Italian Crucifix Case - Part 2 - Europes Dredd Scott ?

As several press articles on the case have pointed out the Court did not expressly order the School to remove its Crucifix but this is because the Court does not have the power to make such orders what it does do is find a violation of the Convention and then the Italian Government has to report back to the Council of Europe exactly what it proposes to do in order to implement the ruling which in this case will mean removing crucifixes from the classrooms, courts public buildings etc.

Article 46 of the Convention says
Binding force and execution of judgments
1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

If the Judgment is not overturned on Appeal then Italy has to report to the Council of Ministers of the Council of Europe what it is doing to implement the judgment, it cannot simply ignore it unless it withdraws from the Council of Europe and the Convention itself, in addition since the Charter of Rights in the new EU Constitution/Lisbon Treaty in effect incorporates European Convention on Human Rights into EU Law, Italy would have to withdraw from the EU if it wanted to ignore the ruling and I cannot see it doing that. Therefore unless the Grand Chamber of the ECHR overrules this Judgment on appeal Italy, and indeed the rest of Europe, has a serious problem; for example in Greek and Cypriot Schools it is common to see Icons displayed, but under this judgment those Icons will have to be removed and, arguably so will displays of Christianity from all Public buildings throughout Europe.

In the UK because of s2 of the Human Rights Act the ruling has immediate effect as a binding precedent in UK law and I suspect we will shortly be hearing about public displays of Christmas Decorations being removed, School Nativity Plays being banned etc by local authorities who will say they are acting in accordance with this Court ruling. Judgments such as this tend to have a large degree of "mission creep" as they are implemented by public authorities.

However I do wonder if perhaps this Judgment may, in time, come to be seen as European "Dredd Scott" case ie a moment when the implications of a Court ruling are so significant and so contrary to public opinion that they lead to a public backlash. Americans will, be familiar with the 1857 Dredd Scott case when the US Supreme Court defended slavery to such an extent that, in effect, it extended slavery to the free as well as the slave states and that ultimately strengthened the abolitionist movement and is often quoted as a leading cause of the American Civil War. I often refer to the Dredd Scott case when arguing with my more "liberal" legal colleagues who simplistically believe that Supreme Courts are always filled with nice liberal types who will uniformly do the right thing. They are not, Judges are as prone to personal prejudices as anyone else which is the danger of trying to use the Courts to force change in society rather than relying on the slower processes of democracy, voting and debate.

If I can misquote Abraham Lincoln

"We shall lie down pleasantly dreaming that the people of Europe are on the verge of becoming a multi-faith society, and we shall awake to the reality instead, that the European Court has made Europe a non-faith society"

Italian Crucifix Case

There is at present no Judgment in English concerning the European Court of Human Rights decision in the "Italian Crucifix Case of Lautsi v. Italy however the ECHR has issued a Press Release which can be read HERE

This seems to me to be an extraordinarily wide decision which could be used, for example, to prevent State Schools putting on Nativity Plays or even preventing Muslim Teachers wearing Hijabs in Schools, in the case of Dahlab v Switzerland in 2001 the ECHR defined the Hijab as a "religious symbol" so there are a lot of implications in saying that Religious Symbols cannot be displayed in schools. What is most surprising is that the ECHR did not apply its own concept of "Margin of Appreciation" and recognise that this type of issue should be left to individual countries to decide. In effect the ECHR has extended to the whole of Europe the French concept of strict separation between religion and state schools which ignores the different Educational traditions and systems in the separate nations of Europe.

As several press articles on the case have pointed out the Court did not expressly order the School to remove its Crucifix but this is because the Court does not have the power to make such orders what it does do is find a violation of the Convention and then the Italian Government has to report back to the Council of Europe exactly what it proposes to do in order to impliment the ruling which in this case will mean removing crucifixes from the classrooms, courts public buildings etc. In the UK because of s2 of the Human Rights Act the ruling has effect as a binding precedent in UK law and I suspect we will shortly be hearing about public displays of Christmas Decorations being removed, School Nativity Plays being banned etc by local authorities who will say they are acting in accordance with this Court ruling.

