Religious Reasons For International Norms

A comparable situation to the use of religious reasons in legislation arises when religious reasons underpin a state's international obligations, or when religious reasons or religious institutional involvement influence the formulation of interna­tional documents. Because religions typically espouse a comprehensive value system of gender differentiation, their involvement will entail a systematic influence on the development of international law in regard to the rights of women. The Catholic Church is in a legally unique position to influence such developments, because of its centralized structure and its status in interna­tional law. Other religions may also exert influence through states.

An example of how religious obligations might influence the creation of interna­tional law is seen in the opposition by some of the delegates of proposals for the inclusion in the Universal Declaration of Human Rights of equal rights of men and women to contract or dissolve a marriage. These were delegates of states bound by laws based on Concordats with the Church, which created obligations in respect of religious marriage and divorce. These would not permit them to accept the pro­posed text. The right was finally mentioned in Article 16, which states that men and women are 'entitled to equal rights as to marriage, during marriage and at its dissolution'. The reliance on the Concordats in the negotiations, however, sug­gests that pre-existing international law treaties, which had already absorbed much of religious tenets (in this case, of Catholic doctrine) had already shaped the consti­tutional structure of the rights of men and women in states.

An example of institutional religious involvement in the formulation of interna­tional documents relating to the rights of women occurred when the Vatican was one of the most active participants in the Cairo Conference, objecting to all references to human rights of abortion and contraception. The Holy See stated in a reservation to the final document of the Cairo Conference that it understood that the document does not affirm a new international right to abor- tion. The Vatican also participated in the 1995 UN Beijing Conference on Women, but lobbied China to ban reformist Catholic groups, which support women's equality, from participating in it.

The influence of religious bodies on formulation of international law affecting women's freedom of conscience and religion is evident also in the Rome Statute for the International Criminal Court. The statute includes several gender- specific offences. Important in its implication of religious attitudes is the offense of forced pregnancy, in Article 7(2)(f) : '"Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.' The wording was controversial, as the inclu­sion of the limitation that the woman was 'forcibly made pregnant' means that confinement of a woman who is pregnant by consensual sex will not be a crime under the statute. The limitation was included at the behest of the Vatican.

Thus, institutional religious involvement in formulating international human rights documents (or documents which affect human rights) is problematic. The strongest argument against this involvement is in the case of direct involvement of religious organizations. A somewhat weaker argument exists where states rely on religious arguments. After all, it may be argued that every party to the drafting process brings with it some preconceived ideological notion, and a religious approach is no less legitimate than any other. However, the nature of institutional religious involvement is different where the rights of women are at issue, as religions have not just a preset conception on particular issues but a comprehen­sive and non-negotiable set of conception about gender roles.

Religious Reasons For State Legislation

The problem whether religious reasons for legislation are legitimate, especially where these are concerned with the private lives of men and women, is theoreti­cally difficult, constitutionally fundamental, and politically loaded. Nowhere is this more so than in the case of regulation of abortion.

Because it is not yet clear whether there is a right of abortion in international law, it is important to examine the process by which domestic and international law and policy on this issue is made. Currently, a right over reproduction is not explicitly included in any of the main human rights instruments. CEDAW guar­antees equal access to healthcare, including 'family planning', a term deliberately left vague. GC 24 interprets that 'it is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.'

Access to contraception and abortion might be considered as included in Article 2 in conjunction with Article 1 of CEDAW (prohibition of discrimination), although this would entail a complex argument that lack of access to abortion constitutes 'distinction, exclusion or restriction made on the basis of sex', because lack of means of ensuring reproductive choice have vastly unequal consequences for men and women, thus perpetuating existing gender inequalities.

Only the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa includes a specific obligation of state parties to protect reproductive rights of women, including authorizing abortion in cases of rape and when continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus or is the result of incest. This is not a full right to abortion based on a perception of women's bodily autonomy, but rather a truncated right, based on what are perceived by society as fruit of crimes committed and danger to health.

