Tuesday, 5 April 2011

Religion and the Courts

Aidan O’Neill QC has written about Religious Organisations and Secular Courts: The Ministerial Exception.

Read it in two parts at the UK Supreme Court Blog.

Part 1: The Ministerial exception in US case law

On 28 March 2011 the United States Supreme Court granted certiorari in Equal Employment Opportunity Commission and Perich v. Hosanna-Tabor Evangelical Lutheran Church. This means that an appeal can be brought before the US Supreme Court in which, for the first time, that court will consider the constitutionality of the legal doctrine known as the “Ministerial exception”.

The “Ministerial exception” is a US court created (common law) principle which is said to be implicit within and derived from the US Constitution’s First Amendment’s prohibition of “religious establishment” and its guarantee of “religious freedom”…

Part 2: The Ministerial exception in UK and EU case law

Perhaps under the influence of this US case law, by the last quarter of the twentieth century the growing tendency of the courts – at least in England and Wales – was to seek to avoid becoming mired in matters of ecclesiastical sensitivity and/or theological controversy by denying that they had jurisdiction to consider (intra- or inter-) religious disputes brought before them.

Paradoxically, this new found uneasiness as to the propriety of the civil courts ruling on matters religious might be thought to reflect the growing secularisation of public life in the UK, with the judges drawn from an increasingly unChurched class who – in contrast to their church-going and religiously literate Victorian and Edwardian forbears – felt uncomfortable and unqualified to sit in judgment on religious matters. Thus, the courts in England and Wales in this period declined to consider applications for judicial review brought by individuals exercising ministerial functions within various non-established religious denominations on the grounds that there was no “public law” element such as to make the case suitable for judicial review, apparently relying on a UK public law principle of separation of Church and State which had, in fact, no place historically with the polities making up the United Kingdom…

Posted by Simon Sarmiento on Tuesday, 5 April 2011 at 5:24pm BST | TrackBack
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Categorised as: equality legislation

For a really great outline of what's at issue in Perich, see http://religionclause.blogspot.com/2011/03/what-is-at-issue-in-hosanna-tabor-case.html. I'm not unsympathetic with Aidan O'Neill's approach. But I'm not sure that the results are entirely different if you adopt the US approach. The ministerial question still raises the question of who is a minister. In Percy, for example, the minister had been employed under a contract and was not a Church of Scotland 'minister' called by a congregation. That may narrow the scope of the exception, but it may not have disappeared entirely (particularly given the Church of Scotland Act 1921, which gives judicial immunity to the church in matters of 'doctrine, worship, government and discipline'). Here's a (somewhat) comparable case from the US: http://vlex.com/vid/bryce-episcopal-church-diocese-colorado-18491075. The practical down side to Percy is that it gives churches a disincentive to define the expectations of its ministerial employees: the more defined they are, the more likely there is to be a contract. My own prejudice is in favour of letting churches work these things out for themselves at the margin: if Roman Catholic churches don't want to have women clergy, they should suffer losses in attendance and financial support from declining membership; I don't think that discrimination law should be the mechanism to force them to do so. But despite seven years in this country, I'm still a hopeless septic (rhyming slang: septic tank...).

Posted by: Scot Peterson on Thursday, 7 April 2011 at 9:37am BST
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