Is Polygamy a "Human Right" ?

A story from Canada is interesting and does demonstrate the dangers of reformers trying to achieve their ends though the Courts and Human Rights instruments rather than by democratic legislative change.

Back in 2003, in the case of Halpern et al. v. Canada brought by a number of same sex couples who had been refused the right to marry, the Ontario Superior Court ruled that the common law definition of Marriage violated the Canadian Charter of Rights and Fundamental Freedoms which is similar in terms to the European Convention on Human Rights. The Common Law definition of marriage was laid down by Lord Penzance in the case of Hyde v Hyde (1866) LR 1 P&D 130 (which involved the question of whether a Polygamous Mormon Marriage was recognised by the English Courts) as follows

"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others"

Similar logic was used by the US Supreme Court in the case of Reynolds v. U.S., 98 U.S. 145 (1878) which also involved Mormon polygamy

Following the Halpern Case similar decisions were arrived at in other Canadian Provinces and this led to the Canadian Supreme Court decision in Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79 which agreed that the common law definition of marriage discriminated against same sex couples though the Court also held that Charter also protected Religious ministers from being forced to officiate at same sex marriages.

The decisions of the Canadian Courts were of course only focused on the question of same sex marriages but what the courts ignored was the fact that by destroying the Common Law definition of marriage they left the entire question of what marriage actually is completely up in the Air and that problem has now come home to roost.

In the Canadian case of Blackmore v. British Columbia (Attorney General), 2009 BCSC 1299 (CanLII) the question has been raised whether the Halpern etc decisions mean that Polygamy is now legal and the Criminal offence of Bigamy illegal

Winston Blackmore and James Oler are leaders of a polygamous Mormon splinter group in Bountiful, near Creston, British Columbia, and are accused of being married to more than one woman at a time. (The Mormon Church banned Polygamy in 1890 though some splinter groups have always continued the practice)

They were were charged with polygamy in January of this year after a two year investigation by the Royal Canadian Mounted Police. Blackmore was charged with marrying 20 women, though he claims to have had 26 wives and more than 108 children. Oler was charged with marrying two women.

Section 293 of the Canadian Criminal Code says that anyone entering into a conjugal relationship with more than one individual at the same time is in violation of the law.

On at least two previous occasions the RCMP had recommended that arrests be made, but the Crown denied the recommendation, saying that the ban on polygamy would likely be struck down on the basis of the Canadian re-definition of marriage to include homosexual couples, and the Charter's guarantee of religious freedom. After all once you have redefined "Marriage" away from being the union of one man and one woman where does redefiniton end, Polygamy, Polyandry, multi-person multi sex unions all potentially can lay claim to the title "marriage" and the end result will be the end of the idea of marriage itself as a legal concept because if any relationship can be classified as marriage, the eventually marriage itself ceases to have meaning.

In Britain of course we have not dropped the common law definition of marriage and Same Sex Civil Partnerships are legally distinct from marriage so of course what has happened in Canada could never happen in Britain. I wonder ??

Christian Nurses with a Cross to Bear

This is a hurried post since I am traveling between cases at present however 2 stories have struck my attention and I was even quoted in one of them

In Liverpool a Couple are charged under s5 of the Public Order Act because of what they are alleged to have said to a Muslim guest in their B&B during a discussion on religion. Now in fairness I haven't seen all the facts but as a lawyer I am increasingly concerned by the way the Police are turning to the Public Order Act merely because someone feels "offended" by what has been said. This is not what the Public Order Act is there to do. As was said by Mr Justice Moses in the case of Dehal v CPS [2005] EWHC 2154 (Admin) at para 5

"the criminal law should not be invoked unless and until it is established that the conduct which is the subject of the charge amounts to such a threat to public disorder as to require the invocation of the criminal as opposed to the civil law"

The other story concerns a Christian Nurse ordered to stop wearing a Cross on "Health and Safety" grounds. Leaving aside the point that she has worn the cross on duty for 30 years without injuring herself or anyone else I was struck by the fact that the Trust aparently allows members of other faiths to wear religious symbols such as the Muslim Hijab or Sikh Kara. They attempted to justify this difference in treatment by saying of the Nurse "wearing a cross was not a requirement of her faith". This is a common argument used in these types of case which is both theologically illiterate and legally unjustified.

