The Saskatchewan Court of Appeal has issued a decision in the case of Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3. I have only had a brief opportunity to read the judgment and will comment on it detail later but in general terms it appears to follow the same logic as the English case of Ladele v London Borough of Islington [2009] EWCA Civ 1357
The Court has decided that proposed legislative amendments to the Saskatchewan Marriage Act 1995 which would have allowed Saskatchewan’s marriage commissioners to refuse to perform same-sex marriages on religious grounds are contrary to Saskatchewan Anti Discrimination Law and the Canadian Charter of Rights and Freedoms. As I blogged back in October 2009 the Ontario Canadian Supreme Court in the 2004 case of Halpern et al. v. Canada had decided that the Common Law definition of marriage as between one man and one woman was not consistent with the Charter and subsequently Same Sex Marriage had become legal throughout Canada though the specific legislation remains the responsibility of the individual provinces in Canada.
The Saskatchewan government had proposed two potential legislative amendments to the Marriage Act in order to deal with situations where some marriage commissioners were called before the Saskatchewan Human Rights Commission or the Courts for refusing to perform same-sex marriages: one amendment would have permitted marriage commissioners appointed before November 5, 2004 to refuse to solemnize a marriage contrary to their religious beliefs, and a second would have allowed any marriage commissioner, no matter when they were appointed, the same right.
The court said that its decision was based on section 15(1) of the Charter of Rights and Freedoms which prohibits discrimination based on characteristics such as race and sex. Though the Charter makes no mention of sexual orientation, the courts have nevertheless read sexual orientation into this section. The court said that a law empowering marriage commissioners to deny their services to homosexual individuals would violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.
The Court claimed that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.
What that judgment however seems to ignore, as did Ladele, the possibility of allowing individual government employees a right of conscientious objection so long as the "service" was provided by someone. On a personal note I find it somewhat Orwellian to use a "Charter of Rights and Freedoms" in order to justify forcing people to do something against their conscience and to say that that even a Democratically elected Legislature does not have the right to give people freedom to refuse to perform an action. That is not a Charter of Rights and Freedom so much as a Charter of Coercion and is an object lesson in Judicial activism exercising a corrosive influence on democracy and freedom.
Tuesday, 11 January 2011
Wednesday, 22 December 2010
Have yourself a multicultural little Christmas
In view of the fact that most Schools are no longer putting on a Nativity Play in order to avoid “giving offence” to other religions the following Nativity Play has been written
THE POLITICALLY CORRECT NATIVITY
(or Have yourself a multicultural little Christmas)
Characters: Mary and an Angel.
(Please note that the role of the Angel is Non Gender specific and therefore the person playing the role must be chosen in accordance with an approved diversity procedure)
(Mary is sitting on the floor crosslegged with her eyes shut and her hands on her knees palms up. She is chanting)
MARY: Ohmm, Ohmm, Ohmm,
(The Angel enters Stage Left (or Stage Right depending on cultural preferences)
ANGEL: Mary
(Mary stands up startled, she adjusts her Hijab to cover her face and speaks)
MARY: Who are you ? You interrupted me when I was allowing my Kharma to flow forth and develop my Krishna Consciousness
ANGEL: I am Ahura Mazda, Lord of Light and a messenger of Allah. I have come to tell you that you are to have a child and in his honour every year children everywhere will be given presents regardless of their race, colour, creed, sexual orientation or transgender inclinations
MARY: But how can this be, I am a good Jewish Girl, though I hasten to add not a member of the international Zionist conspiracy or involved in the suppression of the legitimate aspirations of the Palestinian people
ANGEL: All things are possible to Allah. He has the power to turn Teddy bears into Criminals or Global Warming into snowy blizzards and he allows apparently rational people to believe that Sweden is run by the CIA so this is easy. The child will be born just after the festival of Divalli; farewell Mary and may the force be with you.
MARY: Wait, you have not told me what the name of the baby will be
(The Angel thinks for a minute)
ANGEL: It’s funny you should say that but with everything else that’s going on these days I’ve completely forgotten who the baby is
THE END ?
