Nikahs, nudes and niqabs – and lots of other stuff…
Nikah weddings and secular law
The big legal news of the week (and not just for law and religion geeks) was the judgment in Akhter v Khan  EWFC 54 – which we duly noted at gruesome length. The case produced a wide range of comment, ranging from the Telegraph’s British court recognises sharia law in landmark divorce case to the BBC’s (much more moderate) Estranged couple’s Islamic marriage ruled valid by judge – even though he actually ruled that it was void.
At the beginning of his judgment, Williams J made it clear at  that he was not ruling on whether an Islamic marriage ceremony should be treated as creating a valid marriage in English law – a statement that some commentators seem to have chosen to ignore. The Cambridge Family Law Centre, however, made the very telling point that since contracts to marry are no longer legally enforceable in England and Wales – the tort of breach of promise of marriage having been abolished by the Law Reform (Miscellaneous Provisions) Act 1970 – it was difficult to see why the courts should take any judicial notice whatsoever of a legally-ineffective religious marriage ceremony.
The Transparency Project has a very helpful explanation of some of the wider issues, with links to the various media comments, here. What with Akhter and Owens v Owens, we’re beginning to wish we knew some bread-and-butter family law.
Sacred or profane?
The Telegraph reports that Portsmouth and Hampshire Art Society has removed four paintings of nudes from its summer show in Portsmouth Cathedral after complaints from some members of the congregation.
Canon F15 (Of churches not to be profaned) forbids the use of a Church of England church for “temporal objects inconsistent with the sanctity of the place”, while Canon F 16 (Of plays, concerts, and exhibitions of films and pictures in churches) declares that “When any church or chapel is to be used for a play, concert, or exhibition of films or pictures, the minister shall take care that the words, music, and pictures are such as befit the House of God, are consonant with sound doctrine, and make for the edifying of the people”.
Whether a painting of someone with no clothes on is unedifying or not “consonant with sound doctrine”, we leave to the judgment of readers.
Blue plaques on churches
This week the Daily Telegraph reported that a row has broken out in York concerning a blue plaque put up by York Civic Society last month outside Holy Trinity Church, Goodramgate, to commemorate Anne Lister, 1791-1840. “More than 2,000 people” have signed a petition calling for the £1,000 plaque to be taken down on the grounds that it is an insult to the gay community; the memorial to the ‘first modern lesbian’ does not include the L-word for fear of causing offence.
The church is managed by the Churches Conservation Trust and as such does not fall within the Church of England faculty jurisdiction. “Once a closed church has been … vested in the Churches Conservation Trust (as here) … the legal effects of consecration cease”. “Works to such a building are no longer subject to the faculty system” [Mynors, Changing Churches, 17.5.3].
For churches subject to the faculty jurisdiction, the courts have been reluctant to permit the placement of blue plaques on external walls – although in Re St Mary the Virgin Fishponds  ECC Bri 10 the court permitted a blue plaque to be placed on the outside of the church to commemorate Gordon Welchman, a prominent codebreaker at Bletchley Park during WWII. However, Historic England made the informal comment:
“Given the tree cover, the proposed plaque is unlikely to be highly visible from the street and wouldn’t appear to be overtly dominant in wider views of the listed building. It will be visible from within the churchyard, but will raise awareness of a historic figure and his local connections…A memorial within the Church may be equally or more appropriate, but would be unlikely to have the public visibility desired by the blue plaques.”
ECtHR advisory opinions
Protocol No. 16 to the ECHR enables the highest national courts and tribunals, as designated by the member states concerned, to ask the ECtHR for an advisory opinion on a question of principle relating to the interpretation or application of the Convention and its Protocols – thereby bringing ECtHR practice into line with that of the CJEU. Advisory opinions will be delivered by the Grand Chamber, will contain reasons and will not be binding. Whether or not to accept a request will be at the GC’s discretion.
On 1 August 2018, the Protocol came into force in respect of the 10 member states that have signed and ratified it: Albania, Armenia, Estonia, Finland, France, Georgia, Lithuania, San Marino, Slovenia and Ukraine. So far, the UK has not signed the Protocol.
Charging for charity regulation in Scotland?
OSCR has published its annual report and accounts for 2017-2018, in which it suggests that, because of insufficient funds, it may consider charging a levy on charities. OSCR’s budget has remained static, while costs are expected to increase with the lifting of the public sector pay cap. OSCR’s commitment to publishing all of its services online also has resource implications.
OSCR has said that it “will wait with interest the outcome of the Charity Commission for England and Wales consultation on a range of stakeholder-charging models”.
Niqabs in Denmark
Last week saw the first person in Denmark to be charged with wearing a face veil in public after a ban came into effect on Wednesday. Local media report that a 28-year-old woman was fined after getting into a scuffle with a woman trying to remove her niqab. The new law states that “anyone who wears a garment that hides the face in public will be punished with a fine”: the BBC reported it here.
- Rajkiran Barhey, UKHRB: No need for court order for withdrawal of nutrition in case of PVS patients – Supreme Court: on NHS Trust v Y.
- Michel Barnier, European Commission News: An ambitious partnership with the UK after Brexit: a far less gloomy prognosis than one might have expected – and well worth a read.
- Clive D Field, British Religion In Numbers: Counting Religion in Britain, No. 34, July 2018.
- Roman Friedrich: A Masterpiece of Judicial Avoidance?: comment on Masterpiece Cakeshop Ltd. v Colorado Civil Rights Commission, 584 US (2018): he is unimpressed.
- Sairah Javed, Free Movement: Part of the British Nationality Act 1981 found incompatible with human rights law: a note on K (A Child) v Secretary of State for the Home Department  EWHC 1834 (Admin), in which the High Court found s.50(9A) BNA 1981 incompatible with Article 8 ECHR.
- John Milbank, LSE Religion and Global Society: “Wholly at one with the most authentic Christian legacy”: on the Roman Catholic Church’s denunciation of the death penalty.
- Grégor Puppinck, europeinfos #216: A ban on circumcision?: argues that a ban would violate European and international laws ensuring religious freedoms.
- Georgina Rushworh, Family Law Week: The Divorce Trap: Life After Owens v Owens: asks where we go from here.
- Law Commission for England & Wales: Report on the implementation of Law Commission recommendations: the seventh in the series noting, inter alia, that after the Commission had undertaken a preliminary scoping study on marriage law, the Government concluded in September 2017 that it was not the right time to develop options for reform but did not rule out further work and would keep the matter under review: we aren’t holding our breath.
For once, a serious one: Religion Clause reports from the US that in a discrimination claim, Sterlinski v Catholic Bishop of Chicago (ND IL, July 23, 2018), an Illinois federal district court held that the US “ministerial exception” doctrine applied to an organist at a Roman Catholic parish: “the Catholic Bishop argues that the evidence indisputably proves that playing the organ in support of the Church’s religious services still qualifies as performing a ministerial function … Based on the record evidence, the Court must agree.”
Which is a very long way indeed from what appears to be the position under the ECHR: in Schüth v Germany  ECHR No 425/03, the ECtHR held that the sacking of a Roman Catholic parish organist and choirmaster for leaving his wife to settle with a new partner, with whom he had a child, was a violation of his rights under Article 8 (private and family life).