To treat members of different faiths differently is unlawful discrimination and cannot be justified by arguments about whether a religious item is a "requirement" of a faith. In the 2008 High Court case of Sikh Schoolgirl Sakira Singh [2008] EWHC 1865 (Admin) Mr Justice Silber clearly laid down that the legal test for discrimination was not whether a religious item (in that case a Sikh Kara bracelet) was religiously compulsory but rather whether the item was "an extremely important indication of faith" and wearing a cross clearly falls into that category.

In addition treating Christians differently to members of other faith creates community divisions and feelings of injustice. Members of other faiths are not objecting to Christians wearing the cross and neither should this NHS Trust

As a final point it is arguable that wearing a cross IS required by the Christian faith. The 7th Ecumenical Council of 787 said

"As the sacred and life-giving cross is everywhere set up as a symbol, so also should the images of Jesus Christ, the Virgin Mary, the holy angels, as well as those of the saints and other pious and holy men be embodied in the manufacture of sacred vessels, tapestries, vestments, etc., and exhibited on the walls of churches, in the homes, and in all conspicuous places, by the roadside and everywhere, to be revered by all who might see them. For the more they are contemplated, the more they move to fervent memory of their prototypes"

I was once on radio in a discussion about religious symbols and the law and the presenter made the usual remark that the cross wasn't compulsory for Christians unlike the Hijab or Kara so I said "Well what about the 7th Ecumenical Council of 787". Believe me if you want to stop someone dead in their tracks saying "what about the 7th Ecumenical Council" is a very good way of doing it !

Muslim Marriages (Again)

I cannot remember which politician it was who said that when you reach the point when you are sick to the back teeth of repeating something that is when people start listening. I am certainly sick and tired of discussing the subject of unregistered Muslim marriages (Nikah's) so hopefully some people will begin to listen.

The subject was raised recently on the August 23 entry of the Spirit21.co.uk Blog run by Shelina Zahra Janmohamed who I have met at a City Circle meeting. I like Shelina's Blog which makes some fascinating and thought provoking comments on the nature of true religious belief but I had to disagree with her recent Blog concerning Muslim Marriage which was reproduced in The Times faithOnline Blog. Basically Shelina was talking about the problems faced by British Muslim wives who go through a Nikah ceremony but whose marriage is not registered under The Marriage Act 1949 , they are, in the eyes of the law, mere co-habitants and do not enjoy the legal protections enjoyed by wives whose marriage is registered under the Marriage Act.

Shelinas solution to the problem is to suggest that the law should be changed so as to give legal recognition to the Nikah but I strongly disagree, there is absolutely no problem with the law as it stands the only problem is that Imans and Mosques are ignoring the provisions of the Marriage Act and, arguably, committing a criminal offence for which they could be sentenced to 5 years imprisonment (s75 of the Act makes it a criminal offence to perform a marriage ceremony for a marriage that is not registered under the Act)

The Marriage Act, as it stands, recognises 3 basic types of Marriage ceremony
(i) A purely secular Marriage before a Registrar in a Registry office
(ii) A purely Secular Marriage before a Registrar in "Approved premises" eg Hotels, stately Homes etc
(iii) A Religious Marriage ceremony in a registered place of worship where a Registrar is present

Regarding option (iii) there is a slight exemption in the case of the Church of England because the CofE is the established Church Anglican Priests are also Registrars by virtue of their office. That particular status however is unique to Anglican Priests which means that Catholic priests, Jewish Rabbis, Sikh Granthis etc all have to arrange for a Registrar to be present in order for their religious marriages to be registered and that legal obligation doesn't seem to be causing them any problems. In practice most registrars at Religious Marriages are volunteer members of the Congregation who have been approved and trained by the local Superintendent Registrar, for example my Mum, after she retired, became a Registrar at her local Church and she, like thousands of other volunteers in Churches throughout the country, was responsible for attending Marriages in the Church, getting the certificates signed by the Happy Couple, and then sending the appropriate documentation off to her local Registration office. Any Mosque can similarly register itself under The Marriage Act 1949 and arrange for a member of its congregation to act as Registrar at any Nikah ceremony but only 120 Mosques have registered under the Act and, as Shelina confirms in her Blog, the majority of Muslim Marriges in Britain are not being registered under the Act.

So I repeat the questions I have asked Shelina, I have asked in this Blog, I have indeed asked Imans and to which I have not yet had an answer
"Why is it that only Islam seems to have a problem with the Marriage Act ?",
"Why is it that Imans and Mosques are continuing to perform Nikah ceremonies which are not registered under the Marriage Act"
"Why are the the MCB and MINAB not making it a requirement that their members operate in accordance with the law ?"

