Communists are Not Fascists they are Communists

I know this is completely off topic for this Blog but I just had to rant about it.

On BBC radio4 "The World this Weekend" on Sunday Mr Kit Malthouse a Deputy Mayor of London was interviewed about the damage and disruption caused in London by so called "demonstrators" who attached themselves to the peaceful and lawful protest march against government expenditure cuts.

He finished his talk by referring to the the troublemakers as a "group of fascist agitators" You can listen to it at http://www.bbc.co.uk/iplayer/console/b00zqc43/The_World_This_Weekend_27_03_2011 at point 10.55 into the programme.

It really irritated me because whatever the marchers were they were definitely NOT "Fascists". I did see a couple on TV who were carrying the old Soviet Flag so why not call them "Communists" or "Anarchists" why call them "Fascists".

I suppose it all ties in with a general tendency today to use "Fascist" as an all encompassing political insult for anyone you disagree with however I also think it ties in with a general tendency to forget about or to excuse communism and the terrible things it did.

A couple of years ago I lectured on Human Rights at a local university and gave a general historical background to the European Convention and I talked about the Holocaust, naturally, but I also talked about Communism and Stalin. What I discovered is that the students, who were all late teens early 20's had all been taught about Fascism, Hitler and the Holocaust but they knew absolutely nothing about Communism, Stalin or the Gulags. I fear that we have a generation who are incapable of understanding that the "left" ever did anything wrong in History so when anything is done that is bad it has to be blamed on the right and the offenders branded as "fascists" even when that is clearly the last thing they are.

Church Volunteers and Employees

There have been two interesting cases recently dealing with the separate but linked issues of the law relating to Volunteers in religious organisations and to ministers of religion.

In X v Mid Sussex Citizens Advice Bureau & Ors [2011] EWCA Civ 28 the Court of Appeal rejected the suggestion that "Volunteers" were covered by the Anti-Discrimination provisions of the Equality Act 2010. (The case itself dealt with the provisions of EU Anti-Discrimination Directive but its findings would have affected the application of the 2010 Act)

The case involved a volunteer at a Citizens Advice Bureau and whether she was protected under the (now repealed) Disability Discrimination Act however it was common ground that the decision would involve all volunteers for any voluntary organisation and would apply to all types of Discrimination covered by the 2010 Act. What the Court of Appeal decided was that the Directive, and hence the Act, only applied to employees and not volunteers.

This decision is of particular significance to all religious organisations because of the large number of volunteers that are always involved with churches, synagogues, mosques, gurdwaras temples etc. If the Equality Act had applied to volunteers then these organisations would have been faced with a potential bureaucratic nightmare as they would have to ensure that every volunteer post was filled in accordance with equality guidelines with the possibility of facing Tribunal claims from disaffected parishioners who felt that they had been overlooked for appointment to a voluntary post. The fact that the law does not apply to volunteers lifts this potential threat from all voluntary organisations and allows them to get on with their primary role

In Moore v The President Of The Methodist Conference BAILII:[2010] UKEAT 0219_10_1503 the Employment Appeals Tribunal decided that a Methodist Minister was an Employee for the purposes of Employment Law, in this case a claim for unfair dismissal. The EAT applied an earlier House of Lords case Percy v. Church of Scotland [2005] UKHL 73 in which the House of Lords decided that a Church of Scotland Minister was an employee

Prior to Percy the general assumption in law was that religious ministers, of all denominations, were office holders rather than employees and so were not protected under unfair dismissal and/or discrimination law. In Percy however the House of Lords decided that, on the specific facts, the Minister in the case was an employee and the same decision was made in Moore as regards a Methodist minister.

How far this principle will extend is difficult to determine. It is possible that Denominations which have a very sacramental view of the status and role of the Clergy, such as the Catholic and Orthodox Churches, will continue to be able to claim that their clergy are "office holders" rather than employees. However for Free Church Ministers, Rabbi's and Immans the position may be different and they may be held to be employees of their respective congregations should they decide to sue for unfair dismissal or discrimination.

Italian Crucifix Case - Grand Chamber Judgment

The Grand Chamber (in effect the Appeals Court) of the European Court of Human Rights in Lautsi v Italy 2011 has overruled the earlier decision of the Court in the case of Lautsi v Italy 2009.

