French burqa ban upheld

The big news of the week was that Grand Chamber of the ECtHR upheld the the French law prohibiting the concealment of one’s face in public places (Law no. 2010-1192 of 11 October 2010). Though the Grand Chamber dismissed the French Government’s contention that the complaint was ill-founded and therefore inadmissible, it held by a majority that the law does not violate Article 8 (respect for private and family life) or Article 9 (freedom of thought, conscience and religion) of the Convention and, unanimously, that there had been no violation of Article 14 ECHR (prohibition of discrimination) combined with Articles 8 or 9. Dissenting, Nussberger and Jäderblom JJ concluded that the law “sacrifices concrete individual rights guaranteed by the Convention to abstract principles” and doubted whether it either pursued a legitimate aim or was necessary in a democratic society.

The judgment in SAS v France [2014] ECHR No. 43835/11 seems to be yet another indication of the Court’s increasing tendency to give states parties a wide margin of appreciation in matters of religious observance; and first reactions have been largely critical. Lautsi, Sindicatul Păstorul cel Bun and, most recently, Fernández Martínez all point in the same direction.

Veiling in the UK

On Thursday during the debate on the Business of the House, there was the following exchange, [HC Hansard 3 July 2014, Vol  583 Col 1092]

Philip Hollobone (Kettering) (Con): This week, finally and at long last, the European Court of Human Rights has made a sensible decision about something. Given that it has this week decided that the ban on Islamic veils in France breaches no one’s human rights, will the Leader of the House or another Minister make a statement to the House next week to say that Her Majesty’s Government intend to introduce such legislation in this country? We will never have a fully functioning, fully integrated multicultural society if growing numbers of our citizens go around with their faces covered.

Mr Lansley: I noted that decision by the Court, but part of it was about the issue of subsidiarity and the right of countries to make such decisions for themselves.  In that context I do not anticipate a statement by a Minister in the form my hon. Friend seeks.

Human sexuality and the CofE

On 30 June we posted on the next steps in the CoE’s considerations of human sexuality following the publication of the Bishop of Sheffield’s short report Shared Conversations on Sexuality, Scripture and Mission, GS Misc 1083.  We noted that there was need for a pragmatic approach to some of the more prescriptive criteria in the choice of the participants for the “regional conversations”, and the representational issues in relation to “LGBTI” views.  For the latter the spokespersons chosen would need to represent the views of all those with this broad grouping, an issue explored later in the week by Julie Bindel in the BBC Magazine item Viewpoint: Should gay men and lesbians be bracketed together?  

This week the issue of “clergy blacklists” has attracted attention on this site and elsewhere: in our post we outlined the requirements of the legislation and guidance; and Changing Attitude published the following response from the Rt Rev Graham James, the Bishop of Norwich, the lead bishop on the “monitoring and reference group” which also includes the bishops of Sheffield and Willesden:

“It was a surprise to read that I was apparently keeping a blacklist of clergy who had entered same sex marriages or was charged with acting against them. Such assertions are a very long way from the truth.

What I have agreed to do at the request of the Archbishops is to be available to other diocesan bishops for consultation as and when they have to decide what to do if clergy in their dioceses marry a same sex partner. There may well be courses of action or ways of responding which they have not considered, and I hope the reference group will ensure cases are not dealt with erratically.

I am not charged with taking any initiative, nor would I do so (it is up to diocesan bishops to contact me) but I hope that in this matter, as in all things, there is still the possibility for some pastoral wisdom.”

CA has also posted Same sex marriage guidance for clergy which includes: the HoB Pastoral Statement of 15 February; Bishop Alan Wilson’s view of the legal position, (EJM/CDM/canonical obedience); other unattributed but supportive legal opinion; practical guidance for clergy; and the Church and State definitions of marriage.

We suspect that further issues will arise as details concerning the practicalities of these provisions become available.

Hobby Lobby and the legal rights of non-natural persons

We don’t normally take note of US cases on law and religion: if we did, we’d do nothing else and, besides, Howard Friedman at Religion Clause does it infinitely better than we ever could. However, we thought it worth noting that last Monday, in another 5/4 ruling, the US Supreme Court held in Burwell v Hobby Lobby Stores Inc (S Ct June 30 2014) that requiring closely-held corporations to pay for insurance coverage for contraception under the Affordable Care Act violated the terms of the Religious Freedom Restoration Act. It is suggested that that ruling, which applied to two companies owned by Christian families, will open the door to other challenges by corporations to laws which, they claim, violate their religious liberty.