Having asked questions I will then answer the question that I am asked, "Why do I think this issue is important, and why do I continue to speak and write about it ?" The reason is twofold, firstly if Muslim marriages are not being registered under the law then Muslim wives, in particular, are being deprived of their natural rights as British citizens, they are entering into a relationship which they think is a lawful marriage and it is not.

More pertinently the idea that the law is treating Muslim Marriages unfairly is simply not true and it is the sort of untruth which encourages feelings of victimisation and alienation from society which are the breeding ground of radicalism and terrorism. If you read the comments section in the Times faithOnline Blog there were many who believed Shelinas suggestion that Muslims were being treated unfairly and so a controversy has been created where none should exist. Discrimination in the law is a bad thing and if the law was treating Muslims unfairly then it would need to be changed but where the law is fair and is treating religions properly and with respect then that fact needs to be stated loudly and clearly, Religions have enough real problems in modern society without creating imaginary problems where none exist.

Law and Religion Scholars Network

Amongst other organisations and groups I am a member of the Law and Religion Scholars Network run by the Cardiff University 'Centre for Law and Religion'

The Centre is run by Professor Norman Doe with much of the hard graft (as we say in the North) being done by Russell Sandberg. The two of them put in a large amount of work to bring together lawyers and others who are involved in legal and religious matters. In January for example there was a meeting discussing the various types of Courts or Tribunals run by religious organisations including Catholic Annulments, Jewish Beth Dinn and the Muslim Arbitration Tribunal. Papers from the meeting are made available at http://www.law.cf.ac.uk/clr/networks/ilan4.html

The Centre has now set up a Database of cases dealing with religion and law compiled by the Law and Justice case note writing team, led by Frank Cranmer. For each case, a short summary of the decision and a link to the transcript of the case is provided. A fuller case note for most of the cases is published in Law and Justice. Once the full case note has been published in Law and Justice then a reference to the case note will be added to the end of that entry. Judgments are arranged by year. The Case Database currently includes all cases from 2007 onwards, together with some of the most significant earlier cases. It can be found on the LARSN webpages at:
http://www.law.cf.ac.uk/clr/networks/lrsncd.html

Each list is split into two sections: the first includes cases heard in the United Kingdom, the second features cases heard by the European institutions. The entries are arranged chronologically, with the most recent cases at the top. I do something similar with Case reports at my site www.religionlaw.co.uk but it is always useful to have more than one source covering this subject and the LARSN database includes many cases relevant to the Church of England which I hadn't noticed.

For anyone interested in religion and law this site should be added to your 'favourites'. I can heartily recommend it

SSPX Church in Manchester

A story which bothers me but seems to have had surprisingly little publicity is the decision of the Church Commissioners , who look after the properties of the Church of England, to refuse to sell a disused Church in Manchester to the Society of St Pius Tenth (SSPX) The refusal seems to me to be nothing more than blatant religious discrimination and therefore illegal under Part 2 of the Equality Act 2006 .

For those who don't know about the SSPX it is a group which split from the Catholic Church following the Second Vatican Council and which continues to use the traditional Latin Mass instead of the new Catholic Mass which is said in the language of the congregation. I accept that a follower of SSPX would say that was a greatly oversimplified view of them and would also say that they had not split from the Catholic Church however this Blog is not the place to go into a debate which to the outsider can resemble arguments about Angels dancing on the heads of pins. The most famous, or infamous, member of SSPX is Bishop Williamson who expressed doubts about the Holocaust in an interview on Swedish TV.

Now I can understand the motives of those who justify the refusal to sell by reference to the remarks of Bishop Williamson however the point is that Williamson is just one of 4 SSPX Bishops, he is not the superior of the SSPX and his remarks were not supported by his fellow Bishops so therefore it does seem that the entire SSPX is being punished because of the remarks of one person and, in simple terms, that is unjust and unfair.

Besides being unfair on the members of the SSPX, who are being deprived of the opportunity to spend their money on restoring a derelict Church and returning it to Christian worship, the decision creates a dangerous precedent. If Catholics apply to build a new Church will people be able to object because of something the Pope has said, should Mosques be banned because of Osama Bin Laden ? Just exactly where do we as a society stop once we go down the road that the only religions that are allowed to open new places of worship are religions "we" agree with ?