I had blogged previously about the 2009 decision on 5 November 2009, 7 November 2009 and 13 April 2010 but for those who have missed this saga the case involved a Mrs Lautsi a Finnish Lady who had moved to Italy and then complained about the presence of Crucifixes in Italian State Schools which is a bit like moving to Finland and then complaining about the snow. In the 2009 decision the ECtHR decided that the presence of the Crucifix interfered with Mrs Lautsi's childrens freedom of religion as guaranteed by Article 9 of the European Convention on Human Rights and Protocol 2 of the Convention relating to the rights of parents to have their children educated in accordance with the parents philosophical and religious beliefs

As I predicted in my earlier Blogs the ECtHR based its decision on the concept of the "margin of appreciation" and decided that it was for individual countries to make these decisions so that just as France is free to ban all religious symbols from state schools so Italy is free to put religious symbols in state schools. In the UK context this is a significant basis for the decision. When UK Courts apply the Human Rights Act 1998 which incorporates the European Convention into UK law they apply the "margin of appreciation" so as to give that margin to Government and public bodies. The fact that the display of the Crucifix, or indeed any other form of religious symbol, is governed by the "margin of appreciation" will go a long way to free local and central government, schools etc from the danger of legal cases being brought to ban Nativity Displays, prayers at remembrance parades etc.

Unusually for the ECtHR there were a number of separate concurring judgments and I feel that some of them deserve quoting in detail because they do pick up and question the often unquestioned assumption that Secularism is the same as religious neutrality

"JUDGE BONELLO
1.1 A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that “customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals”.
1.2 A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality

2.5 Freedom of religion is not secularism. Freedom of religion is not the separation of Church and State. Freedom of religion is not religious equidistance – all seductive notions, but of which no one has so far appointed this Court to be the custodian. In Europe, secularism is optional, freedom of religion is not.
2.6 Freedom of religion, and freedom from religion, in substance, consist in the rights to profess freely any religion of the individual's choice, the right to freely change one's religion, the right not to embrace any religion at all, and the right to manifest one's religion by means of belief, worship, teaching and observance. Here the Convention catalogue grinds to a halt, well short of the promotion of any State secularism."

"JUDGE POWER
Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant's preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option. The Convention requires that respect be given to the first applicant's convictions insofar as the education and teaching of her children was concerned. It does not require a preferential option for and endorsement of those convictions over and above all others.........To prohibit in public schools, regardless of the wishes of the body politic, the display of a symbol representative of that (or indeed any other religious) tradition and to require of the State that it pursues not a pluralist but a secularist agenda, risks venturing towards the territory of intolerance – a concept that is contrary to the values of the Convention."

Destroying the Meaning of Marriage

This is a reproduction of an Article I had published in the March 3rd issue of The Catholic Herald

“Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others” are the first words in the law report of the 1866 case of Hyde v Hyde when a Court in England was asked to consider the legal validity of a potentially polygamous Mormon marriage, much the same conclusion was reached by the US Supreme Court in the 1878 case of Reynolds v USA which also involved polygamous Mormon marriage.

Today mainstream Mormons reject polygamy but the question raised in these 19^th Century cases “what is marriage ?” is once again a live issue with the announcement by the government that it is considering legalising same sex marriage and the unequivocal rejection of the idea by Archbishop Peter Smith spokesman for the English and Welsh Catholic Bishops.

As Archbishop Smith has pointed out is “Marriage does not belong to the State any more than it belongs to the Church. It is a fundamental human institution rooted in human nature itself.” and that is borne out by the legal history of marriage itself. The Marriage Act 1949 which regulates the registration of Marriage in England and Wales does not contain any definition of what marriage is because that would have been regarded as an unnecessary statement of the blindingly obvious marriage was not created by the 1949 Act or indeed any earlier statute because marriage has always existed. All that Parliament did in 1949 and earlier Acts was to set out the legal formalities for the registration of an already existing human institution; s1(1) of the Civil Partnership Act 2004 by contrast does define civil partnerships as “a relationship between two people of the same sex “ because the 2004 Act was creating an entirely new legal institution.

Proponents of Same Sex marriage, in particular the omnipresent Peter Tatchell repetitively compare the ban on same sex marriage to bans on inter-racial marriage in the American South or South African Apartheid but this is a simplistic and ignorant argument. In both Dixie and SA the idea was to prevent 'miscegenation' ie racial mixing and so the laws did not merely prevent inter-racial marriage but also made inter-racial sex and inter-racial cohabitation criminal offences.