We will have to see whether the ECHR may overrule itself on an appeal but in the meantime the judgment (once it is published in English) can and will apply in the UK. As a (Muslim) colleague said to me regarding this case "Human Rights seem to be increasingly used to end Human Rights"

As an aside it would have been interesting if this case had occurred before the Irish voted on the Lisbon Treaty. Before anyone emails me pointing out that the ECHR is not part of the EU, yes I know, however the Lisbon Treaty contains a Charter of Fundamental Rights Articles 10 and 14 of which conform to the provisions considered by the ECHR in this case. Article 52.3 of the Lisbon Treaty Charter of Rights says that where the Charter is equivalent to the ECHR it shall be interpreted in accordance with the ECHR decisions so this decision on the Crucifix is, in effect now part of EU law which is binding on the 27 members of the EU. I will be interested to see how Cyprus, Malta, Greece and Poland react when they realise the implications of this case. Incidentally the Lisbon Treaty Charter of Rights has 50 separate rights, the USA has managed reasonably well for 200 years with a Bill of Rights of 10 articles but thats the EU for you.

As a final, and I accept somewhat facetious point, will this ruling mean that Schools will also have to remove posters taking about global warming now that belief in Climate Change has achieved the status of a "philosophy" in Nicholson v Grainger UKEAT/0219/09/ZT I will write about this case further but it is certainly worth a read however I think Mr Nicholson may have difficulty in winning his case because what he seems to be objecting to is that his employers did not act in accordance with his (Nicholsons) beliefs and objected to him expounding them. This raises the issue of how far it is permissible to attempt to convert fellow workers to your philosophical (or religious beliefs

Is Polygamy a "Human Right" ?

A story from Canada is interesting and does demonstrate the dangers of reformers trying to achieve their ends though the Courts and Human Rights instruments rather than by democratic legislative change.

Back in 2003, in the case of Halpern et al. v. Canada brought by a number of same sex couples who had been refused the right to marry, the Ontario Superior Court ruled that the common law definition of Marriage violated the Canadian Charter of Rights and Fundamental Freedoms which is similar in terms to the European Convention on Human Rights. The Common Law definition of marriage was laid down by Lord Parson in the case of Hyde v Hyde (1866) LR 1 P&D 130 (which involved the question of whether a Polygamous Mormon Marriage was recognised by the English Courts) as follows

"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others"

Similar logic was used by the US Supreme Court in the case of Reynolds v. U.S., 98 U.S. 145 (1878) which also involved Mormon polygamy

Following the Halpern Case similar decisions were arrived at in other Canadian Provinces and this led to the Canadian Supreme Court decision in Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79 which agreed that the common law definition of marriage discriminated against same sex couples though the Court also held that Charter also protected Religious ministers from being forced to officiate at same sex marriages.

The decisions of the Canadian Courts were of course only focused on the question of same sex marriages but what the courts ignored was the fact that by destroying the Common Law definition of marriage they left the entire question of what marriage actually is completely up in the Air and that problem has now come home to roost.

In the Canadian case of Blackmore v. British Columbia (Attorney General), 2009 BCSC 1299 (CanLII) the question has been raised whether the Halpern etc decisions mean that Polygamy is now legal and the Criminal offence of Bigamy illegal

Winston Blackmore and James Oler are leaders of a polygamous Mormon splinter group in Bountiful, near Creston, British Columbia, and are accused of being married to more than one woman at a time. (The Mormon Church banned Polygamy in 1890 though some splinter groups have always continued the practice)

They were were charged with polygamy in January of this year after a two year investigation by the Royal Canadian Mounted Police. Blackmore was charged with marrying 20 women, though he claims to have had 26 wives and more than 108 children. Oler was charged with marrying two women.

