Law and Religion Scholars Network
Case Database - 1990s
This list includes significant judgments delivered earlier than 2000.
J (A CHILD), RE  EWCA Civ 3022 (25 November 1999): section 2(7) of the Children Act 1989 did not permit a Muslim father to have his five-year-old son circumcised without the consent of his estranged non-Muslim wife:his right to manifest under Article 9 ECHR (thought, conscience and religion) had to be balanced against the child’s welfare and the rights of the mother and ‘[t]he decision to circumcise a child on ground other than medical necessity… should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child’ (per Butler-Sloss P at para 32).
P (A CHILD), RE  EWCA Civ 1323 (30 April 1999): although she was of Orthodox Jewish parents, the court refused to return to her natural parents a child with Down’s Syndrome who was being fostered by non-practising Roman Catholics because she did not have the ability to appreciate or understand her religious heritage and the benefit of a Jewish upbringing did not outweigh her exceptionally strong attachment to her foster-parents: inter alia, there was no presumption that natural parents were to be preferred to foster-parents (the primary consideration under s 1(1) of the Children Act 1989 being the child's welfare) and although the court was required to have regard to the child’s background, including her cultural and religious heritage, that was not determinative.
R v PROVINCIAL COURT OF THE CHURCH IN WALES e p WILLIAMS  EWHC Admin 998 (23rd October 1998): though the decisions of the consistory courts of the Church of England were reviewable by the secular courts those of the Church in Wales were not, since the Church possessed no statutory or governmental function either de facto or de jure and its authority arose from consensual submission to its jurisdiction: moreover, as a result of ordination in the Church in Wales the applicant had consented to the procedures set out in its Constitution and could not, therefore, have a legitimate grievance about those procedures.
VARSANI & ORS v JESANI & ORS  EWCA Civ 630 (3 April 1998): when, in the case of a charity for the benefit of a Hindu sect that had undergone a schism, the majority faction sought to remove the trustees of the charity who were members of the minority faction, the Court of Appeal upheld a direction at first instance to prepare a suitable scheme for the consideration of the Court that would divide the property between the two groups: the Court could not itself determine which set of beliefs promoted by the two competing groups was the set of beliefs which the trust existed to promote
ADDY & ORS, RE APPLICATION FOR JUDICIAL REVIEW  EWCA Civ 478 (18 March 1998): the decision of a Review Board to withdraw housing benefit from a member of the Jesus Fellowship Church and the New Creation Christian Community (whose members gave all their capital to the governing Trust on becoming members and were required to pay all their income as soon as it was received into the Common Purse established by the community house of the Church household in which they lived) was quashed: although there was some spiritual element in the agreement between individual members and the Church that element did not deprive the rest of the arrangement of its legally-enforceable character, nor was it merely a contrivance created to take advantage of the Housing Benefit Scheme.
R v LONDON BETH DIN (COURT OF CHIEF RABBI) e p MICHAEL BLOOM  EWHC Admin 1028 (18th November, 1997): the decision of the respondent to withdraw the claimant’s kashrut licence was not reviewable: the granting of such licences was neither a statutory nor governmental function but a religious one: the jurisdiction of the Beth Din arose from the licence agreement and was ‘purely consensual’.
COKER v DIOCESE OF SOUTHWARK & ORS  EWCA Civ 2090 (11 July 1997): an assistant curate in the Church of England was not an employee for the purposes of statutory employment rights: ‘The legal implications of the appointment… must be considered in the context of that historic and special pre-existing legal framework of a church and an ecclesiastical hierarchy established by law, of spiritual duties defined by public law rather than by private contract, and of ecclesiastical courts with jurisdiction over the discipline of clergy… the law requires clear evidence of an intention to create a contractual relationship in addition to the pre-existing legal framework. That intention is not present… (per Mummery LJ).
IN RE B  3 WLR 40 CA (17 March 1995): an adult had discovered that his Jewish adoptive parents had adopted him in the mistaken belief that he was Jewish when, in fact, his natural parents were an Englishwoman and an Arab and, in order to make it easier to travel to the Middle East to seek work, he applied to have the adoption order set aside on grounds of mistake: his application was refused because the act of adoption was final, effecting a permanent change in the status of the child and the parties: their original misapprehension could not constitute a ground on which to set it aside.
