Religion and law round up – 9th February

An eventful week, with a district judge encroaching on the beliefs of the Mormons, a UN Committee lecturing the Holy See on its canon law and the EU Parliament passing a controversial Resolution on LGBTI rights.

LGBTI rights and the European Parliament 

MEPs called for an EU strategy  to protect the fundamental rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, in a resolution adopted on Tuesday 4 February. According to a EU-wide survey last year, 47% of LGBTI people have felt discriminated against. Such strategies already exist for the Roma and people with disabilities. Parliament’s resolution, passed by 394 votes to 176 with 72 abstentions, strongly regrets that the fundamental rights of LGBTI people are not always fully upheld in the EU and calls on the European Commission, EU member states and EU agencies to work jointly on a roadmap to protect their fundamental rights, similar to existing EU strategies against discrimination based on sex, disability or ethnicity.

Same-sex marriage: update

On 4 February the Scottish Parliament passed the Marriage and Civil Partnership (Scotland) Bill by 105 votes to 18 with no abstentions. There are now sixteen countries worldwide, including England & Wales, in which same-sex marriage is permitted. The Scottish government has indicated that it wants ceremonies to become available “as soon as possible” and this is likely to be in October at the earliest.At that point Northern Ireland will be the only country in the UK where same-sex marriage is not allowed.

St Margaret’s Children and Family Care: update

Last week we published our analysis of the ruling in St Margaret’s Children and Family Care Society v Office of the Scottish Charity Regulator [2014] Scottish Charity Appeals Panel App 02/13 and said that we would be very surprised if the decision were not appealed by OSCR. Rumour now has it that OSCR has decided to appeal, though we cannot find any public confirmation of that decision. We shall carry on looking.

First name, First Amendment – and goodbye

Readers with a taste for the absurd may recall that in August we reported the 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 were told by a child support magistrate, Lu Ann Ballew, that his first name should be changed from “Messiah” to “Martin” because “the only true messiah is Jesus”. She was then cited by the Tennessee Board of Judicial Conduct for acting with inappropriate religious bias in violation of the state judicial code and formal disciplinary charges were preferred. The outcome? Last week she was sacked by the presiding judge of Tennessee’s 4th judicial district. [With thanks to Religion Clause for the link.]

Prosecuting the President of the Mormons

We reported that the President of the Church of Jesus Christ of Latter-day Saints, Thomas S Monson, had been summoned by District Judge Elizabeth Roscoe to appear at Westminster Magistrates’ Court next month to defend the Church’s doctrines. A disaffected former Mormon, Tom Phillips, had taken out a private prosecution alleging that asking members of the Church to make financial contributions while promoting theological doctrines which “might be untrue or misleading” could be a breach of the Fraud Act 2006.

The likelihood of Mr Monson appearing in court to answer the charge is, one would have thought, zilch; moreover, unless he were to do so voluntarily, the only way that the matter could be proceeded with further is by the UK Government applying for his extradition. And even if the Crown Prosecution Service were prepared to take the matter further it would presumably be blocked in the US courts by the First Amendment on the “free exercise” of religion.

The whole story verges on the bizarre, not least because in order to establish fraud there has to be an element of dishonesty. And just because most readers of this blog are unlikely to believe the teachings of the LDS, why should it be assumed that the President of the LDS does not? But be that as it may, the immediate result was another crack-of-dawn start for Frank in order to be interviewed at 7.30 on Radio 4’s Sunday programme.

The UN, the Vatican and child abuse

In a controversial report, the UN Committee on the Rights of the Child (UNCRC) has said that the Holy See should open its files on members of the clergy who had “concealed their crimes” so that they could be held accountable by the authorities. Specifically, the Committee made the following statement:

Prosecution and impunity
“29. The Committee is deeply concerned that the vast majority of priests and clerics who have committed acts of child pornography as well as those who have concealed these crimes have benefited from impunity. The Committee is particularly concerned that:

(a) Canon Law provisions and proceedings which have allowed perpetrators to escape justice by imposing an obligation of silence on victims, prevented the reporting of cases to national law enforcement authorities and provided punishment with no relation to the gravity of the offences committed, are still in force and applied;
(b) On numerous occasions, the Holy See has refused to cooperate with law enforcement authorities and to disclose information requested by prosecutors and national commissions of inquiry; and
(c) The Holy See has signed treaties with certain States, notably Italy, which guarantee areas of immunity from prosecution to Vatican officials, including for bishops and priests accused of offences under the Optional Protocol.

30. The Committee urges the Holy See to repeal without delay all Canon Law provisions which have created an environment favouring the impunity of perpetrators of crimes under the Optional Protocol”.

The UNCRC was also highly critical of

“… the discovery in 2011 that thousands of babies had been removed from their mothers in maternity wards in Spain and sold by networks of doctors, priests and nuns to childless couples who were considered as more appropriate parents. The Committee is also concerned that similar practices were also carried out in other countries such as in Ireland where girls detained in the Ireland Magdalene laundries had their babies systematically taken away from them”.

