In the case of Gas and Dubois v France 25951/07 the European Court of Human Rights considered the issue of whether there was any right to same sex marriage under the European Convention on Human Rights and decided that there was none. Unfortunately the judgment is only available in French "Zut Alors !" however "La Garde meurt mais ne se rend pas!" so I will take the chance of commenting nevertheless.
In the Gas case the Court reaffirmed its earlier decision in Schalk and Kopf v. Austria 30141/04 that there is no obligation under the Convention for States to legalise same sex marriage or indeed to legalise same sex civil partnerships. However it also reaffirmed that if a member State did decide to legalise same sex marriage then they had to ensure that it was provided on exactly the same basis as heterosexual marriage. This has particular relevance for the UK in view of the current consultation the UK and Scottish Governments are running on the possible legalisation of same sex marriage.
In the UK consultation the Government states that the legalisation of same sex marriage would
"make no changes to religious marriages. This will continue to only be legally possible between a man and a woman"
but this assurance is completely at odds with the European Courts decision in both the Schalk and Gas cases.
What the Government assurance is ignoring is the fact that, in law, there is no difference between "Civil" as opposed to "Religious" marriage both are in law the same thing and merely take place in different premises. Therefore on the basis of the both the Schalk and Gas cases if the Government legalises same-sex marriage then it must legalise it on exactly the same basis as it legalises heterosexual marriage ie the Government will be obliged to permit same-sex marriage on religious premises on exactly the same basis as it permits heterosexual marriage on religious premises.
How this will affect the rights of Churches who are registered for marriage and in particular how it will affect the Church of England and its clergy who are Registrars of Marriage by virtue of their status as Priests of the Established Church is legally very arguable. Certainly a good legal case can be made that any place or person who is registered to perform marriage must be willing to perform same sex marriage on the same basis as they conduct heterosexual marriage since, in law, there will be no difference between the two.
It must also be remembered that in the case of Ladelle v Islington Council [2009] EWCA Civ 1357 the Court of Appeal held that Mrs Ladele's view of Marriage "the orthodox Christian view that marriage is the union of one man and one woman for life" (para 7) "was not a core part of her religion" (para 52) and therefore if Churches are told that they have to be willing to perform same sex marriage ceremonies they will have little legal ground to resist.
The combined effect of the European Court decision and the Ladele decision seems to be clear. If same sex marriage is legalised in the UK then religious same sex marriage will have to be legalised also. Churches which perform heterosexual marriages will have to be willing to perform same sex marriages and they will have no legal grounds to resist since the (secular) Courts have determined that the "Orthodox Christian view of Marriage" is not a "Core" part of Christian belief.
Tuesday, 17 April 2012
Monday, 12 March 2012
Crosses Turbans and Hijabs
It has been reported that the Government has replied to various cases before the European Court of Human Rights regarding the wearing of the cross by Employees. The Governments view, and that of the Courts would appear to be that bans on the wearing of a cross are OK because the wearing of the Cross is not compulsory in Christianity, therefore the wearing of the Sikh Turban or Islamic Hijab cannot be prohibited but the wearing of a cross can be.
My big worry with this approach is the idea that a Secular Government and Secular Courts are allowed to discriminate between Religions based on Theological points within the religions themselves. There seems no awareness that this distinction is itself discriminatory because it gives a privileged legal position to those religions with specific and detailed rules as against those with more flexible rules.
More to the point the distinction misunderstands the nature of religious practice which is often a complex mixture of rules, beliefs, customs and rituals which often may not be formally prescribed but which are nevertheless regarded by religious believers as integral parts of their faith. The Second Council of Nicaea 787 noted that "the sacred and life-giving cross is everywhere set up as a symbol" and for Millenia the wearing of a cross by Christians has been regarded as a fundamental custom and practice of most Christians even though it has not been been formally required as an obligation of faith.
Therefore to attempt to distinguish between the wearing of a cross and the wearing of a Sikh Turban or Islamic Hijab on the basis that one is required but the other is not is to create a completely theologically illiterate, an artificial and an unrealistic distinction. It is an approach that goes against the fundamental principle of a secular society with secular courts because it involves secular Courts making religious decisions as to what is or is not compulsory in a religion.
What is also worrying is why the Courts and now government have adopted this approach. Article 9 of the European Convention of Human Rights says
Article 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to 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.
What the Courts and Government are saying is that the wearing of a cross is not a "manifestation" of religion because it is not compulsory therefore restrictions on the wearing of a cross do not have to be justified under Article 9.2 as being restrictions which are "necessary in a democratic society".
