Monday, 30 January 2012

Freedom of Speech and London University Students

Students at University College London have voted to force Catholic organisations to invite pro-abortion speakers to pro-life discussions.

The motion, adopted by 2,002 votes to 818, says:

“Any future open events focusing on the issue of termination invite an anti-choice speaker and a pro-choice speaker as well as an independent chair, to ensure there is a balance to the argument.”

The union also voted to adopt a pro-abortion stance and formally affiliate itself to the organisation Abortion Rights.

The motion noted:

“On October 31 2011, UCLU Catholic Society advertised a ‘discussion’ around the issue of abortion which consisted of one pro-life speaker. It is also noted that people who held opposing views were invited to attend......It continues: “An official pro-choice policy would not prevent students who disagree with termination on ethical or religious grounds from exercising their right not to seek a termination. Pro-choice policy encourages students to make well-informed decisions regarding their bodies and their futures. When clubs and societies invite pro-life speakers they should also invite a pro-choice speaker to balance the debate and vice versa.”

I hope the Catholic Society simply ignores this Motion which is completely illegal under s43 the Education (No 2) Act 1986 which guarantees freedom of speech at Universities also illegal under Articles 9, 10, and 11 of the European Convention on Human Rights.

The Student Union has no right to dictate what speakers are invited by Student Organisations. Also the resolution assumes that everyone involved in this debate can be easily categorised as "pro-life" or "pro-choice" which is a simplistic analysis. Many people for example regard Nadine Dorries MP as "pro-life" though she describes herself as "pro-choice". What right does the Student Union have to decide which category a speaker should be classified under ?

The Students who voted for this resolution have demonstrated a totalitarian intolerance unworthy of an Academic Institution. Hitler and Stalin would be proud of them.

Sunday, 15 January 2012

Hosanna-Tabor Differences in US and UK approaches

Following my earlier Blog on the US Supreme Court Hosanna-Tabor case I have been reading the Judgment again.

The main judgment given by Chief Justice John G. Roberts Jr., was based largely on the courts’ determination that Perich qualified as a “minister” and that “ministerial exception” therefore applied to her. The court noted that Perich had been “commissioned as a minister” and was considered a “called teacher,” who had received a calling from God to fill the position. She taught both religion and secular subjects, and she regularly led students in prayer and devotional exercises.

However, in a concurring opinion, Justice Clarence Thomas went further, arguing that the court should not have tried to make its own determination of whether or not Perich could be considered as a minister.

“the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization’s good-faith understanding of who qualifies as its minister.......the question whether an employee is a minister is itself religious in nature, and the answer will vary widely.”

This is clearly not the approach that has been adopted by the UK courts most notably in the recent case of President of the Methodist Conference v Preston [2011] EWCA Civ 1581 where the Courts considering the doctrine of the Methodist Church in determining whether a Methodist Minister was or was not an employee which is similar to the Courts approach in the JGE case

In contrast to Justice Thomas but also in striking contrast to the UK cases Justices Alito and Kagan in their concurring opinion in the Hosanna-Tabor judgment stated that the term “minister” or indeed the theological significance of the role was not the central factor in the case.

They observed that the word “minister” was "rarely used by Catholics, Jews, Muslims, Hindus, or Buddhists.” and suggested that rather than Courts engaging in a debate about title or ordination, the real issue was safeguarding the autonomy of religious organizations to govern their internal affairs

Saturday, 14 January 2012

Oklahoma and Sharia Law Ban - Part 2

Back in November 2010 I Blogged about an amendment to the Constitution of Oklahoma which banned any recognition of Sharia Law in Oklahoma Courts even in cases involving with Arbitration or the application of Foreign Law.

I predicted in that Blog that the Ban would not stand up to legal and constitutional challenge and that is what appears to be the view of the US 10th Circuit Court of Appeals which in the case of Awad v Ziriax has continued a ban on the Amendment going into effect.

Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, sued to block the law from taking effect, arguing that the Amendment violated his First Amendment rights.

A three-judge panel of the 10th Circuit agreed that on the face of it the Amendment did have an effect on Mr Awads Constitutional rights.
Awad argued that the ban on Islamic law would likely affect every aspect of his life as well as the execution of his will after his death. The appeals court pointed out that Awad made a “strong showing” of potential harm.

Interestingly the Court also noted that the backers of the amendment acknowledged they did not know of any instance when an Oklahoma court applied Sharia law or used the legal precepts of other countries.

The case now returns to federal court in Oklahoma City for a full trial to determine the constitutionality of the proposed amendment.

Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission

The US Supreme Court has issued an extremely important judgment in the case of Hosanna-Tabor Evangelical Lutheran Church vEqual Employment Opportunity Commission which dealt with the so called "Ministerial Exception" in the application of US Anti-Discrimination Employment legislation. It was unusual for the US Supreme, or indeed most supreme courts, in that it was a completely unanimous decision without even the smallest disent.

In simple terms the "Ministerial exception" is an application of the Ist Amendment to the US Constitution which prohibits the establishment of religion in the US or any prohibition in the free exercise of religion. The Courts have interpreted this to mean that US law and Government including Anti-discrimination law cannot be used to force Religious Organisations to act in a way that is contrary to their beliefs or to employ someone contrary to their beliefs. In this respect the US Courts have shown a greater awareness of the reality of the of quoted separation of Church and State. In Europe this is often interpreted simply as a one way process so that Churches should not be allowed to interfere in Government but in the US it is recognised that separation is a two way process and Government cannot interfere in religion.

The case itself was brought by a teacher at a Michigan school run by a Lutheran church when she was given a diagnosis of narcolepsy. She was however also classed as a "Minister" by the Lutheran Church. The Church said that she was sacked because she had threatened to go to Court with an allegation of Disability Discrimination. The beliefs of the Church was that disputes between members of the Church should be settled internally and not through outside litigation. The Supreme Court held that the Church was entitled to this belief and to enforce it internally.

The case may well be quoted in British cases involving religious freedom. Though I suspect that British Courts may be inclined to say that it is only relevant to the US and the 1st Amendment to the US Constitution the unequivocal nature of the decision may give it some moral if not precisely legal authority.

The main judgment was given by Chief Justice Roberts there were two additional concurring decisions one of which by Justice Alito with Justice Kagan concurring is worth quoting

"Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.” Roberts v. United States Jaycees, 468 U. S. 609, 619 (1984). In a case like the one now before us—where the goal of the civil law in question, the elimination of discrimination against persons with disabilities, is so worthy—it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own belief".