Religion and law round up – 22nd September

The Church of Ireland elects its first woman bishop, Strasbourg & a US court rule on names  – and a wedding goes owl-shaped

Women as bishops: a first for the Church of Ireland 

The House of Bishops of the Church of Ireland has appointed the Revd Pat Storey to succeed the Most Revd Dr Richard Clarke, now Archbishop of Armagh, as Bishop of Meath and Kildare. That’s Pat as in Patricia, not as in Patrick. So the Church of Ireland will soon have the first woman Anglican bishop in GB & Ireland. But not the first woman bishop in GB & Ireland: that honour goes to the Lutherans, who consecrated Jana Jeruma-Grinberga in 2009.

First name, First Amendment

In August we reported a slightly bizarre case from Tennessee in which the parents of a seven-month old boy had gone to court because they could not agree on his surname and a child support magistrate, one Lu Ann Ballew, had ordered (evidently to their complete astonishment) that his first name should be changed from “Messiah” to “Martin” because “the only true messiah is Jesus”. We suggested that Ms Ballew’s ruling almost certainly contravened the First Amendment in relation either to the establishment clause or to the provision on freedom of speech.

As it turns out, we were right. Religion Clause reports that the County Chancery Court has reversed the magistrate’s ruling. According to USA Today:

“Chancellor Telford E Forgety Jr overturned Ballew’s decision, ruling that the lower court acted unconstitutionally. He said the lower court violated the establishment clause of the US Constitution, and added that the court’s purpose was to determine the last name of the child, not his first name”.

The boy is now Messiah DeShawn McCollough: McCollough is his father’s surname.

Last name, Articles 8 and 14

In  Tuncer Güneş v. Turkey (no. 26268/08), the European Court of Human Rights found in favour of an Istanbul lawyer who complained that she had not been allowed to keep just her maiden name after her marriage in March 2005. Under Article 187 of the Turkish Civil Code, Turkish law, although men are permitted to use only their own surname after marriage, women  may use their maiden name in front of their married name. In 2007 the Şişli Court of First Instance dismissed her request to use only her maiden name on the ground that, under Article 187 of the Turkish Civil Code, married women had to bear their husband’s name throughout their marriage and were not entitled to use their maiden name alone. The judgement was confirmed upon on appeal to the Court of Cassation.

After the enactment of Article 187, three Family Courts raised an objection with the Constitutional Court, arguing that the provision was unconstitutional, but in a decision of 10 March 2011 (E. 2009/85, K. 2011/49), the Constitutional Court dismissed their objection.

Following the similar case of Ünal Tekeli v. Turkey (no. 29865/96), the ECtHR held that there had been a violation of Article 14 in conjunction with Article 8, although it did not consider necessary to determine whether there had also been a breach of Article 8 taken separately.

Recent consistory court judgments

This week, three judgments became available relating to: the refusal of a faculty for the installation of a pipe organ in the Chancel of a Grade I listed church, Re St Peter Wolverhampton [2013] Lichfield Cons Ct (Stephen Eyre Ch); approval for the sale of an armet (a spiked helmet with visor), Re St Lawrence Wootton [2013] Winchester Cons Ct (Christopher Harvey Clark Ch; and the replacement of existing structures in the churchyard of a redundant church appropriated by a pastoral scheme for the use of an Oxford college, Re St Peter in the East Oxford [2013] Oxford Cons Ct (Alexander McGregor Dep Ch).

We covered Re St Peter Wolverhampton in an earlier post which related to an apparently unusual refusal of a petition for the replacement of a failing electronic organ (which needed to be replaced “sooner rather than later”) with a pipe organ, even though finding the funds for such an electronic organ (~£30,000) would be difficult and the pipe organ was available at no cost. However, the context is important and the case serves to illustrate the balancing exercise that chancellors undertake in coming to their decision.

Whereas St Peter Wolverhampton was “not one of those exceptional cases where it would be appropriate for the Court to take account of the decision as to financial priorities”, in Re St. Lawrence Wootton the chancellor was satisfied that the Petitioners had proved good financial reasons, “probably not far short of a financial emergency in themselves”, for seeking the sale.

