Religion and Law round up – 3rd February

The last week’s events (and one over-hyped non-event)

Abortion: the Pope’s tweet and Cañon defence

This year marked the fortieth anniversary of Roe v Wade 410 U.S. 113, (1973) in which the United Supreme Court upheld the right to abortion until viability; and the annual March for Life received pontifical support through the @pontifex tweet:

“I join all those marching for life from afar, and pray that political leaders will protect the unborn and promote a culture of life.”

Significantly, Benedict XVI chose to restrict the tweet to English and Spanish – thus targeting specifically the audience in the United States.

However, Vatican Insider reports that coincident with the March for Life was the news that in a wrongful death suit, defence lawyers acting for the Roman Catholic St. Thomas More Hospital in Cañon City argued that a foetus is not the same as a person. A seven-month-pregnant mother and her unborn twins died; and it is claimed that her on-call obstetrician never made it to the hospital, there was no attempt by any medical personnel to save the twins by caesarean section and the unborn children died in the womb.

The defence argued that the Colorado Wrongful Death Act requires the death of a person and does not include the death of a foetus that was not born or delivered and that to be a “person” one must at some point have been born alive.  The Catholic Health Initiatives group which operates the hospital was successful at first instance and at appeal.  However, a further appeal has been made to the State Supreme Court.

On learning of the case, Colorado’s bishops have announced

“a full review of this litigation, and of the policies and practices of Catholic Health Initiatives to ensure fidelity and faithful witness to the teachings of the Catholic Church”.

Equality of Marriage (Amendment) Bill

Edward Leigh introduced his Equality of Marriage (Amendment) Bill under the 10 Minute Rule (Standing Order 23) on 29 January.  In seeking leave to bring in the Bill, he stated [Col 799]

“This  … is not a blocking measure to stop same-sex marriage; it would simply insert in the Equality Act 2010 protection for a person’s conscientious views on the definition of marriage. It would protect those who hold the traditional view that marriage is between a man and a woman, just as it would protect those who hold a contrary view. People’s right to belief and conscientious right to freedom of expression must be protected. That does not mean that those conscientious views override all other considerations, but simply that conscientious beliefs about the definition of marriage are a protected characteristic that must be taken account of.”

The Bill will have its second reading on 1 March. As Frank noted in his post,

“Its prospects of reaching the statute book are precisely zilch: but it’s all part of the continuing story and, on that account, worth a blog post – if only as a foretaste of battles to come.”

Pussy Riot and offending religious feelings

We have reported previously on the fact that the Russian State Duma has been considering a draft law on offences against religion which, as originally proposed, would provide for prison terms of up to three years for offending religious feelings and up to five years for damaging religious sites or holy books. We have also reported President Putin’s apparent worries that the proposed legislation might upset the delicate balance between the various faith-groups, particularly in areas with large Muslim populations.

Reuters now reports that the Russian Government has asked the Duma to amend the bill and, in a statement issued on International Holocaust Remembrance Day, suggested that amending existing legislation might suffice. Reuters further suggests that the Government seemed to be questioning the need for the bill at all and that one of the bill’s sponsors, Yaroslav Nilov had said that the Government’s advice would be heeded, that the wording in the bill that was seen as favouring the Russian Orthodox Church would be removed and that the legislation would protect all religions operating legally in Russia.

Reuters added that it was not clear what the next step would be in the Duma.

Religious courts and family law 

Baker J handed down judgment in AI v MT [2013] EWHC 100 (Fam) (30 January 2013), a complex case involving the ending of a marriage between two Orthodox Jews: one Canadian, the other British. The parties had opted to take their dispute for non-binding negotiation under the auspices of the rabbinical authorities in the New York Beth Din. In endorsing the decisions of the Beth Din Baker J noted the following principles:

  • that insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement (para 27);
  • that, save where statute provides otherwise, the child’s welfare is paramount when considering issues concerning the upbringing of children (para 28);
  • that, though the court “gives appropriate respect to the cultural practice and religious beliefs of Orthodox Jews as it does to the practices of all other cultures and faiths”, the court is not obliged to depart from the welfare principle – which is sufficiently broad and flexible to accommodate many cultural and religious practices (para 29):
  • that it is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage (para 30).

At the date of his order in February 2010 there had been no precedent for referring a matrimonial case for arbitration, though mediation was well established. Since then, however, an arbitration scheme had been established for matrimonial finance cases. Arbitration had many attractions for divorcing couples and was not out of line with the principle underpinning the Children Act 1989 and Article 8 ECHR. He also noted that, as Orthodox Jews, the parties believed strongly that because their marriage had been solemnised in accordance with the tenets of their faith it should be dissolved within those tenets. It was for that and other reasons that he had supported and facilitated the parents’ proposal to refer their dispute to non-binding arbitration and subsequently endorsed the outcome of that process in relation both to the children and to the parties’ financial arrangements.

As noted by David Pocklington, the case resulted in a series of headlines that were, to say the least, somewhat misleading:

Or, there again, perhaps not. James Wilson at UKHRB duly gave The Times a well-deserved kicking.

Succession to the Crown Bill 

The Succession to the Crown Bill completed its passage through the Commons with only minor, technical amendment. A New Clause proposed by Jacob Rees-Mogg that would have split the role of Supreme Governor of the Church of England from the role of Sovereign in something akin to regency, so that it would be possible for a Roman Catholic to be King or Queen without also being Supreme Governor, was roundly defeated. The Bill as amended in Committee is available here.

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