Law and Religion in the Commonwealth: The Evolution of Case Law

Description

This book examines law and religion from the perspective of its case law. Each chapter focuses on a specific case from a Commonwealth jurisdiction, examining the history and impact of the case, both within the originating jurisdiction and its wider global context. The book contains chapters from leading and emerging scholars from across the Commonwealth, including from the United Kingdom, Canada, Australia, Pakistan, Malaysia, India and Nigeria. The cases are divided into four sections covering: Like religion itself, the case law covers a wide spectrum of life. This diversity is reflected in the cases covered in this book, which include: The book examines how legal disputes involving religion are among the most contested in the courts and shows that in these cases, passions run high and the outcomes can have significant consequences for all involved. Contents List of Contributors Table of Cases 1. Introduction I. Introduction II. Part I: Foundational Questions in Law and Religion III. Part II: Freedom of Religion Aroundthe Commonwealth IV. Part III: Religion and State RelationsAround the Commonwealth V. Part IV: Rights, Relationships, Responsibilitiesand Religion around the Commonwealth VI. Final Thoughts PART I:
FOUNDATIONAL QUESTIONS IN LAW AND RELIGION 2. Church of the New Faith v Commissionerof Pay-roll Tax Defining Religion for the World? I. Introduction II. Facts and Background III. Defining Religion: An Impossibleand Perilous Task? IV. An Australian Definition of Religion V. Application in Australia VI. A World Leading Definition of Religion VII. Conclusion 3. Titular Roman Catholic Archbishopof Kuala Lumpur v Home MinisterWhat is the Name of God? I. The Facts II. The Judgments III. Legal Errors IV. Theological-Philosophical Errors V. Conclusion PART II:
FREEDOM OF RELIGION AROUND THE COMMONWEALTH 4. Eweida v UK: Cross Words and the Reformulation of Religious Freedom I. Introduction II. The New Legal Framework III. The Four Cases under Domestic Law IV. The Promise of the Strasbourg Judgment V. The Limitations of the Strasbourg Judgment VI. Conclusion 5. Lee v Ashers Baking Company: Crumbs of Comfort in the Culture War I. Introduction II. One Cake, Two Narratives III. Escalation in the Culture War IV. The Strasbourg Application V. Conclusion 6. R v Big M Drug Mart: The Unavoidable Pragmatism of Religious Freedom I. Introduction II. The Historical Context III. Big M Drug Mart: Liberty and Equality IV. After Big M: Neutrality and Equality V. The Limits of Neutrality VI. Conclusion 7. Shalla v State: Is Blasphemy a Religious or Criminal Offence in Nigeria under Islamic Law? I. Introduction II. Nigeria and Religious Diversity III. The Facts and Background of Shalla v State IV. Analysis of the Case V. Shalla v State in the Light of UNHRCGeneral Comment 34 VI. Conclusion 8. Adelaide Company of Jehovah’sWitnesses v Commonwealth: Balancing Free Exercise and Public Order I. Introduction II. Background III. The High Court Decision IV. Re-appraising the Interpretation of Section 116 V. Conclusion PART III: RELIGION AND STATE RELATIONS AROUND THE COMMONWEALTH 9. Iki Putra Mubarrak v Kerajaan Negeri Selangor and Others Re-defining Religious Federalism in Malaysia? I. Introduction II. Facts and Background III. Malaysia’s Religious Federalism:Legal and Political Dimensions IV. Regulating Offences against the Precepts of Islam V. Conclusion 10. Aston Cantlow v Wallbank: Defining the Public and Private Functions of the Established Church of England I. Introduction II. A Tale from Shakespeare III. The Course of the Litigation IV. The Legal Status of the Church of England V. What is a Public Authority? VI. The PCC as a Core Public Authority VII. The PCC as a Hybrid Public Authority VIII. The Victim Paradox IX. The Lasting Effects of the House of Lords’ Judgment 11. Attorney-General (Victoria)ex rel Black v Commonwealth: The High Court’s Attempt to Make the Establishment Clause of the Australian Constitution Mean Very Little I. Introduction II. Controversies Over Government Funding of Religious Schools III. Challenging Government Funding of Religious Schools IV. What Did the DOGS Case Decide? V. Flawed Interpretations VI. Flawed Approaches to Constitutional Reasoning VII. Political Response to the DOGS Case VIII. The Future of Federal Funding for Catholic schools IX. Conclusion: The Future of theEstablishment Clause 12. M Siddiq (D) Thr Lrs v Mahant Suresh Das and Others: Inconsistencies in the Law and Politics of Indian History in the Ayodhya Case I. Introduction II. Chronology of the Litigation III. Inconsistencies in Applying the Legal Concepts IV. Interpretation of History and the Constitution V. Conclusion: Justice or Peace? 13. Benazir Bhutto v Federation of Pakistan: Using Islamic Principles to Expand Judicial Powers I. Introduction II. History of Islamisation Efforts in Pakistan III. Benazir Bhutto v Federation of Pakistan IV. The Supreme Court’s Extensive Powers V. Conclusion 14. Lakeside Colony of Hutterian Brethren v Hofer: Jurisdiction, Justiciability and Religious Law I. Introduction II. Facts and Background III. The Judgments IV. Lakeside Colony: Enduring Themes V. Conclusion 15. Minister of Home Affairs and Another v Fourie and Another A Jurisprudence of Engagement I. Introduction II. The Facts and Judgment in Fourie III. Obiter Comments: Framework forJurisprudence of Engagement IV. Religion is Both Public as Well as Private: A Groupas Well as a Personal Right V. How Will the Public Sphere Accommodate Different Belief Systems? The Constitutional Court Judgment in Pillay v Durban Girls High School VI. The Crisis of Liberalism VII. Secularism VIII. The Nature of Belief as Communal Ratherthan Individual IX. Conclusion PART IV:
RIGHTS, RELATIONSHIPS, RESPONSIBILITIES AND
RELIGION AROUND THE COMMONWEALTH 16. Her Majesty’s Attorney-General v Akhterand Others: The Need for Legislative Reform of the Marriage Act 1949 I. Introduction II. The Factual and Legal Context III. Novel Aspects of the Judgments IV. Implications of the Judgment V. Conclusion 17. Christian Youth Camps Ltd v Cobaw Community Health Services Ltd: Balancing Discrimination Rights with the Religious Freedom of Organisations I. Introduction II. Background Facts III. The Victorian Court of Appeal IV. The Refusal of Special Leave V. Conclusion: Implications for the Future 18. Indian Young Lawyers Association v State of Kerala and Shayara Bano v Union of India Understanding Religious Freedom and Women’s Rights in the Twenty-First Century Using the Lenses of Sabarimala and Shayara Bano I. Introduction II. Sabarimala III. Sharaya Bano IV. Conclusion: The Indian Constitution andthe Rights of Women 19. Allcard v Skinner Religious Influence and Undue Influence I. Introduction II. Allcard v Skinner III. Allcard’s Doctrinal Contributions IV. Allcard’s Impact on Contemporary Regulation V. Conclusion Index