Law and Religion Scholars Network
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Case Database - 1970s and Earlier
This list includes significant judgments delivered in the 1970s and earlier.
United Kingdom
WHITEHOUSE v GAY NEWS LTD & ANOR [1979] 2 WLR 281 7: a conviction under a private prosecution of the editor and publisher of Gay News for publishing a poem which suggested, inter alia, that Jesus had been involved in promiscuous homosexual activity during his lifetime was upheld, but the suspended sentence of imprisonment on the editor was quashed because the Court of Appeal did not consider it an appropriate penalty: in WHITEHOUSE v GAY NEWS LTD [1979] AC 617 HL the Lords rejected a further appeal, concluding that the offence of blasphemous libel did not require specific intent of committing such a blasphemy.
SAGGERS v BRITISH RAILWAYS BOARD [1978] UKEAT (28 July 1978): their doctrines of the Jehovah’s Witnesses do not proscribe trade union membership but do prohibit participation in politics either directly or indirectly: a Jehovah’s Witness who had refused on religious grounds to join the National Union of Railwaymen when a ‘closed shop’ was imposed had been unfairly dismissed.
CORBETT v CORBETT [1971] 2 All ER 33: the court granted a decree of nullity to the husband of a post-operative male-to-female transsexual on the grounds that the respondent ‘is not, and was not, a woman at the date of the ceremony of marriage, but was, at all times, a male’: ‘Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot produce a person who is naturally capable of performing the essential role of a woman in marriage’ (per Ormerod J at 106).
REGISTRAR GENERAL (R v, ex parte SEGERDAL & ANOR [1970] 3 WLR 479 CA: an appeal against a refusal by the Divisional Court to grant an order of mandamus to require the Registrar General to register under the Places of Worship Registration Act 1855 a chapel of the Church of Scientology was dismissed: the ceremonies conducted in the chapel could not ‘be properly described as constituting worship’ (per Buckley LJ).
CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v HENNING (VALUATION OFFICER) [1964] AC 420: the Mormon Temple at Godstone was not exempt from rates as a ‘place of public religious worship’ within the meaning of section 7(2)(a) of the Rating and Valuation (Miscellaneous Provisions) Act 1955 (the relevant legislation then in force) because only Mormons in good standing who possessed a ‘temple recommend’ were allowed to enter it: it was ’unlikely that the legislature intended by the word “public” some more subjective meaning which would embrace in the phrase “public religious worship” any congregational worship observed behind doors closed to the public’ (per Lord Pearce at 440); see also GALLAGHER (VALUATION OFFICER) v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS [2008] UKHL 56 (30 July 2008)
McDONALD v BURNS [1940] ScotCS CSIH 3 (29 March 1940): when five extern Sisters of a Roman Catholic religious order sought judicial review of their dismissal, averring lack of due process and contravention of the statute of their Order, Lord Justice Clerk Aitchison stated that ‘the limits within which the Courts will interfere with the judgments of ecclesiastical bodies are strictly defined, and should not be incautiously extended. Where civil rights are concerned, appeal may be made to the courts of law for their protection, or for some form of redress, but the mere fact that a civil right is affected by itself forms no justification for interference.., for civil consequences may often result from decisions of ecclesiastical courts in matters that lie properly within their own jurisdiction’: [at page 381] for such a decision to be reviewable, ‘... a mere irregularity in the proceeding is not enough. It must be so fundamental an irregularity that it goes beyond a mere matter of procedure, and becomes something so prejudicial to a fair and impartial investigation as to amount to a denial of natural justice’. [at pages 383–4].
BALLANTYNE v PRESBYTERY OF WIGTOWN 1936 SC 625: the Court of Session has exclusive jurisdiction to determine the meaning and effect of the Church of Scotland Act 1921 and the Articles Declaratory annexed thereto [per Lord Murray at page 664]: the Act ‘is not an Act of Parliament conferring rights upon the Church, but it is a recognition by Parliament of Articles framed by the General Assembly of the Church as its Supreme Court in the exercise of what it claimed to be its own inherent powers’ and ‘[the] adoption of the Articles by the free will of the Church after the Act was on the statute book, and as a condition of the Act becoming operative, was an assertion by the Church of its autonomy in matters affecting its own life and polity’ [per Lord Justice Clerk Aitchison at page 654].
GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND v LORD OVERTOUN [1904] AC 515: the Free Church of Scotland could not, of its own motion, depart from the doctrinal standards upon which it had been founded and the majority who had joined in a Union with the United Presbyterian Church were therefore in breach of the trusts on which the Free Church had been founded: the minority was the successor body to the pre-Union Free Church, on the grounds that it maintained the traditional stance of the Free Church towards the Westminster Confession and held to the “Establishment principle”. The judgment was set aside by the Churches (Scotland) Act 1905, which established a Commission to divide the property of the pre-Union Free Church in proportion between the majority and minority.
