Religion and law round-up – 12th October

A very mixed bag: the US Supreme Court on same-sex marriage and prisoners’ beards (but not at the same time), abortion in NI, statistics on sexuality in the UK, the future of the C of E parish system, performing right…

Same-sex marriage and the US Supreme Court

We normally keep well away from US law because there are lots of US law & religion experts out there (which we are emphatically not) and even more US law & religion cases; but we can’t ignore Monday’s decision of the US Supreme Court.

In June 2013, in United States v Windsor 570 US (2013) (Docket No. 12-307) a divided Supreme Court struck down s 3 of the federal Defense of Marriage Act 1996, which defined “marriage” as a union between a man and a woman. Lower federal courts then started to rely on the Supreme Court’s decision in Windsor to strike down five states’ bans on same-sex marriage – in Utah, Virginia, Oklahoma, Indiana, and Wisconsin – and on Monday, again by five to four, the Court turned down seven petitions for certiorari seeking review of those decisions of the lower courts.

The effect of Windsor, according to Monday’s post by Amy Howe on the SCOTUSblog, is that:

“… same-sex marriage will be legal in the five states whose bans were at issue before the Court … But today’s orders will have a broader impact as well. Specifically, because the Court let stand the lower court decisions striking down the five bans, those decisions and their reasoning become the law of the land for other states whose federal appeals are heard by the U.S. Courts of Appeals for the Fourth (Virginia), Seventh (Indiana and Wisconsin), and Tenth (Utah and Oklahoma) Circuits.”

Prisoners’ beards and the US Supreme Court

On a lighter note, on Tuesday the US Supreme Court heard oral arguments in Holt v Hobbs, in which a Muslim inmate seeks on grounds of his belief to grow a half-inch beard in violation of Arkansas prison grooming rules.The Guardian reports that “in often surreal exchanges between sceptical justices and lawyers, the question of whether Arkansas convict Gregory Holt should be allowed to keep his half-inch long beard proved less a test of religious freedom than of judicial patience. In a comment worthy of Lord Denning”, Justice Scalia said “I don’t want to do these cases half inch by half inch. Let’s take a case that involves a full beard. I mean, the next case will be one inch, then one and a half inches, two inches”.

The SCOTUSblog summed up the case like this: “[t]he Supreme Court on Tuesday sent a blunt message to prison officials planning a policy that limits the religious freedom of inmates: it would be important to have a good reason for the restriction before it gets into court. Trying to bolster the rationale at the lectern is not a promising strategy”.

Abortion in the UK

Abortion-related issues have been high on the agenda this week, with the publication of the House of Commons Library Standard Note Statistics on abortion on 6 October, swiftly followed by the launch by the Northern Ireland Department of Justice of a consultation that seeks views on two limited aspects of the criminal law on abortion in the Province, where the termination of pregnancy is regulated by a combination of the Offences Against the Person Act 1861 and subsequent case-law, some of which is English. Our analyses of these are to be found here and here.

Also this week Máiréad Enright, who lectures at Kent Law School, posted Sparing Enda’s blushes. Speaking of I.M.E.L.D.A. and #knickersforchoice which provides an insightful background to the London-based direct action performance and protest group Speaking of I.M.E.L.D.A. and its current campaign. I.M.E.L.D.A.[1] was established to raise awareness of the Irish and Northern Irish abortion laws, which currently have the effect of requiring women to travel to England to terminate pregnancies in almost all circumstances.

ONS and the LGB Community in the UK

On Tuesday the Office of National Statistics published its Statistical bulletin: Integrated Household Survey, January to December 2013: Experimental Statistics. In 2013, ONS asked around 180,000 UK adults about their self-perceived sexual identity[2], as part of the Integrated Household Survey and highlighted 3 facts about the Lesbian, Gay and Bisexual (LGB) community in the UK:

  • 1.6% of UK adults aged 16+ gave their sexual identity as lesbian, gay or bisexual in 2013;
  • in 2013, men were twice as likely as women to state their sexual identity as gay; and
  • 3.2% of London residents aged 16+ identified themselves as lesbian, gay or bisexual in 2013, the highest percentage across all areas of the UK.