I suspect that most fair minded secularists and atheists would accept that the wearing of a cross by a believing Christian is a "manifestation" of the Christian faith even if they think that that manifestation should be restricted or banned along with the manifestation of other forms of religion. If so then those Atheists and Secularists would be being more fair minded towards Christians than the British Courts or the British Government.
My big worry with this approach is the idea that a Secular Government and Secular Courts are allowed to discriminate between Religions based on Theological points within the religions themselves. There seems no awareness that this distinction is itself discriminatory because it gives a privileged legal position to those religions with specific and detailed rules as against those with more flexible rules.
More to the point the distinction misunderstands the nature of religious practice which is often a complex mixture of rules, beliefs, customs and rituals which often may not be formally prescribed but which are nevertheless regarded by religious believers as integral parts of their faith. The Second Council of Nicaea 787 noted that "the sacred and life-giving cross is everywhere set up as a symbol" and for Millenia the wearing of a cross by Christians has been regarded as a fundamental custom and practice of most Christians even though it has not been been formally required as an obligation of faith.
Therefore to attempt to distinguish between the wearing of a cross and the wearing of a Sikh Turban or Islamic Hijab on the basis that one is required but the other is not is to create a completely theologically illiterate, an artificial and an unrealistic distinction. It is an approach that goes against the fundamental principle of a secular society with secular courts because it involves secular Courts making religious decisions as to what is or is not compulsory in a religion.
What is also worrying is why the Courts and now government have adopted this approach. Article 9 of the European Convention of Human Rights says
Article 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to 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.
What the Courts and Government are saying is that the wearing of a cross is not a "manifestation" of religion because it is not compulsory therefore restrictions on the wearing of a cross do not have to be justified under Article 9.2 as being restrictions which are "necessary in a democratic society".
I suspect that most fair minded secularists and atheists would accept that the wearing of a cross by a believing Christian is a "manifestation" of the Christian faith even if they think that that manifestation should be restricted or banned along with the manifestation of other forms of religion. If so then those Atheists and Secularists would be being more fair minded towards Christians than the British Courts or the British Government.
Wednesday, 7 March 2012
Call the Midwife - I want an Abortion !
The Scottish Court of Session case of Doogan & Wood v Greater Glasgow Health Board [2012] CSOH 32 dealt with two issues regarding the right of Midwives to refuse to participate in Abortion, namely Article 9 (Freedom of Religion) of the European Convention on Human Rights and the "Conscientious Objection" clause in s4(1) of the Abortion Act 1967.
The facts are that Doogan and Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward supervised by Midwives. (Personally I don't know what kind of sicko in the NHS decided that a Labour Ward is the right place to kill unborn babies and that Midwives are the right people to train to be baby killers but that wasn't an issue in the legal case) The change of policy put the two midwives in the situation that led to the case.
They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) in order to be excused from supervising the "patients" who were in for Abortions. (It is worth noting here that the conscientious objection clause is not restricted to believers in religion, an Atheist who believes, as many do, that the unborn child is human is entitled to rely on s4(1) just as much as a religious person.)
The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion. The Midwives referred to s4(1) which says that
"no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection"
and the legal case revolved around the question of what "participate in any treatment" actually meant.
The main case which had considered this point previously was Salford Health Authority v Janaway [1989] 1AC 537 where a typist had tried to rely on s4(1) when she refused to type a letter referring a patient for an Abortion. Not surprisingly perhaps the House of Lords in that case decided that a secretary typing a letter did not involve participation in treatment. In this case however it was midwives who claimed to be participating and there is no doubt that they were employed because of their skill and training as Midwives.
Despite this the Judge in what is a rather sparsely reasoned decision decided that what they were doing in supervising the Abortion process did not in law amount to participation in Abortion. She mentions and in large part relies on the wording of the Nurses Contract and the guidelines issued by the Nursing and Midwifery Council and the Royal College of Nurses which is somewhat peculiar in view of the clear wording of s4(1) that the right of conscientious objection overrides any "contract or .. any statutory or other legal requirement", that to my mind means that s4(1) should have been considered without any reference to the views of the NMC or the RCN or their guidance. If the Contract had to be considered perhaps more consideration should have been given to a clause mentioned in para 16 of the Judgment "ensuring that women's and babies' needs are assessed, care planned, implemented and evaluated", after all no baby needs an Abortion.
