Tuesday, 24 December 2013

In a Lighter Vein - United States v Kuch

 At the end of a year when the Supreme Court has had to grapple with the, not always straight forward, question "What is a Religion" I thought it might be interesting to look back at the case of UNITED STATES of America v. Judith H. KUCH 288 F. Supp. 439; 1968 U.S. Dist. LEXIS 11703; 35 A.L.R.3d 922 where an American Federal Judge had to grapple with the same question though in rather more "interesting" circumstances

The flavour of the case can be derived from the facts set out in the judgment

"Judith H. Kuch, who avers she is an "ordained minister of the Neo-American Church", stands indicted in a seven-count indictment for unlawfully obtaining and transferring marihuana and for the unlawful sale, delivery and possession of LSD.......

Defendant by her motions to dismiss contends that the criminal penalties provided for violation of these Acts may not be applied as to her for several reasons relating in various ways to her basic contention that the laws impinge on her constitutional right in the free exercise of her alleged religion. A hearing was held and testimony and exhibits received in support of Kuch's religious claims........

The Neo-American Church was incorporated in California in 1965 as a nonprofit corporation. It claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area,,,,,,,

A Boo Hoo is "ordained" without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a "spiritual crisis," administers drugs and interprets the Church to those interested..... 

 the church officially states in its so-called "Catechism and Handbook" .......... "we have the right to practice our religion, even if we are a bunch of filthy, drunken bums." ......

The dividing line between what is, and what is not, a religion is difficult to draw. The Supreme Court has given little guidance. Indeed, the Court appears to have avoided the problem with studied frequency in recent years.......

Subtle and difficult though the inquiry may be, it should not be avoided for reasons of convenience...... Those who seek the constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them ........

Reading the so-called "Catechism and Handbook" of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a "martyrdom record" to reflect his arrests. 

The Church symbol is a three-eyed toad. 
Its bulletin is the "Divine Toad Sweat." 
The Church key is, of course, the bottle opener. 
The official songs are "Puff, the Magic Dragon" and "Row, Row, Row Your Boat." 

In short, the "Catechism and Handbook" is full of goofy nonsense, contradictions, and irreverent expressions.  There is a conscious effort to assert in passing the attributes of religion but obviously only for tactical purposes. ....... 

The official seal of the Church is available on flags, pillow cases, shoulder patches, pill boxes, sweat shirts, rings, portable "communion sets" with chalice and cup, pipes for "sacramental use," and the like. The seal has the three-eyed toad in the center. The name of the Church is at the top of the seal and across the bottom is the Church motto: "Victory over Horseshit!".

The Court finds this helpful in declining to rule that the Church is a religion within the meaning of the First Amendment."

A Happy Christmas and New Year to my Reader(s)  

Friday, 20 December 2013

Quotations from Lawrence v Texas

I was not aware until recently of the details of the case of Lawrence v Texas referred to my previous Blogpost but reading the decision I was struck by the prescience and accuracy of the dissenting opinion of Justice Scalia in that case.  I was also impressed by his ability, unfortunately not shared by many Judges today, of recognising the proper limits on Judicial power.  For that reason I put below some extracts from his judgment.  In reading what he says I hope readers will try to make the distinction he makes between personal views on the rightness or wrongness of laws and their constitutionality and legality.  I particularly endorse his final remark judgments are to be made by the people, and not imposed by a governing caste that knows best.

"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, estiality, and obscenity are likewise sustainable only in light of [Bowers v. Hardwick 478 U. S. 186 (1986)] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision;"

"Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation."

"Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct."

"The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “ ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,’ ” ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."

"Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. "

"One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. "

"It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 579; and when that happens,later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."

Tuesday, 17 December 2013

Polygamy, Cohabitation And Sodomy Laws interact

Back in August I digressed to look at the history of Mormon Polygamy and its implications for the historic legal definition of marriage as being between a man and a woman.  

In the case of  Brown et al v. Herbert et al 2:11-cv-00652 a US District Court Judge has also had to consider the history of Anti Mormon Polygamy Laws in Utah.  In a complicated decision the Court struck down elements of a Utah Law which prohibited multiple, ie polyamorous, cohabitation and which also prohibited entering into a second or more "marriage" ceremony even if the second or other marriages were never legally registered.  The purpose of the Statute as was accepted was to prevent members of minor, Mormon, Polygamous groups conducting religious, but not legally valid, plural marriages.

