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

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".

Is Polygamy a "Human Right" ? - Part 2

Back in 2009 I blogged about a pending Canadian case concerning the possible legalisation of Polygamy in Canada. The decision has now been released by the Supreme Court of British Columbia in the form of Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 which is an incredibly long judgment that is difficult to summarise.

In short however the Court has decided that the provisions in s293 of the Criminal Code of Canada which makes Polygamy a crime is legally valid under the provisions of the Canadian Charter of Rights and Fundamental Freedoms even where the individuals concerned are all adults and voluntarily enter into their Polygamous relationship. Part of the Judges reasoning justifying the law is the defence of "monogamous marriage" as historically understood in the West

[1332] The positive side of the prohibition which I have discussed - the preservation of monogamous marriage - similarly represents a pressing and substantial objective for all of the reasons that have seen the ascendance of monogamous marriage as a norm in the West.
[1350] But, in my view, the salutary effects of the prohibition far outweigh the deleterious. The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times.

Now as it happens I agree with the logic of these remarks however they do seem to me to ignore the fact that the "norm" in the west "from the earliest of times" has been monogamous "heterosexual" marriage and yet it was the Canadian Courts which in Barbeau v. British Columbia, 2003 and Halpern v Canada 2003 overturned the notion of heterosexual marriage on the basis it was "discriminatory". I utterly fail to understand the logic of saying that same sex marriage is a Human Right but Polygamous Marriage is unlawful and harmful to society.

As one (non Ploygamous) Mormon wife is reported as saying
"We're in the 21st century, you know, we have marriages of every kind," she said. "To say that I can choose to be gay, I can choose to be a swinger, I can choose to be whatever I want to be but I can't choose to be in a relationship with more women and one man, I think it's unrealistic."

Normally I disagree in principle with anyone who begins a remark with the words "We're in the 21st Century" however in this case I will make an exception and agree with what she says. It seems to me that Courts and Politicians either accept monogamous heterosexual marriage as the historic societal norm of the west or they permit and recognise all forms of voluntary unions as having equal validity. To do otherwise as the Supreme Court of British Columbia has done has no validity in logic.

The judgment also says
[1262] Any differential treatment that flows from s. 293 is not based on stereotypes with respect to particular marital forms (or, for that matter, particular religions). As I have discussed at length, polygamy has been condemned throughout history because of the harms consistently associated with its practice.
It seems to me that you could replace the word [Polygamy] in that paragraph with the words [homosexuality] and it would be equally logical and valid or illogical and invalid depending on your own personal views . In addition the entire judgment is littered with stereotypes.

Perhaps the opponents of Same Sex marriage in Britain instead of merely opposing government proposals should instead say "why not Polygamy also ?" and ask that the two issues be considered together. Now that would be logical which is more than can be said about Canadian law at present.

Catholic Bishops and Vicarious Liability for Priests

A recent case JGE v The English Province of Our Lady of Charity & Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB) has aroused a lot of comment with the suggestion in various quarters that it has meant that Catholic Priests are now regarded as employees in law.

Personally I think it is rather less exciting than that and is not really that surprising.

What the case involved is an allegation, and it is important to remember that at present nothing has been proved, that the Claimant was sexually abused by a Priest between 1970 - 72. The Priest alleged to have done this is now dead and so could not be sued nor could he defend himself. The question for the High Court was whether the Diocesan Trust (in effect the Diocesan Bishop) could be vicariously liable for the acts of this Priest, assuming that the Claimant could prove her allegations. Normally Vicarious Liability applies to employers being liable for the acts of their employees but historically Catholic Priests have not been regarded in law as being employees of their Bishop instead they have been regarded as an "office holder". One of the important points about them not being employees is that a Priest cannot sue for unfair dismissal if he is removed from his Parish or is laicised (defrocked) under Canon Law.

