Christian Bed and Breakfast Establishments

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

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

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

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

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

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

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

Religious Freedom Day, 2011

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

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

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

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

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

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

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

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

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

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

Saskatchewan Marriage Commissioners

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.

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.

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

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

"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 Rights
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

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