C of E parishes and the future

We reported the Westminster Faith Debate on Parishes – what future for the parochial system? The debate disclosed the first results from a YouGov survey of 1,500 Anglican clergy, which revealed that 83 per cent of clergy of all persuasions thought the parish system important. A podcast of the presentations and the subsequent general discussion is available here. Whether clergy support will be sufficient to persuade Anglicans in the pews to worship at their parish churches regardless of theology or liturgy, rather than picking a church with which they feel comfortable, is another question entirely…

Is it a service or is it a concert?

We returned to the vexed issue of music in church, performing right and the question of licensing. PRS for Music (the licensing authority) waives the requirement for music performance licences during acts of divine worship  but the issue of music in church and intellectual property is immensely complicated, as demonstrated by some of the subsequent comments on the post.

Formal resignation of Bishop Kieran Conry

Those who follow Il Bolletino will have spotted the 4 October entry which included the announcement:[3] “Resignation of the Bishop of Arundel and Brighton (England) The Holy Father Francis accepted the resignation from the pastoral governance of the diocese of Arundel and Brighton (England), presented by Mons. Kieran Conry, in accordance with Can. 401 §2 of the Code of Canon Law.”

As indicated in an earlier post, given the terse nature of these Vatican “Canon 401 §2 announcements”, it is sometimes uncertain whether a bishop’s resignation is on account of ill-health or “other grave reasons”. In this case it was clearly the latter; but the former Archbishop of St Andrews and Edinburgh, Cardinal Keith O’Brien, had already tendered his resignation to the Pope and the effective date was advanced[4] following allegations in The Observer of inappropriate sexual conduct with junior clergy.

Religiously-motivated violence in Georgia

The ECtHR handed down judgment in Begheluri & Ors v Georgia [2014] ECHR 1032, in which a group of Jehovah’s Witnesses complained of thirty cases of alleged violence and assault. Very briefly, the Court held that there had been violations of Article 3 (inhuman or degrading treatment), Article 9 (thought, conscience and religion) and Article 14 (discrimination). We hope to publish a note on the case later in the week.

Quick Links

And finally…

The Wall Street Journal reported earlier this week on a judicial review application to the Audencia Nacional by Jorge García González, head of Spain’s Movement Towards a Secular State, challenging the practice of awarding state medals to Roman Catholic statues after the Gold Medal of Police Merit had been presented to the Virgen de Amor de Málaga, Announcing the award last February, the Interior Ministry praised the statue for “sharing police values such as dedication, caring, solidarity and sacrifice”. The report in the Wall Street Journal reported officials as claiming that such awards merely recognised long-standing ties between Catholic lay communities – in this case the Cofradía de Nuestro Padre Jesús El Rico de Málaga – and the police. And if you think we’re making this up, here’s the picture to prove it.

Our respective laptops positively ooze dedication and sacrifice: they’re waiting patiently for one of the lesser papal knighthoods at the very least…

[With thanks to Howard Friedman at Religion Clause for the amusement]


[1] I.M.E.L.D.A. an acronym which stands for ‘Ireland Making England the Legal Destination for Abortion’, which also has historical connections to the 1980s code word for abortion used by the Irish Women’s Abortion Support Group (IWASG), which helped women travelling from Ireland to access abortion in England.

[2] On which ONS states: “[b]y ‘sexual identity’ we mean how people see themselves at the time the interview takes place. This does not necessarily match their sexual behaviour or attraction and can change over time.”

[3] Il Bolletino is one of the Vatican web sites that is only available in Italian. English version courtesy of Google Translate.

[4] Cardinal O’Brien tendered his resignation to the Pope in 2012, in advance of his 75th birthday in March 2013; this was accepted by the Pope nunc pro tunc on 13 November 2012 who decided it would become effective on 25 February 2013. However, he remains a cardinal.

[5] Frank assumed that zuchetti were a variety of pasta not yet stocked by Waitrose… as it turned out, he was not far wrong.

[6] Scoring only 50% on Q1, David doesn’t seem to know his Popes that well, but is better at spotting a real one, 90% on Q3. But did favouring Niccolo Machiavelli over St Augustine or St Thomas Aquinas really tip the balance towards identification with St John Paul II in Q3?

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