The possibility of Priests being held to be Employees has been increasing over the years. In Percy v. Church of Scotland [2005] UKHL 73 the House of Lords held that a Minister of the Church of Scotland was in fact an employee not an office holder and so could sue on the grounds of unfair dismissal and sex discrimination. Similarly in the case of New Testament Church of God v Stewart [2007] EWCA Civ 1004 a contract of employment existed between an Evangelical Free Church and its Pastor. One of the differences between these case and that of a Catholic, or Orthodox Priest is that in Catholic and Orthodox Theology a Priest has specific sacramental powers and functions which only an ordained Priest can validly exercise. This is not the case in classic Protestant Theology hence the difference between the Church of Scotland Minister as an employee and the Catholic Priest as an office holder. (NB I appreciate I am oversimplifying the Theology but this is a legal Blog not a theological one)

In th JGE case the Judge accepted that Catholic Priests were office holders rather than being employees however he also accepted that notwithstanding the absence of an employee relationship it was still appropriate to hold the Bishop vicariously liable. This is because the concept of Vicarious liability has been enlarging in the UK and other Common law jurisdictions for a number of years. Prior to 2001 in general terms employers were only liable for acts of their employees that had been authorised and not for acts where the employee was, in the classic Victorian phrase "off on a frolic of his own". However in the case of Lister v Hesley Hall [2001] UKHL 22 the House of Lords accepted that a Boarding School (NB a secular school) could be liable for child abuse committed by one of its employees even though the acts of sex abuse were clearly well outside any acts authorised by the employer.

The test set by the House of Lords was whether it was, on the facts, "fair and just" to hold the School vicariously liable and the answer given was yes. In effect a similar question was asked in this case and once again the answer was yes. The Priest was not an employee of the Bishop but nevertheless it was right to hold the Bishop liable. The core principles are set out in paras 35-36 of the judgment

35 I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused.

36 Why, one may ask, does it matter that some of the features of a classic contract of employment do not apply here? What is the relevance to the concept of vicarious liability, for example, of the lack of a formal agreement with terms and conditions; or of the manner of remuneration; or of the understanding that the relationship was not subject to adjudication by the secular courts? Those features may have relevance in a different context, but not to the question of whether, in justice, the Defendants should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf.

The decision is, as I have stated, not that surprising and had it been different and had the Court decided that Catholic Dioceses were not liable for abuse carried out by Catholic Priests then I suspect there would have been a demand for legislation which might have put Dioceses in an even more difficult legal position. As it is the case is clear that Priests are not employees in law which I suspect was the main point the Church was concerned about.

The case against the Diocese can therefore proceed but I do want to say as a lawyer that I am increasingly concerned by the Justice, or injustice, of Claimants being allowed to bring claims alleging acts decades ago by people who are now dead and unable to defend themselves. That seems to me to go against every principle of Natural Justice and ultimately will bring the law into disrepute.

Put the Pope in the Dock - 2

A case has apparently been filed at the International Criminal Court alleging that the Pope and several Senior Cardinals are guilty of "Crimes Against Humanity"

As far as I can see this is simply a meaningless publicity stunt which frankly does nothing more than to drag the concept of "crimes against humanity" into disrepute. However for those who might want to explore the legalities I blogged about the subject last year as follows

Monday, 26 July 2010 A World-wide Criminal Conspiracy ?

Friday, 9 April 2010 Put the pope in the dock ?

Monday, 5 July 2010 Doe v Holy See - Not as Important as it appears

No doubt it can, and will, be said that in considering this subject I "parse and analyze it with the gimlet eye of a canon lawyer." to quote Irish Taoiseach Enda Kenny however those who invoke the law in making allegations can hardly object if their allegations are refuted by reference to the law.

As I said last year

Q; Is the Church, the Vatican or the Pope above the law ?

A; No All three are answerable to National or International law. However just as they are not above the Law they should not be treated as below the law or not deserving of the normal rules and protections of the law. Therefore critics who accuse the Church, the Pope or the Vatican of crimes should have to justify their criticisms by applying normal legal rules

The Equality and Human Rights Commission are engaged in a consultation exercise concerning 4 Religious Freedom cases currently before the European Court of Human Rights. Below is the submission I made to the Commission

GENERAL POINT IN RELATIONSHIP TO THE EHRC INTERVENTION

1) It is difficult to understand why the Commission had chosen to intervene in these
cases at this late stage when the only legal issues that can be considered are
Articles 9 and 14 of the European Convention on Human Rights. All 4 cases were heavily publicised in Britain as they were occurring and the Commission therefore must have been aware of them, must have known that the issues raised were of general concern and knew that it had the opportunity to intervene if it chose to do so. Commission intervention whilst the cases were proceeding through the British
Courts would have seemed more sensible and appropriate than intervening at this
late stage in the cases

2) Besides the inevitable problems of legal uncertainty caused by delay there is the
specific problem that by waiting until the cases have reached the European Court of
Human Rights means that only one part of the issues raised in these cases is being
addressed by the Commission. In the UK Court hearings Articles 9 and 14 were
being considered under the provisions of the Human Rights Act 1998, and in
addition the Religious Discrimination provisions of the Employment Equality
(Religion or Belief) Regulations 2003 ( now codified in the Equality Act 2010 ) were
also being considered.

