As we continued to digest Laudato si’, there were landmark rulings on same-sex marriage in the US and on national CO2 reduction targets in the Netherlands
Same-sex marriage and SCOTUS
On Friday the US Supreme Court handed down judgment in Obergefell v Hodges 576 US ___ (2015).
By five votes to four (Kennedy, Bader Ginsburg, Breyer, Sotomayor and Kagan JJ: Roberts CJ, Scalia, Thomas and Alito JJ dissenting) the Court held that the Due Process and Equal Protection clauses of the Fourteenth Amendment oblige all states to provide for same-sex marriage and to recognise same-sex marriages granted in other states. Religion Clause has helpful short summaries of both the majority opinion delivered by Kennedy J and the dissents. The majority concludes:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.”
Scalia J (always worth reading even when you totally disagree with him) retorted at note 22 to his dissent that:
“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
And that was only a foretaste of the row that has already broken out. Can’t help wondering what Their Honours talk about over lunch…
Climate change targets: the Netherlands
Coming within a week of the publication of Laudato si’, on 24 June 2015 the Hague District Court handed down its judgement in favour of the Appellants in Urgenda Foundation  Case C/09/456689/HA ZA 13-1396 [English Translation]. The action had been brought by the Urgenda Foundation, “a citizens’ platform which develops plans and measures to prevent climate change”, acting for itself and on behalf of 886 individuals, and took the form of a judicial review of the State’s obligations to its citizens in relation to the impact of global warming.
The court Press Release states that
“the Hague District Court has ruled … that the State must take more action to reduce the greenhouse gas emissions in the Netherlands. Based on the State’s current policy, the Netherlands would achieve a reduction of 17% at most in 2020, which is below the norm of 25% to 40% for developed countries deemed necessary in climate science and international climate policy”.
The court held that the State is responsible for effectively controlling the Dutch emission levels and as such had duty of care to protect and improve the living environment; therefore
“[it] must do more to avert the imminent danger caused by climate change”. It noted that “[w]ith this order, the court has not entered the domain of politics. The court must provide legal protection, also in cases against the government, while respecting the government’s scope for policymaking. For these reasons, the court should exercise restraint and has limited therefore the reduction order to 25%, the lower limit of the 25%-40% norm.”
Whereas this case concerned the citizens of one country taking action to force their own government to take a more ambitious approach to the reduction of its carbon emissions, the issue raised in Laudato si’ was the actions of rich countries the have a direct impact on poorer ones. Despite its vulnerability to rising sea levels and its high carbon emissions, both per capita and in toto, the Netherlands’ approach has been unambitious and the country has lagged behind other European states and is still heavily reliant on coal and oil for energy. A similar action is in progress in Belgium.
The Government and the ECHR: where next?
On Wednesday in answer to an Oral Question from Catherine West (Hornsey and Wood Green) (Lab) about HMG’s intentions with regard to the ECHR, Dominic Raab, Parliamentary Under-Secretary of State for Justice said this:
“We will legislate for a Bill of Rights to protect our fundamental rights, prevent abuse of the system and restore some common sense to our human rights laws. Our plans do not involve us leaving the Convention; that is not our objective, but our No. 1 priority is to restore some balance to our human rights laws, so no option is off the table for the future.”
In answer to a supplementary he added that there would be a consultation in the current Session. So the current position seems to be, “We don’t aim to leave the Convention – but…“.
Free speech on the Web
On 16 June the Grand Chamber ECtHR handed down judgment in Delfi AS v Estonia  ECHR 586, in which it held by fifteen votes to two that an online news portal was liable for offensive comments posted by its readers below one of its news articles:
“… where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court’s case-law, … the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 [freedom of expression] of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties” 
Strasbourg Observers has a helpful note on the case. For our part, suffice it to say that while we don’t in the least mind being told we’re stupid or just plain wrong (which we sometimes are: who isn’t?), comments that are racist, homophobic or otherwise tend towards hate-speech go beyond what we regard as the permissible boundaries of free speech – and the GC’s judgment in Delfi seems to support that view.
Cathedrals Fabric Commission
The Archbishops of Canterbury and York, after consultation with the Secretary of State for Culture Media and Sport, have appointed Dame Fiona Reynolds, Director of the National Trust from 2001-2012 and currently Master of Emmanuel College, Cambridge, to be Chair of the Cathedrals Fabric Commission for England (CFCE) in succession to Frank Field MP. The CFCE is the national body overseeing the management of conservation and development of the Church of England’s cathedrals.
Funeral costs in Scotland
Citizens Advice Scotland has published a report, based on data supplied by all 32 Scottish local authorities, which confirms the trend of steeply-rising costs for Scottish burials. The figures reveal that between 2014 and 2015 the basic charges payable to local authorities have risen in all but two authorities – on average by 10 per cent – and that the average charge is now £1,273.
That figure only covers the local authority’s fees and the cost of a burial plot and leaves out of account the cost of the funeral itself. Possibly as a result, the number of people asking for help with funeral costs has risen by 35 per cent over 2014; and funeral poverty was one of the issues raised by the Scottish Government in its recent consultation on the reform of burial and cremation law.
- Churches’ Legislation Advisory Service: Case-law on Churches, Religion and Employment: as part of the day-job, Frank keeps up a running note on religion and employment law: this is the latest update, including Wasteney, Mbuyi, Fhima and Watchtower Bible and Tract Society. You’ll already have seen most of this stuff on the blog: but the note tries to pull it all together.
- Ashgate: Religion and Legal Pluralism (to which both of us have contributed chapters) is to be published on Friday 17 July. The cover price will be £70.00/US$124.95; however, if you order it from the Ashgate website and use the discount code 50CNZ15N there’s a whopping 50% discount for the hardback (but not for the e-book). Still not exactly an impulse purchase, though.
- The Tablet: Spread of the French malaise: interesting article by Tom Heneghan of Reuters on “the contemporary disconnect between religion and culture” and the European Union-funded ReligioWest research project.
- Office of National Statistics: Ethnicity and national identity: an analysis by ONS of 2011 Census data.
- Religion Law Blog: Allah for Muslims Only? Following his two earlier Blogs of 24 January 2015 and 23 June 2014, Neil Addison posts on a further case in Malaysia involving the question of whether Christians and other non-Muslims are entitled to use the word “Allah” as the word signifying “God”.
And finally … What’s in a name?
Last November, in a note on Think Schuhwerk v OHMI – Müller (VOODOO)  EUECJ T-50/13 Frank speculated idly on how many Mazda owners realised they were driving around in cars named after Ahura Mazda, the Supreme Being of the Zoroastrians – to which a correspondent replied that the answer was almost certainly “none”.
Well, maybe that’s true here but not, evidently, in the Kurdistan Region of Iraq. The Rudaw Media Network reports that Zoroastrians are threatening to sue the Avesta Baby Diaper company because the Avesta is their primary collection of sacred texts and the word itself is holy to them. The manufacturer says he didn’t know that – but he doesn’t want to change the brand name unless he’s compensated for the likely financial losses.
[With thanks to Howard Friedman at Religion Clause]