This title somewhat oversimplifies things, so please forgive it. Anyway, yesterday the Supreme Court of the United Kingdom released the judgment in R v. Registrar General, available here, http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0030_Judgment.pdf.
The plaintiffs in the case were a Scientologist couple (opposite-sex) whose marriage in a church ceremony was denied legal recognition. By statute, religious marriages in Britain must be performed in a “place of meeting for religious worship” to be given legal recognition, and an old precedent (a 1970 case, Segerdal) had concluded that while Scientology may or may not be a religion, in any event Scientologists don’t worship. The Court here reverses course, interpreting “religion” as broad enough to include Scientology, and “worship” as broad enough to include Scientologist practices. There’s a lot in it that’s interesting. If I were a casebook editor, I might include it in the section of the casebook that’s usually titled, “What Is Religion?” The Court contrasts more functional, more family-resemblance-style approaches to religion (such as the one our Supreme Court took in Seeger and Welsh, both of which are mentioned in the opinion) with more formalistic, more elemental kinds of approaches (such as the one suggested by a High Court of Australia judge). In deciding to adopt our kind of approach, the Court relies heavily on the inequity that would result from a narrow view of religion. Hinduism, Buddhism, Jainism, and Taoism might all be unprotected. Courts would have to venture into “difficult theological territory” (p. 17), as even some professed Christians do not believe in God. (There is a paragraph about Honest to God, the 1963 book by Bishop John Robinson.) The Court does not go so far to say that all belief systems are religious in nature. Instead, it says there must be “a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science,” although it then immediately backs away from this a bit, adding that “this is intended to be a description and not a definitive formula.” I also liked that the opinion begins with a nice bit of history chronicling the development of legal marriage in England. At the beginning, it seems like the classic establishment of religion—total church control over marriage. Accommodation of dissenters is both gradual and slow. Before the Clandestine Marriages Act of 1753, marriage was governed entirely by canon law (of the Church of England). The 1753 Act changed that. It created marriage as a legal institution, although if people wanted to get married, they could only do so in an Anglican church by an Anglican minister. Exceptions were made, but only for Quakers and Jews. That changed only with the Marriage Act of 1836, which allowed marriage in any “place of meeting for religious worship” (which is where the phrase comes from) and other authorized non-religious venues. Not only does the opinion cite Seeger and Welsh and Malnak v. Yogi, it cites Professors Sarah Barringer Gordon (Penn) and Leslie Griffin (UNLV), and discusses Professor Gordon’s work in some detail. Congratulations to them! Best, Chris ___________________________ Christopher C. Lund Visiting Assistant Professor of Law Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556-0780 clu...@nd.edu Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
