The Church of England and same-sex relationships

On Tuesday, the Second Church Estates Commissioner answered an Urgent Question in the Commons from Ben Bradshaw (Lab, Exeter) on the outcome of the meeting of Church of England bishops on equal marriage in the Church of England. He began as follows:

“Last Friday, the bishops of the Church of England published a pastoral letter and draft resources that will enable same-sex couples to come to a Church of England church to give thanks for their civil marriage or civil partnership, and to have a service in which there would be prayers of dedication, thanksgiving and blessing for the couple. The bishops also apologised for the rejection, exclusion and hostility that LGBTQI+ people have faced in some of our churches. The bishops are united in condemning homophobia and urged churches to welcome same-sex couples ‘unreservedly and joyfully’. I am pleased to speak for a Church that has the humility to apologise and admit when it has behaved badly”.

You can read the full exchanges here.

The Pope and same-sex relationships

In an interview with Associated Press, Pope Francis is quoted as saying that laws criminalising homosexuality are unjust and that the Church can and should work to put an end to them: “It must do this. It must do this”. He quoted the Catechism of the Catholic Church in saying that gay people must be welcomed and respected and should not be marginalized or discriminated against: “We are all children of God, and God loves us as we are and for the strength that each of us fights for our dignity”. Subsequently, he clarified his views further here.

Same-sex marriage – Chapel of St Mary Undercroft 

During the debate on equal marriage in the Church of England, supra, Andrew Selous, the Second Church Estates Commissioner said:

“I have spoken to the Speaker’s Chaplain, who, subject to the usual booking arrangements, is happy to say the prayers of dedication, thanksgiving and blessing for Members of this House in the crypt chapel of St Mary’s here within the Palace”.

As a Royal Peculiar, the chapel is under the Monarch’s control, who exercises it via the Lord Great Chamberlain whose Secretary, Black Rod, has responsibility for managing its use. Coming before the matter has been debated at General Synod in February, this raises the question of whether the Monarch has approved these arrangements or the more likely scenario that the “prayers of blessing” refer to the format currently permitted within the Church of England.

The Bill of Rights Bill

On Tuesday, the Joint Committee on Human Rights published its report, Legislative Scrutiny: Bill of Rights Bill. In brief, the Committee concludes:

“The Bill of Rights Bill not only lacks support, but has caused overwhelming and widespread concern. Those who support the Bill in its current form appear to us to be limited in number: they certainly represented a tiny minority of those who responded to the IHRAR review, the Government consultation, our call for evidence, or those who chose to respond to the survey we posted on Twitter, which had over 40,000 responses. The outcomes of the Government’s consultation, independent review, and our own inquiries on the Bill of Rights Bill have not been incorporated into the Government’s proposals. The Scottish and Welsh Governments have expressed concerns about the Bill, and the Northern Ireland Human Rights Commission has pointed out the potential impact on the Good Friday Agreement. There has been no national conversation about our rights framework.

The Bill will introduce large-scale uncertainty as the courts grapple with a new, complex, regime. Far from increasing understanding, matters will end up being litigated in order to gain clarity. This does not bode well. Human rights instruments, such as the HRA, are constitutional statutes, which should provide stability to citizens and the courts. They should be easily understood and accessible to all in order to endure. Indeed, we do not think this is a Bill of Rights at all, and recommend that the title of the Bill is changed accordingly. In any case, the Government should not proceed with this Bill: it weakens rights protections, it undermines the universality of rights, it shows disregard for our international legal obligations; it creates legal uncertainty and hinders effective enforcement; it will lead to an increased caseload in Strasbourg; and will damage our international reputation as guardians of human rights.” [our emphasis].

It appears from the formal minutes that the report was unanimous.

(And see David Allen Green on The importance of giving important legislation very dull names.)

Asylum and possible religious persecution

In IA106722021 [2023] UKAITUR IA106722021 the appellant, an Iraqi national, and his dependant family member sought protection on the grounds that they face a real risk of serious harm and/or persecution in Iraq for reasons of their religion/membership of a particular social group. The appellant had converted from Islam to Zoroastrianism and, as a result, his wife’s Muslim family “wish to see the marriage end, and do him harm”. The family also feared religious extremists.

The original decision was set aside and remitted to be remade by a judge of the First-tier Tribunal.

Scotland: Register of Controlled Interest in Land

The Scottish Churches are suggesting that the new Register of Controlled Interest in Land, set up under the Land Reform (Scotland) Act 2016, has been structured in such a way as to create unmanageable administrative burdens for local congregations.