In view of the accusations of ignorant bigotry which are routinely thrown at Christian organisations in contrast to scientific rationalism it is perhaps worth remembering that much of the justification for banning inter-racial marriage was inspired by Eugenics 'scientists' inspired by Darwin. The 1924 Racial Integrity Act in Virginia for example was passed in tandem with an Act for “the compulsory sterilization of persons deemed to be "feebleminded," including the "insane, idiotic, imbecile, or epileptic.”

More fundamentally segregationist laws did not change the nature of marriage as involving a man and a woman what they did was to specify on racial grounds which woman a man could or could not marry and vice versa. This was the reason why American miscegenation laws were eventually ended by the US Supreme Court in the 1969 case of Loving v Virginia. In Britain by contrast mixed-race marriage has never been illegal and indeed was never illegal throughout the British Empire. But regardless of whether mixed race marriage was legal or illegal the fundamental nature of marriage as involving a man and a woman was never in question and that is why the comparison of same-sex to mixed-race marriage is spurious.

So the Church therefore does have a legitimate right to object to suggestions that the fundamental human institution of marriage should be redefined by Parliament but it is also right to be concerned as to the implications for religious freedom of any redefinition of marriage or any attempt to allow civil partnerships to be celebrated in religious buildings and as part of any religious ceremony.

There are two proposals currently being considered by Government, firstly to allow same-sex civil partnerships to be celebrated in religious buildings in accordance with religious rites and secondly to redefine marriage to include same sex relationships. At present civil partnerships are, as their name implies, purely civil with no religious element involved though, as Archbishop Peter pointed out, there is nothing stopping any religious organisation giving a blessing or other religious ceremony separate from the formal legal “civil” ceremony. Quakers, Unitarians and Liberal Synagogues do this already but they have asked that they be allowed to hold the formal legal part of civil partnership at the same time and in the same premises as the religious ceremony. The Church of England and Catholic Church both oppose this suggestion

The problem with both these suggested changes is that in the present era of Human Rights and Anti-Discrimination laws once something is allowed it can become illegal to refuse to provide it

If Churches, Synagogues, Mosques etc are allowed to perform same sex marriages or civil partnerships they could easily find themselves being sued for “Discrimination” if they refuse to perform them. Any legislation would, no doubt, say that no church etc would be obliged to perform same-sex ceremonies but any such guarantees could be legally challenged and are not likely to be worth the paper they are written on.

In a recent case concerning Marriage Commissioners in Saskatchewan the Canadian Courts struck down provisions in their Marriage legislation that protected Marriage Commissioners who for reasons of conscience did not want to perform same-sex marriages.. In an Orwellian decision this recognition of freedom of conscience was declared to be contrary to the Canadian Charter of Rights and Fundamental Freedoms. The Charter is very similar to Britains Human Rights Act and therefore it is quite possible that the UK Courts would use the same logic as the Canadian Courts in order to strike down any conscience protections given to religious organisations that did not want to perform same-sex ceremonies. Arguments about religious freedom are not likely to carry much weight because in the 2009 case of Ladelle the Court of Appeal declared that religious objections to same-sex relationships were not a “core part” of Christian belief and so were not protected under the Human Rights Act.

I began this article by referring to the 19^th Century legal cases involving Mormon polygamy which were dealt with by the Courts on the basis of a robust understanding of marriage as the union of one man and one woman. In 2003 the Canadian Courts rejected this definition as discriminatory and in consequence same sex marriage was legalised in Canada. Today in British Columbia a fundamentalist Mormon Polygamist is defending himself on Bigamy charges by arguing that the Bigamy law is discriminatory. It is quite possible that he will win in which case Canada will have legalised, same sex marriage, polygamy, polyandry and polyamory. David Cameron has said that he regards marriage as fundamental to society but he and the government need to recognise once they open the Pandora’s box of trying to redefine marriage they will end up destroying it

Johns v Derby Council - Christian Foster Carers Case

The case of Johns and Johns v Derby City Council [2011] EWHC 375 (Admin) is yet another round of the in the battle between Christian Rights and Homosexual Equality and follows arguments familiar in McFarlane v Relate BAILII: [2010] EWCA Civ B1 and Ladelle v London Borough of Islington [2009] EWCA Civ 1357.