In his initial reaction Friedman says that one of the most widely-discussed questions raised by Hobby Lobby has been “Can corporations exercise religion?” and that the majority judgment by Alito J “avoids many of the difficulties posed by this question through adopting the ‘nexus of contracts’ view of corporations put forward by ‘law and economics’ scholars during the past 40 years”, thereby avoiding the question of whether an “artificial person” can exercise religion. From a UK and European perspective this is an interesting point.

One of the reasons why the Church of England was so anxious to secure a favourable ruling in Aston Cantlow, quite apart from the core issue of chancel repair liability, was the fact that had the House of Lords held that a parochial church council was a public authority for the purpose of levying a tax, then PCCs generally would have become ineligible to plead Convention rights under the Human Rights Act 1998 – because in the UK public authorities do not have human rights. As we know, their Lordships found in favour of the PCC so the problem did not arise; but in any case no-one (so far as we are aware) has suggested that in the UK non-natural legal persons generally cannot plead Convention rights – always provided the institution in question is not a public authority. It’s obviously different in the States.

Methodist Church and same-sex marriage

The Methodist Church in Great Britain issued a news release on the report on same-sex marriage brought by a working party to the meeting of the Methodist Conference in Birmingham. Its main points are these:

“The Methodist Church, in line with scripture and traditional teaching, believes that marriage is a gift of God and that it is God’s intention that a marriage should be a life-long union in body, mind and spirit of one man and one woman. The Methodist Conference did not vote on changing this understanding, or ‘opting in’ so as to permit Methodist Church buildings to be registered for same-sex marriage ceremonies or Methodist ministers to be authorised to conduct them.

The Conference resolved that its previous ruling that there was no reason per se to prevent anyone within the Church, ordained or lay, from entering into or remaining within a civil partnership, should also extend to those entering into legally contracted same-sex marriages.

The Conference agreed revised guidelines that will allow local churches and ministers to consider the appropriate pastoral response to requests for prayers and blessings of same-sex couples.

The Conference directed the Equality, Diversity and Inclusion committee to work on the production and dissemination of clear guidance on what is to be regarded as homophobia”.

Conference appointed a new working-party to oversee the two-year period of reflection concerning relationships and living with difference and to report to Conference in 2016.

Thinking Anglicans has a fuller report.

Commission on Religion and Belief in British Public Life

We drew attention to the Commission on Religion and Belief in British Public Life, convened in 2013 by the Woolf Institute at Cambridge under the chairmanship of Baroness Butler-Sloss, formerly President of the Family Division of the High Court. Our interest was sparked by the fact that the Commission has just put up a website and announced a call for evidence. Independent, self-appointed freelance Commissions are a growing phenomenon and some seem to be fairly spurious – the opinionated in pursuit of the unfathomable – but the Butler-Sloss Commission is emphatically not in that category, as its membership confirms.

CofE assistance to future climate change refugees

An unexpected aspect of the CofE’s land and property portfolio is the news that it has recently sold a stretch of land currently covered by dense forest to the people of Kiribati, a group of islands in the Pacific Ocean particularly exposed to climate change. The Guardian reports that President Anote Tong has recently finalized the $8.77m purchase of 20 sq km on Vanua Levu, one of the Fiji islands and about 2,000km away from Kiribati.  With a population of about 110,000 scattered over 33 small, low-lying islands extending over a total area of 3.5m sq km Kiribati, along with Tuvalu and the Maldives, is one of the small islands in the Pacific and Indian Oceans at risk being extensively or even completely submerged. In places the sea-level is rising by 1.2cm a year: four times faster than the global average. In the immediate future the land purchased by Kiribati is likely to be used for agricultural and fish-farming projects to guarantee the nation’s food security: there are growing food shortages as a result of catastrophic coral bleaching and from the progressively contamination of the atolls’ groundwater by sea water.

Another rubbish church?

Still on an environmental theme, Thursday’s CofE Daily Digest carried the story of the Holy Trinity, Parr Mount, St Helens,  a Grade II church constructed “entirely from waste material from chemical works”, that has been awarded £239,000 lottery funding for restoration work.  The St Helens Star provides a fuller account than the source BBC material, and states that eight years ago the Victorian Society pleaded for its rescue after suggestions that its construction impeded repairs and it ought to be replaced with a community centre.  Built in 1857 (Architects W&J Jay), the apse (J Hay) was added in 1883-4 and its construction is rubble walling of industrial waste with sandstone dressing[1] with a slate roof.