3) A major problem in the area of Religious Discrimination law is the issue of indirect discrimination through the application of ostensibly neutral working practices and whether these are a “proportionate means of achieving a legitimate aim” (reg 3, Act s19). The issue of “proportionality” was a crucial point in all 4 cases when they were before the UK Courts and it is difficult to understand why the Commission did
not intervene when the cases, in particular Ladelle were still at the UK level and
when the Commission could have made representations on the Discrimination test
of “proportionality” as well as the Article 9 test of “necessity”

MISAPPLICATION OF OF ARTICLE 9 BY BRITISH COURTS

4) This submission makes the general point that Article 9 gives an absolute right
“either alone or in community with others and in public or private, to manifest
religion or belief, in worship, teaching, practice and observance.”
This absolute right is subject only to the restrictions laid down in Article 9.2
“such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Therefore any restrictions which are not “necessary” are not lawful and “necessary”
means more than merely “desirable”. It is clear from the cases before the
European Court that the UK Courts have not been applying the principles of 9.2
correctly in particular they have not ensured that any limitations are objectively
“necessary” as opposed to merely considered by the employers to be desirable

5) In addition the UK Courts have not been correctly applying the legal test required by 9.2 but have instead applied a much lighter and vaguer test devised by themselves. In the case of Begum v. Denbigh High School [2006] UKHL 15, which dealt with the case of a Muslim Schoolgirl wanting to wear a Jilbab at school Lord Hoffman said in para 50
“Article 9 does not require that one should be allowed to manifest one's religion at
any time and place of one's own choosing.”
And this principle was subsequently quoted and applied by the Court of Appeal in
para 54 of the judgment in the case of Ladelle which is before the European Court.
It is worth noting that the words of Lord Hoffman with regard to the application of
Article 9 were also applied in the cases of Playfoot v Millais School [2007] EWHC
1698 (Admin), (para 21), Johns v Derby City Council [2011] EWHC 375 (Admin)
(para 79) and the Northern Ireland case of West [2006] NIQB 39 (para 11)

6) This test created by Lord Hoffman and subsequently applied by the UK Courts is an incorrect approach to Article 9. Under Article 9.1 everyone has an absolute right to
manifest their religion at a time and place of their own choosing unless the specific
form of manifestation is prohibited by “limitations prescribed by law and necessary
in a democratic society” The test being applied by the UK Courts to the
manifestation of religion is therefore ignoring and short circuiting the specific and
carefully laid down limitations authorised by Article 9.2. For that reason alone the
decisions in question in this application to the European Court are suspect.

7) In addition in the cases of Ladelle, Eweida and Chaplin the UK courts have entered into areas of Theological speculation which are inappropriate areas for
determination by Secular Courts. This point will be dealt with in more detail below

RELIGIOUS SYMBOLS - EWEIDA and CHAPLIN

8) It is to be welcomed that the Commission is to support these cases and is to defend the right of Christians to wear religious symbols. Whilst the wearing or display of a Cross is not a requirement of the Christian faith the wearing of items such a Cross or Crucifix, is a long established practice in all mainstream Christian denominations. Whilst there are differences in emphasis and practice between various strands of Christianity as to the importance, and indeed the acceptability, of religious symbols and pictures respect for the Cross is universal

9) In these two cases however the Courts UK applied a test of whether the wearing of
the Cross was a “requirement” of the Christian religion and then rejected the claims
in part because it was not. There is nothing in Article 9 or in the case law of the
European Court to justify such a distinction being made. The wearing of a religious
item of clothing, such as a Cross, a Sikh Turban or Kara Bracelet, a Jewish
Yarmulka or Muslim Hijab are all “manifestations” of Religion and as such their
wearing is protected under Article 9 unless one of the limitations set out in 9.2 can
be applied. The fact that in applying Article 9 the UK Courts have sought to
distinguish between religions which have mandatory clothing rules and those which do not is itself a breach of Article 14 in that it discriminates between members of
different religions on the basis of the doctrines and Theology of those religions.

