Freedom of Speech and London University Students

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

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

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

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

The motion noted:

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

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

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

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

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