And to my readers (or for all I know 'my reader')
My best wishes for Christmas and for 2011 Anno Domini.
Monday, 20 December 2010
Irish Abortion case 2
I have had a proper chance to read this decision see earlier Blog below and am even more puzzled than I was before as to what right or jurisdiction the ECHR had to make the decision it did.
The main part of the decision relating to the claimant C was that the Irish Government has not brought in legislation or guidance to allow Doctors to properly advise women who seek an Abortion when their life may be endangered by pregnancy. In the case of A.G. v. X [1992] BAILII:IESC 1 the Irish Supreme Court decided that women in that situation could obtain an Abortion in accordance with the
"and with due regard to the equal right to life of the mother"
wording within article 40.3.3 of the Irish Constitution
Assuming, for the sake of the argument, that the ECHR is correct in deciding that the Irish State has not properly implemented the 'X' case how does that give the ECHR jurisdiction to find a breach of Article 8 of the Convention ? If there is no right to an Abortion under Article 8 then at that stage the jurisdiction of the ECHR ends; the ECHR does not have the jurisdiction to deal with possible breaches of the Irish Constitution
There is also a broader issue arising from the the Judgment which provides a dangerous power for the ECHR to ultimately decide that Abortion is a "Human Right". Paras 233 - 238 read as follows
233. There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention.
234. However, the question remains whether this wide margin of appreciation is narrowed by the existence of a relevant consensus.
The existence of a consensus has long played a role in the development and evolution of Convention protections beginning with Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no. 26), the Convention being considered a “living instrument” to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention (Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 41; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 60; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 102; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003-I and Christine Goodwin v. the United Kingdom [GC], cited above, § 85).
235. In the present case, and contrary to the Government’s submission, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court notes that the first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States. Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life. Certain States have in recent years extended the grounds on which abortion can be obtained (see paragraph 112 above). Ireland is the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. Given this consensus amongst a substantial majority of the Contracting States, it is not necessary to look further to international trends and views which the first two applicants and certain of the third parties argued also leant in favour of broader access to abortion.
236. However, the Court does not consider that this consensus decisively narrows the broad margin of appreciation of the State.
237. Of central importance is the finding in the above-cited Vo case, referred to above, that the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected (see the review of the Convention case law at paragraphs 75-80 in the above-cited Vo v. France [GC] judgment), the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention (Tyrer v. the United Kingdom, § 31; and Vo v. France [GC], § 82, both cited above).
238. It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a State’s Convention obligations and, given the Court’s responsibility under Article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved (Open Door, § 68). A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre-natal life or on the basis that the expectant mother’s right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the Contracting States, as the Government maintained relying on certain international declarations (paragraph 187 above). However, and as explained above, the Court must decide on the compatibility with Article 8 of the Convention of the Irish State’s prohibition of abortion on health and well-being grounds on the basis of the above-described fair balance test to which a broad margin of appreciation is applicable.
The notion that the interpretation of the Convention can evolve and can be based on a developing "consensus" within Europe, the idea that the ECHR can say that its power to interpret a Convention that does not once mention Abortion is such that
"Nor is the regulation of abortion rights solely a matter for the Contracting States"
is wholly inimical to the concept of Democracy and the rule of Law. Article 40.3.3 of the Irish Constitution was passed by a referendum of the Irish people following a full debate and yet apparently that referendum result can be overturned by a group of unelected Judges applying their concept of a European consensus.
The rule of law depends on Judges applying legal rules whether they like them or not, once the law is at the whim of Judges then we no longer have the rule of law.