LOGAN v PRESBYTERY OF DUMBARTON 1995 SLT 1228 CS (OH): the Court refused to interfere with a presbytery’s suspension from office of a parish minister on grounds of contempt: the suspension came within the Church of Scotland’s exclusive jurisdiction over ‘doctrine, worship, government and discipline’ under Article IV of the Articles Declaratory annexed to the Church of Scotland Act 1921 and the petitioner should instead appeal to the General Assembly against the decision of his presbytery: ‘the situation of the courts of the Church of Scotland cannot be equiparated with any tribunal created or upon which a power has been conferred by Parliament’.
AIREDALE HOSPITAL TRUSTEES v BLAND  UKHL 5 (4 February 1993): in the case of a patient who had spent three years in a persistent vegetative state and was being kept alive only by artificial feeding and intensive medical care, the House of Lords agreed with the professional opinion of his doctors that no useful purpose was to be served by continuing that state of affairs and it would be lawful to discontinue medical care.
HARRIES (BISHOP OF OXFORD) v CHURCH COMMISSIONERS FOR ENGLAND  1 WLR: Nicholls V-C refused to make a declaration that, in managing their assets under the Church Commissioners Measure 1947, the Commissioners and their subsidiary bodies might not act in manner incompatible with the object of promoting the Christian faith through the Established Church of England – on the grounds, inter alia, of ambiguity.
R v CHIEF RABBI OF THE UNITED HEBREW CONGREGATIONS OF GREAT BRITAIN AND THE COMMONWEALTH e p WACHMANN:  1 WLR 1036: a decision of the Chief Rabbi was not reviewable by the secular courts: ‘It cannot be suggested ... that the Chief Rabbi performs public functions in the sense that he is regulating a field of public life and but for his offices the government would impose a statutory regime… his functions are essentially intimate, spiritual and religious – functions which government could not and would not seek to discharge in his place were he to abdicate his regulatory responsibility’.
R.v CHIEF METROPOLITAN STIPENDIARY MAGISTRATE e p CHOUDHURY  1 QB 429;  1 All ER 306: an attempted private prosecution for blasphemy against Salman Rushdie following the publication The Satanic Verses failed: the Court of Appeal was not prepared to extend to religions other than Christianity an offence for which there had only been two prosecutions in 70 years and which the Law Commission in 1985 had recommended should be abolished.
BIRMINGHAM MOSQUE TRUST LTD v ALAVI  UKEAT 188 91 0312 (3 December 1991): the functions carried out by the defendant in the mosque and in the centre connected to it did not constitute ‘employment’, since they arose from his learning in the faith and his work in advancing Islam: ‘If the correct approach is to look at those religious duties or duties based upon religion which are involved in the cases of a mosque and a centre connected with a mosque, then on the facts of the present case it seems to us that almost the entirety of Dr Alavi’s functions… were connected with the Islamic religion:… insofar as the Tribunal [at first instance] found that if there had been a contract there was a contract of service… it erred in that it allowed those matters which are based on a religious appointment to be deemed to be obligations related to employment rather than related to the appointment as a religious person’ (per Wood J).
SERIF v GREECE  ECtHR (No. 38178/97) (14 December 1999): after the election of the applicant as Mufti of Rodopi, contrary to a new law providing for the appointment of muftis by the President of the Republic, he was convicted under the Criminal Code for usurping the functions of a minister of a ‘known religion’ and of publicly wearing the robes of office: though the interference with Article 9 ECHR (thought, conscience and religion) pursued the legitimate aim of protecting public order because of divisions within the Muslim community, punishing someone simply because he acted as the religious leader of a group that willingly followed him was incompatible with the demands of religious pluralism in a democratic society: nor did the Government need to take measures to ensure that religious communities remained under or were brought into a unified leadership.
McGUINNESS v UNITED KINGDOM  ECtHR (No. 39511/98) (8 June 1999): the requirement for an MP to take an Oath or Affirmation of Allegiance to the British Monarch in order to sit and vote in the House of Commons did not violate Article 10 ECHR (expression) nor did the fact that the Monarch is by law prohibited from being a Roman Catholic or from marrying one traverse the claimant’s rights under Article 9 (thought, conscience and religion).
