Category: Ecclesiastical

Bruker v Marcovitz; 14 Dec 2007

References: 288 DLR (4th) 257, [2007] 3 SCR 607, 2007 SCC 54 (CanLII)
Links: Canlii, Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether matter justiciable – Whether agreement satisfies all requirements to make it valid and binding under Quebec law – Whether husband can rely on freedom of religion to avoid legal consequences of failing to comply with agreement – Civil Code of Quebec, S.Q. 1991, c. 64, arts. 1373, 1385, 1412, 1413 – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
Human rights – Freedom of conscience and religion – Agreement with religious aspect – Jewish religious divorce or ‘get’ – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether husband entitled to immunity from damages for his breach of contract by invoking freedom of religion – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
This case is cited by:

  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Welsh v United States; 15 Jun 1970

References: 398 US 333 (1970), [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308
Links: Worldlii
Coram: Black, Douglas, Marshall, Brennan JJ
United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’
This case cites:

  • Cited – United States -v- Seeger (380 US 163 (1965), Wordlii)
    United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces. . .

This case is cited by:

United States v Seeger; 8 Mar 1965

References: 380 US 163 (1965)
Links: Wordlii
Coram: Clark J
United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces.
This case is cited by:

  • Cited – Welsh -v- United States (398 US 333 (1970), Worldlii, [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308)
    United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’ . .
  • Cited – Hodkin and Another, Regina (on The Application of) -v- Registrar-General of Births, Deaths and Marriages SC (Bailii, [2013] UKSC 77, [2013] WLR(D) 492, [2014] PTSR 1, [2014] 1 AC 610, [2014] 1 All ER 737, [2014] 2 WLR 23, [2014] 1 FCR 577, WLRD, Bailii Summary, UKSC 2013/0030, SC Summary, SC)
    The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .

Davis v Beason, Sheriff; 3 Feb 1890

References: 133 US 333 (1890), 33 L Ed 637, 10 SCt 299
Links: Worldlii
Coram: Field J
United States Supreme Court. The defendant claimed that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs.
Held: The assetion failed: ‘It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.’ The Court adopted a strictly theistic definition of religion.
This case is cited by:

Malnak v Yogi; 2 Feb 1979

Links: Worldlii
Coram: Aldisert, Adams and Hunter, Circuit Judges
United States Court of Appeals – Third Circuit. The court considered whether the programme of teaching transcendental meditation and its associated Science of Creative Intelligence was a religious activity and so was not to be allowed to be taught in state schools.
Held: It was such. Judge Adams, said that religion bore the same meaning in that context as in the free exercise of religion clause of the Constitution, noting that the law had moved towards a broader approach in recognition of the fact that adherence to the traditional definition would deny religious identification to the faiths adhered to by millions of Americans.
Adams J thought that it wa one thing to conclude ‘by analogy’ that a particular group of ideas is religious; it was quite another to explain what indicia are to be looked at in making such an analogy and justifying it. He identified three such indicia.
The first was that the belief system is concerned with the ultimate questions of human existence: the meaning of life and death, mankind’s role in the universe, the proper moral code of right and wrong. The second was that the belief system is comprehensive in the sense that it provides an all-embracing set of beliefs in answer to the ultimate questions. The third was that there were external signs that the belief system was of a group nature which could be analogised to accepted religions. Such signs might include formal services, ceremonial functions, the existence of clergy, structure and organisation, and attempts at propagation. These indicia were not to be thought of as a final test for a religion. Rather, they were features which recognised religions would typically exhibit.
This case is cited by:

Scottish Insurance Commissioners v Church of Scotland; CS 1914

References: 1914 SC 16
Coram: Lord Kinnear, Lord Johnstone, Lord Mackenzie
Assistants to ministers, (not associate ministers), of the Church of Scotland are not employed by the Church under contracts of employment. The ‘control’ test was to be used in identifying a contract of employment. An assistant to a minister was not subject to the control and direction of any particular master. An assistant holds an ecclesiastical office and performs his duties subject to the laws of the church. In any event there was difficulty in identifying exactly who was the assistant’s employer. Lord Johnstone said that employment must be under a contract of service. A contract of service assumes an employer and a servant. It assumes the power of appointment and dismissal in the employer, the right of control over the servant in the employer, and the duty of service to the employer in the servant. There was no one who occupied that position. The contract in which the assistant was engaged was more a contract for services than a contract of service.
Lord Kinnear: ‘I think that the position of an assistant minister in these Churches is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.’ He contrasted this position with that of lay missionaries: ‘The probationers who are appointed to the position of assistant ministers are students of divinity who have obtained a licence to preach from the presbytery . . Now, we are told in this case what the terms of the licence are. The licence bears that the presbytery licences the person named to preach the Gospel of Christ and to exercise his gifts as a probationer for the holy ministry. When a person so licensed is appointed to be assistant to a minister, I think that his authority to perform the duties that belong to that office does not arise from any contract between himself and the minister, or himself and the kirk-session or anybody else, but arises from the licence given to him by the presbytery to exercise his gifts. He is, therefore, in my opinion a person who is no sense performing duties fixed and defined by a contract of service.’
Lord Mackenzie: An assistant minister was:- ‘really the case of one who is discharging the duties of an office, and whatever authority is exercised over him is in virtue of an ecclesiastical jurisdiction, and is not in virtue of rights which arise out of a contract of service.’
This case is cited by:

  • Cited – Percy -v- Church of Scotland Board of National Mission HL (Bailii, [2005] UKHL 73, House of Lords, Times 16-Dec-05, [2006] 2 WLR 353, [2006] ICR 134, [2006] IRLR 195, [2006] 2 AC 28, 2006 SLT 11, [2006] 4 All ER 1354)
    The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .