A Judicial Masterpiece? US Supreme Court rules on ‘gay cake’ case — Robert Ward

US Supreme Court.jpgThis week the US Supreme Court handed down judgment in Masterpiece Cakeshop et al v Colorado Civil Rights Commission et al. This is a decision which is of interest in the UK for its factual similarity with the case of Lee v Ashers Baking Company, otherwise colloquially known as the “gay cake” case which is currently being considered by the UK Supreme Court (and which has been discussed previously on this blog).

In both cases Christian bakery owners refused to create certain cakes for customers on the basis that it would contravene their religious objection to gay marriage. The judgments in Masterpiece may foreshadow some of the arguments to be discussed in the upcoming UK decision.

In this case, the US Supreme Court held that the Colorado Civil Rights Commission failed to approach the matter in accordance with its obligation of religious neutrality. The baker’s appeal was therefore upheld — but only on technical grounds.

 

Background

The owner of Masterpiece, Jack Phillips, refused to create a wedding cake for a same-sex marriage ceremony between two of his potential customers, Charlie Craig and Dave Mullins. He did, however, say that he would be prepared to make birthday cakes or other products. His stated reason for refusing to make a wedding cake was that to do so would have been a personal endorsement and participation in a ceremony and relationship which contravened his deep and sincerely held religious beliefs.

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The CJEU said yes! Partners in same sex marriage are “spouses” Part 1 – Michael Rhimes

Coman and others, Case C‑673/16,  5 June 2018 – read judgment

Can the term “spouse” in Article 2(2)(a) of the Citizenship Directive (Directive) refer to a spouse of the same sex as the other party to the marriage (same-sex spouse)?

This (fairly dry) question was at the heart of the Coman case. Of course, as the Advocate General recognised in his Opinion, para. 2 it touched on other (more juicy) questions of dignity and the diverging understandings of marriage in the 28 Member States.

In this post I will present the facts and reasoning in the judgment. My following post will offer three comments on it. 

Background Facts

Mr Coman, a dual national of Romania and the US, met Mr Clabourn Hamilton, a US national, in New York in 2002. They married in Brussels (Belgium) in 2010. In 2012, Mr Clabourn Hamilton asked the Romanian authorities to provide him with the documents to allow him to stay in Romania, with Mr Coman, as his spouse, for longer than three months.

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Legal personhood for non-human animals: Part II — Dr Linda Roland Danil

 

The second part of this guest contribution argues that it is time to consider seriously the case for granting legal personhood to certain classes of sentient animals. Part I can be found here.

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Introduction

On December 26, 2017, the Connecticut Superior Court dismissed a petition for a writ of habeas corpus filed by the Non-Human Rights Project (NhRP) – which I introduced in an earlier post – on behalf of three elephants that the NhRP argued are illegally confined in Goshen, Connecticut. The issue, similarly to previous cases involving four chimpanzees, was whether the court should grant the petition for a writ of habeas corpus because the elephants are ‘persons’ entitled to liberty and equality. The court dismissed the argument and held that the ‘petition is wholly frivolous on its face.’

Discussion

One of the things that is implied in the refusal to grant personhood to non-human animals, in my view, is the strong aversion to the notion that one day a human being may find his or rights trumped by those of a non-human animal.

In my earlier post, I argued that we are also animals, but different – and by this I further elaborated that we are different insofar as we have disavowed our animal nature in order to properly construct and enter the socio-symbolic order and human culture – through what, for example, Freud called a process of ‘organic repression’ in Civilization and Its Discontents, or what Joanne Faulkner has described as ‘an abandonment of the animal within.’

By no means is this meant to be construed as a bad thing – it is who we are – but being different does not necessarily always mean better. To argue that human beings are better would be to ignore the ways in which other animals are unique in their own way.

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$8 billion lawsuits started on GDPR day

You would have to be a monk or, at any rate, in an entirely internet-free zone, not to have had your recent days troubled by endless GDPR traffic. The tiniest charity holding your name and email address up to the data behemoths have asked, in different ways, for your consent for them to hold your personal data. You may have observed the frankness and simplicity of the former’s requests and the weaseliness of the latter’s, who try to make it rather difficult for you to say no, indeed to understand what precisely they are asking you to do.

Just in case you have not looked at it, here is the Regulation. It is actually a good deal easier to understand than a lot of the summaries of it.