Most of the debate on this case seems to turn on whether the commentators agree or disagree with Abortion but I would suggest that there is another principle at stake and perhaps a more important principle. Are decisions on these fundamental moral questions going to be decided by European nations democratically or are they going to be imposed on Europe by an ECHR which is neither accountable to the peoples of Europe or removable by them
The main part of the decision relating to the claimant C was that the Irish Government has not brought in legislation or guidance to allow Doctors to properly advise women who seek an Abortion when their life may be endangered by pregnancy. In the case of A.G. v. X [1992] BAILII:IESC 1 the Irish Supreme Court decided that women in that situation could obtain an Abortion in accordance with the
"and with due regard to the equal right to life of the mother"
wording within article 40.3.3 of the Irish Constitution
Assuming, for the sake of the argument, that the ECHR is correct in deciding that the Irish State has not properly implemented the 'X' case how does that give the ECHR jurisdiction to find a breach of Article 8 of the Convention ? If there is no right to an Abortion under Article 8 then at that stage the jurisdiction of the ECHR ends; the ECHR does not have the jurisdiction to deal with possible breaches of the Irish Constitution
There is also a broader issue arising from the the Judgment which provides a dangerous power for the ECHR to ultimately decide that Abortion is a "Human Right". Paras 233 - 238 read as follows
233. There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention.
234. However, the question remains whether this wide margin of appreciation is narrowed by the existence of a relevant consensus.
The existence of a consensus has long played a role in the development and evolution of Convention protections beginning with Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no. 26), the Convention being considered a “living instrument” to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention (Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 41; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 60; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 102; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003-I and Christine Goodwin v. the United Kingdom [GC], cited above, § 85).
235. In the present case, and contrary to the Government’s submission, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court notes that the first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States. Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life. Certain States have in recent years extended the grounds on which abortion can be obtained (see paragraph 112 above). Ireland is the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. Given this consensus amongst a substantial majority of the Contracting States, it is not necessary to look further to international trends and views which the first two applicants and certain of the third parties argued also leant in favour of broader access to abortion.
236. However, the Court does not consider that this consensus decisively narrows the broad margin of appreciation of the State.
237. Of central importance is the finding in the above-cited Vo case, referred to above, that the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected (see the review of the Convention case law at paragraphs 75-80 in the above-cited Vo v. France [GC] judgment), the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention (Tyrer v. the United Kingdom, § 31; and Vo v. France [GC], § 82, both cited above).
238. It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a State’s Convention obligations and, given the Court’s responsibility under Article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved (Open Door, § 68). A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre-natal life or on the basis that the expectant mother’s right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the Contracting States, as the Government maintained relying on certain international declarations (paragraph 187 above). However, and as explained above, the Court must decide on the compatibility with Article 8 of the Convention of the Irish State’s prohibition of abortion on health and well-being grounds on the basis of the above-described fair balance test to which a broad margin of appreciation is applicable.
The notion that the interpretation of the Convention can evolve and can be based on a developing "consensus" within Europe, the idea that the ECHR can say that its power to interpret a Convention that does not once mention Abortion is such that
"Nor is the regulation of abortion rights solely a matter for the Contracting States"
is wholly inimical to the concept of Democracy and the rule of Law. Article 40.3.3 of the Irish Constitution was passed by a referendum of the Irish people following a full debate and yet apparently that referendum result can be overturned by a group of unelected Judges applying their concept of a European consensus.
The rule of law depends on Judges applying legal rules whether they like them or not, once the law is at the whim of Judges then we no longer have the rule of law.
Most of the debate on this case seems to turn on whether the commentators agree or disagree with Abortion but I would suggest that there is another principle at stake and perhaps a more important principle. Are decisions on these fundamental moral questions going to be decided by European nations democratically or are they going to be imposed on Europe by an ECHR which is neither accountable to the peoples of Europe or removable by them
Thursday, 16 December 2010
Irish Abortion case
I am just off on a journey so apologies for this rushed Blog.
The European Court of Human Rights has just delivered a Grand Chamber judgment in the case of A. B. and C. v. Ireland. See PRESS RELEASE and JUDGMENT
re the facts in each case. Essentially the 3 women were arguing that the Irish Constitution article 40.3.3
Article 8 - Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Court held that there had been no violation of Article 8 of the European Convention on Human Rights (right to private and family life) in respect of A and B, and unanimously, that there had been a violation of Article 8 in respect of C who was suffering from cancer. The peculiarity of the decision is that the European Court held that C could not access her rights to an Abortion (because her life was in danger) under the Irish Constitution 40.3.3.