A lot of the legal argument in this case, as in the Janaway case, revolved around the criminal law of accessories or, in the Scottish legal parlance "art and part", but I wonder if more help might have been gained from looking at the Civil Law of negligence and professional liability. If a woman who was in the Labour Ward for an Abortion fell ill or died due to their Abortion "treatment" being incorrect or not properly managed when either of these senior midwives were on duty could they have been professionally disciplined by the NMC. If they could then surely they are "participating" in the treatment because they cannot be held to be professionally liable for an incorrect treatment that they have no involvement with. This does not seem to have been a point considered in this judgment but may perhaps be considered in what is, I suspect, an inevitable appeal.
The case also considered Article 9 but there is little point in dealing with those legal arguments since the Judge followed the previous cases under which the UK Courts have interpreted Article 9 so that it has become virtually meaningless as a form of legal protection. The view of the Courts is that if your job in any respects interferes with your religious belief then you have to get another job and you cannot rely on Article 9 to help you. Of course if you are a murderous terrorist or an illegal immigrant who has committed a crime for which you should be deported then the Human Rights Act will protect you to the end but if you are an ordinary person who wants to wear a crucifix or, in this case, refuse to take the life of an unborn child then the Human Rights Act will do nothing for you.
Oh and as a final point some people have suggested that because this case occurred in Scotland it would have no relevance to the legal position in England and Wales, but that unfortunately is not the case. The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and the Human Rights Act (and hence article 9) applies throughout the UK. Though Scotland is a separate legal jurisdiction to England and Wales in practice wherever Scottish Courts have adjudicated on such "cross border" legislation their decisions are accepted without question in England and Wales and Visa Versa. The Outer House of the Court of Session is equivalent in status to the High Court of England and Wales and therefore this case will in practice be treated south of the border on exactly the same basis as if it had been a decision of the High Court.
The facts are that Doogan and Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward supervised by Midwives. (Personally I don't know what kind of sicko in the NHS decided that a Labour Ward is the right place to kill unborn babies and that Midwives are the right people to train to be baby killers but that wasn't an issue in the legal case) The change of policy put the two midwives in the situation that led to the case.
They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) in order to be excused from supervising the "patients" who were in for Abortions. (It is worth noting here that the conscientious objection clause is not restricted to believers in religion, an Atheist who believes, as many do, that the unborn child is human is entitled to rely on s4(1) just as much as a religious person.)
The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion. The Midwives referred to s4(1) which says that
"no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection"
and the legal case revolved around the question of what "participate in any treatment" actually meant.
The main case which had considered this point previously was Salford Health Authority v Janaway [1989] 1AC 537 where a typist had tried to rely on s4(1) when she refused to type a letter referring a patient for an Abortion. Not surprisingly perhaps the House of Lords in that case decided that a secretary typing a letter did not involve participation in treatment. In this case however it was midwives who claimed to be participating and there is no doubt that they were employed because of their skill and training as Midwives.
Despite this the Judge in what is a rather sparsely reasoned decision decided that what they were doing in supervising the Abortion process did not in law amount to participation in Abortion. She mentions and in large part relies on the wording of the Nurses Contract and the guidelines issued by the Nursing and Midwifery Council and the Royal College of Nurses which is somewhat peculiar in view of the clear wording of s4(1) that the right of conscientious objection overrides any "contract or .. any statutory or other legal requirement", that to my mind means that s4(1) should have been considered without any reference to the views of the NMC or the RCN or their guidance. If the Contract had to be considered perhaps more consideration should have been given to a clause mentioned in para 16 of the Judgment "ensuring that women's and babies' needs are assessed, care planned, implemented and evaluated", after all no baby needs an Abortion.
A lot of the legal argument in this case, as in the Janaway case, revolved around the criminal law of accessories or, in the Scottish legal parlance "art and part", but I wonder if more help might have been gained from looking at the Civil Law of negligence and professional liability. If a woman who was in the Labour Ward for an Abortion fell ill or died due to their Abortion "treatment" being incorrect or not properly managed when either of these senior midwives were on duty could they have been professionally disciplined by the NMC. If they could then surely they are "participating" in the treatment because they cannot be held to be professionally liable for an incorrect treatment that they have no involvement with. This does not seem to have been a point considered in this judgment but may perhaps be considered in what is, I suspect, an inevitable appeal.