The Churches have been engaging with the Scottish Government and have proposed alternative arrangements to ensure that the policy aim of achieving transparency is met, while also recognising the unique legal structure of congregations. They have argued – unsuccessfully, it appears – that they depend heavily on local volunteers and that the Register will have a hugely disproportionate impact on them. The Scottish Government has failed to recognise their position and has not responded to their suggestions. [With thanks to David Bradwell.]

Football Association guidance on religious head coverings

On Wednesday, the Football Association issued guidance to match officials on religious head coverings. The FA has written to all match officials within its network across the English game to provide guidance on offences involving religious head coverings. The guidance confirms that touching religious head coverings without an individual’s permission is an offensive act, given it is an article of faith.

Should an incident of this nature occur during a match and is seen by the match officials, it is to be considered a red card offence. “For instance, should a Sikh player have their patka or turban pulled or touched in an improper manner, the offender should be dismissed – regardless of reaction – as this would be deemed to be an offensive, insulting or abusive action under our rules and regulations. This applies to all religious head coverings”.

Masterpiece Cakeshop again

In Scardina v Masterpiece Cakeshop Inc (CO Ct App. Jan 26 2023), a Colorado state appellate court held that Masterpiece Cakeshop and its co-owner Jack Phillips violated the Colorado Anti-Discrimination Act when they refused a transgender woman’s order for a pink cake with blue frosting which she wanted to celebrate her birthday and her gender transition. The court said in part:

“[A] proprietor may not refuse to sell a nonexpressive product to a protected person based on that person’s intent to use the product as part of a celebration that the producer considers offensive … We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker” [With thanks to Howard Friedman, who has a longer note here].

Ecclesiastical Law Journal

Volume 25(1) January 2023 has been published – it includes the following:

• Clive Hogger: “The Definition of an Archdeacon: Legal, Pastoral or Neither?”
• Pete Broadbent: “Reflections on the Workings of General Synod”.
• Alison Milbank: “Response to ‘Reflections on the Workings of General Synod’”.
• Araba Taylor: “The Case of the Rustat Memorial – Does Duffield Pose all the Right Questions?”.
• Neil Patterson: “All Mouth and No Trousers? Observations Arising from the Decision on Jurisdiction in Re Evans”.
• Russell Dewhurst: “The 2022 Revision of The Principles of Canon Law Common to the Churches of the Anglican Communion”.
• Norman Doe: “Rediscovering Anglican Priest‐Jurists: V: Ralph Lever (c. 1530–1585)”.

– plus the usual book reviews, synod reports and case-notes.

Law & Justice

Issue 189(2022) has been published – it includes the following:

• Christopher McCrudden: “Alastair MacIntyre’s Critique of Human Dignity: A Response”.
• Richard Deadman: “Confession in the Anglican Church – Breaking the Seal?”.
• John Poland: “The Penal Consequences of the Violation of the Seal of the Confessional”.
• David McIlroy: “Law as the Calling of Human Nature: the Theology of Law of David W. Opderbeck”.

– plus the usual book reviews and case-notes.

Quick links

• Employment Writes: Grainger v The Church of the Flying Spaghetti Monster: “Is it right that that person should be deprived of a remedy because their non-theism is wrapped up in a cloak of spaghetti?”
• Sarah Lilley, Lexology: Marriage or cohabitation and your rights – what you need to know: on the Scots law relating to cohabitation.
• Tariq Modood & Thomas Sealy, LSE Religion & Global Society Blog: What’s the good of public religion?
• Geeta Pandy, BBC News: Eight-year-old Indian diamond heiress who became a nun: an interesting story about a child of a Jain family who has taken “diksha” – religious vows of renunciation – which raises the difficult question about the capacity of a child to make such a decision: said one commentator, “a child’s consent is not consent in law”.
• Fred Robinson, Policy & Practice: Churches and ‘tainted money’: Principles or Pragmatism?: “how can churches obtain the money they need whilst holding on to their principles? For example, should churches accept money – as many of them do – from the National Lottery, given its association with an arguably pernicious form of gambling? Or get grants from charitable trusts linked to businesses involved in activities such as fossil fuel extraction?”
• David Torrance, House of Commons Library: The relationship between church and state in the United Kingdom.

And finally… clanger of the month

In a fit of total absent-mindedness, Frank managed to get the wrong year on the citation in his post on McCalla v Lichfield DBF & Anor [2022] UKET 1303655/2021. It should have been [2022] and not, as it originally appeared, [2021].

It has since been corrected, but it all goes to prove that when staring at a screen you tend to see what you expect to see. Unfortunately.