Religion and Law round up – 2nd June

A week in which ChaplinLadele and McFarlane didn’t make it to the Grand Chamber but the French burqa ban did

ChaplinLadele and McFarlane: the final curtain

On Tuesday it was announced that the Grand Chamber panel of five judges which filters applications for rehearings before the Grand Chamber ECtHR had rejected the appeal requests of Mrs Chaplin, Ms Ladele and Mr McFarlane. The judgments in their cases are now final.

French burqa ban to go to the Grand Chamber

On Thursday it was announced that the Chamber of the ECtHR to which S.A.S. v France (No. 43835/11) was assigned has relinquished jurisdiction; instead, the application is to be heard by the Grand Chamber. The applicant, a French national who is a practising Muslim, states that she wears the burqa in order to live according to her faith, her culture and her personal convictions. She is claiming violation of her Convention rights under Articles 3, 8, 9, 10, 11 and 14.

Town council prayers: one that we missed…

On 20 May the US Supreme Court agreed to hear a petition for certiorari from the judgment of the US Court of Appeals 2nd Circuit in Galloway v Town of Greece 681 F.3d 20 (2d Cir. 2012) that the practice of prayers at meetings of the Town Board of Greece, NY, was unconstitutional.

The First Amendment to the US Constitution, aka the Establishment Clause, begins “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”; and though the prayers at meetings of the Town Board are in principle multi-faith, in practice all but two over the past decade have been given by Christians. Americans United therefore filed suit on behalf of two residents of the township alleging that the prayers violated the First Amendment.

The 2nd Circuit concluded that “an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity” and was therefore unconstitutional. The township argues in its petition to the Supreme Court that the 2nd Circuit erred because of “the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity”.

The reason for drawing readers’ attention to a US case (which is normally well outside our self-imposed geographical remit) is that it has strong echoes of National Secular Society & Anor, R (on the application of) v Bideford Town Council [2012] EWHC 175 (Admin) in which, readers may remember, Ouseley J held that the Council had no power to hold prayers as part of a formal meeting or to summon councillors to a meeting at which such prayers were on the agenda. The prayers had not been not lawful under s 111 of the Local Government Act 1972 and there was no statutory power under which they could continue.

The difference between the two cases is that if something in the UK is ultra vires and ministers want to legalise it, so long as the Government has a working majority it is a fairly simple matter to do so by primary or secondary legislation. In the States, however, if something is finally held to be unconstitutional the only way to fix things is by amending the Constitution itself – and that is an extraordinarily difficult undertaking. So the Supreme Court’s judgment will be eagerly awaited by those on both sides of the argument.

Women in the C of E episcopate, the Church Times and “trust”

Friday’s editorial in the Church Times noted that the report of the working group of the House of Bishops on women in the C of E episcopate places considerable weight on trust:

“The legislation that the majority of the House regards as ideal removes existing provision for traditionalists, and asks them to trust that, once the Measure has been passed, suitable new provision, of a kind that many of them have said in the past is unacceptable, will be made. The report echoes the challenge to lay chairs. It talks about ‘grace, not law’ [but] [a]s a practical policy, ‘grace, not law’ is of limited application; and the Church never relies on grace alone: hence canon law, which, in the awareness that all are sinners, often requires people to do what they ought to want to do”.

Indeed: and that applies to many criminal penalties generally: areas like speed-limits and filling in one’s tax self-assessment. We should pay our taxes without demur and to the last penny due – but just in case we don’t…

The problem (at least from the point of view of a sympathetic outsider, i.e. Frank) would appear to be that trust always has to be earned and neither side in this particular case feels that the other has done enough to earn it. It can’t simply be magicked into existence; and perhaps the proposed time-scale on the issue is too short to allow mutual trust to develop naturally.

And finally … votes for prisoners

McGeoch v The Lord President of the Council and Anor (UKSC 2012/0160) is now in the list for hearing before the Supreme Court, on appeal from McGeoch, Re Judicial Review [2011] ScotCS CSIH 67. George McGeoch, a prisoner serving life, is arguing that the blanket ban on prisoners voting infringes his rights as an EU citizen because he will not be able to vote in the European Parliament elections in 2014. McGeoch is not arguing that he is entitled to vote under the ECHR (which, of course, he is – see Hirst – but that’s another story) but that the present situation is a breach of EU law because it is incompatible with his rights under article 20(2)(b) of the Treaty on the Functioning of the European Union and article 40 of the Charter of Fundamental Rights of the EU.

This may not have a great deal to do with “law & religion” to be precise, zilch but it has considerable implications for more general issues of human rights, of which Article 9 ECHR is an integral part.

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