Law and religion round-up – 10th March

“Prevent”, opposite sex civil partnerships, “late brides”, archepiscopal remains – a fairly random week…

“Prevent” guidance ruled partially defective

On Friday, in R (Butt) v Secretary of State for the Home Department [2019] EWCA Civ 256, the Court of Appeal ruled that the Government’s Prevent duty guidance to universities is unlawful in part and must be rewritten, on the grounds that, as drafted, it violates freedom of speech. Paragraph 11 reads:

“… when deciding whether or not to host a particular speaker, RHEBs [ie, universities and other higher education institutions] should consider carefully whether the views being expressed, or likely to be expressed, constitute extremist views that risk drawing people into terrorism or are shared by terrorist groups. In these circumstances, the event should not be allowed to proceed except where RHEBs are entirely convinced that such risk can be fully mitigated without cancellation of the event. This includes ensuring that, where any event is being allowed to proceed, speakers with extremist views that could draw people into terrorism are challenged with opposing views as part of that same event, rather than in a separate forum. Where RHEBs are in any doubt that the risk cannot be fully mitigated they should exercise caution and not allow the event to proceed.”

Dr Butt had argued that the guidance went too far by containing a strong presumption against allowing events to go ahead where the risk of students becoming radicalised could not be eliminated and that the guidance was having a chilling effect on free speech and debate in universities by, in effect, barring speakers who might have interesting but controversial views. The Court held that paragraph 11 of the guidance was unbalanced and should be redrafted.

“Making Rights Real”: a structured approach

In last week’s round-up, we noted Part I of a two-part post by Jonathan Cooper on the Oxford Human Rights Hub. In Lessons from Sir Henry Brooke: Making Rights Real (I), he argues that the House of Lords was incorrect to reverse the judgment of Brooke LJ in Begum and asks what would have happened if the Court of Appeal judgment had been left intact. Brooke LJ had held that the school uniform policy of Denbigh High School was unlawful under the Human Rights Act 1998 because, relying on that policy, the school had not adequately taken into account Shabina Begum’s right to manifest her belief. In Lessons from Sir Henry Brooke: Making Rights Real (II), he goes on to argue that, had the Supreme Court followed the structured approach proposed by Brooke LJ in Begum, the outcome in Lee v Ashers Baking Company Ltd would have been quite different.

He concludes that “In the longer term Ashers will be distinguished out of existence, but before then there will be too many martyrs like Gareth and the primary school teacher who will be bashed by the faith of others.” Both posts are well worth reading. And while we’re on the subject of “gay cakes”…

… Masterpiece Cakeshop – the final chapter

CBS Denver reports that the State of Colorado and Jack Phillips, the proprietor of Masterpiece Cakeshop, have agreed to end their current dispute. The Colorado Civil Rights Commission had found that Mr Phillips had discriminated against Autumn Scardina when he refused to bake her a cake to celebrate her gender transition and ordered the parties to find a solution through mediation. Mr Phillips had then filed a federal lawsuit against the Commission, citing his belief that gender “is given by God … and cannot be chosen or changed.”

According to the report, both sides notified a federal judge on Tuesday that Mr Phillips’s action was being dropped and that each party would pay their own costs. [With thanks to Law and Religion Forum.]

Same sex marriage and opposite sex civil partnerships

The Civil Partnerships, Marriages and Deaths (Registration etc) Bill 2017-19 passed its third reading in the House of Lords on 7 March and was returned to Commons with amendments for “ping pong”, scheduled for 15 March. Amendments on clergy exemption in relation to on same sex marriage had been proposed at the Committee and Report stages, but both lacked Government support and were withdrawn.

Clergy may charge for “late brides”

Last year we reported on the legality, or otherwise of charging brides who arrive late at their wedding, Brides who arrive late. The issue has now been clarified in the Church’s new legal advice Weddings and Funerals: Additional Charges. Essentially, the new Advice does not depart appreciably from the Guidance produced when the 2014 Order came into effect, although it clarifies the legal position of charging “late brides”, viz.

“[6]. In setting charges for such extras the parochial church council can include an additional sum to be payable if the wedding ceremony or funeral is delayed due to any fault other than that of the church or of the minister provided by the church. If they do so, the charge must not be at large. It must be calculable on a set basis and the circumstances in which it is payable must be clearly ascertainable.

[7]. The PCC may require the payment of a deposit in respect of agreed extras. However, no deposit may be demanded, nor any charge made, for any delay unless the parochial church council has made such provision in advance and this is brought to the attention of those arranging the wedding or the funeral and agreed by them.

This is included in our recent post New advice on “extras” for weddings and funerals.

No reduction in the size of the House of Lords just yet

The Public Administration and Constitutional Affairs Committee (PACAC) published its report A Smaller House of Lords in November 2018, recommending that the Government reduce and cap the number of members of the House of Lords to 600 as a matter of urgency – based on the recommendation made in the Burns report on the size of the upper chamber. In its response to the Committee – the Twelfth Special Report – the Government has indicated that, despite agreeing in principle with reducing the size of the Lords, it is not a priority in this Parliament. There is no reference to the Lords Spiritual in the Special Report.

