Opposite sex civil partnership, same sex marriage in Northern Ireland, “best interests”, beards, blasphemy – and more…

Opposite sex civil partnership

On Friday 1 March, the Lords debated the Report stage of the Civil Partnerships, Marriages and Deaths (Registration etc) Bill, one objective of which is to provide that opposite sex couples may enter a civil partnership. Lord Faulkner of Worcester moved  Amendment 1, which would have inserted a new Clause after Clause 1 which removed the exemption for clergy in the Church of England and Church in Wales under the Marriage (Same Sex Couples) Act 2013 and permit the Churches to opt in to the provisions of that Act allowing the solemnization of the marriage of same sex couples.

The Minister of State, Home Office (Baroness Williams of Trafford) (Con), wound up the debate stating:

“my primary reason for objecting to the noble Lords’ amendment is quite simply, as I think the right reverend Prelate the Bishop of Oxford mentioned, that it is unnecessary. The Marriage (Same Sex Couples) Act provides an opt-in system so that same-sex marriages can occur only on religious premises or under religious rites where the governing religious body has expressly consented. There is no requirement for these bodies to give such consent.

The Act does not include a specific mechanism for the Church of England to opt in in the same way, which I know has caused some to believe that the Government are unnecessarily tying the hands of the Church through this. However, the actual reason, as the right reverend Prelate outlined, is primarily that the Church of England already has the ability to opt in using its own devolved legislative powers. It would be inappropriate for the Secretary of State to legislate on a devolved matter.”

The amendment was withdrawn.

Lord Hayward (Con) then moved a New Clause that would oblige the Secretary of State to make Regulations to provide for marriage between same sex couples in Northern Ireland within 10 months of the Act being passed, subject to conditions about the possible re-establishment of the Northern Ireland Executive.

There were serious concerns that Lord Hayward’s New Clause – however well-intentioned – would kill the Bill if agreed to because of the DUP’s opposition to same sex marriage. In the event, the New Clause was withdrawn.

Contested medical treatment and “best interests”

In Manchester University Hospital NHS Foundation Trust v M & Anor [2019] EWHC 468 (Fam), an infant M, aged 13 months, was born with end-stage renal failure [1-3]. The first and primary option for her care is haemodialysis [16]. M will become eligible for a transplant when she reaches a body weight of 10kg but “Even then and with a successful transplant, looking into the future, from the most optimistic perspective, it remains the case that M’s long-term care will continue to require vigilance with ongoing medical care” [18]. However, both M’s parents are opposed to the planned treatment because of their religious beliefs:

“… They have a deep, profound and simple faith. They believe entirely in the power of prayer. They believe that M is a gift from God … I note and respect their beliefs [37].

Both parents sadly suffer from mental health issues which may preclude their capacity fully to understand the choices that arise here. However, I am satisfied that their primary objection is predicated on the strength and vibrancy of their faith. The mother told me ‘This is not only a medical problem, it is also a spiritual problem’ [38: italics in original].

It is crucial that I record in this judgment that M’s mother paid tribute to the medical staff whose professionalism she does not doubt and whose motivation to do their best for M she plainly thought was beyond any question. I agree with her” [39].

Hayden J, while expressing his deep respect for the parents’ views and beliefs, concluded that M’s best interests lay in dialysing her: however. “if the situation changes the case should be returned quickly to court with the overall objective of preventing M’s suffering” [40].

Ritual slaughter in the EU

Last week, the Grand Chamber of the CJEU ruled on the application of the EU’s organic production logo to products derived from animals slaughtered without pre-stunning: unusually, it rejected the earlier Advocate General’s Opinion and concluded that the logo could not be applied to such products. We noted the judgment here.

Beards in The Netherlands

The Guardian reports that a court in The Netherlands has upheld the suspension of a Muslim man’s benefits over his refusal on religious grounds to shave off his beard while training for a job as an asbestos removal officer. He had been offered the job but was subsequently told he would need to be clean-shaven in order to undergo the training course, on the grounds that his beard would reduce the effectiveness of the respiratory mask he would need to wear: basically, a health & safety precaution. When he refused on the basis of his religious convictions, Amersfoort City Council suspended the statutory minimum income payments to him and his wife for a month.

The court accepted that the decision had infringed his right to religious freedom. Because he had refused to participate in the training, however, he had not taken the guaranteed opportunity it offered him to gain access to the labour market and, as a result, he had put undue pressure on public funds to the detriment of other taxpayers. The suspension of the payments was therefore “necessary in the interest of the protection of the rights and freedoms of others”.

Beards in the Catholic Church

Coincidentally, this week The Tablet carried a piece by Charles Coulombe Why clerical beards divide the Eastern and Western Church which traced the history of restrictions placed on the wearing of beards by the clergy. Within the Eastern Church, clergy continue to follow the advice of St Clement of Alexandria (AD 150-215), who “in voluminous advice to converts, counselled against shaving one’s beard, which he condemned as a sign of effeminacy”. The situation in the West was more complex, and although from about AD 500 canon law required priests to be clean-shaven priest, this was not always strictly observed or enforced. In their New Commentary on the Code of Canon Law, Beal et al note:

“the 1917 Code (CIC 136, §1) required that clerics have a simple hair style. The Second Plenary of Baltimore in 1866 had legislated in greater details, forbidding clerics to grow beards. Since this particular legislation was not opposed to the 1917 Code, it remained in effect and could be enforced by the Bishop, according to the decision of the Sacred Congregation of the Council. The 1983 Code says nothing about hair or beards”.

Blasphemy in Switzerland

The Local reports that the Swiss Government has rejected a proposal to remove the offence of blasphemy from the Swiss Penal Code. Under the article in question, any person who “publicly and maliciously insults or mocks the religious convictions of others, and in particularly their belief in God”, who “maliciously prevents, disrupts or publicly mocks an act of worship” or who “maliciously desecrates a place or object that is intended for a religious ceremony or an act of worship” is liable to a fine. Green Liberal MP Beat Flach had proposed a motion in the Federal Parliament, as follows:

Oppos