Religion and law round-up – 6th September

And it’s back to work…

… but for parliamentarians this will be tomorrow afternoon, when they return for a brief 10 days before the Party Conference season recess; both Houses return for the autumn sittings on 12 October. Nevertheless, there is a busy timetable, with important debates at both ends of the week: the report stage of the European Union Referendum Bill on Monday and the second reading of Rob Marris’s Assisted Dying (No. 2) Bill on Friday.

Those engaging in the CofE and CofS initiative – the Reimagining Europe blog – will have an interest in the former, where the main area of contention is the restrictions placed on campaigning by the Government and the EU during the referendum. On the latter, the BBC’s Mark D’Arcy suggests that this “will be a classic private members’ bill tactical battle, with opponents seeking to talk the bill out, and supporters hoping to muster enough MPs to force a vote and get the bill through to detailed scrutiny in committee. No-one seems to have much idea how it will play out, because this is the first real test of the 2015 Commons on this kind of free vote issue”.

A lower profile item, but nevertheless one of interest to those within the CofE, will be the questions to the Second Church Estates Commissioner, Caroline Spelman, on Thursday morning.

Pemberton v Acting Bishop of Southwell & Nottingham

The Press Association reports that closing submissions were made last week in the Employment Tribunal case between Jeremy Pemberton, and Richard Inwood, the then Acting Bishop of Southwell & Nottingham, who refused him Permission to Officiate in the Diocese when he married his partner Laurence Cunnington in April 2014 – which meant that he could not take up the post that had been offered to hm by Sherwood Forest Hospitals NHS Trust.

According to the PA report, Thomas Linden QC, representing the Church, argued that Pemberton had gone against the doctrine of the Church when he entered his same-sex marriage:

“The state should not be saying to a religious organisation: ‘You can or can’t choose this person as your priest’. The tribunal should say it’s clear on the evidence what the Church thinks of same-sex marriage.”

Sean Jones, for Pemberton, suggested that the Church would not have had an issue with him had he been in a civil partnership and claimed that the two states were nearly the same: “They are saying it’s not the substance, it’s the label.”

In short, we’ll have to wait because judgment is not expected until next year. But the PA report overlooks the crucial point in all this: was there any kind of employment relationship between Pemberton and the Acting Bishop of Southwell & Nottingham or was there not? If there was not, then the issue of whether or not the Bishop was with his rights to withdraw Pemberton’s PTO presumably falls away: Employment Tribunals adjudicate almost exclusively on matters of employment, not on general contractual or supervisory relationships: see, for example, Halawi v WDFG UK Ltd (t/a World Duty Free) [2014] EWCA Civ 1387, about which we blogged at the time. Having said that, though, we’ve made the wrong call before…

Human rights violations in Europe

We have previously drawn attention to RightsInfo, Adam Wagner’s new project to make human rights information more accessible and user-friendly. The infographic for The European Court of Human Rights Uncovered reveals that the UK’s record before the ECtHR is far, far better than some of the red-tops would have us believe. And drilling down into the data supports that contention. If you look at ECHR violations per million citizens:

  • the ten states with the worst records are, in descending order: Slovenia 147.6 per million: Malta 101.7: Moldova 75.9: Bulgaria 68.3: Greece 67.5: Luxembourg 58.9: Croatia 56.4: Slovakia 53: Romania 50.3: Macedonia 47.
  • the ten states with the best records are, in descending order: Bosnia & Herzegovina 9.1 per million: Azerbaijan 8.8: Sweden 5.8: Norway 5.3: The Netherlands 5.1: The UK 4.7: Ireland 4.6: Denmark 2.5: Germany 2.2: Spain 1.8.

Andorra, Iceland, Liechtenstein, Monaco, Montenegro and San Marino had no violations at all: but Iceland and Montenegro both have very small populations and the other four are micro-states. So the evidence suggests that the UK must be getting something right.

The Supreme Court of India and self-starvation 

In the round-up for 16th August we reported that the Rajasthan High Court had held that Santhara, the traditional Jain practice of starving oneself to death in order to attain salvation, was suicide and, therefore, that s 306 (abetting of suicide) and s 309 (attempted suicide) of the Indian Penal Code applied to the practice.

Jain organisations said that they would appeal; and the Times of India reports that on Monday the Supreme Court took less than 60 seconds to stay the judgment of the Rajasthan High Court:

“The moment the petitions were called for hearing, a bench of Chief Justice H L Dattu and Justice Amitava Roy dictated the order staying the High Court judgment and issued notice to the petitioners on whose plea the High Court had banned Santhara.”

The report adds that given the backlog of appeals pending before the Supreme Court, which is currently hearing appeals from 2009, the Santhara issue is unlikely to come before it for another five years.

