Chris, thanks for passing along. This is really interesting, and "Clandestine Marriages Act" is officially my favorite statute name of the week.
-Alan H. On Thu, Dec 12, 2013 at 1:31 PM, Christopher Lund <christopher.c.lund...@nd.edu> wrote: > 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. _______________________________________________ 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.
