Religion at 15 (cited in note 58)Google Scholar. See also, for example, Places of Worship Registration Act 1855 18 & 19 Vict c 8.

190. See Robillard, Religion at ch 4 (cited in note 58).

191. See Bradney, Religions at ch 5 (cited in note 93).

192. See Robilliard, Religion at ch 2 (cited in note 58); see also, Levy, Leonard, Biasphemy (University of North Carolina, 1995)Google Scholar; Balcombe, , The Attitudes of the Law to Religion in a Secular Society (Oxford, 1989)Google Scholar; Report of a Seminar, Law, Blasphemy and the Multi-Faith Society (Comm'n for Racial Equality, 1990)Google Scholar.

193. Id. A 1985 Law Commission recommended abolition of the law of blasphemy.

194. See, for example, note 185. Juss recognizes that the law in England protecting religious freedom is forward-looking, if still “woefully deficient.” (485). Juss proposes that the United kingdom incorporate certain international covenants protecting religious liberty into its domestic laws, or, alternatively, promulgate An act comparable to the Religious Freedom Restoration Act, 42 USC 2000bb.

195. Id. See also, Robilliard, Religion at 11 (cited in note 58); Crumper, Peter, Religious Human Rights In The United Kingdom, 10 Emory Intl L Rev 115 (1996)Google Scholar.

196. See Rodes, , 12 Card L Rev 867 (cited in note 21)Google Scholar; Gilles, , 42 DePaul L Rev 349 (cited in note 177)Google Scholar; but compare Bush, , 12 Card L Rev 881 (cited in note 177)Google Scholar.

197. See Bradney, Religions at ch 9 (cited in note 93).

198. Neuhaus, Richard John, The Naked Public Square (W. B. Eerdmans Pub Co, 1984)Google Scholar.

199. See discussion at III, A, 2.

200. See generally Hastings, History (cited in note 21); Montefiore, Christianity and Politics (cited in note 18); Welsby, A History (cited in note 21).

201. Temple, Christianity (cited in note 157). See also, Hastings, History at chs 12, 19 (cited in note 21).

202. Welsby, History (cited in note 21).

203. Id.

204. See generally, Moyser, Church and Politics at chs 8-12 (cited in note 49); Hastings, History (cited in note 21); Montefiore, Christianity (cited in note 18).

205. Reeves, , Church and the State at 9 (cited in note 63)Google Scholar.

206. Hastings, , History at 2 (Afterthoughts) (cited in note 21)Google Scholar.

207. Taylor, Teddy, Politics and the Church, in Reeves, , Church and the State at ch 6 (cited in note 63)Google Scholar.

208. Montefiore, Christianity and Politics (cited in note 18). See also, Gill, Prophecy and Praxis at chs 1 and 4 (cited in note 20).

209. See discussion at III, A, 2.

210. For representative discussion of the proper role of religious belief in American public policy formation, see, for example, Ackerman, Bruce, Social Justice in the Liberal State (Yale U Press, 1980)Google Scholar; Carter, Stephen L., The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Basic Books, 1993)Google Scholar; Dworkin, Ronald, Life's Dominion: An Argument About Abortion, Euthanasia and Individual Freedom (Knopf, 1993)Google Scholar; Rawls, John, Political Liberalism (Columbia U Press, 1993)Google Scholar; Greenawalt, Kent, Religious Conviction and Political Choice (Oxford U Press, 1988)Google Scholar; Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics (Oxford U Press, 1991)Google Scholar. For an interesting “tactical” proposal from the religious side, see Weigel, George, Christian Conviction and Democratic Experience, First Things: A Monthly Journal of Religion and Public Life 28 (03, 1994)Google Scholar.

211. See Elford, John, The Church and Nuclear Defense Policy, in Moyser, , Church and Politics at ch 8 (cited in note 49)Google Scholar.

212. Cornwell, Church and Nation (cited in note 21).

213. Taylor, , Politics and the Church, in Reeves, , Church and the State (cited in note 63)Google Scholar.

214. Pannenberg, , First Things at 20 (cited in note 19)Google Scholar.

215. See discussion at III, A, 2.

216. See Temple, , Christianity at 58Google Scholar (Introduction) (cited in note 157). See also, Elford, , The Church and Nuclear Defense Policy, in Moyser, , Church and Politics (cited in note 49)Google Scholar; sources cited at notes 159-62.

