Comments: Religion and the Courts

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 at Thursday, 7 April 2011 at 9:37am BST
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