Surprisingly there is another Grade II church in St Helens which is also constructed from industrial waste, the Sutton Oak Welsh Chapel of 1850, of squared industrial waste with brick-faced front and stone dressings and a slate roof. However, neither of these appear in the new edition of Betjeman’s Best British Churches, although Richard Surman’s new section on Scottish churches has an entry for the perhaps better-known Grade A Italian Chapel at Lamb Holm in Orkney. This was constructed by Italian POWs led by Domenico Chiocchetti during World War II using materials left over from their work on the Churchill Barriers, the four causeways that were created to block access to Scapa Flow. The chapel is based upon two end-to-end Nissen huts covered with plasterboard, with: “tin for lanterns, plasterboard for the panelling, moulded concrete for the altar and altar rails … the screen is from reinforcing rods for concrete”.

Child marriage?

The BBC reported on Tuesday that Graca Machel (widow of Nelson Mandela) and Desmond Tutu are campaigning to end the practice of child marriage. The report notes in passing that “It is thought that more than ten million girls around the world are married before they turn 18”.

Very likely true – but hang on a minute: did they really mean eighteen? In all three jurisdictions in the UK the minimum age at which one can contract a valid marriage is sixteen: the minimum age was set at that level for both sexes by the Ages of Marriage Act 1929, since overwritten by subsequent legislation. And though in England, Wales and Northern Ireland someone below the age of eighteen requires parental consent to marry, in Scotland no consent is required. Indeed, prior to 1929 Scots law allowed a girl to marry at twelve and a boy at fourteen without any requirement for parental consent.

We all know what Archbishop Desmond and Ms Machel are concerned about: child brides (and, presumably, child husbands). And there is at least a tenable case for arguing that few, if any, sixteen-year-olds have sufficient emotional maturity to marry. But we can’t see any of the UK legislatures changing the law any time soon.

Quick links to other stories, information and events this week

Below is a selection of links to other stories &c in the news this week that may be of interest to our readers.

• UK Constitutional Law Association: David Mead: Public Law Current Survey, 1 Feb to 30 April
• Ecclesiastical Law, Philip Jones: Two Churches, One Kingdom: England and Scotland
• Church of England in Parliament: Round-up of activity in Parliament by the Lords Spiritual and the Second Church Estates Commissioner, 30^th June to 4^th July
• House of Lords: Bishop of Guildford: Appointment. Question. [HL Hansard, 3 July 2014 Vol Col 1787]
• Anglican Communion News Service: England: Methodists step up to the challenge of the [2003 Anglican-Methodist] Covenant
• HC Library Standard Note: UK Cases at the European Court of Human Rights since 1975
• OUP blog/ad, Alyssa Bender: The Book of Common Prayer Quiz
• Ad fontes, Gareth Hughes: How to have a feminist wedding in church

And finally . . . . . . .

Most people consider that the mid-summer is far too early to be thinking about Christmas festivities but developments this week may have an impact on two groups of this year’s potential revellers. On Monday 30 June, in response to a question from the Bishop of Chester on whether the Government intends to reclassify carol-singing as busking, Baroness Williams of Trafford noted [30 Jun 2014 : Vol 754 Col. 1531] that “it depends on the carol singers. If they were being disruptive they might well be” but continued:

“we have no plans to issue guidance in relation to how the two existing Acts [the Metropolitan Police Act 1839 and the Police and Criminal Evidence Act 1984] are applied to buskers. However, we have undertaken, as the noble Baroness says, to include reference to busking in the guidance for the new anti-social behaviour powers for use by the police and others. This will be published shortly, in advance of the new powers commencing later in the year.”

Presumably before Advent. And perhaps we should alert the Royal School of Church Music? But there is also a serious point here. In the run-up to Christmas, Salvation Army bands play in shopping-malls and high streets all over the country – and they do so partly for fundraising but partly, also, as evangelical outreach. If playing Christmas music is going to get swept up into “anti-social behaviour” then the Army may have legitimate cause for concern.

Meanwhile, on Thursday 3 July the Amsterdam District Court ruled that Zwarte Piet, (a.k.a. “Black Pete), the “helper” of St Nicolas in the Sinterklaas festival, was insulting to black people and perpetuated racist stereotypes. Zwarte Piet is usually depicted by a white person performing in blackface with red lips, curly wigs and earrings and, historically, has been portrayed as unintelligent and servile: we reported on the growing controversy surrounding the custom, which had attracted the attentions of UNESCO, last November.

The District Court gave the city’s mayor, Eberhard van der Laan, six weeks to reconsider the permit he granted for the annual parade featuring the character next December. However, the ruling is applicable only in Amsterdam; and unless similar action is taken elsewhere, there is no legal requirement for other cities to follow suit. And Belfast Cathedral’s Black Santa is presumably safe for at least a few more Christmases yet.

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[1] Some accounts suggest that it is faced with copper slag blocks and cement.