The International Conference on Population and Development ('The Cairo Conference') did not recognize a right to abortion. This was directly due to religious involvement in the discussions. The Vatican was one of the most active participants in the Cairo Conference, objecting to all references to human rights of abortion and contraception. The Beijing Declaration and Platform for Action suggests states not take punitive steps against women who have undergone abortions, but nowhere suggest that it is a right of women. The fol­low-up report also does not suggest such a right.

While the question of abortion is usually argued as one of substantive rights, the process of the determination of these rights should also be considered. If a state or international policy is deemed in breach of religious freedom because of institu­tional religious involvement in its formulation, this adds a different reason to argue that prohibitions on abortions are in breach of human rights.

In the context of the debate on the constitutionality of prohibition of abortions in US law, Tribe has argued that whenever the views of organized religion play a dominant role in formulating an entire government policy, as is the case with abortion, it is an improper involvement of religion in the political process, violating the establishment clause of the First Amendment. Later, however, in a move that is testament to the difficulty of this question, he shifted his stand, acknowledging that, in fact, religion could not be disentangled from the public debate on the issue.

The influence of religion on the legislative process can be seen in the constitu­tional reform concerning abortion in Ireland. In referendum on the issue, religious arguments played a pivotal role in supporting one side of the debate. The CEDAW Committee criticized this influence of the Church on law and policy. The Committee noted in 1999, that although Ireland is a secular state, the influence of the Church is strongly felt not only in attitudes and stereotypes but also in official state policy. In particular, it noted, women's right to health, including reproductive health, is compromised by this influence. While criticiz­ing church involvement in legislation in a specific case, it seems that the Committee viewed the involvement of the Church in formulating state policy in a secular state as an institutional problem of human rights.

However, religious involvement in referendum, as in Ireland, raises separate considerations. The use of religious arguments in a referendum is perhaps the most justifiable of all uses of religious arguments in policy making. As shown in Chapter 2, the strongest argument against use of religious reasons exists when these are used by public servants; these arguments are weaker against religious reasons for voting by individual citizens, such as voters in referendum. It is practi­cally impossible to disallow the reliance of individual voters on religious reasons for their voting. Not only that, but the right of free speech includes the right of the voters to hear and consider any religious message before voting, as well as the right of the religious speakers to impart such a message. Thus, while institutional religious involvement in deciding the rights of women is problematic, it may not be easy to justify its prohibition.

There is, however, a strong, although not conclusive, case for claiming that women do have a right of access to abortion under international law. If so, regardless of the legitimacy of using religious reasons for the decision to vote for or against abortions, a law that prohibits abortions could be attacked on substantive human rights grounds.

The argument that the right to freedom of religion and belief includes a right that the state will not legislate secular laws based on religious norms was raised, but not examined, in a case of the European Court of Human Rights. In Johnston, the European Court concluded that Article 12 of the European Convention (the right to marry) does not include a right to divorce and neither does Protocol 7 to the Convention and, further, that neither is such a right included in Article 8 (protection of family life). Johnston claimed as well that lack of a divorce provision breached his rights under Article 9, as the inability to live with his new partner as married man and wife was against his conscience. The Court summarily dismissed this claim, saying Johnston's freedom to have and manifest his convictions was not in issue. The law in Ireland has changed since the ruling.

Malta is now the only state under the jurisdiction of the European Court that has no divorce provision, and to which this case is directly applicable. However, the Court's analysis of religious freedom is still relevant. It viewed freedom of conscience as limited to the right to manifest convictions. The European Court interpreted narrowly the concept of religious freedom. It did not raise the question whether the state, by mandating a system of marriage and divorce that conforms to one religious creed, impinges on the freedom of religion and conscience of those who do not subscribe to that belief.