However, St Lawrence Wootton is interesting at many levels: its extensive review of the factors to be considered in the disposal of “articles of particular historic, architectural, archaeological or artistic”; the application of Rule 15 of Faculty Jurisdiction Rules 2000, and the involvement of the Church Buildings Council, (“CBC”), who became a formal objector to the petition; the consent of the heirs-at-law – a baronetcy which it had been assumed had  died out in 1712; the difficulties experienced by the present and a former chancellor and the setting aside of a Faculty order of 2010 to address issues raised by the CBC. In the event, a Faculty was granted under the same conditions as the 2010 order

The petition in Re St Peter in the East Oxford turned on the meaning of “building” as it applied to section 3 of the Disused Burial Grounds Act 1884[1] and the relevant authorities were considered in detail.  The question whether “the ordinary man” would think something was a building was not considered a helpful question to ask, since the ordinary man is unlikely to have read the 1884 Act, [para. 40]. The chancellor concluded

“[t]he fact that a number of elements of the proposals … cannot be authorised is entirely because of the prohibition imposed by section 3 of the 1884 Act. Were it not for that statutory prohibition I would have granted a faculty for the proposals in their entirety”.

A more detailed account of the case will be posted at a later date.

The sacred and the secular: religion, culture and the family courts

The forthcoming Law Society Family Law Conference  2013 will discuss key questions arising from religious beliefs when parental relationships break down, the response of the civil family courts in recent cases and whether the religious and civil courts can work more closely together to achieve better outcomes for families: the focus of this last will be on the Islamic and Jewish courts. The conference will also include a discussion on the challenge for practitioners in identifying and responding to the cultural practice of forced marriage and the impact of a new criminal offence.

The conference will be held on 29 October at 113 Chancery Lane and registration starts at 9.45. Speakers will include Sir James Munby, President of the Family Division,  David Frei, External and Legal Services Director of the United Synagogue, Hajj Ahmad Thomson, Head of Wynne Chambers, Professor Mark Hill QC, Anne-Marie Hutchinson OBE,  Head of the Children Department at Dawson Cornwell, Jasvinder Sanghera CBE, Founder and CEO of Karma Nirvana, Louis McCallum of Zenith Chambers and Nazir Afzal OBE, Chief Crown Prosecutor for the North West and National Lead on violence against women and girls. [Thanks to Andrew Male for the alert.]

And finally… Darcy misses the wedding

As a consequence of their association with darkness and evil, mobbed owls are often depicted on medieval misericords, and examples are to be found at St Laurence, Ludlow, Norwich Cathedral and elsewhere. However, in these post-Harry Potter times and with their improved image, owls have been incorporated into the marriage service, being used for the delivery of wedding rings for the happy couple. The Common Worship rubric states “[t]he Minister receives the rings”, but in practice the owl is trained to fly to the white glove of its handler. [Wedding guests please note when choosing your accessories]. Unfortunately, Darcy, a one-year-old owl, did not perform as planned at Holy Cross Church, Sherston, Wiltshire, and according to the BBC, “instead … flew into the church roof to roost. It took about an hour to get her down”.

Perhaps future couples intent on a “fairy-tale wedding” should also invest in a White Rabbit (with watch) to shout “Oh my fur and whiskers! I’m late, I’m late I’m late!” to ensure that the owl performs as required to ensure that  the service is concluded within canonical hours. The more astute readers will quickly spot that our photograph is of “Fluffy” of the Screech Owl Sanctuary, Indian Queens, not “Darcy” of Wings over Wiltshire.  They will also be aware that Charles Dodgson is reputed to have got his inspiration for the White Rabbit (and the Gryphon) from one of the misericords in Ripon Cathedral during the time his father, Archdeacon Dodgson was canon-in-residence.

[1] The Chancellor noted [para 30] “[a]lthough section 2 [Interpretation] of the 1884 Act as it now stands was only inserted by the Statute Law (Repeals) Act 1993, the same definition of “building” has applied for the purposes of the 1884 Act since 1887 when section 4 of the Open Spaces Act 1887 enacted that the expression “building” in the 1884 Act included any temporary or movable building: see Bermondsey Borough Council v Mortimer [1926] P 87, 91.

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