Law and religion round-up – 19th May

Civil vs religious divorce, marriage, Islam, churchwardens, human rights: just a typical random week… 

Civil divorce vs religious divorce?

The Times (£) reports a complex case in the Court of Appeal in which a Jewish husband is challenging a maintenance order of the Family Court in Manchester on the grounds, inter alia, that its existence traps him in his religious marriage. In Moher v Moher, the couple, who were married 1995 and have three children, split in 2016. Ms Moher was awarded £1.6 million and Mr Moher was also ordered to pay her £1,850 a month in maintenance until he granted her a get. He argues that the maintenance order prevents him from giving her a get because the wording of the order means that any get presented by him will be rejected by the Jewish religious authorities. Said his counsel,

“The phraseology of the order prevents the husband from issuing a get. It is something which has to be given freely after financial ties between the parties have come to an end. The imposition of a financial sanction on a party, in a bid to force them to grant a get, invalidates the get under religious law. The husband is thus left in a position where, due to the element of compulsion placed on him by the order of the court, he is unable to grant a valid get.”

The Court of Appeal [King, Rose and Moylan LJJ] reserved judgment: watch this space.

[There is also a report in the Mail Online.]

Raising the minimum age for marriage?

On Wednesday, the House of Commons held a debate in Westminster Hall initiated by Mrs Pauline Latham (Mid Derbyshire) (Con) on the minimum age for marriage and civil partnership: we published a brief summary of the opening and closing speeches here. One thing that strikes the (admittedly prejudiced) reader is the occasional reference to “British law”, heedless of the fact that marriage laws in England and Wales, Northern Ireland and Scotland are different – and in the latter cases, devolved matters. Whether two sixteen-year-old Scots are mature enough to marry without parental consent is emphatically not a matter for us – but it’s certainly one for the Scottish Parliament rather than Westminster.

New process to establish a working definition of Islamophobia

On 16 May, the Communities Secretary,  James Brokenshire, announced a process for establishing a working definition of Islamophobia. Two experts will lead this work in close collaboration with the cross-government Anti-Muslim Hatred Working Group (AMHWG) and the Government will consider advisers’ recommendations on an effective definition. Speaking during a backbench debate on the issue, Mr Brokenshire welcomed the work undertaken by the All-Party Parliamentary Group (APPG) on British Muslims to develop a definition but confirmed that the Government will not be adopting its proposed wording. He agreed that there needed to be a formal definition of Islamophobia but made clear that the APPG definition raised practical and legal challenges.

The APPG proposal defines Islamophobia as “a type of racism”, which is not in line with the definition enshrined in the Equality Act 2010. The Communities Secretary said that conflating race and religion in conflict with legal definitions could cause confusion, undermine free speech and might not adequately address sectarian hatred.

“Ideologically or religiously influenced clothing” in Austrian primary schools

The Guardian reports that the Austrian Parliament has approved a law aimed at banning the headscarf in primary schools. The text refers to any “ideologically or religiously influenced clothing which is associated with the covering of the head”. According to the report, representatives of both parts of the governing coalition, the centre-right People’s Party (OeVP) and the far-right Freedom Party (FPOe), have made it clear that despite its wide description, the law is targeted at the Islamic headscarf. The Government said that the Sikh patka and the Jewish kippa would not be affected. Further, the Government admits that the law is likely to be challenged in the Constitutional Court, either on grounds of religious discrimination or because similar legislation affecting schools is normally passed with a two-thirds majority of MPs.

And in Geneva?

The cantonal law on secularism, which bans the wearing of religious symbols by elected officials and public servants and was approved by 55 per cent of voters in the Canton of Geneva in February, has been upheld by the Constitutional Chamber of the Geneva Court of Justice. In April, the Constitutional Chamber had temporarily suspended the provision after an appeal by the Green Party; however, the petition to make the suspension permanent was finally rejected and the decision communicated on Monday. The ban remains effective until further notice.

Dean of the Chapels Royal

On 15 May, it was announced that The Bishop of London, The Rt Revd and Rt Hon Dame Sarah Mullaly will become Dean of Her Majesty’s Chapels Royal when the Rt Revd and Rt Hon Lord Chartres retires from this role in summer. Ecclesiastical lawyers might note that the Chapel Royals have sole ecclesiastical governance in all royal palaces with the exception at Windsor Castle and its Chapels.

Sale of religious items on Etsy

Many of us (including David and Gerry) use the online site Etsy for “One-of-a-kind items for everyday moments” – “If it’s handcrafted, vintage, custom or unique, it’s on Etsy”. However, the Catholic News Agency reported that the site had carried advertisements for “Real Catholic hosts, ordained by an authorized Catholic priest. / To abuse for classic black fairs or black magic purposes! / Made and consecrated in Germany! / 9 units per unit. / Unsorted selection, different motifs. / Product contains gluten and cereals.”