The Judge struck down the law using a famous US Supreme Court decision Lawrence v. Texas - 539 U.S. 558 (2003) where the US Supreme Court had struck down a Texas Anti-Sodomy statute which had criminalised consensual homosexual conduct.  The Supreme Court had held that such a statute interfered with a right to privacy and the Utah Court held that the same principle applied to consensual polyamory

Thursday, 12 December 2013

Scientology is a Religion - Hodkin v Registrar-General

The Supreme Court in Hodkin v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77 has decided that Scientology is to be regarded as a Religion and that its Chapels can be registered under the Places of Worship Registration Act 1855.  The relevance of the 1855 Act is that premises registered under it can then be registered to perform Marriages under the Marriage Act 1949

The Claimants are Scientologists who wanted to be Married in the Scientology Chapel in London which was not however registered under either the 1855 or 1949 Acts.  This was because of the 1970 case of R v Registrar General, ex parte Segerdal [1970] 2 QB 697 where the Court of Appeal had held that Scientology was not a Religion and its Chapels were not places of Religious Worship.  In Segerdal Lord Denning had memorably said of the definition of Religion and the concept of Religious Worship

'place of meeting for religious worship' as used in the Act of 1855. It connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words 'place of meeting for religious worship' is that it should be a place for the worship of God.

"Religious worship means reverence or veneration of God or of a Supreme Being. I do not find any such reverence or veneration in the creed of this church. … When I look through the ceremonies and the affidavits, I am left with the feeling that there is nothing in it of reverence for God or a deity, but simply instruction in a philosophy. There may be belief in a spirit of man, but there is no belief in a spirit of God."

whilst Buckley LJ had said
"Worship I take to be something which must have some at least of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession."

English Courts and the Registrar General were therefore bound by this definition until the Hodkin case came before the Supreme Court since only the Supreme Court has the power to overule a decision of the Court of Appeal.  

In considering the 1970 Segerdal case and its relevance in the rather different cultural and legal environment of 2013 the Supreme Court noted that the rather narrow definitions used in Segerdal had been rejected by the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 (27 October 1983) , by the US Courts in the case of Malnak v Yogi 592 F.2d 197 (1979) and, to a rather more limited extent by the European Court of Human Rights in Kimlya  v. Russia

Lord Toulson gave the Judgment of the Supreme Court and noted the problems with the Segerdal definition

 51: Unless there is some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today's society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism. The evidence in the present case shows that, among others, Jains, Theosophists and Buddhists have registered places of worship in England. Lord Denning in Segerdal [1970] 2 QB 697, 707 acknowledged that Buddhist temples were "properly described as places of meeting for religious worship" but he referred to them as "exceptional cases" without offering any further explanation. The need to make an exception for Buddhism (which has also been applied to Jainism and Theosophy), and the absence of a satisfactory explanation for it, are powerful indications that there is something unsound in the supposed general rule.

52: Further, to confine religion to a religion which involves belief in a "supreme deity" leads into difficult theological territory. On the evidence of Mrs Wilks, Scientologists do believe in a supreme deity of a kind, but of an abstract and impersonal nature. Ideas about the nature of God are the stuff of theological debate.


 In Para 57 of the judgment Lord Toulson laid down what will undoubtedly now become the standard definition of religion in UK Law, despite his caveat at the end, 

57:  I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind's place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word "supernatural" to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind's nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.

 The decision of the Supreme Court to recognise Scientology as a Religion for the purposes of the 1855 Act will undoubtedly lead to Scientology being recognised as a Religion for the purposes of Charity Law and also clearly for Discrimination Claims under the Equality Act 2010 

What is also interesting in both this case and last weeks case of Mba v Merton Council the Courts have accepted that they should not allow themselves to be drawn into detailed theological arguments.  Personally I welcome the decision, even though the Church of Scientology is a controversial organisation I would be concerned at any attempt by legislature or Courts to determine what are "acceptable"  and "not acceptable" religions

Thursday, 5 December 2013

Mba v Merton Council - Christians and Working on Sunday - Part 2

The Court of Appeal has issued its judgment in MBA v London Borough of Merton [2013] EWCA Civ 1562 which is an Appeal from the Employment Appeals Tribunal judgment MBA v London Borough of Merton  [2012] UKEAT 0332_12_1312.