SKERRET v OLIVER (1896) 3 SLT 257: Tribunals of “voluntary” churches are not subject to review of decisions on purely spiritual or doctrinal matters: the Inner House refused to reinstate a licentiate of the United Presbyterian Church who had been suspended and deprived by the United Presbyterian Synod ‘for having, under certain circumstances, met and walked with a young lady’ on the grounds that ‘courts of law ... take no concern with the resolutions of voluntary associations except in so far as they affect civil rights’. [per Lord President Robertson at 257].
WIGHT v PRESBYTERY OF DUNKELD (1870) 8 M 921: the decisions of the courts of the Church of Scotland cannot be reviewed by the Court of Session: in spite of the fact that the Court agreed that the Presbytery’s proceedings of which the pursuer complained were irregular, contrary to the laws and practice of the Church, and altogether null, it refused to set them aside, on the grounds that ‘this is a matter relating to the discipline of the Church, and solely within the cognisance of the Church courts’. [per Lord Justice Clerk Moncreiff].
HYDE v HYDE & WOODMANSEE [1866] 1 LR P & D 130: where the plaintiff sought a decree of nullity on the grounds that his marriage had been conducted according to the polygamous rites of the Mormon Church and was therefore invalid in English law, Lord Penzance refused to grant the petition but defined marriage, obiter as ‘the voluntary union for life of one man and one woman to the exclusion of all others’.
FORBES v EDEN (1865) 4 M 143: where an action was brought against the Primus and General Synod of the Scottish Episcopal Church for the reduction [ie annulment] of the Code of Canon Law of 1862, on the grounds that, in substituting the English Communion Rite of 1662 for the Scots Rite of 1764, Synod had acted ultra vires, the pursuer's arguments were rejected both at first instance and on reclaimer on the grounds of irrelevance: ‘[w]hen the ecclesiastical governing body has recognised changes either in doctrinal matters, or in the rights [sic] and ceremonies of the church, dissentient laymen may leave its communion. Their remedy cannot be to bring the resolutions of the church judicatory into a court of law, as a court of review. Some civil wrong justifying a demand for redress, or some patrimonial injury entitling the party to claim damages, must be alleged and instructed, ere the civil court entertain and adjudicate in such cases. This is the principle which pervades the whole of the cases of this class. [per Lord Cowan at page 163].
LOCKHART v PRESBYTERY OF DEER (1851) 13 D 1296: the courts of the Church of Scotland possess exclusive jurisdiction in ecclesiastical causes and the Court of Session will not normally interfere with their decisions: ‘We have as little right to interfere with the procedure of the church courts in matters of ecclesiastical discipline as we have to interfere with the proceedings of the Court of Justiciary in a criminal question’ [per Lord President Boyle at 1299].
MATHERS v LAURIE (1849) 12 D 433: the records of the tribunals of ecclesiastical bodies other than the Church of Scotland are not evidence per se: a Free Church Kirk Session Minute could not of itself be led as conclusive evidence, since a Free Church Kirk Session was not a court of law, and parole [ie verbal] evidence had to be led in order to prove the accuracy of the Minute.
DRUMMOND v FARQUAR (1809) Faculty Collection Court of Session 6 July 1809: the designation of the pursuer Drummond as ‘one of the bishops or senior clergymen of the superior order of the Episcopal communion in Scotland’ was struck out as ‘not recognised by the court’
AUCHINLOSS v BLACK 6 March 1793 Hume Decisions: ecclesiastical tribunals are not subject to review of decisions on purely spiritual or doctrinal matters: the Court of Session refused in a case involving the Secession Church ‘to review the proceedings of the Associate Congregation, commonly called Burghers, when sentences are pronounced by them in their ecclesiastical character’. [per Lord Justice Clerk Braxfield].
Europe
ARROWSMITH v UNITED KINGDOM [1978] ECommHR (No. 7050/75) (No. 7050/75): pacifism as a philosophy was a belief within the scope of Article 9 (thought, conscience and religion) and therefore protected under the Article; but merely being motivated or influenced by a belief was not itself sufficient to secure the protection of Article 9 (1): the material action actually had to express that belief and a conviction under sections 1 and 2 of the Incitement to Disaffection Act 1934 for distributing a leaflet to soldiers trying to persuade them not to serve in Northern Ireland manifest belief in the sense of Article 9 (1) because it did not overtly express pacifist views.
TYRER v UNITED KINGDOM [1978] ECtHR (No. 5856/72) (25 April 1978): judicial corporal punishment of juvenile offenders in the Isle of Man, though not torture nor inhuman treatment, was ‘degrading’ and contrary to Article 3 ECHR even though a large majority of the Manx population supported it: the Court (Sir Gerald Fitzmaurice J dissenting) refused to apply Article 3 ‘with due regard… to local requirements’ under Article 63 (3) because ‘for the application ofArticle 63(3)… there would have to be positive and conclusive proof of a requirement and the Court could not regard beliefs and local public opinion on their own as constituting such proof’.
LARSN Case Database
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