BUSCARINI & ORS v SAN MARINO  ECtHR (No. 24645/94) (18 February 1999): the requirement for members of the San Marinese Parliament to swear the oath of office on the Gospels had been tantamount to requiring elected representatives of the people to swear allegiance to a particular religion and therefore incompatible with Article 9 ECHR (thought, conscience and religion).
LARISSIS & ORS v GREECE  ECtHR (Nos. 23372/94, 26377/94 & 26378/94) (24 February 1998): the applicants, Air Force officers and adherents of the Pentecostal Church, allegedly approached three airmen serving under them and two civilians (all of them Orthodox Christians) and spoke to them about the teachings of the Pentecostal Church: given the nature of the airman/officer relationship their subsequent convictions for proselytising the servicemen had not violated Article 9 ECHR (thought, conscience and religion) but the measures taken in relation to proselytising the civilians were unjustified and breached Article 9: see also KOKKINAKIS v GREECE  ECtHR 20 (No. 14307/88) (25 May 1993)
CANEA CATHOLIC CHURCH v GREECE  ECtHR 100 (No. 25528/94) (16 December 1997): the legal personality of the Roman Catholic Church in Greece and of its individual parish churches had never been questioned since the creation of Greek state and in its day-to-day business the applicant church could reasonably rely on the assumption that it possessed legal personality: the Court of Cassation’s ruling that the church had no legal personality therefore violated its rights under Article 9 ECHR (thought, conscience and religion) and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions) because it prevented the church from taking legal action to protect its land and buildings, whereas the Orthodox and Jewish communities could do so without any formality or required procedure.
TSIRLIS & KOULOUMPAS v GREECE  ECtHR (Nos. 19233/91 & 19234/91) (29 May 1997): the refusal to exempt from military service two religious ministers of the Central Congregation of the Christian Jehovah’s Witnesses of Greece in accordance with section 6 of Law No. 1763/1988 (which grants such right to all ministers of ‘known religions’) and their subsequent imprisonment were arbitrary, lacked any basis in domestic law and were discriminatory when contrasted with the way in which Orthodox priests were treated: the applicants’ rights under Article 5 ECHR (liberty and security of person) had been violated.
X, Y AND Z v UNITED KINGDOM  ECtHR [GC] (No. 21830/93) (22 April 1997): the refusal of the authorities to register a female-to-male transsexual as the father of a child conceived by his partner through AID did not violate Article 8 ECHR (private and family life) (by 14 votes to 6): there was no separate issue under Article 14 (discrimination) (by 17 votes to 3): see also X, Y AND Z v UNITED KINGDOM  ECommHR (No. 21830/93) (27 June 1995).
EFSTRATIOU v. GREECE  ECtHR (No. 24095/94) & VALSAMIS v GREECE  ECtHR (No. 21787/93 (18 December 1996): a two-day suspension from school of two pupils for failure to take part in a school parade because they were Jehovah’s Witnesses who objected to the presence of military representatives at some of the parades which took place in Greece on the day in question had violated their rights under Article 13 ECHR (effective remedy) taken with Article 2 of Protocol No. 1 (education) and Article 9 (thought, conscience and religion), but not taken together with Article 3 (inhuman or degrading treatment): Thór Vilhjálmsson and Jambrek JJ dissented in part, holding that there had been separate violations of Article 2 of Protocol No. 1 and of Article 9).
WINGROVE v UNITED KINGDOM  ECtHR (No. 17419/90 ) (25 November 1996): the refusal by the British Board of Film Classification to grant a classification certificate to the applicant for a video film about Theresa of Avila, Visions of Ecstasy, because it was deemed to be blasphemous was both prescribed by law and pursued the legitimate aim of protecting the rights of others and did not, therefore, violate Article 10 ECHR (expression) (by 7 votes to 2): see also WINGROVE v UNITED KINGDOM  ECommHR (No. 17419/90) (10 January 1995), where the Commission on Human rights came to the contrary view.
