21 November 2013

Equal marriage and the rising sun...

Can you be certain that the sun will rise tomorrow? It will. It rose today, it rose yesterday, and the day before that. And before that. I saw it. Dawn will break tomorrow. Ah, but that's today, and yesterday. And yes, you observed the sun in the sky. But what guarantee does that give you that it will break through the clouds tomorrow? Mathematical logic doesn't require that the sun break in the east. Or breaks at all. And your senses have no evidence that it will rise on Friday, only that it sprung from the sea on Thursday. But of course it will. Of course the sun will rise. You're probably right. But logically, you can't know it for certain, that's my point.

David Hume's Enquiry Concerning Human Understanding can be a disturbing tract. Those ideas of cause and effect you take for granted, that the sun will rise tomorrow, that the impact of one billiard-ball will dislodge and move another? These aren't necessary conclusions of deductive reasoning, but are at best provisional, probable judgements based on your experiences. There are no guarantees.  This is usually referred to as the idea (and sometimes, as the problem) of induction. The bottom line: we've got to be pragmatic, and make our best guesses, appealing to our experiences and judgements, and live as if we knew the sun would come up tomorrow. Hume's observations about probability aren't limited to physical examples, but extend to predictions about folk too:

"A man who at noon leaves his purse full of gold on the pavement at Charing Cross, may as well expect that it will fly away like a feather, as that he will find it untouched an hour after. Above one half of human reasonings contain inferences of a similar nature, attended with more or less degrees of certainty proportioned to our experience of the usual conduct of mankind in such particular situations."

Certainty seems much on political vogue at the moment.  Demands for rain-or-shine predictions of the future are a staple of the constitutional debate. In yesterday's debate in Holyrood, critics of the SNP government's equal marriage proposals harped on the same string.  Sure, Mr Neil, you've written all of these safeguards for religious bodies and people in your Bill, but where are the guarantees these protections won't be subject to legal challenge and fail?

Law-making in Scotland today is subject to complex and often unpredictable pressures. This is nothing new. The Scottish Parliament isn't sovereign. Holyrood may legislate across great swathes of territory, but is bound to observe the limits of the devolution settlement, Convention rights and European Union law. Constructing the scope of Holyrood's powers under the Scotland Act isn't always straightforward and predictable. The debatable legality of the independence referendum before the section 30 order was passed being an excellent case in point.  

European Union law is also, in many respects, open to interpretation, leaving the door ajar for legal challenges to the parliament's decisions. We saw - and see - this writ large, in the imminent challenges to the legality of the SNP's flagship minimum price for alcohol policy.  For the Scottish Government, the proposals do not represent an unlawful restraint on the single European market, but a policy intervention justified on grounds of public health, whose intervention in the single market is reasonably proportional to the end sought.  The tobacco giants Sinclair Collis and Imperial Tobacco used similar legal arguments, unsuccessfully to challenge the Scottish ban on cigarette vending machines in court.  

And as those of you who have ever attempted to read a decision of the European Court of Human Rights will know, human rights law isn't a bumper book of easily implemented rules either. Despite popular perceptions to the contrary, law is rarely so determinate or straightforward, but applying the Convention can be particularly tricky. Courts have to ask, does the law engage a protected right? Does the government measure pursue a legitimate aim? Does the measure strike a fair balance between the protection of rights and of the public interest? 

Opponents cited Convention rights to challenge the fox hunting ban early in the life of the Parliament. In 2012, we saw AXA and other big insurers try to rely on property protections under Article 1 of Protocol 1 to challenge the legality of the Holyrood legislation which confirmed that pleural plaques arising as a result of exposure to asbestos represented an actionable personal injury in Scots law.  AXA lost in the UK Supreme Court. 

So what's the lesson of all of this? Is it, as John Mason, Richard Lyle and Elaine Smith suggested in yesterday's same-sex marriage debate, that parliament should tremble at the mere possibility of legal challenges, and decline to enact the Bill? Should it do so in every circumstance, or just here? Ought Holyrood not to have banned cigarette machines, allowed foxes to be hunted down and torn to bits by dogs, declined to offer a remedy to those who have been negligently exposed to asbestos - or have attempted to introduce the independence referendum - for fear of a committed litigant, who might attempt, however unsuccessfully, to challenge the law? 

