Tag Archives: United Kingdom

Good-Bye to All That?

Posted on May 19, 2013 by | Leave a comment

A report in last week’s Telegraph suggests that British Christianity is declining more rapidly than previously understood. Initial reports about the 2011 census showed the number of people in England and Wales who describe themselves as Christians had fallen by 10 percent since 2001. But it turns out those figures included Christian immigrants, such as Polish Catholics and African Pentecostals. When one looks only at the native born, the percentage of people who describe themselves as Christians has fallen by an even greater amount–by 15% in the space of one decade. The decline is particularly pronounced among the young. At this rate, the Telegraph predicts, Christianity could become a minority religion in Britain within the next decade.

These numbers have worrisome implications for the future of the Established Church. In a country where only a minority is willing to describe itself as Christian, what would be the basis for maintaining state Christianity? A spokesman for the Church of England admits the census numbers present a challenge, but notes that recent attendance figures have been stable, and that the committed core “of the faithful remains firm.” Maybe so, but state churches, almost by definition, need to draw support from society as a whole, not only the people who attend every Sunday. Perhaps those respondents who said they weren’t Christians nonetheless think the established church serves a useful social function and want it to endure. But maybe not.

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Posted in Commentary, Mark L. Movsesian

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UK Supreme Court Decides Important Ministerial Employment Case

Posted on May 15, 2013 by | Leave a comment

Yesterday, the UK’s Supreme Court decided an important ministerial employment case, President of the Methodist Conference v. Preston. In many respects, Preston tracks the US Supreme Court’s recent ministerial exception case, Hosanna-Tabor, though the British case does not refer to Hosanna-Tabor and doesn’t explicitly address church autonomy concerns.

In Preston, a Methodist minister sought relief under UK employment law for unfair dismissal. The question turned on whether Preston was an “employee” for purposes of the law, which, in turn, depended on whether she worked for the church under a “contract of employment.”  By a 4-1 vote, the Supreme Court held that she did not.

In the past, Lord Sumption’s opinion explained, UK cases drew a bright line between clergy, who were understood to hold offices of an essentially spiritual nature, and mere employees. But these rulings depended on “social instincts” that do not obtain in today’s more “secular and regulated context.” Today, the question turns on the precise terms that govern a minister’s employment. In other words, the UK courts must apply what Americans would recognize as a “neutral principles of law” approach. Courts must look at the terms of a minister’s employment in light of the surrounding circumstances to see what the parties reasonably intended.

Here, Lord Sumption wrote, the context made plain that Methodist ministers like Preston are not contractual employees. Preston had no contract with the church; her employment was governed completely by the church’s constitution. Her ordination, conferred by the laying on of hands, was understood to be a lifelong covenant. Her stipend was not seen as consideration for her work, but as a subsidy to allow her to serve the Lord. In short, by its terms, ministry in the Methodist Church was “a vocation, by which candidates submit themselves to the discipline of the church for life.” No special circumstances in Preston’s case altered this conclusion.

In its insistence on looking to the particular circumstances of a plaintiff’s employment, Preston echoes the flexible approach to the definition of minister that one sees in Hosanna-Tabor. Unlike the American court, though, the British court didn’t much address the underlying church autonomy values that ministerial exceptions serve. In large part, this reticence results from the different texts the courts were construing. Preston is a straightforward statutory question without constitutional implications; Hosanna-Tabor, by contrast, depends on an understanding of the Free Exercise and Establishment Clauses of the First Amendment.

(H/t: Law & Religion UK).

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Posted in Commentary, Mark L. Movsesian

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Conference: “Rights and Rites: A UK Perspective on Law and Religion,” at Fordham

Posted on February 21, 2013 by | Leave a comment

If you are in the New York City area this coming Tuesday, February 26, you should consider attending this interesting conference sponsored by Fordham Law School’s Institute on Religion, Law, and Lawyer’s Work: “Rights and Rites: a UK Perspective on Law and Religion.”  Here’s Fordham’s description of the conference:

Ms. Archbold will critique the UK legal approach to religion, comparing the US and French constitutional approaches to religion (which are at opposite ends of the spectrum) to the UK approach. Ms. Archbold will ask whether there is a fundamental tension between the anti-discrimination and human rights approaches, while reviewing the landscape of UK and European Court of Human Rights case law, including the veil, religious symbol, school admissions, and religion and sexual orientation discrimination cases. Being from Northern Ireland, Ms. Archbold will offer insight into particular anti-discrimination and positive public duty provisions in Northern Ireland that have been demonstrated to be effective in reducing discrimination on the grounds of religion.