MANOUSSAKIS & ORS v GREECE  ECtHR (No. 18748/91) (26 September 1996): procrastination by the Minister of Education and Religious Affairs over an application by a group of Jehovah’s Witnesses for permission to inaugurate a place of worship and subsequent criminal proceedings against them for establishing a place of worship ‘without permission from the recognised ecclesiastical authorities and the Minister of Education and Religious Affairs’ (in which they were acquitted both at first instance and on appeal) constituted an interference with their freedom to manifest that was not necessary in a democratic society and violated their rights under Article 9 ECHR (thought, conscience and religion).
WINGROVE v UNITED KINGDOM  ECtHR 60 (No. 17419/90) (25 November 1996): the refusal of the British Board of Film Classification, on grounds of blasphemy, to give a classification to the video of Visions of Ecstasy (the story of Teresa of Avila, a sixteenth-century nun who experienced powerful ecstatic visions of Jesus) was neither contrary to Article 10 ECHR (expression) nor disproportionate.
THE HOLY MONASTERIES v GREECE  ECtHR (Nos. 13092/87 & 13984/88) (9 December 1994): in a dispute concerning the proposed transfer to the control of the Greek state of a large part of the applicants’ monastic property which had been acquired before the formation of the state in 1829, it was held that the proposed transfer breached the applicant monasteries’ right to the peaceful enjoyment of their possessions under Article 1 Protocol No. 1 ECHR but did not contravene Article 9 (thought, conscience and religion) since it did not concern the objects intended for the celebration of divine worship: in addition, the monasteries were non-governmental organisations within the meaning of Article 25 (now 34) ECHR since ‘the applicant monasteries do not exercise governmental powers… Their objectives – essentially ecclesiastical and spiritual ones, but also cultural and social ones in some cases – are not such as to enable them to be classed with governmental organisations established for public administration purposes. From the classification as public law entities it may be inferred only that the legislature… wished to afford them the same legal protection vis-à-vis third parties as was accorded to other public law entities.’
HOFFMANN v AUSTRIA  ECtHR (No. 12875/87) (23 June 1993): the decision of the Austrian Supreme Court to grant custody of the children of a divorced mother (a former Roman Catholic who had become a Jehovah’s Witness) to their father breached her rights under Article 8 ECHR (family life): though the aim had been legitimate one – the protection of the health and rights of the children – a distinction based essentially on a difference in religion alone was not acceptable and therefore disproportionate, in breach of Article 8 in conjunction with Article 14 (discrimination).
KOKKINAKIS v GREECE  ECtHR 20 (No. 14307/88) (25 May 1993): the sentence passed on a Jehovah’s Witness for engaging in religious discussion with the wife of the cantor of the local Orthodox Church was contrary to Article 9 ECHR (thought, conscience and religion): though the conviction had been in pursuit of the legitimate aim of protecting the rights and freedoms of others, the right to try to persuade one’s neighbour as to religious belief was part of the general right to manifest.
OPEN DOOR AND DUBLIN WELL WOMAN v IRELAND  ECtHR 68 (Nos. 14234/88 & 14235/88) (29 October 1992): injunctions against the applicants preventing them from receiving or imparting information on abortion services legally available in other countries were disproportionate and created a risk to the health of women seeking abortions outside Ireland, in violation of Article 10 ECHR (expression): it was not necessary separately to examine complaints in relation to Article 8 (private and family life) in conjunction with Article 14 (discrimination).
DARBY v SWEDEN  ECtHR 24 (No. 11581/85 ) (23 October 1990): the fact that a worker temporarily resident in Sweden could not qualify for the reduction in church tax given to permanently resident non-members of the Church of Sweden breached Article 14 ECHR (discrimination) taken with Article 1 of Protocol No. 1 (peaceful enjoyment of possessions): however, the Euopean Commission on Human Rights previously concluded in DARBY v SWEDEN  ECommHR No. 11581/85 (9 May 1989) that ‘A State Church system cannot in itself be considered to violate Article 9 [thought, conscience and religion] … such a system exists in several Contracting States and existed there already when the Convention was drafted and when they became parties to it. However, a State Church system must, in order to satisfy the requirements of Article 9, include specific safeguards for the individual’s freedom of religion. In particular, no one may be forced to enter, or be prohibited from leaving, a State Church.’ (at para 45).
LARSN Case Database