I blogged about the case on 11 January 2013 and whilst I was not surprised that Mrs Mba lost her case on the facts I was extremely concerned at the legal reasoning of the EAT and for that reason I am extremely relieved by the Court of Appeal decision, Mrs Mba still lost her case on the facts but an an entirely different legal basis.

Ms Mba was a care worker at a registered children’s home which, not surprisingly,  was open 7 days a week, 24 hours a day and requires full staffing at all times.  Mrs Mba however is a Christian who believes that it is wrong to work on Sunday.  When she was eventually rostered to work on a Sunday she did not attend work on the Sundays she was rostered and disciplinary action followed. Eventually she resigned alleging "indirect" religious discrimination.

On the facts of her employment I have to say that I cannot see that there could be any question of Mrs Mba ever winning her case.  The Children in the home had to be fed and cared for on a Sunday just as much as on any other day and personally I would see that as performing a Christian act however that is of course merely a personal view

 In the case the Employment Tribunal and the EAT had considered a witness statement that had been put in on behalf of Ms Mba by Bishop Nazir Ali which said.

“Some Christians will not work on the Sabbath (except for mercies), others may work only in an emergency.”

In deciding allegations of Indirect Discrimination, as occurred in this case, a Tribunal was supposed to be satisfied that a "group" of people are affected by the alleged Discriminatory practice and the evidence from Bishop Nazir Ali did this by stating that "some Christians will not work on the Sabbath".  The EAT however turned this around by deciding that because  "some Christians will work on the Sabbath" that meant that because only a minority of Christians would refuse to work therefore it was permissible to require Christians to work because only a minority of them would be affected.

I stated at the time that the EAT had  "seriously misunderstood discrimination law." and I am glad to see that the Court of Appeal agreed. 

In the decision Lord Justice Maurice Kay held that what mattered was whether Mrs Mba had a sincere belief which was held by some Christians.  He went back and reemphasised the fundamental test laid down by Lord Nichols at para 22 of Williamson v. Secretary of State for Education [2005] UKHL 15 where he said

 "When the genuineness of a claimant's professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: 'neither fictitious, nor capricious, and that it is not an artifice', to adopt the felicitous phrase of the Jacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Anselem (2004) 241 DLR (4th) 1, 27, para 52. But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its 'validity' by some objective standard such as the source material upon which the claimant founds his belief on the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. As Jacobucci J also noted, at p.28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising."

 Lord Justice Maurice Kay emphasised that there may be legitimate differences of belief within religions at para 14 when he said.
This sensitivity to the diversity of beliefs between and within religions is something which flows from the respect that is accorded to the range of sincerely held religious beliefs.

 Paradoxically the fact that her belief was a minority one made it easier to accommodate her.

Lord Justices Elias and Vos went further and applied Article 9 of the European Convention on Human Rights to the issue of Religious Discrimination.  They decided that it was wrong to even look at whether the Appellants beliefs were shared what mattered was whether they were sincere. 

Para 37 Elias:  in my view, it is the Article 9 dimension of this case which made it inappropriate for the Employment Tribunal, when assessing justification, to weigh in the employer's favour the fact that the appellant's religious belief was not a core belief of her religion so that any group impact was limited.

para 41 Vos:  The question of whether Mrs Mba's belief was widely held might, in theory and absent Article 9, be relevant to the proportionality question for the reasons I have given. But there is no reason why regulation 3(1)(b)(iii) cannot be equally well read to exclude such a consideration on the ground that Article 9 does not require any test of group disadvantage, and concentrates only on the religious freedom of the individual concerned.
The decision, though it does not help Mrs Mba will certainly make it easier to bring and to win claims of Religious Discrimination.  The disgraceful decision by the Court of Appeal in Ladele v London Borough of Islington [2009] EWCA Civ 1357 that Mrs Ladele's belief in the sanctity of marriage was not a 'core' part of her religion has now been finally put to rest.  This should avoid Courts and Tribunals in the future being driven into arguments about theology which the House of Lords in Williamson had accepted are outside the competence of secular courts