Austria, Good Friday and discrimination at work

In January, we noted the CJEU’s ruling in Cresco Investigation GmbH v Achatzi [2019] EUECJ C-193/17, in which the Grand Chamber held that the Austrian law under which Good Friday is a paid holiday only for members of four specific Churches (the Evangelical Church Augsburg Confession, the Evangelical Church Helvetic Confession, the Old Catholic Church and the United Methodist Church) was direct discrimination on grounds of religion.

In an analysis of the judgment, the Austrian law firm Graf Pitkowitz Rechtsanwalte GmbH suggests that though – absent new legislation – it will oblige Austrian employers to make additional payments (normal salary plus extra holiday pay) if their staff work on Good Friday (19 April 2019) or grant a paid day off, the reality is not so simple:

“Although this sounds like levelling up, the Austrian government will likely introduce legislation to avoid employers having to provide double pay. Further, there are no realistic claims for past periods, because it is hardly conceivable that employees who were not members of any of the four churches had sought permission from their employers to be absent from work on that day. It is tempting to conclude ‘much ado about nothing'”.

Sacked for refusing a divorce in Israel?

The Jerusalem Post reports that the Jerusalem Rabbinical Court has instructed the Egged bus company to fire one of its employees within 30 days because of his refusal to grant his wife a divorce. Three years ago, she filed for divorce, but her husband wanted to reconcile so they agreed to try reconciliation – which failed. The rabbinical court ordered the husband to grant her a divorce but he refused, requested further reconciliation efforts and said that he would only agree to a divorce if his wife would renounce her rights to the couple’s shared property.

The wife’s legal representative subsequently asked the court to invoke a law under which a man who refuses to grant his wife a divorce may be denied employment at any public agency. Because Egged is subsidised by the State, it qualifies as a public agency – and, on Thursday, the court decided to do so and instructed Egged to fire the husband within 30 days. A spokesman for Egged said in response, “I do not respond to rabbinical rulings.” [With thanks to Ian Timpany.]

Please can we have the Archbishops’ body?”

Last June we reported on the unseemly wrangle concerning the legal dispute between two US Roman Catholic dioceses as to which should hold the remains of Archbishop Fulton Sheen: Cunningham v Trustees of St Patrick’s Cathedral (a.k.a. “What is to be done with the body of Archbishop Fulton Sheen?”). On 5 March, the Catholic Herald reported that a New York appeals court has unanimously ruled that the earthly remains of Venerable Fulton Sheen should be moved to Peoria, Illinois – a ruling that could pave the way for the archbishop’s beatification, unless there is another appeal. A statement from the Diocese of Peoria welcomed the decision and called on the Archdiocese of New York “to end their failed legal contestation, which has only resulted in three rulings against them.”

ChurchCare Guidance Notes – Quick Links

At the end of February 2019, the former ChurchCare website closed down following the end of its hosting contract; all the ChurchCare content has been rewritten, updated and transferred to a new section of the CofE’s central website. Our “cut and keep” post includes quick links to the main headings (e.g. Accessibility, Alterations and Extensions, &c), which take the reader to the full range of advice on the topic, and to the Guidance Notes for those who wish only to access these documents, most of which provide statutory guidance.

John Habgood RIP

Quick links

And finally…I

In Jim Yovino v Aileen Rizo on Petition for Writ of Certiorari to the US Court of Appeals for the Ninth Circuit No. 18–272 586 U. S. ____ (2019), a judge on the Ninth Circuit Court of Appeals, the Hon. Stephen Reinhardt, died on 29 March but the Ninth Circuit continued to count his vote in cases decided after that date. In the case about which certiorari was sought, he was listed as the author of an en banc decision issued on 9 April 2018 – 11 days after his death – and, by counting his vote, the Ninth Circuit deemed Judge Reinhardt’s opinion to be a majority opinion, which meant that it would constitute a precedent that all future Ninth Circuit panels would have to follow.

“Certainly not!”, said the US Supreme Court, concluding at p 5:

“Because Judge Reinhardt was no longer a judge at the time when the en banc decision … was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity” [our emphasis].

And finally…II

It may soon become legal for unmarried couples in the State of Utah to have sex without running the risk of getting locked up, after the state legislature voted by 41-32 last week to decriminalise fornication. If signed into law, Senate Bill 43 will overturn the 1973 provision of the Criminal Code under which “Any unmarried person who shall voluntarily engage in sexual intercourse with another is guilty of fornication”. Fornication is a “class B misdemeanor” punishable by up to six months imprisonment and a fine of up to $1,000.

The bill is now pending signature – or veto – from Governor Gary Herbert. [With thanks to Scottish Legal News.]

1 thought on “Law and religion round-up – 10th March

  1. Thanks for another terrific round-up, Frank and David. NB some US states still retain anti-fornication laws on the books (though likely null and void for unconstitutionality): e.g. Idaho.

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