Intriguing court cases on conscience, beliefs

Head of Legal

Nation Media Group

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This failure to raise the international law issues in the domestic courts meant that the complainant had not exhausted the local remedies as required and the European court could therefore not intervene in the matter.

The case was a long-standing one between a bakery established and run by a Christian couple in Belfast.
In 2014, the owners of the bakery declined to bake a cake for Gareth Lee, a member of a gay rights advocacy group known as QueerSpace. The bakery owners refused to oblige Mr Lee’s order for a cake inscribed with the slogan “Support Gay Marriage”.
Thus began a dispute between the bakers on one side against Mr Lee and the Equality Commission of the Northern Island on the other. The commission thought that the refusal to deliver on the cake order was discriminatory against gay persons and was unconstitutional.
The bakers on the other hand argued that they had declined to take the order on the basis of their free speech rights and specifically the right not to be compelled to express messages with which they disagreed.

In 2018, the UK Supreme Court judges unanimously agreed that there had been no discrimination against the customer. The judges agreed with the bakery that they had not declined to take the order because of the customer’s sexual orientation but due to the message on the cake.
The customer then appealed to the European Human Rights, which ruled that the claimant had never raised the issues of infringement of his rights under the European Human Rights Convention in the domestic courts of Northern Ireland and therefore European law could not be involved only at the last appeal stage.
This failure to raise the international law issues in the domestic courts meant that the complainant had not exhausted the local remedies as required and the European court could therefore not intervene in the matter.
This can be seen by some commentators as a technical way of declining to hear the matter by the European Human Rights Court. However, it means that a service provider may not be compelled to provide a service to a third party, even a paying customer, if the service would involve making any statement which the service provider deems unacceptable. It was, therefore, deemed as a victory for free speech.
But the issue of gay rights appears to be one that is engulfing the whole world. In Bermuda, the final appellate court, known as the Judicial Committee of the Privy Council, allowed an appeal by Bermuda’s attorney-general and reversed a decision of Bermuda’s top court, which had held that Bermuda’s Domestic Partnership Act of 2018, which defined marriage as a union between one man and one woman, violated the law.
The Privy Council reversed this decision with the consequence that marriage between same-sex persons remains illegal in Bermuda. The Privy Council judges held that the exclusion of same-sex couples from the institution of marriage was not attributable to the creed or belief of the respondents, but because they were of the same sex.
The Privy Council simultaneously decided another case from the Cayman Islands involving a lesbian couple who had been denied a marriage licence and sued arguing that this was discriminatory.
The reason for the refusal to grant the licence to this lesbian couple was that the constitution of the Cayman Islands defined marriage as the union between one man and one woman as husband and wife.”
The Privy Council dismissed the lesbian couple’s appeal, stating that the constitution of the Cayman Islands had been obviously written to emphasize the ambit of the right to marry and ensure that it could not be read to extend to same-sex couples.
In March, a court in Karnataka, India, heard petitions by Muslim students who had been barred in January from entering a government college wearing the hijab. The College principal had stated that wearing the hijab contravened the rules on uniforms for students of the college. This is the decision that the students sought to challenge in court. Their ground was that the wearing of the hijab was a right guaranteed by the constitution under the freedom of religious belief.
In a surprising decision, the court dismissed the petition and the students have appealed. The case is now expected to go all the way to the Indian Supreme Court. What many observers found interesting about this case is that a decision of this kind in a multi-religious society like India – where Sikhs freely wear their turbans and Hindus wear their dab of vermilion on their foreheads, and a Chief Minister of the Uttar Pradesh wears his saffron Monk’s robes openly while working – can create the impression that there was discrimination in the ban on the hijab.
Talking of education and religion, a religious court contended with Jesus College of Cambridge University regarding trans-Atlantic slavery.
Jesus College had intended to remove the memorial to Tobias Rustat, a famous entrepreneur from the chapel in the college.
The college had argued that the continued existence of the 300-year memorial to its benefactor Thomas Rustat would be an odious memento to slave trade and incompatible with the chapel as an inclusive community and place for spiritual wellbeing.
The opponents of the intended removal argued that Thomas Rustat’ s involvement in the slave trade had been exaggerated as most of his wealth came from his work as courier to King Charles the second. It was stated that the investment in the Royal African Company, which traded slaves, was relatively small and that the intended action was just part of the cancel culture that is prevalent today.
This dispute ended up before an ecclesiastical court (that is a court for the Church). The judge, Deputy Chancellor of the Diocese in which the chapel is based, ruled against the college, holding that the memorial should remain within the chapel. He said this would be a reminder of the imperfection of all human beings, a core Christian message. He added that through the memorial, Rustat’ s involvement in the abominable act of slavery could serve as a reminder that none is free from sin and would allow all who observed the plaque to question our own lives as well as that of Thomas Rustat.
The decision was lauded by supporters of the memorial and obviously disappointing to the opponents, as indeed many court decisions involving issues of conscience, family and religious belief are wont to do.
The year has thus far presented courts with disputes that involve beliefs that are deeply held by different categories of citizens based on conscience and perhaps signifying that the courts really make decisions that are far-reaching and really affect even the inner sanctum of citizens’ lives.

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Intriguing court cases on conscience, beliefs

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