10) In both these cases the UK Courts have found against manifestations of religion by Christians wearing a Cross or Crucifix however the UK Courts have at the same
time protected the wearing of the Sikh Kara Bracelet and the Sikh Turban Watkins-
Singh v Aberdare Girls' High School [2008] EWHC 1865 (Admin) and Mandla v
Dowell Lee [1983] 2 AC 548. The difference between the way UK Courts have
treated the wearing of the religious symbols of the Sikh Religion and the wearing of
religious symbols of the Christian religion is striking and a prima facie breach of
Article 14. For the Avoidance of doubt I do not in any way object to or disagree with the decisions of the UK Courts in these two cases and the supports the right of Sikhs to manifest their religion by wearing these items. It is suggested that the attitude and principles used by the UK Courts in deciding these two cases should also be applied to Christians wishing to wear a cross which is a vital Christian symbol the wearing of which is of long standing.

LILLIAN LADELLE and MORAL COMPLICITY

11) The Commission has said that it will oppose the appeals in the cases of McFarlane and Ladelle and clearly considers that the issues in the two cases are the same. I disagree and suggest that the two cases are clearly distinguishable on their facts and in the legal principles applicable to them. This submission will concentrate solely on the case of Ladelle which we would suggest shows an inability on the part of the Courts, and the Commission, to distinguish between simple discrimination and refusal to be complicit in an immoral act. In addition the case demonstrated an unwillingness on the part of the UK Courts to properly consider or apply the limitations in Article 9.2 in particular the question whether the limitations were “necessary in a Democratic Society”

12) In respect of her desire not to participate in same sex partnership ceremonies Ms
Ladelle was manifesting her religion and belief in “practice and observance”. Since
she believed that same sex relationships are sinful she was aware that by
participating in them she would herself be morally complicit in that sin and therefore any attempt to force her to participate in them was contrary to her rights under Article 9 because it was an attempt to force her to act in a way that was inconsistent with her moral beliefs. Her objections should only have been overridden if that was “necessary in a democratic society”

13) In para 56 of its judgment the Court of Appeal said
“Ms Ladele's objection was based on her view of marriage, which was not a
core part of her religion; and Islington's requirement in no way prevented her
from worshipping as she wished. “
and this section shows a fundamental misunderstanding of Christian belief on
marriage, or Article 9 and of the proper role of the Courts. It is not for Secular
Courts to distinguish what is or is not a “core part” of a religion and Article 9 is
concerned with freedom of religion not freedom of worship. Like all elements of the
Convention Article 9 protects both positive and negative freedom. To force
someone to act in a way contrary to their religious beliefs is as bad as preventing
someone acting, or worshipping in accordance with their religious beliefs but that is
what Islington Council and the Court of Appeal .required of Ms Ladelle

14) In Ms Ladelles case there is absolutely no evidence that it was “necessary” to make her participate in same sex ceremonies. The evidence in the case showed that the service provided by Islington was not in any way affected by Ms Ladelle ensuring
that she was not rostered for same sex ceremonies therefore requiring her to
participate was not “necessary” in any meaningful sense of the word. The fact that
her views may have been contrary to the Equality policy of the Council, which is
arguable both ways, still does not make it “necessary” to force her to act in a
manner which was contrary to her religious beliefs. The issue of whether the
Councils actions were “necessary” was never properly addressed by the Court

REASONABLE ACCOMODATION

15) The Commission has asked for views regarding whether the law should be changed to explicitly require “reasonable accommodation” in cases of religious
discrimination. Whilst such a change may be desirable there are understandable
objections to making a change which might appear to be privileging claims of Religious Discrimination over other forms of discrimination. For that reason either
the change should be applied to all forms of discrimination or the change should not
be made.

16) It is in any event questionable how necessary the proposed change is and whether the problem is not that the wording of the law is inadequate so much as that the Courts have not been applying the law correctly. The law, as already outlined
above, requires that a “provision criterion or practice” must be a “proportionate”
means of achieving a legitimate aim. In addition as already discussed Article 9.2
requires that any limitation on Religious Freedom must be “necessary”. What has gone wrong in the various religious freedom cases that have concerned Christians is that the Courts have taken an unduly restrictive view of what is “proportionate” or “necessary” and have not engaged in any real balancing exercise when different rights are in conflict. The best way of dealing with this may be for the Commission to issue guidance under s14 Equality Act 2006 making it clear that Employers must ensure that their requirements are “proportionate” and “necessary” and also making the point that where different rights are in conflict no particular set of rights can take precedence.