The case also considered Article 9 but there is little point in dealing with those legal arguments since the Judge followed the previous cases under which the UK Courts have interpreted Article 9 so that it has become virtually meaningless as a form of legal protection. The view of the Courts is that if your job in any respects interferes with your religious belief then you have to get another job and you cannot rely on Article 9 to help you. Of course if you are a murderous terrorist or an illegal immigrant who has committed a crime for which you should be deported then the Human Rights Act will protect you to the end but if you are an ordinary person who wants to wear a crucifix or, in this case, refuse to take the life of an unborn child then the Human Rights Act will do nothing for you.
Oh and as a final point some people have suggested that because this case occurred in Scotland it would have no relevance to the legal position in England and Wales, but that unfortunately is not the case. The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and the Human Rights Act (and hence article 9) applies throughout the UK. Though Scotland is a separate legal jurisdiction to England and Wales in practice wherever Scottish Courts have adjudicated on such "cross border" legislation their decisions are accepted without question in England and Wales and Visa Versa. The Outer House of the Court of Session is equivalent in status to the High Court of England and Wales and therefore this case will in practice be treated south of the border on exactly the same basis as if it had been a decision of the High Court.
Friday, 10 February 2012
Council Prayers
And now for the completely Bizarre Legal decision Bone v Bideford Town Council [2012] EWHC 175 (Admin)
In this case a Town Councilor objected to fact that Council meetings started with prayers. The procedure was that the Mayor entered the Council Chamber and then there were prayers led by a Minister or Priest chosen in rotation from one of the 8 Churches in the Town. After prayers apologies for absence were taken and the meeting carried on, no Councilor was obliged to be present during the prayers and the custom dated back to Elizabethan times.
An objection was raised by a Mr Clive Bone who is an Atheist and was for a few years a town Councilor. He objected to the Prayers and, as is his right, he raised the issue in the Council. Para 8 of the Judgment explains
"There had been no objection to the practice until Mr Bone was elected in 2007. He made no complaint for 9 months, and then in January 2008 he proposed a motion that prayers cease: it was a tradition no longer appropriate, which could deter some from seeking office, contrary to equality policies. His motion was defeated by 9 votes to 6, with 1 abstention. He withdrew a similar motion in March 2008, but in September 2008 put forward another motion which would have replaced prayers with “a short period of silence”. This was defeated by 10 votes to 5. A campaign by humanists and the National Secular Society then ensued. This litigation is part of that campaign".
In simple terms therefore Mr Bone lost two democratic votes and then decided to use the law to force his views on his colleagues. He based his case on breach of his Human Rights under Article 9 of the European Convention on Human Rights and Belief Discrimination contrary to the Equality Act 2010 and had he won on either of those grounds then the decision might well have had significant implications for the practice of public prayers at a range of events including Remembrance Day and the opening of Parliament (when Her Majesty the Queen expresses the hope that God will guide the members of Parliament in their deliberations) but he lost on both of these points of principle.
He won however on an extremely narrow point of interpretation of s111 Local Government Act 1972 which says that
"a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
As a lawyer I find the decision bizarre I could almost find it easier to understand a decision based on breach of Article 9. The basis of the decision seems to be the legal concept of "ultra Vires" which prevents public bodies engaging in actions which are not permitted by legislation. However the Ultra Vires doctrine like all doctrines is subject to the old idea that "the law is not concerned with trifles" which in modern context is usually expressed as the concept of proportionality. By any rational analysis it seems wholly disproportionate to say that a local ceremony which has lasted for hundreds of years is unlawful merely because it is not specifically mentioned in legislation.
Also bizarre is what the Judge said at para 27
"I do not see that it can be calculated to facilitate, or be conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment. The majority acknowledge such response or feelings to be ones which it is right to accommodate; such feelings are in that sense a reasonable response to the course of action preferred by the majority. I appreciate that the saying of prayers may cross party lines, but I cannot see that it would be different from incorporating some other form of religious or secular but potentially divisive ceremony, such as the singing of a political party’s song, into the meeting."
On the basis of that paragraph if the Council were to meet on November 11th and was to incorporate into its Agenda a 2 minutes silence in remembrance of the War Dead that would also be illegal if a pacifist objected on the basis that this "secular ceremony" (to use the Judges own designation) was divisive towards pacifists
In this case a Town Councilor objected to fact that Council meetings started with prayers. The procedure was that the Mayor entered the Council Chamber and then there were prayers led by a Minister or Priest chosen in rotation from one of the 8 Churches in the Town. After prayers apologies for absence were taken and the meeting carried on, no Councilor was obliged to be present during the prayers and the custom dated back to Elizabethan times.