Section 293 of the Canadian Criminal Code says that anyone entering into a conjugal relationship with more than one individual at the same time is in violation of the law.

On at least two previous occasions the RCMP had recommended that arrests be made, but the Crown denied the recommendation, saying that the ban on polygamy would likely be struck down on the basis of the Canadian re-definition of marriage to include homosexual couples, and the Charter's guarantee of religious freedom. After all once you have redefined "Marriage" away from being the union of one man and one woman where does redefiniton end, Polygamy, Polyandry, multi-person multi sex unions all potentially can lay claim to the title "marriage" and the end result will be the end of the idea of marriage itself as a legal concept because if any relationship can be classified as marriage, the eventually marriage itself ceases to have meaning.

In Britain of course we have not dropped the common law definition of marriage and Same Sex Civil Partnerships are legally distinct from marriage so of course what has happened in Canada could never happen in Britain. I wonder ??

Christian Nurses with a Cross to Bear

This is a hurried post since I am traveling between cases at present however 2 stories have struck my attention and I was even quoted in one of them

In Liverpool a Couple are charged under s5 of the Public Order Act because of what they are alleged to have said to a Muslim guest in their B&B during a discussion on religion. Now in fairness I haven't seen all the facts but as a lawyer I am increasingly concerned by the way the Police are turning to the Public Order Act merely because someone feels "offended" by what has been said. This is not what the Public Order Act is there to do. As was said by Mr Justice Moses in the case of Dehal v CPS [2005] EWHC 2154 (Admin) at para 5

"the criminal law should not be invoked unless and until it is established that the conduct which is the subject of the charge amounts to such a threat to public disorder as to require the invocation of the criminal as opposed to the civil law"

The other story concerns a Christian Nurse ordered to stop wearing a Cross on "Health and Safety" grounds. Leaving aside the point that she has worn the cross on duty for 30 years without injuring herself or anyone else I was struck by the fact that the Trust aparently allows members of other faiths to wear religious symbols such as the Muslim Hijab or Sikh Kara. They attempted to justify this difference in treatment by saying of the Nurse "wearing a cross was not a requirement of her faith". This is a common argument used in these types of case which is both theologically illiterate and legally unjustified.

To treat members of different faiths differently is unlawful discrimination and cannot be justified by arguments about whether a religious item is a "requirement" of a faith. In the 2008 High Court case of Sikh Schoolgirl Sakira Singh [2008] EWHC 1865 (Admin) Mr Justice Silber clearly laid down that the legal test for discrimination was not whether a religious item (in that case a Sikh Kara bracelet) was religiously compulsory but rather whether the item was "an extremely important indication of faith" and wearing a cross clearly falls into that category.

In addition treating Christians differently to members of other faith creates community divisions and feelings of injustice. Members of other faiths are not objecting to Christians wearing the cross and neither should this NHS Trust

As a final point it is arguable that wearing a cross IS required by the Christian faith. The 7th Ecumenical Council of 787 said

"As the sacred and life-giving cross is everywhere set up as a symbol, so also should the images of Jesus Christ, the Virgin Mary, the holy angels, as well as those of the saints and other pious and holy men be embodied in the manufacture of sacred vessels, tapestries, vestments, etc., and exhibited on the walls of churches, in the homes, and in all conspicuous places, by the roadside and everywhere, to be revered by all who might see them. For the more they are contemplated, the more they move to fervent memory of their prototypes"

I was once on radio in a discussion about religious symbols and the law and the presenter made the usual remark that the cross wasn't compulsory for Christians unlike the Hijab or Kara so I said "Well what about the 7th Ecumenical Council of 787". Believe me if you want to stop someone dead in their tracks saying "what about the 7th Ecumenical Council" is a very good way of doing it !

Muslim Marriages (Again)

I cannot remember which politician it was who said that when you reach the point when you are sick to the back teeth of repeating something that is when people start listening. I am certainly sick and tired of discussing the subject of unregistered Muslim marriages (Nikah's) so hopefully some people will begin to listen.