What I found especially hard to stomach was the remark by the Bishop of Manchester, that the sale of the derelict Church to the SSPX would not be in the interests of "ecumenical relations or inter-faith work". The Bishop clearly has a pretty Orwellian view of what Ecumenism and inter-faith work actually means. Whether one likes SSPX or not they are a religious group, a "faith community" in the modern parlance and they are just as entitled to ecumenism and respect as any other "faith community" the Bishop deals with.

The SSPX have been pilloried as being bigoted and intolerant, I am not a member so I cannot comment on the general views of members of the SSPX, but one thing I do know in this particular case it is the SSPX which is the victim of bigotry and intolerance. I also suspect that they have a good legal case should they decide to challenge the Church Commissioners.

Who is a Jew ?

Last week the Court of Appeal issued an extraordinary judgement in the case of E v JFS School [2009] EWCA Civ 626 where it decided that it was better qualified than the Chief Rabbi to decide whether or not a particular youth was jewish. This decision reversed an earlier High Court judgement [2008] EWHC 1535/1536 (Admin).

The essence of the case was that JFS School (formerly the Jewish Free School) is a faith school which selects students who are Jewish and it accepts the decision of the Chief Rabbi as to who is or is not Jewish. E's mother converted to Judaism in a reform synagogue and that conversion is not recognised as valid by the Chief Rabbi who only accepts conversions through Orthodox Synagogues. For this reason E was not accepted by the school as being Jewish because Orthodox Judaism accepts descent through the mother (matrilineal descent) and since E's mother was not accepted as being Jewish neither was he.

This may be regarded as a pretty hard set of rules but it is one which has been applied by Jewdaism for some 3000 years during which period Jews have survived the Pharaohs, Assyrians, Seleucid Greeks, Romans and the Nazis so you would have thought that the Jews had earned the right to decide these questions for themselves well not in modern Britain they're not. The Court of Appeal decided that the policy was "racist" and therefore it must be overturned and they, the Court of Appeal were entitled to overrule the Chief Rabbi and decide that E was in fact Jewish.

I frankly find this decision dangerous, if a religion cannot even decide for itself who its members are then what real freedom do religions have left ? What I find more worrying is that during the High Court case the Counsel for E relied upon the
Nazi Nuremberg Laws in support of her proposition that E should be regarded as Jewish (I am not making this up see paras 286 to 301 of the High Court decision). The question I ask is this if the Court of Appeal is deciding that it can say someone is Jewish even though other Jews do not regard them as such then isn't this similar in principle to what the Nazis were doing ? Under the Nazis "Jews" who were Christians were still regarded as Jews and sent to the concentration camps. The lessons of history are that once the state starts defining who people are we are into dangerous waters indeed.

Sharia Courts

The think tank Civitas has today issued a report regarding Sharia Courts in Britain and I wrote the foreword which is based on the earlier Blog I wrote in February this year on the anniversary of the Archbishop of Canterburys famous (or infamous) speech. The report can be bought but for those too mean to do so you can download a copy courtesy of Civitas, I get paid the same amount (ie nothing) either way.

Anyway it has given me the opportunity to get interviewed by the Guardian and I have also been contacted by Al'Jazeera who seemed slightly shocked to discover that intelligent people (such as myself ahem) live outside London

One point that does crop up frequently in these debates is a comparison with the Jewish Beth Dinn courts and the suggestion that if Sharia Courts were banned then the Beth Dinn would have to be banned also. For those who are interested the Centre for Social Cohesion has published an analysis of the Beth Dinn which can be downloaded as well as a short summary The important point to note are the areas that the Beth Dinn do NOT deal with namely Child care and Criminal law which are areas dealt with by the ordinary Civil Courts. If the Sharia Courts operated with the same restrictions as the Beth Dinn there would be no problem. In addition Rabbis will not perform Marriage Ceremonies unless the marriage is also registered in accordance with the Marriage Act 1949 . Immams and Mosques, by contrast, are performing Nikah (Muslim Marriage) ceremonies which are not being registered under the Marriage Act and this is both illegal (see s75 of the Act) and dangerous because the new wife often does not know that her "marriage" has no legal validity. This is an issue which really does need to be faced up to by the main Muslim organisation the Muslim Council of Britain. Ignoring the issue is unfair to British Muslim women and is depriving them of their rights as British citizens