This lack of transparency in these consent forms/privacy statements had not gone unnoticed by one of Europe’s more indefatigable privacy sleuths. Max Schrems, an Austrian lawyer, who, at 30 years of age, has already been to the EU top court twice (see here and here), moved fast. By the end of GDPR day last Friday, 25 May, he sued global platforms with multibillion-euro complaints. 3 complaints said to be valued at €3.9 billion were filed in the early hours against Facebook and two subsidiaries, WhatsApp, and Instagram, via data regulators in Austria, Belgium and Germany. Another complaint valued at €3.7 billion was lodged with France’s CNIL in the case of Google’s Android operating system.

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Court of Appeal upholds Birmingham gang injunction

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Jones v Birmingham City Council [2018] EWCA Civ 1189 (23 May 2018)

The Court of Appeal has upheld a ‘gang injunction’ restricting the actions and movement of 18 members of a Birmingham gang. One of the men affected, Jerome Jones, unsuccessfully challenged the injunction, arguing that the proceedings by which it was made properly required proof to the criminal standard, and that the application of the civil standard violated his right to a fair trial under Article 6 ECHR.

 

Background

The appellant was said to be a member of the Guns and Money Gang (GMG), affiliated with Birmingham’s notorious Johnson Crew. Named after Johnson’s café, the gang’s erstwhile fast-food hangout, the Johnson Crew have been engaged in often violent turf war with the rival Burger Bar Boys since the 1980s. They both attempt to lay claim to various areas of the city, particularly between Handsworth and Aston.

The violent climate was brought to the nation’s attention with the tragic murder of Charlene Ellis and Letisha Shakespeare, two innocent teenage students gunned down in Aston while leaving a party in the early hours of 2 January 2003. Four associates of the Burgers, imprisoned for the murders, had apparently intended to target a Johnson member as revenge for the earlier execution-style killing of Burger Bar Boy Yohanne Martin. While this particularly bloody period gained attention for claiming the lives of a number of gang members and mere bystanders, the violence has not abated. A Birmingham police officer in the proceedings gave evidence of ongoing gang violence, with innocent members of the public at risk of being caught up in crossfire [7].

 

Gang injunctions

For many years, Birmingham City Council (‘the City’) has sought to use various powers to disrupt and discourage gang-related behaviour, including injunctions against named people said to be involved in violence. By injunction, individuals can be prevented from entering certain areas, or from doing things associated with gang violence.

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Could the Windrush Scheme be open to legal challenge?

HMT_Empire_Windrush_FL9448.jpgOn 24th May 2018 a new scheme to process citizenship applications for the Windrush generation was announced, after the Government’s apologies last month. The Windrush Scheme guidance explains how this will work in detail.

It is notable that applicants who are refused will have no right of appeal against this decision. The chair of the Home Affairs Select Committee, Yvette Cooper MP, has tweeted to express her concern about this.

This author suggests that it is arguable that the denial of a right of appeal is open to legal challenge.

 

How the scheme works

Citizens of Commonwealth countries who were living in the UK before 1 January 1973, plus their children and certain non-Commonwealth citizens will be assessed and issued with proof of British citizenship if they already are British in law, or will be considered for naturalisation if they are not. Those who do not qualify for British citizenship will be assessed to see if they have the right of abode and those who do not qualify for that will be considered for a permit confirming their right to be in the UK under the no time limit biometric residence permit scheme.

This is all explained in detail in this article on Free Movement.

But what about if the Home Office is not satisfied that an applicant meets the scheme?

The guidance states on p. 13 as follows:

Where a person is determined not to be issued with a document under the Windrush Scheme in accordance with this guidance, the decision will not attract a right of appeal or an administrative review.

So a person who is refused will not be able to appeal to the First-tier Tribunal. They will only be able to challenge the decision by way of judicial review.

 

The difference between an appeal and a judicial review

Why does this matter? The basic answer is that it is much harder for a claimant to succeed in a judicial review than in an appeal. In an appeal, the judge will make the decision afresh following oral and written evidence. Statistics in March showed that about half of all immigration appeals are successful.

In judicial review, on the other hand, the judge does not step into the shoes of the decision-maker and is tasked instead with evaluating whether the decision was lawful and rational. There is always the possibility that the judge will conclude that whilst the decision is tough, it is still legally watertight. In addition, an applicant must apply for permission before they can get a substantive hearing and an unsuccessful applicant usually pays the Secretary of State’s costs.

So, there is a fair amount riding on the issue of whether a claimant gets an appeal or not.

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The Round-Up: Constitutional Commotions, Council Housing and Article 8, and the A6 Compatibility of ASBO Legislation

Yes campaigners react as they wait at Dublin Castle for the official result of the Irish abortion referendum

Image Credit: The Guardian

In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.

Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.

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