Speakers:

Claire Archbold, Head of Legal Services, Northern Ireland Department of Justice

Moderator:

Professor Michael W. Martin, Fordham Law School Clinical Associate Professor of Law

Register here.

Tuesday, February 26, 2013 | 12:45-1:45PM

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Posted in Marc O. DeGirolami, Scholarship Roundup

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ECtHR to Issue Ruling in UK Religious Freedom Cases Tomorrow

Posted on January 14, 2013 by | Leave a comment

Tomorrow, a chamber of the ECtHR will release its judgment in Eweida and Others v. United Kingdom. As we explained back in September, when the cases were argued, the ECtHR’s ruling could have a major impact on religious freedom jurisprudence under the European Convention on Human Rights:

The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

CLR Forum will have an analysis of the judgment later this week.

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Posted in Commentary, Mark L. Movsesian

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Update on English Sabbath-Observance Case

Posted on January 13, 2013 by | Leave a comment

An update on an earlier post about an English appellate court decision on the right of Christian employees to decline to work on Sundays. The decision was released to the public last week, and it turns out that initial press reports were a bit misleading.

The case involved Ms. Celestina Mba, a caregiver in a children’s home who wished to abstain from work on Sundays for religious reasons. When her employer told her she would have to work Sundays, Ms. Mba sued for religious discrimination. A lower court held for the employer and, last month, an  appellate court affirmed.

Under English law, employers can require Christian employees to work Sundays  if there is a legitimate need and the work requirement is proportionate to that need. Press reports, particularly this one in the Telegraph,  made it seem like the appellate court had ignored that balancing test and held categorically that Sunday observance is not a core Christian belief and that Christians could be required to work.

As it turns out, the appellate court did discuss the balancing test. The facts of the case were these. The center had accommodated Ms. Mba for two years, but had ultimately determined that allowing her to stay home Sundays put too great a strain on other staff and threatened to disadvantage the children. These were surely legitimate business needs. And the center had only required Ms. Mba to work some Sundays — roughly two out of three. This seemed a proportionate response to that need.

So where did the language about Sunday observance not being a core Christian belief come in? The lower court had reasoned that, because many Christians do not feel an obligation to abstain from Sunday work, abstention could not be considered a core Christian belief. The appellate court criticized the lower court’s language on this point, but basically agreed with the lower court’s reasoning. In determining whether a work requirement were proportionate to a legitimate business need, the appellate court explained, one had to consider what percentage of a faith community the requirement would affect. If the requirement would affect a large segment of the community, that would suggest that the requirement were disproportionate. If, by contrast, the requirement would affect only a small percentage, that would suggest the opposite. Here, the appellate court reasoned, in requiring Sunday work, the center could take into account the fact that many Christians would have no objection at all to working Sundays.

This is all a bit complicated, the way legal opinions often are. Frank Cranmer at the Law and Religion UK blog has a good description of the opinion, if you’re interested in more details. The bottom line is that the appellate court’s decision was narrower and more subtle than the Telegraph’s report conveyed.

Why did the Telegraph get it wrong? The appellate court’s judgment was announced on December 13, but the opinion was not released to the public until January 10. The Telegraph reported the story at the end of December, before the opinion was available. Apparently the reporter relied on lawyers’ accounts of the case.

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Posted in Commentary, Mark L. Movsesian

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Muslim Parents Sue Greek Orthodox School for Banning Head Scarves

Posted on January 10, 2013 by | Leave a comment

Here’s an unusual case. Muslim parents are suing a public school in south London for refusing to allow their nine-year old daughter to wear a head scarf to class. That’s not so unusual in itself. Law school casebooks are full of cases in which parents sue public schools for failing to accommodate their children’s religious practices. What makes this case unusual is that the public school in question, St. Cyprian’s in Croydon, is an Orthodox Christian school.