Lack of divorce provisions impinges on the liberties of both men and women, but its effect on men is different from its effect on women. In a social structure in which most marital unions are dominated by men, through unequal financial power and traditional gender roles, lack of divorce provisions constitutes a breach of equality for women, as well as a breach of freedom of conscience for both men and women.

When a state shapes the lives of men and women, constricting them through laws based on religious doctrine, a question of religious freedom is raised. This is true, of course, not just regarding lack of divorce, but regarding any other legal arrangement that is based on religious doctrine.

As discussed in Chapter 2, a contrary argument can be made, that, in keeping with liberal conceptions, channeling religious motives into the political system through democratic participation is not only legitimate, but also has a positive public value. However, women have historically been, and mostly still are, excluded from the formulation of religious doctrine. So, the legitimation of reli­gious motives for legislation discriminates against women in the legislative process, apart from any discrimination that may be manifested in the resulting legislation.

What Sort of Education is Compatible With Religious Freedom?

What sort of education should the state provide? Assuming that the state is acting in the best interest of its citizens' children, what education should the state choose to provide? Should it provide a choice between religious and secular education, or should it provide only secular education? International law, as we have seen, requires, at a minimum, that parents have a choice of private religious education for their children. However, in a liberal state, it might be argued that no religious education should be given to children, despite their wishes or those of their parent. Even if the child chooses his or her religious education, he or she will be unduly influenced in his or her choice by his or her parents. Therefore, non-religious education is the only 'clean slate' on which the child will grow up to become a free-thinking citizen, who will make up his or her own mind as to choice of reli­gion in the future.

However, making a neutral choice is, of course, making a choice. There may be a difference, but not a great one, between non-religious education (education that is neither religious nor secular) and 'not religious' education (secular education). Children who study in a secular school, even one that is not anti-religion, are more likely to accept a secular outlook in the future.

The liberal neutrality approach may encounter another obstacle. Students do not come to school as tabula rasa. Even when the school sets out to provide a neu­tral educational setting, students may change it by exercising religious behaviour or expression. If the school tries to restore the neutral setting by limiting students' expression, it risks infringing the students' religious freedom.

Liberals wish to provide children with a neutral education, but encounter the problem of defining neutrality in education. Can we choose neutrality in educa­tion as a meta-value, without choosing neutrality as a value in itself? Can neutrality be imparted as a negative capability - do not be prejudiced against any religious viewpoint, rather than a positive capability - be neutral in your religious and philosophical convictions?

It can be argued that such a meta-value, or negative capability, can be taught, but not at a very young age. In order to grow up as full individuals, according to this argument, the child should first be given an affiliation, whether national or religious. It is not advisable or even possible to raise a child with no sense of identity. Similarly, we can teach the child not to accept stereotypical gender roles and to accept different sexual orientations, but it would seem impossible not to instil in the child some gender role, rather than a completely neutral gender identity.

The view that religion is constitutive of the person is central to a strong version of the communitarian critique of liberalism. A softer version of the communitar­ian argument against liberal neutral education can be summarized by Nagel's claim that liberal theory is non-neutral, because it discounts conceptions that depend on interpersonal relations. These conceptions, it can be added, are ever present in the children's environment.

This conclusion can also be reached through a different argument, namely that the family as a group has rights. O'Neill has commented on the tension between the child's rights and family rights. He sees the approach of liberal individualism as unsatisfactory when it comes to the intra-family relationship and suggests instead a mode of family covenant. Although he does not deal with the role of religion in the family covenant, it seems that religious cohesion might play an important part in this covenant. Even strict liberals will be hard pressed to accept that there is no importance in familial religious cohesion, although, from a liberal standpoint, this may not have enough importance to trump individual choices.

While the practical translation of a child's rights will be different than those of an adult, and should be constrained within family boundaries, I see no compel­ling reason to reject in principle the liberal model of individual rights in regard to children. Neither do I see a reason to reject it in regard to a child's freedom of religion.