Marriage licences (or their absence) in Kentucky

We venture only rarely into the sometimes surreal world of US law and religion, but a decision last week cannot pass without notice. Because she objects on religious grounds to same-sex marriage, Kim Davis, County Clerk of Rowan, Kentucky, decided to stop issuing marriage licences to any couple, gay or straight. On Thursday federal district judge David Bunning committed her for contempt after she told the court that her religious objections prevented her from complying with his preliminary injunction ordering her to end her office’s refusal to issue licences. Bunning DJ also declared that the preliminary injunction required the County Clerk’s office to issue marriage licences to all eligible couples in Rowan County, and not merely to the four couples named as plaintiffs in the case.

It then became apparent that five of Davis’s deputy clerks were willing to issue marriage licences; and her lawyers asked the judge to reconsider jailing her, on the basis that his order would satisfied if the people of Rowan County could get marriage licences from the Clerk’s office even if Ms Davis persisted in her objection. However, Davis then informed the judge, from a cell in the courthouse, that she would not agree to let her deputies obey his order if she were released. So Bunning DJ decided that she would remain in custody for at least a week while he reviewed how her office operated in her absence. In a further twist to the story, it then transpired that there is some doubt as to whether or not licences issued by Davis’s deputies without her consent are in fact legally valid – to which Bunning DJ replied that couples would have to judge that risk for themselves.

The Kentucky Courier-Journal carries a comprehensive report on the case, which was also picked up by the BBC; and you can read the plaintiffs’ application here. Neil Foster argues in Jail time for Kentucky County Clerk that, far from setting herself “above the law”, she was attempting to act within it – though we’re not entirely convinced. But read it for yourself: it could only happen in the States…

With thanks to Religion Clause for the lead.

Has Obergefell ended state jurisdiction over contested divorces?

And while we’re on the subject of US marriage law, in the Tenessee Chancery Court Chancellor Atherton has ruled, in a waspish judgment in Bumgardner v Bumgardner (TN Chan Aug 31, 2015), that the US Supreme Court’s decision on same-sex marriage in Obergefell v Hodges 576 US ___ (2015) means that the state courts of Tenessee

“… must now await the decision of the US Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage. The majority’ s opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land … Thus, it appears there may now be, at minimum … concurrent jurisdiction between the state and federal courts with regard to marriage/divorce litigation”.

Atherton C went on to conclude that “this Court’s jurisdiction has been preempted” and that “the majority opinion in Obergefell is held by this Court only to have divested subject matter jurisdiction from this Court when a divorce is contested”. The complaint and counter-complaint were therefore dismissed for lack of jurisdiction. Not being experts (or even competent amateurs) in US family law, we’d better not comment further.

With thanks again to Religion Clause.

Churches as charities

In reaction to a query that Frank received in the course of the day-job, we posted a long piece on some of the basics of charity law in England & Wales as it affects Churches and their congregations: you can read it here.

New blog from Church of England and Church of Scotland

Reimagining Europe, with the sub-heading “our shared futures”, a multidisciplinary blog hosted by the Church of England and the Church of Scotland with the editorial support of Crucible, the Christian Journal of Social Ethics, was launched on 1 September. Its central aim is “to create a space for Christian reflection and debate on Britain’s future relationship with Europe ahead of the forthcoming referendum on whether Britain should remain a member of the EU.”

The introductory post by the Archbishop of Canterbury, Learning to disagree well on Europe, was followed by The EU and the inevitable slide into secular authoritarianism by Suzanne Evans, Deputy Chairman of UKIP; The EU – not as godless as you think by Robert Innes, Bishop of the Diocese in Europe; and Europe and the shifting boundaries of belonging by Prof Werner G Jeanrond, Master of St Benet’s Hall in the University of Oxford.

In addition to its expert contributors the site welcomes others to the on-line debate, on a regular or occasional basis, stressing that: “[i]t is not the place of this blog to tell people how to vote in any referendum,” and distancing the two Churches from the views and opinions expressed – essential if they wish to avoid being drawn into the complex web of rules about third-party campaigning.

Quick links

2 thoughts on “Religion and law round-up – 6th September

  1. Why link to a right wing christian pastor/lawyer in Australia, who is even less of an expert in US law than you claim you aren’t, for an anti-gay rant when the law is fairly clear on this issue? Most of the religious conservatives in the US don’t support her and I have yet to find any legal scholar, besides her own lawyer, who offers a legal defense. Same with the silly divorce jurisdiction case? These are laughed at in the US but you seem to give them undue credence. I used to think you were an objective source on UK law but now you seem to just be trolling gay issues, especially after you dismissed Linda Woodhead (and about a dozen other academics) rightful criticism of the C of E’s PR flack around “redefinition” of marriage and you let commenters smear gay people as “disordered” – very disappointed.

    • Why not? Just because we link to a post doesn’t mean we necessarily agree with it. And if we only linked to posts on other blogs that we did agree with, there’d be far fewer links.

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