To Americans, faith-based public schools are unfamiliar. As Ashley Berner explains here, however, such schools are common in England. According to the official government website, roughly 7000 “maintained,” as in publicly maintained, “faith schools” exist, the large majority of which are affiliated with the Church of England. St. Cyprian’s is affiliated with the Greek Orthodox Church — it is the only Greek Orthodox school in England, in fact. As a faith-based school, St. Cyprian’s may give priority in admission to Greek Orthodox students, though by law it must admit students of other faiths if places remain unfilled. As far as I can tell, like other public schools, St. Cyprian’s may adopt its own school uniform policy, subject to very broad guidelines.

I’m not sure how the English courts will resolve this dispute. But the whole situation is puzzling and it’s a shame things have come so far. It’s odd, in the circumstances, that the parents would insist on a Greek Orthodox school for their daughter. If it’s so important to them that she maintain Muslim practices, why put her in a school in which a different religion is pervasive? Isn’t that a bit unreasonable, and unfair to her? The school says the parents petitioned to send their daughter to St. Cyprian’s, and that the school’s rule against head scarves was explained to them before she matriculated. St. Cyprian’s has very high academic ratings; perhaps that explains why the parents are so eager to have their daughter attend. Still, it’s all rather odd.

On the other hand, the school’s position is puzzling as well. There’s nothing in Orthodoxy that forbids the wearing of head scarves; in fact, some Orthodox women wear head scarves in church. Perhaps St. Cyprian’s is concerned that a visible non-Orthodox presence would dilute the school’s identity. That’s a valid concern, in my opinion. And I can understand how school officials might think they’ve been sandbagged by the parents in this case. If the parents knew about the rule against head scarves before their daughter matriculated, why are they complaining now? But the law requires St. Cyprian’s to admit non-Orthodox students if it has places for them, and it doesn’t seem tenable to admit such students and then forbid them from wearing their religious attire. Anyway, mightn’t it be better, in the circumstances, to allow this student to wear her head scarf? What would demonstrate more effectively the essential nature of Christianity — its willingness, even joy, in serving everyone and anyone?

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Posted in Commentary, Mark L. Movsesian

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Sandberg, et al. on Britain’s Religious Tribunals and “Joint Governance”

Posted on January 7, 2013 by | Leave a comment

Russell Sandberg, Gillian Douglas, Norman Doe, Sophie Gilliat-Ray and Asma Khan (Cardiff U.) have posted Britain’s Religious Tribunals: ‘Joint Governance’ in Practice. The abstract follows.

In recent years, there have been a number of moral panics in Western societies about the existence of religious courts and tribunals in general and Shariah law in particular. In England and Wales, these concerns came to the fore following the 2008 lecture by the then Archbishop of Canterbury, Dr. Rowan Williams, on ‘Civil Law and Religious Law in England’. In that lecture, Williams drew upon the work of the Canadian scholar Ayelet Shachar endorsing her concept of ‘transformative accommodation’. In this article, we return to the work of Shachar in the light of our recent empirical study which examined the divorce jurisdiction of three religious tribunals in detail: a Jewish Beth Din; a matrimonial tribunal of the Roman Catholic Church; and a Muslim Shariah Council. We suggest that the focus upon Shachar’s concept of ‘transformative accommodation’ by Williams and subsequent commentators is unfortunate given that Shachar actually proposes ‘transformative accommodation’ as just one variant of what she refers to as ‘joint governance’ (albeit her preferred variant). We propose that the umbrella concept of ‘joint governance’ and its other variants can be developed in a way that could prove to be more useful than ‘transformative accommodation’.

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Posted in Andrew R. Hamilton, Scholarship Roundup

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Working on Sunday

Posted on January 4, 2013 by | Leave a comment

Here’s an update to last week’s post about a movement to curtail Sunday shopping in Europe. In that post, I speculated that allowing stores to open Sundays might create pressure for observant Christian employees: skip church and report to work, or lose your job. It turns out this concern isn’t speculative. In England, a High Court judge recently ruled that employers may discipline observant Christians who refuse to work Sundays.