The item has been removed [“Darn. This item is no longer available” as the site now comments]. The CNA article explained that “an Etsy representative clarified that the sale of consecrated hosts for the purpose of desecration is a violation of the e-commerce website’s terms”. Stolen items are explicitly prohibited, as are items that “support or glorify hatred toward people or otherwise demean people based upon: race, ethnicity, national origin, religion, gender, gender identity, disability, or sexual orientation.” This therefore raises the question as to whether the hosts were removed because of their advertised use or because they were consecrated per se. 

With regard to the latter, elsewhere for mere £200.24 one could purchase via Etsy (at the time of writing) an item described as: “An antique crucifix reliquary, saints relics holy cross; Catholic Religion; It contains relics from 13 labeled saints; Also contains 12 colored mounted stones; Approx. 5″ x 2”. Although the vendor is different from the one offering consecrated hosts and there is no implied “black magic” use, such sales are in clear contravention of Can. 1190 §1 under which it is absolutely forbidden to sell sacred relics. Cathy Caridi has considered this in detail, in The Canon Law and the Private Ownership of Relics – Part I and Part II.

Terms of office

Churchwardens for each Church of England parish will now have been elected/re-elected at the recent mandatory Annual Church Meetings. S3 Churchwardens Measure 2001 places limits on the number of successive periods of office for which a churchwarden may be elected, although it includes the possibility that “provided that a meeting of the parishioners may by resolution decide that this section shall not apply in relation to the parish concerned”. Any such resolution, however, may be revoked by a subsequent meeting of the parishioners. Furthermore, S4(7) states that “a person may be chosen to fill a casual vacancy among the churchwardens at any time”.

Concerns were raised at the February General Synod regarding the new Church Representation Rules which included a provision which would limit parochial lay representatives on deanery synods to two consecutive terms of three years. At an Elections Review Group (ERG) meeting on 1 April 2019, it was agreed to consult widely on seven different options. The consultation document was circulated to members of General Synod, Diocesan Secretaries, Parochial Church Council Secretaries, Lay Chairs of Diocesan Synods, Lay Chairs of Deanery Synods, Area and Rural Deans, and the National Deaneries Network; however, the ERG would welcome comments on this issue from anyone who has a view on the matter. Consultees are asked to rate each option as to whether they consider it acceptable or not, and to place them in order of preference, 1 to 7. The Consultation is available here and closes on Wednesday 10 July 2019.

Thanks to David Lamming for information on the Consultation. 

Advice to churchwardens

The recently reported case, Re St Mary Mapledurwell [2019] ECC Win 1 includes, inter alia, advice which newly-elected churchwardens may find useful. Following the “simply … unacceptable” [6] actions of the churchwarden who had arranged the felling of a number of trees in the churchyard without faculty authorization, Chancellor Matthew Cain Ormondroyd said:

““[7]. Churchwardens need to understand the requirement for faculty permission, which must be observed with particularly [sic] care if irreversible changes are to be made. Otherwise, the court is effectively deprived of jurisdiction to consider whether to permit the changes or not. I will ask for this short judgment to be circulated to parishes so that other churchwardens can learn from the experience here. If similar events occur in future I would be minded to call a hearing for them to explain their actions and also to consider making an appropriate costs order.”

A review of the case will be included in our round-up of judgments at the end of the month.

EU Annual Report on Human Rights and Democracy

The EU Annual Report on Human Rights and Democracy in the World 2018 was adopted by the Council at its meeting on 13 May. Chapter 8 surveys developments in freedom of religion or belief over the previous twelve months. It starts with the declaration that “In 2018, freedom of religion or belief (FoRB) continued to be under attack in the world. Accordingly, the promotion and protection of FoRB remained a key priority in the EU’s external human rights policy.”

Quick links

And finally…

Local Government Lawyer reports that the High Court has rejected a claim by Chalfont St Peter Parish Council that the trustees of the Holy Cross Sisters conspired to provide false information to the district council in order to obtain planning permission for a former school site. The parish council’s case was that two of the nuns and the school caretaker agreed to give false information to the partner in the firm that had been retained by the Holy Cross Sisters to act on their behalf in the planning application. Swift J rejected the allegation: it’s a bit too niche to merit a note by us, but you can read the full story in Chalfont St Peter Parish Council v Holy Cross Sisters Trustees Incorporated [2019] EWHC 1128.

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