The question I pose is
"What gives the European Court of Human Rights the right to adjudicate on the provisions of the Irish Constitution ? Once the Court had decided that the European Convention does not give a right to an Abortion that should have been the end of the matter. Deciding on the interpretation of the Irish Constitution is the job of the Irish Supreme Court not the European Court of Human Rights
The European Court of Human Rights has just delivered a Grand Chamber judgment in the case of A. B. and C. v. Ireland. See PRESS RELEASE and JUDGMENT
re the facts in each case. Essentially the 3 women were arguing that the Irish Constitution article 40.3.3
"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right"
violated their rights to a private life under Article 8 of the European Convention on Human RightsArticle 8 - Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Court held that there had been no violation of Article 8 of the European Convention on Human Rights (right to private and family life) in respect of A and B, and unanimously, that there had been a violation of Article 8 in respect of C who was suffering from cancer. The peculiarity of the decision is that the European Court held that C could not access her rights to an Abortion (because her life was in danger) under the Irish Constitution 40.3.3.
The question I pose is
"What gives the European Court of Human Rights the right to adjudicate on the provisions of the Irish Constitution ? Once the Court had decided that the European Convention does not give a right to an Abortion that should have been the end of the matter. Deciding on the interpretation of the Irish Constitution is the job of the Irish Supreme Court not the European Court of Human Rights
Sunday, 12 December 2010
Catholic League v San Francisco
The judgment of the US 9th Circuit Court of Appeals in the case of Catholic League v San Francisco makes interesting reading. In this case the Catholic League which is an organisation defending Catholic freedom in the US sued the City of San Francisco over a resolution passed by the Board of Supervisors (in effect the City Council) of San Francisco.
The City of San Francisco has a long record of supporting Gay Rights including same sex marriage and same sex adoption. Following a statement by Cardinal William Levada the head of the Vatican Congregation for the Doctrine of the Faith which condemned same sex adoption and stated that Catholic Adoption Agencies should not co-operate in any way with it the SF Board of Supervisors passed a lengthy resolution (no 168-06 It can be read on p4 of the Judgment). This resolution firmly disagreed with the views of Cardinal Levada and called on him to withdraw and on the present Archbishop of San Francisco, Archbishop Niederauer, to defy the Catholic Churches teaching on same sex adoption
WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada;
now, therefore, be it RESOLVED,
That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.
The Catholic League argued that this resolution breached the 1st Amendment to the US Constitution which prevents an "establishment of religion". It was argued by the League that just as and, as the 1st Amendment prevents government in the US from endorsing any particular religion or religious group so it also prevents government from criticising any particular religion or religious group.
Much of the case revolved around the question of "standing". Clearly either Archbishop Niederauer or Cardinal Levada could claim that the resolution affected them but the Court had to decide whether the 2 Catholic League members in whose name the case was brought could claim that it affected them in their personal capacity as Catholics. The Court decided, by a bare majority that they did have standing.
The Court also by a majority decided that the resolution did not affect the rights of Catholics under the 1st Amendment. The minority dissenting view was set out in the judgment of Judge Kleinfield (p17 of PDF) who held that
government has no legitimate role under the Establishment Clause in judging the religious beliefs of the people — either by praise or denunciation.
The majority view was set out in the judgment of Judge Silverman (p26 of PDF) who said
Government speech or conduct violates the Establishment Clause’s neutrality-only requirement when it: (1) has a predominantly religious purpose; (2) has a principal or primary effect of advancing or inhibiting religion; or (3) fosters excessive entanglement with religion. .......It [the resolution] was an isolated, non-binding expression of the Board of Supervisors’ opinion on a secular matter, which the plaintiffs have not alleged even potentially interfered with the inner workings of the Catholic Church......We would have a different case on our hands had the defendants called upon Cardinal Levada to recant his views on transubstantiation, or had urged Orthodox Jews to abandon the laws of kashrut, or Mormons their taboo of alcohol. Those matters of religious dogma are not within the secular arena in the way that same-sex marriage and adoption are
An interesting point for me, as a non US lawyer, was that nobody referred to the right of free expression which is also part of the 1st Amendment since it does seem to me that the SF resolution was an expression of opinion by the SF Board of Supervisors and therefore surely it too was protected by the 1st Amendment on those grounds. I suppose that since the Court held that the establishment clause in the 1st Amendment was not violated they did not need to go on to consider freedom of speech issues.
