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Establishing Sincerity in Religion and Belief Claims: A Question of Consistency

  • Andrew Hambler (a1)
Abstract

In this article it is argued that individual sincerity has become the most significant determinant of whether or not a religious or philosophical belief is to be recognised as such for the purposes of accessing putative legal protections for individuals. However, a clear test of individual sincerity has not been fully articulated by the courts in the UK or indeed elsewhere. In this context, the possibility of developing a test based in large part on consistency of individual behaviour is considered in this article, and some objections noted. The article concludes that such a test is both useful and desirable in principle, and should be developed; however, it must be applied with great care in order to remain inclusive of those who may be driven to apparent inconsistency by fear or as a result of other factors.

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2 See Bedi, S, ‘Debate: What is so special about religion? The dilemma of the religious exemption’, (2007) 15 Journal of Political Philosophy 235249.

3 For example, under Article 9 ECHR.

4 With the possible exception of sexual orientation; see, eg, Leigh, I, ‘Clashing rights, exemptions, and opt-outs: religious liberty and “homophobia”’ in O'Dair, R and Lewis, A (eds), Law and Religion (Current Legal Issues Volume 4, Oxford, 2001), pp 247274.

5 See, for example, A McColgan, ‘Class wars? Religion and (in)equality in the workplace’, (2009) 38 Ind LJ 1–29.

6 See Jones, P, ‘Bearing the consequences of belief’ in Goodwin, R and Pettit, P (eds), Contemporary Political Philosophy, An Anthology (second edition, Oxford, 2006), pp 607619, for a helpful summary of the different arguments surrounding the significance of ‘choice’ in religious identity.

7 P Elias, ‘Religious and related discrimination’, (2008) 175 EOR 14–21.

8 Clarke, P and Byrne, P, Religion Defined and Explained (London, 1993), p 8.

9 Church of the New Faith v Commissioner for Pay Roll Tax (Vic) (1983) 154 CLR 120.

10 Equality Act 2010, s 19.

11 Ibid, s 19(2)(d).

12 (2004) 241 DLR (4th) 1, para 27.

13 Ibid, para 52.

14 R (on the application of Williamson and others) v Secretary of State for Education and Employment and Others [2005] UKHL 15, para 22.

15 See United States v Seegar 380 US 163 (1965) for the origins of this test.

16 [2005] UKHL 15.

17 Ibid, para 23, per Lord Nicholls.

18 [2010] IRLR 4 (EAT).

19 App No 7050/75, 19 ECHR Dec & Rep 57 (1993).

20 [2007] EWHC 1698 (Admin).

21 [2010] EWCA Civ 80; [2010] WLR (D) 37.

22 For a critique of this decision, see L Vickers, ‘Indirect discrimination and individual belief: Eweida v British Airways plc’, (2009) 11 Ecc LJ 197–202.

23 For many commentators this represents an unacceptable intrusion by the courts into an area beyond its legitimate scope; see, for example, Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (Oxford, 2005), p 113.

24 [2010] EWHC 1294 (QB); see also case note, (2010) 12 Ecc LJ 411.

25 Para 41.

26 [2003] EWHC 1960 (QB)

27 Para 21, Gray J.

28 It should be noted that this decision is, at time of writing, awaiting an appeal hearing.

29 Ogilvy, for example, argues that reliance on subjective sincerity can reduce religious convictions to individual ‘whimsy’ in the eyes of others; and this is an insufficient basis to retain meaningful legal protection for religion in the longer term in what she sees as an increasingly hostile secular world. See, M Ogilvy, ‘And then there was one: freedom of religion in Canada – the incredible shrinking concept’, (2008) 10 Ecc LJ 197–204. This argument has most force where sincerity is the only test to be employed.

30 Noonan points out some of the ambiguities between truth and sincerity in religious experience. For example, a religious truth can be believed to be literally true or metaphorically true – do both positions equate to ‘sincere’ belief? See J Noonan Jr, ‘How sincere do you have to be to be religious?’ (1988) University of Illinois Law Review 713–724.

31 Ahdar and Leigh, Religious Freedom in the Liberal State, p 112.

32 The author has anecdotal evidence that some employers, with relatively generous policies for time off for religious devotions, find they risk spurious claims – a mass conversion of delivery drivers to Christianity appears to have occurred in one logistics company, with the pleasing additional benefit for the new converts of reduced obligations for Sunday working.

33 Sadurski, W, Moral Pluralism and Legal Neutrality (London, 1990), p 174 (enumeration added).

34 [1976] 1 QB 36.

35 Unless of course the sacrifice was of the job itself through resignation or willingness to accept dismissal – although this is more likely to be a final resort than a first option. See, more generally on this issue, Jones, ‘Bearing the consequences of belief’.

36 This is by no means a new concept; see James 2:14: ‘What good is it, my brothers, if a man claims to have faith but has no deeds? Can such faith save him?’

37 [2006] ECHR 403.

38 [2010] UKEAT 0134/09/1401 (14 January 2010); this paragraph, and those that follow, draws heavily on a case note originally published in (2010) 164 Law and Justice 103, with the kind permission of the editor.

39 Para 38.

40 Para 77.

41 [2009] UKEAT 0106_09_3011.

42 Para 22.

43 (2007) EAT 0223/07; see also case note, (2008) 10 Ecc LJ 375.

44 Ibid, para 38.

45 Article 9(1) states that: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief …’ (emphasis added).

46 See Leader, S, ‘Freedom and Futures: Personal Priorities, Institutional Demands and Freedom of religion’ (2007) 70 Modern Law Review 713730.

47 Ahdar and Leigh, Religious Freedom in the Liberal State, p 187.

48 Para 53, emphasis added.

49 Williamson, para 66.

1 My thanks to Professor Ian Leigh of the University of Durham, for his helpful comments on an earlier draft of this article.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
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