American Atheists Inc v Utah Highway Patrol Association

The US 10th Circuit Court of Appeals has made a decision in the case of American Atheists, Inc v Utah Highway Patrol Association which overrules an earlier decision by a US District Court in 2007. The Appeals Court decision relies heavily on the US Supreme Court decision in the case of Pleasant Grove City v. Summum.

The case involved the "No Establishment Clause" in the Ist Amendment to the US Constitution and concerned memorial crosses erected by the Utah Highway Patrol Association [ a private Charity] in memory of Utah Highway Patrol Officers who have been killed on duty. In the earlier District Court hearing the Court had held that the cross was not an exclusively religious symbol and it depended on the circumstances in which it was used. (An interesting sideline mentioned in the judgment was the fact that in Utah the majority Christian faith is Mormonism and the Mormon Church does not use the Cross as part of its religious symbols or worship)

The Court of Appeals however decided that the Cross was an exclusively religious symbol and as such violated the No Establishment clause. They also held that the American Atheists had standing to bring the claim because
"Here, the individual named plaintiffs allege to have had “direct personal and unwelcome contact with the crosses.” Mr. Andrews, one of the named plaintiffs, also stated that he has “occasionally altered [his] travel route or [has] not stopped at a particular rest stop to avoid contact with the crosses.”
which provides an interesting variation on the usual suggestion that it is religious people who are oversensitive. The oversensitivity of the American Atheists in Utah seems to uncannily parallel the oversensitivity of the Atheist Italian in the European Court of Human Rights case of Lautsi v Italy

What I found peculiar in the 10th Circuits reasoning was that they found
"None of these families [ie the families of the deceased Highway Patrolmen] have ever objected to the use of the cross as a memorial or requested that the UHPA memorialize their loved one using a different symbol. However, because the UHPA exists to serve family members of highway patrolmen, the UHPA would provide another memorial symbol if requested by the family."

It seems to me that on any rational understanding of the Non Establishment clause the fact that other Non Christian symbols were available to any family that wanted it destroys the suggestion that the memorial crosses constitute an establishment of religion. If the family of a deceased Highway Patrol officer want his (or her) sacrifice to be memorialised by a cross what right does anyone else have to object ?

Catholic Care An attack on the idea of Charity Itself

The decision by the Charity Commission to refuse permission for the Leeds based Catholic Care Charity to amend its objects was depressingly predictable but what seems to have been overlooked in the acres of comment on the decision is the fact that the decision attacks the independence of the notion of charity itself

For those who have not followed the story closely back in 2007 Parliament passed the Sexual Orientation Regulations which prohibited discrimination against homosexuals/lesbians in the supply of goods and services, a Hotel for example cannot refuse to provide a double room to a same sex couple. However the SOR's apply to Charities and voluntary organisations as well as to businesses and therefore under the SOR's Catholic ,and other religious, Charities which dealt with finding adoptive parents were going to be legally obliged to deal with Same Sex couples who wanted to adopt.

Since Catholic belief is that same sex relationships are sinful ( a view shared by all mainstream Christian denominations alongside Jews, Muslims, Buddhists and Sikhs ) this faced the Catholic Adoption Agencies with a moral dilemma. However the obvious solution lay in the use of reg 18 of the SOR's which does allow Charities to discriminate.
Reg 18 says
(1) Nothing in these Regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if
(a)he acts in pursuance of a charitable instrument, and.
(b)the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument

It should be noted at the outset that Reg 18 is not a "legal loophole" nor is it something specifically added to the SOR's so as to disadvantage homosexuals, the same provision applies in all the other varieties of Anti-discrimination law and allows Charities to obtain exemptions from those laws. This is is based on the recognition that people can set up Charities for a wide range of reasons.