On a personal basis I agree with the Court on their judgment (no doubt they will be heartily relieved to know that !). Whilst I can understand the annoyance of the Catholic League with what the SF resolution said the fact is that the biggest threat Christianity faces in the west is the restriction on freedom to express unpopular views and therefore supporting freedom of expression is important even when you disagree with what is expressed.
On a second personal point I do take issue with the SF resolution when it refers to the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition
that really is just a nasty attempt to blacken by association. The inquisition ceased to exist in 1908 so why over 100 years later refer to it when dealing with what a modern department has said; nobody refers to Canada (formerly known as British North America) or The Ministry of Defence (formerly known as the War Office). It was a childish remark by the SF Board but, as I have already mentioned, one protected by the 1st Amendment
The City of San Francisco has a long record of supporting Gay Rights including same sex marriage and same sex adoption. Following a statement by Cardinal William Levada the head of the Vatican Congregation for the Doctrine of the Faith which condemned same sex adoption and stated that Catholic Adoption Agencies should not co-operate in any way with it the SF Board of Supervisors passed a lengthy resolution (no 168-06 It can be read on p4 of the Judgment). This resolution firmly disagreed with the views of Cardinal Levada and called on him to withdraw and on the present Archbishop of San Francisco, Archbishop Niederauer, to defy the Catholic Churches teaching on same sex adoption
WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada;
now, therefore, be it RESOLVED,
That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.
The Catholic League argued that this resolution breached the 1st Amendment to the US Constitution which prevents an "establishment of religion". It was argued by the League that just as and, as the 1st Amendment prevents government in the US from endorsing any particular religion or religious group so it also prevents government from criticising any particular religion or religious group.
Much of the case revolved around the question of "standing". Clearly either Archbishop Niederauer or Cardinal Levada could claim that the resolution affected them but the Court had to decide whether the 2 Catholic League members in whose name the case was brought could claim that it affected them in their personal capacity as Catholics. The Court decided, by a bare majority that they did have standing.
The Court also by a majority decided that the resolution did not affect the rights of Catholics under the 1st Amendment. The minority dissenting view was set out in the judgment of Judge Kleinfield (p17 of PDF) who held that
government has no legitimate role under the Establishment Clause in judging the religious beliefs of the people — either by praise or denunciation.
The majority view was set out in the judgment of Judge Silverman (p26 of PDF) who said
Government speech or conduct violates the Establishment Clause’s neutrality-only requirement when it: (1) has a predominantly religious purpose; (2) has a principal or primary effect of advancing or inhibiting religion; or (3) fosters excessive entanglement with religion. .......It [the resolution] was an isolated, non-binding expression of the Board of Supervisors’ opinion on a secular matter, which the plaintiffs have not alleged even potentially interfered with the inner workings of the Catholic Church......We would have a different case on our hands had the defendants called upon Cardinal Levada to recant his views on transubstantiation, or had urged Orthodox Jews to abandon the laws of kashrut, or Mormons their taboo of alcohol. Those matters of religious dogma are not within the secular arena in the way that same-sex marriage and adoption are
An interesting point for me, as a non US lawyer, was that nobody referred to the right of free expression which is also part of the 1st Amendment since it does seem to me that the SF resolution was an expression of opinion by the SF Board of Supervisors and therefore surely it too was protected by the 1st Amendment on those grounds. I suppose that since the Court held that the establishment clause in the 1st Amendment was not violated they did not need to go on to consider freedom of speech issues.
On a personal basis I agree with the Court on their judgment (no doubt they will be heartily relieved to know that !). Whilst I can understand the annoyance of the Catholic League with what the SF resolution said the fact is that the biggest threat Christianity faces in the west is the restriction on freedom to express unpopular views and therefore supporting freedom of expression is important even when you disagree with what is expressed.