The case involves Ms. Celestina Mba, who worked as a caregiver in a government-run children’s center. A devout Baptist, she goes to church every Sunday and does not wish to work on that day. When her employer — a government agency, note, in a state with an established church — pressured her to work Sundays, she quit and sued for employment discrimination. She lost at trial and, last month, in the High Court as well.

Why did she lose? English law allows employers to require employees to work Sundays if there is “a legitimate business need.” According to press reports, though, the High Court did not rely on that principle in Ms. Mba’s case. Rather, the court reasoned that Christianity did not require Sabbath observance in the first place. Plenty of Christians work Sundays, the court noted; only a few, like Ms. Mba, see it as a problem. As a result, religious freedom was not seriously implicated by requiring her to work. Employers, the court reasoned, do not need to accommodate outliers like Ms. Mba.

Now, this reasoning is very odd. The fact that some of those Christians who work Sundays might be doing so because they have to — that is, because otherwise they would lose their jobs — apparently did not occur to the court. Moreover, the fact that many Christians see no problem with working Sundays doesn’t mean that other Christians cannot have a legitimate religious objection. Courts don’t usually require that practices be “mainstream” within a religion in order to receive legal protection. Besides, attending church on Sundays is hardly an esoteric practice in Christianity. Many Christians are known to do it — though not in today’s England, I guess.

Something strange is happening in the UK. It’s not just Ms. Mba’s case. In a separate case currently pending at the European Court of Human Rights, the British government has taken the position that employers may fire Christian employees who wear crosses to work. Again, the argument is that religious freedom doesn’t apply in such situations. Why? Because wearing a cross is not “generally recognized” by Christians as a religious requirement: most Christians don’t wear crosses, so individual Christians don’t have a right to wear them. But where’s the sense in that? Most Christians don’t carry Bibles around with them, either. Does that mean forbidding Christians from carrying Bibles would not implicate religious freedom?

We’ll see in the next several months what the European Court makes of all this. I wonder whether Ms. Mba will apply to that court for relief in her case. I note she is represented by British religious rights lawyer Paul Diamond, who argued the cross-wearing case at the European Court last fall. You can watch the argument here.

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Posted in Commentary, Mark L. Movsesian, Uncategorized

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Ahmed & Norton on Religious Tribunals in the United Kingdom

Posted on November 27, 2012 by | Leave a comment

Farrah Ahmed (University of Oxford, Melbourne Law School) and Jane Calderwood Norton (University of Birmingham School of Law) have posted Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women.  The abstract follows.

For the most part current UK law does not interfere with the operation of religious tribunals. The role of religious tribunals in family matters in the United Kingdom is, however, fiercely debated. While many considerations are at play in these debates, two are often set up against each other. Religious freedom is often given, on the one hand, as a reason not to interfere with religious tribunals. On the other hand, however, concern for the vulnerable – especially women in religious groups – is thought to weigh in favour of greater interference. This article evaluates the current legal response to religious tribunals in the UK in the context of family matters against these two key values. It also clarifies and expands on how religious tribunals can both harm and enhance these values. It finds that contrary to the way the debate is often presented, religious tribunals can harm religious freedom while, at the same time, they can also enhance the welfare of vulnerable persons.

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Posted in Scholarship Roundup, Yosefa A. Heber

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Hatzis on Anti-Discrimination Law and Clergy in the U.K.

Posted on November 21, 2012 by | Leave a comment

Nicholas Hatzis (University of Oxford) has posted The Church-Clergy Relationship and Anti-Discrimination Law. The abstract follows.

Should antidiscrimination norms apply to the relationship between a religious group and its clergy? In Hosanna-Tabor Evangelical Lutheran Church v EEOC the US Supreme Court affirmed the existence of a “ministerial exception” which bars discrimination claims by ministers of religion against their church. In 2005 the House of Lords had reached the opposite conclusion, ruling, in Percy v Board of National Mission of the Church of Scotland, that the decision to dismiss an ordained minister was not a spiritual matter falling outside the scope of secular law. This article examines the constitutional foundations of the ministerial exception, argues that Percy ignored important aspects of church autonomy and suggests that courts should consider creating a narrowly tailored rule exempting decisions to appoint or remove clergy from the scope of anti-discrimination law.

 

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Posted in Dylan W. Sherwood, Scholarship Roundup

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