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Defining the Divine

Published online by Cambridge University Press:  15 April 2014

Russell Sandberg*
Affiliation:
Senior Lecturer in Law, Centre for Law and Religion, Cardiff University

Extract

At first glance, it appeared to be a technical and dry decision about the operation of the Places of Worship Registration Act 1855, yet the Supreme Court judgment in R (on the Application of Hodkin) v Registrar General of Births, Deaths and Marriages was actually one of the most significant decisions related to law and religion in 2013. The Justices of the Supreme Court held that a church within the Church of Scientology could be a ‘place of meeting for religious worship’ within section 2 of the 1855 Act. In so doing, the Supreme Court overruled one of the most well-known decisions in English religion law, R v Registrar General, ex parte Segerdal. In Segerdal, although the Court of Appeal had held that a chapel within the Church of Scientology could not be registered under the Act, the reasoning of their Lordships differed: Buckley LJ and Winn LJ focused on what they perceived to be the lack of ‘worship’, refusing to define the ‘chameleon word’ religion, while Lord Denning emphasised the phrase ‘religious worship’, holding that this required ‘reverence or veneration of God or a Supreme Being’ and that this was not met in the case of the Church of Scientology, which was ‘more a philosophy on the existence of man or of life than a religion’. All of these statements have been questioned by the bold Supreme Court judgment in Hodkin, which provides guidance on how the terms ‘religion’ and ‘religious worship’ are to be understood by English law in the twenty-first century.

Type
Comment
Copyright
Copyright © Ecclesiastical Law Society 2014 

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References

1 [2013] UKSC 77.

2 Alongside Eweida and Others v United Kingdom (2013) 57 EHRR 8 and President of the Methodist Conference v Preston [2013] UKSC 29.

3 [1970] 2 QB 697.

4 For discussion of the case, see Sandberg, R, Law and Religion (Cambridge, 2011) pp 4244.CrossRefGoogle Scholar

5 R v Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15 at 55, citing the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 at 174.

6 [2013] UKSC 77 at para 55.

7 Re South Place Ethical Society [1980] 1 WLR 1565. This understanding was problematic in that it was not clear why worship had to be a definitional requirement of ‘religion’. Unlike the Places of Worship Registration Act 1855, charity law is concerned with the ‘advancement of religion’ not ‘religious worship’.

8 The Charities Act 2006 had finally formally altered this to provide that ‘religion’ included polytheistic faiths and those which do not involve belief in a god. See now Charities Act 2011, s 3(2)(a).

9 Church of Scientology Application to Charities Commission, 17 November 1999, available at <http://www.charitycommission.gov.uk/media/100909/cosfulldoc.pdf>, accessed 12 February 2014.

10 For criticism of this, see Luxton, P and Evans, N, ‘Cogent and cohesive? Two recent Charity Commission decisions on the advancement of religion’, (2011) 75:2Conveyancer and Property Lawyer 144151.Google Scholar

11 Charity Commission, ‘Analysis of the law underpinning The Advancement of Religion for the Public Benefit, December 2008, available at <http://www.charitycommission.gov.uk/media/94857/lawrel1208.pdf>, accessed 12 February 2014.

12 Application for Registration of the Gnostic Centre, 16 December 2009, para 23, available at <https://www.charitycommission.gov.uk/media/92397/gnosticdec.pdf>, accessed 12 February 2014.

13 As recently re-stated in Eweida and Others v United Kingdom (2013) 57 EHRR 8 at para 81, removing any doubt that these requirements apply to Article 9 as well as Article 2 of the First Protocol. Compare with Addison, N, Religious Discrimination and Hatred Law (London, 2007)Google Scholar, p 9.