217. Gill, , Prophecy and Praxis at 46Google Scholar (cited in note 20). There is a certain irony in this sort of observation which is captured nicely by Kempton, Murray, Book Review of Christopher Hitchens' The Missionary Position: Mother Theresa in Theory and Practice, The Shadow Saint, New York Review of Books, at 4–5 (07 11, 1996)Google Scholar.

But then who could conjure up an unlikelier apparition than the sight of Christopher Hitchens heaving his cutlass as defender of the faith profaned? The imagination settles back upon him as a schoolboy conscripted to Sacred Studies and chained to Chapel through times immemorial. We can feel his puzzlement when Elisha turns the bears on the naughty children and sense his confusion with the moral ambivalance of the Parable of the Dishonest Steward until he arrives at last at the solaces of alienation. And yet all the while the sweet seductions of the Faith have been breathing in the air around him, penetrating his subsconscious and finally and permanently imbuing it with the sacred obligation the honest unbeliever owes to orthodoxy.

Outraged propriety like this is a kind of religious expression, and seemlier than many others more current. Hitchens might not stir a finger for the Glory of God; but he has stood at his Right Hand and held the bridge for His Dignity. A day will come, prayerfully well hence, when his fellow communicants will commend his departed soul with strict attention to the Articles of Disbelief; and his travels thereafter might just possibly find a destination that offers two surprizes. The first would be the discovery that there is indeed a gate of Heaven. The second will burst forth when the Recording Angel opens his book to cry out with holy glee. “Christopher Hitchens? Bully for you.”

218. See Gill, , Prophecy and Praxis at 50, 56 (cited in note 20)Google Scholar.

219. See, for example, The Times, (Apr 21, 1995).

220. See, for example, The Times, (Mar 13, 1995).

221. See, for example, The Times, (Jan 31, 1995).

222. See, for example, The Times, (Feb 6, 1995).

223. See, for example, The Times, (Feb 10, 1995).

224. See, for example, The Times, (Mar 1, 1995).

225. See, for example, The Times, (Mar 3, 1995).

226. See, for example, The Times, (Mar 6, 1995).

227. See, for example, The Times, (Mar 20, 1995); (Apr 20, 1995).

228. See, for example, The Times, (Mar 28, 1995).

229. See, for example, The Times, (Feb 20, 1995).

230. See, for example, The Times, (Jan 31, 1995).

231. See, for example, The Times, (Feb 6, 1995). The practice of exorcism is guardedly recognized by the Church. See, Doe, , Legal Framework at 401Google Scholar (cited in note 36); Hill, , Ecclesiastical Law at 313 (cited in note 36)Google Scholar.

232. See, for example, The Times (Jan 6, 16, 1995).

233. See, for example, The Times (Jan 21, Feb 11, 1995).

234. See, for example, The Times (Jan 14, 21, 1995).

235. See, The Times, (Mar 11, 1995).

236. See, for example, Daily Telegraph (Jan 12, 1995).

237. See, for example, The Times (Feb 10, 1995).

238. See, for example, The Times (Jan 10, 1995).

239. See, for example, The Times (Mar 15, 1995).

240. See, for example, The Times (Apr 25, 1995).

241. See, for example, The Times (Jan 31, 1995).

242. See Cornwell, Church and Nation at ch 3 (cited in note 162).

243. See Hastings, History at esp chs 12, 17, 32, 41 (cited in note 21) for an account of the interrelationship between theology and 20th century English intellectual life.

244. See Greenawalt, Religious Convictions at ch 6 (cited in note 210) discussing the unavoidable religious foundations of the animal rights movement.

245. See, for example, The Times (Feb 9, 16, 1995); The Manchester Guardian (Feb 15, 1995).

246. See discussion at notes 159-60, 214-167.

247. McCollum v Bd of Educ, 393 US 203, 216 (1948).