Because that committed litigant is invariably lying in wait, whatever the legal measure you're discussing, dreaming up ways to shape the flexible legal material of EU and ECHR law into an arguable case to put before the court.  That's the nature of the beast.  That's always Holyrood's basic predicament when making laws. To demand certainty where achieving cast-iron certainty is impossible, and then to cite that uncertainty as grounds not to pass this legislation, is cowardice, wrapped up in quibble and constitutional illiteracy.  It is to take the worst possible lesson from Hume's philosophy. If there is no reassurance which could possibly persuade you, no reasonable prediction based on good evidence which you would accept, you're beyond talking to.

If you don't want to endorse same-sex marriage because you feel Yahweh's burning gaze on your back, of because you feel the Natural Law demands it, by all means say so, and vote so. As a Godless tyke, I can't sympathise much with Roseanna Cunningham's explanation for her No vote yesterday, but characteristically, Roseanna gives you her reasons bluntly, without legal pettifogging. That's creditable, in its way. But the hyperventilated fears expressed by Mason, Lyle and Smith yesterday are not. The SNP MSP Marco Biagi put it best yesterday:

"Above all, we must not be drawn by the remote and hypothetical challenge to religious freedom to such an extent that we overlook the very tangible, very real and very much on-going violation of personal freedom that is the exclusion of people of same-sex attraction from expressing their love through marriage, which is the institution that our society considers to be the paragon of commitment."


  1. Particularly around the Christmas season, doubts about what tomorrow will bring look very different depending on whether you are a turkey or a farmer. Equally, doubts about the effects of legislation look very different if you're liable to be on the receiving end of any undesirable consequences.

  2. Firstly, I reject (with extreme prejudice) the idea that we are currently "around the Christmas season", whatever the priesthood of Mammon want us to believe. Until the beginning of December, I'm Mr Grinch personified and will scowl at any suggestion of a turkey, never mind the standing provocation of a vast illuminated reindeer totem on the high street.

    More seriously, these safeguards for religious freedom are absolutely critical. But if the only safeguard which will satisfy Mason and his fellow-travellers would accept is essentially an impossible one absolutely to guarantee in our constitution, it isn't a credible objection. All realistic legal concerns have been addressed. I don't see what more could or should be done in the circumstances. It is becoming increasing difficult to see this as a credible or sincere objection to these proposals (though in fairness, this argument only takes aim at Mr Mason - Lyle, Smith and Cunningham and their colleagues would obviously vote No for the grounds I outline anyway, whatever safeguards were enshrined in the Bill.)

    1. Let's assume that all that can be done has been done to safeguard religious practice. It would surely still be a reasonable objection to the legislation that, by its nature, it endangers religious practice. (That is, of course, a fear that will count rather more heavily among those who value such practice than among those who don't.)

      I understand why you would assess the balance of risk as you do. That's little reason to regard those whose primary concern is their freedom of religious practice as insincere simply because they assess it differently.

      I have lost all sense of where we are in the year. I am used to Advent being subsumed into the General Jollification. I am utterly thrown when Christmas Movies appear back to back on TV from the beginning of November. We are all clearly doomed.

    2. Entropy and the inevitable heat-death of the universe. A consoling thought. Yo ho ho.

      You said: "I understand why you would assess the balance of risk as you do. That's little reason to regard those whose primary concern is their freedom of religious practice as insincere simply because they assess it differently."

      It may be that Mason isn't disguising the real basis of his opposition in quibble. Maybe he believes the quibble. But I can't see why it should be terrifically troubling. In my (legal) view, it is likely that this proposal will generate litigation (as all such laws tend to eventually. I'm told that the quixotic but just arguable prisoner votes judicial review of the independence referendum franchise is shortly to be heard in the Court of Session. It is a useful comparator for this situation in many ways: just about arguable, but Mr Kelly's case is very, very unlikely to prosper.) We can't and shouldn't ignore this legal reality. Smart advocates like Aidan O'Neill are rarely going to shut the door entirely on a legal challenge. There's rich professional pickings there, for the creative lawyer. But the wrinkles in the legislation and the off-piste challenges which a canny public lawyer can dream up really shouldn't trouble us. They almost never prosper - and I struggle to see how any litigation challenging this Bill would prosper either.