14 This has led to a confused and arbitrary case law, on which see Sandberg, R, ‘A question of belief’, in Spencer, N (ed), Religion and Law (London, 2012), pp 5163.Google Scholar

15 Sandberg, Law and Religion, pp 57–58.

16 See [2013] UKSC 77 at para 65.

17 Namely ‘the different contexts in which the issue may arise, the variety of world religions, developments of new religions and religious practices, and developments in the common understanding of the concept of religion due to cultural changes in society’: ibid, para 34.

18 Ibid, para 31.

19 This was despite the fact that the respondent had not challenged the High Court's conclusion ([2012] EWHC 363) that Scientology was a religion, preferring to confine their submissions to arguing that Scientology's rites and practices did not amount to religious worship for the reasons given in Segerdal: [2013] UKSC 77 at para 50.

20 [2013] UKSC 77 at para 51. Lord Toulson held that the phrase ‘place of meeting for religious worship’ found in the 1855 Act had to be interpreted in ‘accordance with contemporary understanding of religion and not by reference to the culture of 1855’. For his Lordship, ‘the historical origins of the legislation are relevant to understandings its purpose’, and this is why he included an erudite historical discussion at the beginning of his speech: ibid, para 34.

21 Ibid, para 51.

22 Ibid, paras 52–53. This invokes the principle of non-justiciability, which means that the courts will ‘abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition’: Mohinder Singh Kharira v Daljit Singh Shergill [2012] EWCA Civ 983 at para 19. See also HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group Limited and Hardeep Singh [2010] EWHC (QB) 1294. This principle has also been referred to as ‘the non-interference principle’: see Sandberg, Law and Religion, pp 74–76. The decision in Mohinder Singh Kharira v Daljit Singh Shergill is currently on appeal to the Supreme Court and is likely to be one of the most significant religion law cases of 2014.

23 [2013] UKSC 77 at para 56.

24 See ibid, paras 35–49.

25 Ibid, para 57.

26 The matter is confused further by the way in which terms such as ‘secular’, ‘secularisation’ and ‘secularism’ are used interchangeably. See, eg, Casanova, J, ‘The secular, secularizations, secularism’, in Calhoun, C, Juergensmeyer, M and Van Antwerpen, J (eds), Rethinking Secularism (Oxford, 2011), pp 5474.Google Scholar

27 [2013] UKSC 77 at paras 58–59. This also raised the ‘significant point’ that if it has been held that Scientology was a religion but that there was no ‘religious worship’ then ‘the result would have been to prevent Scientologists from being married anywhere in a form which involved use of their marriage service’, since they would not have been able to be married in a place of religious worship and any secular wedding service could not have had a religious service. For Lord Toulson put it, ‘They would therefore be under a double disability, not shared by atheists, agnostics or most religious groups. This would be illogical, discriminatory and unjust’ (para 64).

28 Emphasis added.

29 See Sandberg, R, ‘Religion and the individual: a socio-legal perspective’, in Day, A (ed), Religion and the Individual (Aldershot, 2008), pp 157168.Google Scholar

30 This would include, for example, Christians who felt obliged to wear crosses even though the majority do not feel so obligated. The European Court of Human Rights' decision in Eweida and Others v United Kingdom (2013) 57 EHRR 8 suggests that such persons should be protected under Article 9.

31 [2013] UKSC 77 at para 60.

32 Ibid, para 61.

33 Ibid, para 62.

34 Ibid, para 63.

35 This would be in line with Article 9 ECHR, which sees worship as a way of manifesting religion or belief. The subjective approach would also be consistent with R v Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15, para 22, in which Lord Nicholls held that ‘Freedom of religion protects the subjective belief of an individual’.

36 [2013] UKSC 77 at para 31.

37 It is one of several examples of what I have described as the tension between the old and new religion laws: Sandberg, Law and Religion, pp 202–204.

38 Woodhead, L, ‘Five concepts of religion’, (2011) 21:1International Review of Sociology 121143.CrossRefGoogle Scholar

39 This theme is developed in Sandberg, R, Religion, Law and Society (Cambridge, 2014, forthcoming).CrossRefGoogle Scholar