The case involved a Christian couple who had applied to be foster carers in Derby but who, when visited by social workers, were perceived to be negative when asked how they would deal with questions about homosexuality or how they would deal with a homosexual child. However, as the Court itself noted no final decision had been made when the case was launched. It is clear that for that reason alone they considered the claim to be premature; the basis for a Judicial Review is that a decision by a public body is irrational and since no decision had yet been made it could hardly be said that any decision was irrational.

It is also clear from the judgment itself that the Court was pretty fed up with what is saw as the regurgitation of arguments which had been dealt with in the Ladelle and Mcfarlane cases. They were also critical in paras 32-34 of what they describe as "extravagant rhetoric" and in general the claims made about the significance of the case and the actions of Derby Council

Paras 38-39 are worth quoting in full

"38: Although historically this country is part of the Christian west, and although it
has an established church which is Christian, there have been enormous
changes in the social and religious life of our country over the last century.
Our society is now pluralistic and largely secular. But one aspect of its
pluralism is that we also now live in a multi-cultural community of many faiths.
One of the paradoxes of our lives is that we live in a society which has at one
and the same time become both increasingly secular but also increasingly
diverse in religious affiliation.
39: We sit as secular judges serving a multi-cultural community of many faiths.
We are sworn (we quote the judicial oath) to “do right to all manner of people
after the laws and usages of this realm, without fear or favour, affection or ill
will.” But the laws and usages of the realm do not include Christianity, in
whatever form. The aphorism that ‘Christianity is part of the common law of
England’ is mere rhetoric; at least since the decision of the House of Lords in
Bowman v Secular Society Limited [1917] AC 406 it has been impossible to
contend that it is law. "

All in all this does appear to be a case that should not have been brought and which, from the point of view of orthodox Christians has done more harm than good

Christian Bed and Breakfast Establishments

The owners of a Bed and Breakfast establishment in Cornwall have been sucessfully sued for a breach of the Sexual Orientation Regulations 2007. I do not have a transcript of the Court judgment and so have to rely on the news reports Telegraph, Guardian, Mail, BBC for the facts.

(PS ADDITION I am grateful to Sam Sarmiento for pointing me in the direction of a copy of the Judgment on the Judiciary Website. It is unusual to be able to obtain copies of County Court Judgments so it is good that the decision has been taken to publish Judgments in County Court cases such as this one where there is considerable public interest in the case)

The result was perhaps not too surprising in view of the general way sexual orientation discrimination law is working these days however the fact that the Judge has given leave to appeal does indicate that he considers the legal position to be unclear or at least arguable.

The fact is that the couple were not actually refused a room they were refused a room with a double bed and that is a policy which the Christian B&B owners have also applied to heterosexxual couples who were not married. The relevant point in this case seems to be the fact that the Gay couple were in a Civil Partnership and under reg 3(4) of the regulations Civil Partners shoudl be treated on the same basis as married couples (at least that is how the regulation is usually interpreted it is not that clearly worded )

Conversely under reg 6 Discrimination is legal when applied to premises where the owner (landlord) also lives as is the case here so there is room for an appeal court to reach a different decision to the County Court Judge who tried the case.

I have a couple of points relating to proportionality which is should discrimination law apply at all to such a small business as a B&B. The essence of any small or family run business is that it is highly personal and individualist indeed that is why people go to B&B's rather than main hotels. If as a society we want individualism and difference then surely we need to allow the freedom to be different.

As for thos who oppose any freedom for discrimination be referring to racial discrimination in Nazi germany or the American South or South Africa but I would disagree with these comparisons. The problem in these societies was not that people were allowed to discriminate but that they were obliged to discriminate by the laws applying in those countries. It seems to me that society should allow discrimination to be legal at least for small businesses and private associations even if society disaproves of that discrimination.

Religious Freedom Day, 2011

January 14th has been declared by President Obama as Americas "Religious Freedom Day" in honour of the passing of the Virginia Statute for Religious Freedom drafted by Thomas Jefferson. Though of course only relevant to the Law in Virginia it has been hugely influential in the US Supreme Court cases considering the 1st amendment to the US Constitution and I do see it as one of those documents which are worthy of being considered and followed by other countries.

I annex a copy of the Statute below and it is worthy of notice that the Statute justifies religious freedom by reliance on the will of God ie it is a Statute defending Freedom of Religion and not Freedom From Religion which seems to be the way that modern Courts and Legislators are going. I also emphasise those sections which I believe the most important

"Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;

that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;

that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind;

that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it;

that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order;

and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:

Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.

And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right."