On a second personal point I do take issue with the SF resolution when it refers to the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition
that really is just a nasty attempt to blacken by association. The inquisition ceased to exist in 1908 so why over 100 years later refer to it when dealing with what a modern department has said; nobody refers to Canada (formerly known as British North America) or The Ministry of Defence (formerly known as the War Office). It was a childish remark by the SF Board but, as I have already mentioned, one protected by the 1st Amendment
Monday, 29 November 2010
Oklahoma and Sharia Law Ban
Say what you like about America but its political system does allow the public to get involved in debate and decision making in a way that is very difficult this side of the Atlantic. One of the latest examples of this was the decision by citizens of Oklahoma to amend their State Constitution so as to ban Sharia law.
The legal background to the wording of the amendment makes interesting reading because Oklahoma law requires that any proposed amendment to the State Constitution needs to be accompanied by an explanation of the amendment and its purpose. The Ballot as put to the Voters of Oklahoma read as follows.
International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties. Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.
"C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. "
After being passed the Amendment was immediately the subject of a legal case by the Council on American Islamic Relations and that legal case will no doubt drag on for several years. In the meantime the Constitutional Amendment has been put on hold and does not form part of the Oklahoma Constitution.
Most of the arguments against the Oklahoma Amendment have concentrated on the line that it is a breach of the 1st Amendment to the US Constitution which says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
There is a similar provision in Article 1.2 of the Oklahoma Constitution which says
§ 2. Religious liberty - Polygamous or plural marriages.
Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.
The question for the Courts will undoubtedly be whether the proposed amendment amounts to a defacto interference with the "free exercise of religion" and/or "a religious test for the exercise of civil or political rights". It seems to me that the amendment as passed clearly does that in so far as it prevents the use of Sharia law even with regard to purely internal regulation of Muslim organisations or the personal use of Sharia in Arbitration. However I suspect that the amendment can be struck down on grounds that do not require the Courts to look to closely at the religious aspects of Sharia. The word in the amendment provided the law of the other state does not include Sharia Law, in making judicial decisions. can be argued to be in breach of Article IV.1 of the US Constitution which requires that "full faith and credit shall be given in each state to the ... judicial proceedings of every other state" ie if another State recognises Sharia in part of its law Oklahoma has no right to disagree. Furthermore the refusal to recognise International law goes against several references in the US Constitution to the "law of nations" as being recognised by the Constitution.
It will be interesting to see how the case develops but legally speaking I do not give much credence to the survival of the amendment as passed.
and th
The legal background to the wording of the amendment makes interesting reading because Oklahoma law requires that any proposed amendment to the State Constitution needs to be accompanied by an explanation of the amendment and its purpose. The Ballot as put to the Voters of Oklahoma read as follows.
PRELIMINARY BALLOT TITLE FOR STATE QUESTION NO. 755
This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law. International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties. Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.
"C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. "
After being passed the Amendment was immediately the subject of a legal case by the Council on American Islamic Relations and that legal case will no doubt drag on for several years. In the meantime the Constitutional Amendment has been put on hold and does not form part of the Oklahoma Constitution.
Most of the arguments against the Oklahoma Amendment have concentrated on the line that it is a breach of the 1st Amendment to the US Constitution which says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
There is a similar provision in Article 1.2 of the Oklahoma Constitution which says
§ 2. Religious liberty - Polygamous or plural marriages.
Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.
The question for the Courts will undoubtedly be whether the proposed amendment amounts to a defacto interference with the "free exercise of religion" and/or "a religious test for the exercise of civil or political rights". It seems to me that the amendment as passed clearly does that in so far as it prevents the use of Sharia law even with regard to purely internal regulation of Muslim organisations or the personal use of Sharia in Arbitration. However I suspect that the amendment can be struck down on grounds that do not require the Courts to look to closely at the religious aspects of Sharia. The word in the amendment provided the law of the other state does not include Sharia Law, in making judicial decisions. can be argued to be in breach of Article IV.1 of the US Constitution which requires that "full faith and credit shall be given in each state to the ... judicial proceedings of every other state" ie if another State recognises Sharia in part of its law Oklahoma has no right to disagree. Furthermore the refusal to recognise International law goes against several references in the US Constitution to the "law of nations" as being recognised by the Constitution.