    3. '...really shouldn't trouble us.'

      It's generally a good idea when such a phrase comes up to ask who the 'us' is. As I've said, I'm not surprised it doesn't trouble those who (eg) a) regard same sex marriage as a great social good and b) religious practice with, at best, indifference. It might well bother those of us who will be on the end of vexatious litigation. Moreover, it's not so much a matter of litigation challenging the bill so much as litigation challenging the sort of things that Catholics etc might want to do. And here it's in the nature of the interaction of law and human affairs that it's very difficult in advance to predict precisely the working out of such interaction. But, in general, those who regard traditional Christian teaching as profoundly homophobic are unlikely to be much troubled by its occasionally having its wings clipped, whilst those of us who regard it as profoundly true are going to be so bothered.

      I think it neither unreasonable to suppose that there are some aspects of Christian life in Scotland that are more liable to be adversely affected by the legislation than others, nor to recognize that legal opinion (as in so many matters!) is likely to be divided as to the likelihood of successful challenge.

      Let's take a specific example. There has been concern expressed (by both the Church of Scotland and the Catholic Church http://www.scotsman.com/news/politics/top-stories/catholics-may-need-two-weddings-says-archbishop-1-3117544 ) that priests/ministers as authorized persons may be subject to legal challenge if they do not offer same sex marriage as well as different sex marriages. (The legal reasoning behind such a claim is addressed here: http://religionlaw.blogspot.co.uk/2012/04/same-sex-marriage-and-european-court.html.) Now, looking at all that from a non lawyer's point of view, it strikes me as a genuine possibility that churches will be forced to withdraw from 'state' marriages. Such an impression is reinforced by the suspicion that many of 'us' (ie of 'you') would regard such an outcome as rather a good thing and certainly neither an infringement of religious liberty or of European common practice in this area. Is such a worry therefore really just a quibble on my part?

      On a final Humean (and less serious) note:

      'They almost never prosper...'

      Do I detect a hint of induction here??!

  3. An enjoyable read as always, but I have to say that I don't buy the "creditable, in its way" of excusing someone for holding bigoted views because of their religion. I

    1. Bix,

      My point was, Roseanna's statement was more creditable, in the sense of being more sincere, than inauthentic pettifoggery around hyperinflated legal risks which exist only at the remotest verge.

  4. I like the progress of this one LPW - from Hume thought to Humane legislation (in passage)!

    Am a bit disquieted at some of the reactions elsewhere to those of our MSPs who dared say 'No' in this most welcome passage at Holyrood - one person's perceived bigotry is another's point of principle - it seems probable we will be facing an even more toxic atmosphere of dissension after the Referendum, whatever the result, and we have to accept that while we develop our civil society there will always be dissenters - there will always be passages we personally find unwelcome.

    I have not - for example - seen a poll on capital punishment lately, but I suspect there will still be a hefty number of Scots wanting its restoration in some form. Capital punishment is never going to come back as long as our civil society retains its present form, but it would unhelpful to call those who want it back, 'bigots' and 'backward people'.


    'If you don't want to endorse same-sex marriage because you feel Yahweh's burning gaze on your back,'

    I wouldn't myself use that term for the Abrahamic God - or indeed 'Allah'. I tend to use Blake's 'Nobodaddy' myself.

    1. Edwin,

      It transpires that yesterday was World Philosophy Day, making this wee Humean digression even more accidentally apposite. For myself, I'm willing to settle for 98 votes in favour. Say what you will, folk like Alasdair Allan are representing the attitudes of their electorate. And since it is going to pass anyway, cynical real politick means we can afford not to care to much about a tiny handful of backsliders. Though the martyrial smoke clinging to Elaine Smith was a bit much for me. If you stake out an extreme position, expect folk to answer back. I'm sure folk who've prominently supported the Bill have received their share of insulting letters too. Smarting over it is just weeny.

  5. A balanced view - "because that committed litigant is invariably lying in wait, that's the nature of the beast".