The subject was raised recently on the August 23 entry of the Spirit21.co.uk Blog run by Shelina Zahra Janmohamed who I have met at a City Circle meeting. I like Shelina's Blog which makes some fascinating and thought provoking comments on the nature of true religious belief but I had to disagree with her recent Blog concerning Muslim Marriage which was reproduced in The Times faithOnline Blog. Basically Shelina was talking about the problems faced by British Muslim wives who go through a Nikah ceremony but whose marriage is not registered under The Marriage Act 1949 , they are, in the eyes of the law, mere co-habitants and do not enjoy the legal protections enjoyed by wives whose marriage is registered under the Marriage Act.

Shelinas solution to the problem is to suggest that the law should be changed so as to give legal recognition to the Nikah but I strongly disagree, there is absolutely no problem with the law as it stands the only problem is that Imans and Mosques are ignoring the provisions of the Marriage Act and, arguably, committing a criminal offence for which they could be sentenced to 5 years imprisonment (s75 of the Act makes it a criminal offence to perform a marriage ceremony for a marriage that is not registered under the Act)

The Marriage Act, as it stands, recognises 3 basic types of Marriage ceremony
(i) A purely secular Marriage before a Registrar in a Registry office
(ii) A purely Secular Marriage before a Registrar in "Approved premises" eg Hotels, stately Homes etc
(iii) A Religious Marriage ceremony in a registered place of worship where a Registrar is present

Regarding option (iii) there is a slight exemption in the case of the Church of England because the CofE is the established Church Anglican Priests are also Registrars by virtue of their office. That particular status however is unique to Anglican Priests which means that Catholic priests, Jewish Rabbis, Sikh Granthis etc all have to arrange for a Registrar to be present in order for their religious marriages to be registered and that legal obligation doesn't seem to be causing them any problems. In practice most registrars at Religious Marriages are volunteer members of the Congregation who have been approved and trained by the local Superintendent Registrar, for example my Mum, after she retired, became a Registrar at her local Church and she, like thousands of other volunteers in Churches throughout the country, was responsible for attending Marriages in the Church, getting the certificates signed by the Happy Couple, and then sending the appropriate documentation off to her local Registration office. Any Mosque can similarly register itself under The Marriage Act 1949 and arrange for a member of its congregation to act as Registrar at any Nikah ceremony but only 120 Mosques have registered under the Act and, as Shelina confirms in her Blog, the majority of Muslim Marriges in Britain are not being registered under the Act.

So I repeat the questions I have asked Shelina, I have asked in this Blog, I have indeed asked Imans and to which I have not yet had an answer
"Why is it that only Islam seems to have a problem with the Marriage Act ?",
"Why is it that Imans and Mosques are continuing to perform Nikah ceremonies which are not registered under the Marriage Act"
"Why are the the MCB and MINAB not making it a requirement that their members operate in accordance with the law ?"

Having asked questions I will then answer the question that I am asked, "Why do I think this issue is important, and why do I continue to speak and write about it ?" The reason is twofold, firstly if Muslim marriages are not being registered under the law then Muslim wives, in particular, are being deprived of their natural rights as British citizens, they are entering into a relationship which they think is a lawful marriage and it is not.

More pertinently the idea that the law is treating Muslim Marriages unfairly is simply not true and it is the sort of untruth which encourages feelings of victimisation and alienation from society which are the breeding ground of radicalism and terrorism. If you read the comments section in the Times faithOnline Blog there were many who believed Shelinas suggestion that Muslims were being treated unfairly and so a controversy has been created where none should exist. Discrimination in the law is a bad thing and if the law was treating Muslims unfairly then it would need to be changed but where the law is fair and is treating religions properly and with respect then that fact needs to be stated loudly and clearly, Religions have enough real problems in modern society without creating imaginary problems where none exist.