It will be interesting to see how the case develops but legally speaking I do not give much credence to the survival of the amendment as passed.
and th
Wednesday, 24 November 2010
The Rule of Law or The Rule of Lawyers
I have copied the following report from Life Site News because I feel what Justice Scalia is denouncing in the US legal system is extremely relevant to the misuse of the European Convention on Human Rights and the judicial activism of the European Court of Human Rights which regards the convention as a "living instrument". Though a wonderful idea in liberal theory it is in fact a pernicious attack on democracy and the rule of law because the Convention can be used to mean whatever the Court decides it means.
"RICHMOND, Virginia, November 23, 2010 (LifeSiteNews.com) - U.S. Supreme Court Justice Antonin Scalia slammed the modern U.S. judiciary and the high court for using the idea of a “living constitution” to invent new rules and meanings that have led to a “right” to abortion and decriminalized homosexual conduct.
Scalia made his remarks last Friday during a University of Richmond luncheon lecture entitled “Do Words Matter?” The event was covered both by the Associated Press. “The Constitution says what it says and it doesn’t say anything more,” said Scalia to an audience of 250 people, most of them legal professionals and academics.
The 74-year-old jurist, appointed to the high court by President Ronald Reagan in 1986, warned that government by judges is inevitable when the original meaning of legal language in laws and constitutions is not respected. This attitude, he said, allows “five out of nine hotshot lawyers to run the country.”
“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”
Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.
(NB for non American readers the 14th Amendment reads as follows
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")
“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.”
He also commented on the modern confirmation process of Supreme Court justices, saying it was akin to a “mini-constitutional convention” because Senators are fighting about how a justice will interpret words. “The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.
The AP reports that after the lecture, Scalia signed copies of his new book, “Making Your Case: The Art of Persuading Judges,” and was going to lecture a class on the constitution’s separation of powers at UR’s law school.
Justice Scalia, along with Justice Clarence Thomas, are the high court’s two jurists that firmly embrace an “originalist” doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws. Scalia has criticized the high court’s 1973 Roe v. Wade decision as an “improper” ruling, saying the founding charter of the U.S. federal government had nothing to do either with abortion or even things like homosexual activity.
If the U.S. Supreme Court reversed its position on Roe, abortion would once again become a criminal matter for the states to decide how to regulate or prohibit.
"RICHMOND, Virginia, November 23, 2010 (LifeSiteNews.com) - U.S. Supreme Court Justice Antonin Scalia slammed the modern U.S. judiciary and the high court for using the idea of a “living constitution” to invent new rules and meanings that have led to a “right” to abortion and decriminalized homosexual conduct.
Scalia made his remarks last Friday during a University of Richmond luncheon lecture entitled “Do Words Matter?” The event was covered both by the Associated Press. “The Constitution says what it says and it doesn’t say anything more,” said Scalia to an audience of 250 people, most of them legal professionals and academics.
The 74-year-old jurist, appointed to the high court by President Ronald Reagan in 1986, warned that government by judges is inevitable when the original meaning of legal language in laws and constitutions is not respected. This attitude, he said, allows “five out of nine hotshot lawyers to run the country.”
“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”
Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.
(NB for non American readers the 14th Amendment reads as follows
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")
“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.”
He also commented on the modern confirmation process of Supreme Court justices, saying it was akin to a “mini-constitutional convention” because Senators are fighting about how a justice will interpret words. “The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.
The AP reports that after the lecture, Scalia signed copies of his new book, “Making Your Case: The Art of Persuading Judges,” and was going to lecture a class on the constitution’s separation of powers at UR’s law school.
Justice Scalia, along with Justice Clarence Thomas, are the high court’s two jurists that firmly embrace an “originalist” doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws. Scalia has criticized the high court’s 1973 Roe v. Wade decision as an “improper” ruling, saying the founding charter of the U.S. federal government had nothing to do either with abortion or even things like homosexual activity.
If the U.S. Supreme Court reversed its position on Roe, abortion would once again become a criminal matter for the states to decide how to regulate or prohibit.
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