For example lets say a successfull Black businessman wanted to set up a fund to give scholarships to poor black youths or a Scottish businessman wanted to set up a charity to help homeless Scots in London; such Charities would be racially discriminatory but that discrimination would be allowed under Race Discrimination legislation. Similarly a Charity helping battered women would discriminate on the grounds of sex and a Charity helping the deaf would discriminate on the grounds of disablity but in both cases that discrimination would be legal.

Catholic Care therefore decided to amend its Charitable objects to add the following clause

"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals will only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church."

I have commented on other occasions that in my opinion the drafting of this clause was fundamentally flawed because it was explicitly and obviously discriminatory and it only dealt with adoption services. In my view the Charity should have applied to amend its constitution to read something like the following

"The Charity shall provide its services in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church."

That said the proposed change was, in my view, within the ambit of reg 18

The Charity Commission rejected the proposed amendment on 18th November 2008
The Charity appealed to the Charity Tribunal which rejected the appeal on 1st June 2009
The Charity appealed to the High Court which in decision [2010] EWHC 520 (Ch) dated 17 March 2010 ordered the Charity Commission to reconsider its decision
The Charity Commission reconsidered and on the 21st July 2010 issued its decision which was formally announced on 18th August namely that it had reached exactly the same decision it made before

The Charity Commission made its decision knowing that the consequence was that Catholic Care would stop offering its adoption services and as such is notable for its lack of consistency of logic when it says
"The interests of children are paramount - the courts have found that it is in the interests of children waiting to be adopted that the pool from which prospective parents are drawn is as wide as possible.
Local authority evidence suggests that even if the charity were to close its adoption service, children who would have been placed through the charity are likely to be placed through other agencies"

Clearly if the closure of Catholic Care adoption services would not reduce the pool of adoptive parents then its retention would not either so what exactly was the harm in permitting Catholic Care to continue , where is the sense of proportionality which was the main thrust of the High Court decision. More importantly by saying that it cannot allow Catholic Care to "discriminate" the Charity Commission has in effect rendered reg 18 meaningless and made its views about discrimination take precedence over the law as passed by Parliament.

Also the Commission has dealt a blow to the idea of Charity itself which is the free giving by individuals and organisations to help others. If the Catholic Church (or any other organisation or individual) wants to spend its own money in any way it pleases to help others why should an unelected quango, or indeed an elected Government interfere ? If individuals want to give money to organisations that arrange adoption services only for heterosexuals, or only for homosexuals, or disabled people or black people or white people what right does the government have to interfere with that choice ?

The provision of adoption services is a good thing in itself and a charitable purpose and for that reason alone should surely have been permitted even if the Commission felt that the services were provided on too limited a basis. The Commission seems to have regarded Charitable status as a favour granted by itself rather than as a good thing to be encouraged. This decision by the Charity Commission has, quite rightly been criticised as an attack on religious freedom but I would go further it is an attack on freedom itself. If individuals, churches and organisations do not even have the right to choose how to give away their own money then freedom itself ceases to exist.

We are increasingly hearing the phrase "soft totalitarianism" and this decision is an example of that totalitarianism because it has no respect for the independence of charities or the independent role of private organisations as part of civil society. Since when has it been the role or right of government to say that "we will not allow you to use you own money to do good unless you use it in a way we agree with".

Doe v Holy See - Update

My earlier Blog Doe v Holy See - Not as Important as it appears has been supported by the decision today to withdraw three Civil Claims against the Holy See brought in Kentucky. As I mentioned the main point of the Doe case was that it rejected the idea that Catholic Diocese or Orders were "agents or instrumentalities" of the Holy See and it also explicitly accepted that because the Holy See is recognised as Foreign State by the US Government it therefore is a Foreign State under US Law.

Though the News Stories mention that the Oregon claims are still proceeding I suspect that the lawyers in that case will recognise that they will have an insurmountable problem trying to prove that Priests in America are "employees" of the Vatican. Incidentally the American Doe case does demonstrate that Geoffrey Robinson was talking legal rubbish when he suggested that the Vatican was not a State in International Law which is what I said at the time