Law and Religion Scholars Network

Amongst other organisations and groups I am a member of the Law and Religion Scholars Network run by the Cardiff University 'Centre for Law and Religion'

The Centre is run by Professor Norman Doe with much of the hard graft (as we say in the North) being done by Russell Sandberg. The two of them put in a large amount of work to bring together lawyers and others who are involved in legal and religious matters. In January for example there was a meeting discussing the various types of Courts or Tribunals run by religious organisations including Catholic Annulments, Jewish Beth Dinn and the Muslim Arbitration Tribunal. Papers from the meeting are made available at http://www.law.cf.ac.uk/clr/networks/ilan4.html

The Centre has now set up a Database of cases dealing with religion and law compiled by the Law and Justice case note writing team, led by Frank Cranmer. For each case, a short summary of the decision and a link to the transcript of the case is provided. A fuller case note for most of the cases is published in Law and Justice. Once the full case note has been published in Law and Justice then a reference to the case note will be added to the end of that entry. Judgments are arranged by year. The Case Database currently includes all cases from 2007 onwards, together with some of the most significant earlier cases. It can be found on the LARSN webpages at:
http://www.law.cf.ac.uk/clr/networks/lrsncd.html

Each list is split into two sections: the first includes cases heard in the United Kingdom, the second features cases heard by the European institutions. The entries are arranged chronologically, with the most recent cases at the top. I do something similar with Case reports at my site www.religionlaw.co.uk but it is always useful to have more than one source covering this subject and the LARSN database includes many cases relevant to the Church of England which I hadn't noticed.

For anyone interested in religion and law this site should be added to your 'favourites'. I can heartily recommend it

SSPX Church in Manchester

A story which bothers me but seems to have had surprisingly little publicity is the decision of the Church Commissioners , who look after the properties of the Church of England, to refuse to sell a disused Church in Manchester to the Society of St Pius Tenth (SSPX) The refusal seems to me to be nothing more than blatant religious discrimination and therefore illegal under Part 2 of the Equality Act 2006 .

For those who don't know about the SSPX it is a group which split from the Catholic Church following the Second Vatican Council and which continues to use the traditional Latin Mass instead of the new Catholic Mass which is said in the language of the congregation. I accept that a follower of SSPX would say that was a greatly oversimplified view of them and would also say that they had not split from the Catholic Church however this Blog is not the place to go into a debate which to the outsider can resemble arguments about Angels dancing on the heads of pins. The most famous, or infamous, member of SSPX is Bishop Williamson who expressed doubts about the Holocaust in an interview on Swedish TV.

Now I can understand the motives of those who justify the refusal to sell by reference to the remarks of Bishop Williamson however the point is that Williamson is just one of 4 SSPX Bishops, he is not the superior of the SSPX and his remarks were not supported by his fellow Bishops so therefore it does seem that the entire SSPX is being punished because of the remarks of one person and, in simple terms, that is unjust and unfair.

Besides being unfair on the members of the SSPX, who are being deprived of the opportunity to spend their money on restoring a derelict Church and returning it to Christian worship, the decision creates a dangerous precedent. If Catholics apply to build a new Church will people be able to object because of something the Pope has said, should Mosques be banned because of Osama Bin Laden ? Just exactly where do we as a society stop once we go down the road that the only religions that are allowed to open new places of worship are religions "we" agree with ?

What I found especially hard to stomach was the remark by the Bishop of Manchester, that the sale of the derelict Church to the SSPX would not be in the interests of "ecumenical relations or inter-faith work". The Bishop clearly has a pretty Orwellian view of what Ecumenism and inter-faith work actually means. Whether one likes SSPX or not they are a religious group, a "faith community" in the modern parlance and they are just as entitled to ecumenism and respect as any other "faith community" the Bishop deals with.

The SSPX have been pilloried as being bigoted and intolerant, I am not a member so I cannot comment on the general views of members of the SSPX, but one thing I do know in this particular case it is the SSPX which is the victim of bigotry and intolerance. I also suspect that they have a good legal case should they decide to challenge the Church Commissioners.