An objection was raised by a Mr Clive Bone who is an Atheist and was for a few years a town Councilor. He objected to the Prayers and, as is his right, he raised the issue in the Council. Para 8 of the Judgment explains
"There had been no objection to the practice until Mr Bone was elected in 2007. He made no complaint for 9 months, and then in January 2008 he proposed a motion that prayers cease: it was a tradition no longer appropriate, which could deter some from seeking office, contrary to equality policies. His motion was defeated by 9 votes to 6, with 1 abstention. He withdrew a similar motion in March 2008, but in September 2008 put forward another motion which would have replaced prayers with “a short period of silence”. This was defeated by 10 votes to 5. A campaign by humanists and the National Secular Society then ensued. This litigation is part of that campaign".
In simple terms therefore Mr Bone lost two democratic votes and then decided to use the law to force his views on his colleagues. He based his case on breach of his Human Rights under Article 9 of the European Convention on Human Rights and Belief Discrimination contrary to the Equality Act 2010 and had he won on either of those grounds then the decision might well have had significant implications for the practice of public prayers at a range of events including Remembrance Day and the opening of Parliament (when Her Majesty the Queen expresses the hope that God will guide the members of Parliament in their deliberations) but he lost on both of these points of principle.
He won however on an extremely narrow point of interpretation of s111 Local Government Act 1972 which says that
"a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
As a lawyer I find the decision bizarre I could almost find it easier to understand a decision based on breach of Article 9. The basis of the decision seems to be the legal concept of "ultra Vires" which prevents public bodies engaging in actions which are not permitted by legislation. However the Ultra Vires doctrine like all doctrines is subject to the old idea that "the law is not concerned with trifles" which in modern context is usually expressed as the concept of proportionality. By any rational analysis it seems wholly disproportionate to say that a local ceremony which has lasted for hundreds of years is unlawful merely because it is not specifically mentioned in legislation.
Also bizarre is what the Judge said at para 27
"I do not see that it can be calculated to facilitate, or be conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment. The majority acknowledge such response or feelings to be ones which it is right to accommodate; such feelings are in that sense a reasonable response to the course of action preferred by the majority. I appreciate that the saying of prayers may cross party lines, but I cannot see that it would be different from incorporating some other form of religious or secular but potentially divisive ceremony, such as the singing of a political party’s song, into the meeting."
On the basis of that paragraph if the Council were to meet on November 11th and was to incorporate into its Agenda a 2 minutes silence in remembrance of the War Dead that would also be illegal if a pacifist objected on the basis that this "secular ceremony" (to use the Judges own designation) was divisive towards pacifists
B&B Owners and Sexual Orientation
Two legal decisions today one not unexpected and one completely bizarre
In Bull v Hall & Preddy [2012] EWCA Civ 83 the Court of Appeal confirmed that two B&B owners had discriminated against a same sex couple by refusing to let them have a Double Room. The decision was based on the provisions of the Equality Act (Sexual Orientation) Regulations 2007 which have now been incorporated into the Equality Act 2010.
Essentially the Bulls are a Christian couple who believe that sex should only take place in the context of a married, monagamous and heterosexual relationship. They run a Bed and Breakfast and applied a rule that only married couples could share a room, the rule was applied to unmarried heterosexual couples as well as same-sex couples. However the Court held that since, by definition, a same sex couple could never fall within the definition of a married couple applied by the Bulls the rule was discriminatory towards same sex couples and hence illegal.
I am not surprised by the ruling which was to be expected in view of all the previous decisions on the rights, or to be more precise, lack of rights of Christians in the public sphere. However what does irritate me is that the Judge did not try to address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point
In Bull v Hall & Preddy [2012] EWCA Civ 83 the Court of Appeal confirmed that two B&B owners had discriminated against a same sex couple by refusing to let them have a Double Room. The decision was based on the provisions of the Equality Act (Sexual Orientation) Regulations 2007 which have now been incorporated into the Equality Act 2010.
Essentially the Bulls are a Christian couple who believe that sex should only take place in the context of a married, monagamous and heterosexual relationship. They run a Bed and Breakfast and applied a rule that only married couples could share a room, the rule was applied to unmarried heterosexual couples as well as same-sex couples. However the Court held that since, by definition, a same sex couple could never fall within the definition of a married couple applied by the Bulls the rule was discriminatory towards same sex couples and hence illegal.
I am not surprised by the ruling which was to be expected in view of all the previous decisions on the rights, or to be more precise, lack of rights of Christians in the public sphere. However what does irritate me is that the Judge did not try to address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point
Monday, 30 January 2012
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.
Sunday, 15 January 2012
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.”
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
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