Recent Consistory Court judgments

Re St Margaret of Antioch Thorpe Market [2013] Norwich Const Ct, Ruth Arlow Ch.

The essentially aesthetic issues of kerbing around graves were reviewed last week in Re St Margaret Lowestoft [2013] Norwich Const Ct, Ruth Arlow Ch.  The case of St Margaret of Antioch Thorpe Market considered here addressed different aspects: the church was “well-known for its conservation churchyard … managed by leaving areas …  uncut through spring and early summer to encourage the growth of wildflowers and support a biodiversity which might otherwise not exist within the churchyard.” In May 2012 the PCC passed a unanimous resolution to “seek permission to remove the kerbstones and cornerstones to the rear of the church” with a view to improving the safety and facility of maintaining the churchyard.

Notices were placed on the church and on the graves concerned and some of the families contacted, in accordance with an understanding of advice proffered by the Archdeacon, 3 years previously. However, the memorial kerbs were removed without the authority of a faculty, causing distress to several family members of those buried in the churchyard.  The Chancellor directed that the Team Vicar and Churchwardens should apply for a confirmatory faculty, in order that objections could be properly dealt with.

In addition to the absence of an authorizing faculty there were two legal issues to be dealt with: adherence to Diocesan Churchyard Regulations, which preclude kerbs &c; and the ownership of memorials of the deceased, by those who erected them or, where they have died, to the heir-at-law of the person commemorated, Re Welford Road Cemetery, Leicester [2007] 2 WLR 506.

A confirmatory faculty was granted subject to stringent conditions relating to the notification of the families concerned, where necessary, and the reinstatement of the kerbstones, but laid flush with the ground with the inscriptions, if any, facing upwards.

Re All Saints Thornage [2013] Norwich Const Ct, Ruth Arlow Ch.

The petition sought in the Grade II church All Saints Thornage concerned the conversion of the existing vestry into a “toilet and tea-point”, together with the provision of vestry facilities within the base of the tower.  Whilst such conversions are not uncommon, “relatively basic facilities of the type now expected by modern congregations”, [para. 15], here the rationale was to encourage wide use of the church building throughout the week, the church being the only community space within the village and only used by its small congregation every fortnight.  The DAC had recommended the proposed works, which were supported by English Heritage and the local PCC, and the Society for the Protection of Ancient Buildings and the Local Planning Authority were content with the proposals. Two objections were raised: a practical one concerning the potential interference of the necessary drainage with graves in the churchyard; and another on the appropriateness of the conversion, since the 1920 vestry was constructed in memory of those lost in World War I.

The Chancellor was satisfied that the proposed works would not result in harm to the significance of the church and the petition was granted, subject to conditions relating to the works in the churchyard, and the possible discovery of archaeological remains. The permissive statute, the War Memorials (Local Authorities Powers) Act 1923, was inapplicable, and although acknowledging the sensitivities relating to the change of this vestry into a toilet and tea-point, these concerns were held not to outweigh the benefit which the parish will gain from the works.

Meetings and Conferences


The Annual Conference of the Law and Religion Scholars Network, (LARSN), will be held on Monday 12 May, followed the Law and Religion Teaching and Research Conference held on Tuesday 13 May.  Both conferences are being organised by the Cardiff University Centre for Law and Religion, headed by Professor Norman Doe.  The LARSN conference will be composed of four different slots and each slot comprising several parallel sessions.  This is an open conference and papers on any topic within the field of Law and Religion are welcomed, and proposals for papers should be sent to Rev’d Dr Helen Hall ( by Monday 31st March.

The LRTR conference will comprise three panels of invited speakers on: The Teaching of Law and Religion; Law and Religion and Family Law and Individual and Collective Religious Freedom.  After each presentation there will be an opportunity for all attenders to take part in a question and answer session.

The charge to attend the LARSN conference will be £20 and the LRTR conference will be £15, and further details are available here.


The next London lecture of the Ecclesiastical Law Society will be on 6 March 2014, when the Society will be hosting members of the Colloquium of Anglican and Roman Catholic Canon Lawyers, who are gathering in London for their fifteenth meeting, convened to discuss church governance under the title ‘Counsel and Consent’.  Speakers will include: Professor Norman Doe, Director of the Centre for Law and Religion, Cardiff University; Aidan McGrath OFM, General Secretary of the Franciscans, Rome; Professor James Conn SJ, of the Gregorian Pontifical University, Rome and the School of Ministry and Theology Boston College. The panel is to be moderated by Professor Mark Hill. Also present as contributors will be other members of the Colloquium: Stephen Slack, Will Adam and Anthony Jeremy (Anglican); and Robert Ombres OP, Fintan Gavin and Andrew Cole (Roman Catholic).

And finally . . . . . . .

For those who do not know their crockets from their nodding ogees, the Beaker Folk of Husborne Crawley has published an informative A-Z of Technical Church Terms which is an invaluable supplement to Pevsner’s Architectural Glossary, the App version of which is a snip at £2.99.