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Religion, Human Rights, Equality and the Public Sphere

  • Christopher McCrudden (a1)

This article distinguishes three different conceptions of the relationship between religion and the public sphere. The reconciliation of these different aspects of freedom of religion can be seen to give rise to considerable difficulties in practice, and the legal and political systems of several Western European countries are struggling to cope. Four recurring issues that arise in this context are identified and considered: what is a ‘religion’ and what are ‘religious’ beliefs and practices for the purposes of the protection of ‘freedom of religion’, together with the closely related issue of who decides these questions; what justification there is for a provision guaranteeing freedom of religion at all; which manifestations of religious association are so unacceptable as to take the association outside the protection of freedom of religion altogether; and what weight should be given to freedom of religion when this freedom stands opposed to other values. It is argued that the scope and meaning of human rights in this context is anything but settled and that this gives an opportunity to those who support a role for religion in public life to intervene.

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1 Lina Joy v Majlis Agama Islam Wilayah Persekutuan dan Iain-Iain (Islamic Religious Council of the Federal Territory) [2007] 4 MLJ 585.

2 Mandla v Dowell Lee [1983] 2 AC 548.

3 R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15.

4 Crucifix Case, BverfGE 93, 1 BvR 1087/91, 12 May 1987, German Constitutional Court; Lautsi v Italy (2010) 50 EHRR 42 (European Court of Human Rights). At the time of writing, an appeal in this case to the Grand Chamber is pending.

5 Hasan and Chaush v Bulgaria (2002) 34 EHRR 55, [2000] ECHR 30985/96 at para 60.

6 Eg Kokkinakis v Greece (1993) 17 EHRR 397, [1993] ECHR 14307/88 at para 31.

7 At para 62.

8 Moscow Branch of the Salvation Army v Russia (2006) 44 EHRR 912 at paras 58 and 61.

9 Associated Society of Locomotive Engineers and Firemen (ASLEF) v United Kingdom (2007) 45 EHRR 793 at para 39. See also Taylor v Kurtstag [2005] (7) BCLR 705 (W), in which the High Court (Witwatersrand) held that the Constitutional right to freedom of association in the South African Constitution meant that a Beth Din had the right to ‘excommunicate’ (the court's term) a member of the local Jewish community as the court considered that there was no right to impose oneself on a religious community. Note, however, that in para 40 of the ASLEF case, the Court goes on to say: ‘This basic premise holds good where the association or trade union is a private and independent body, and is not, for example, through receipt of public funds or through the fulfilment of public duties imposed upon it, acting in a wider context, such as assisting the State in securing the enjoyment of rights and freedoms, where other considerations may well come into play.’

10 See eg Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 13 at para 117.

11 Hasan and Chaush v Bulgaria at para 82.

12 Serif v Greece (1999) 31 EHRR 1339 at para 53; Metropolitan Church of Bessarabia and others v Moldova (2002) 35 EHRR 13 at para 116.

13 At para 117. See also Supreme Holy Council of the Muslim Community v Bulgaria (2005) 41 EHRR 3 at para 96.

14 Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27.

15 Canea Catholic Church v Greece (1997) 27 EHRR 521 (Commission Decision).

16 See Metropolitan Church of Bessarabia and others v Moldova (2002) 35 EHRR 13.

17 Custos, D, ‘Secularism in French public schools: back to war? The French Statute of March 15 2004’, (2006) American Journal of Comparative Law 337.

18 Mandla v Dowell Lee [1983] 2 AC 548.

19 As the Jews' Free School is now universally known.

20 R (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15 (the author was Junior Counsel for JFS in the Supreme Court).

21 See, for example, R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth ex parte Wachmann [1992] 1 WLR 1036 at 1042–1043, approved by the Court of Appeal in R v Disciplinary Committee of the Jockey Club ex parte the Aga Khan [1993] 1 WLR 909 at 932. See also R v Rabbinical Commission for the Licensing of Shochetim, ex parte Cohen, [1987] The Times, 22 December.

22 Thomas, K, Religion and the Decline of Magic (London, 1971).

23 Ginzburg, C (translated by J, and Tedeschi, A), The Cheese and the Worms: the cosmos of a sixteenth-century miller (London, 1992).

24 Hart, HLA, The Concept of Law (Oxford, 1961).

25 MacCormack, N, Legal Reasoning and Legal Theory (Oxford, 1978), p 292.

26 R (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15 at para 44, emphasis added.

27 [2010] EWCA Civ 80.

28 At para 40, emphasis added.

29 (2007) 44 EHRR 46 at para 57.

30 At para 62.

31 On the relationship between Article 9 and Article 11, see also Church of Scientology Moscow v Russia (2008) 46 EHRR 16 at para 72.

32 See Hasan and Chaush v Bulgaria at para 62.

33 Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 46 at para 61, emphasis added.

34 (1982) 4 EHRR 293 at para 36.

35 [2005] 2 AC 246 at para 23.

36 R (Williamson and others) v Secretary of State for Education and Employment [2003] QB 1300 (CA) at para 151.

37 Williamson at para 60.

38 I have considered this issue at greater length in McCrudden, C, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655724.

39 Moscow Branch of the Salvation Army v Russia at para 62; Church of Scientology Moscow v Russia at para 75.

40 In both Otto-Preminger-Institut v Austria (1995) 19 EHRR 34 and Wingrove v United Kingdom (1996) 24 EHRR 1, the Court effectively gave precedence to freedom of religion over freedom of speech.

41 Manoussakis v Greece (1995) 23 EHRR 387 at para 47.

42 Church of Scientology Moscow v Russia (2008) 46 EHRR 16 at para 72.

43 See D Pannick, in Lester, A and Pannick, D, Human Rights Law and Practice (second edition, London, 2004), p 67, who regards it as having ‘no logical or legal justification’.

44 Eg R (on the application of Swami Suyananda) v Welsh Ministers [2007] EWCA Civ 893 at para 77; R (on the application of Amicus) v Secretary of State for Trade and Industry [2007] 1 ICR 1176 at para 41, and R (Williamson and others) v Secretary of State for Education and Employment [2003] QB 1300 (CA) at para 19 (Lord Nicholls) and para 55 (Lord Walker).

45 Eg Re Attorney General's Reference (No 3 of 1999) [2009] UKHL 34 at para 16 (Lord Hope); Campbell v MGN Ltd [2004] 2 AC 457 at para 111 (Lord Hope); Douglas v Hello! Ltd [2001] QB 967 at para 133; Re S (A Child) (Identification: Restrictions on Publication) [2004] Fam 43 at para 52 (Hale LJ); Ashdown v Telegraph Group Ltd [2002] Ch 149 at para 27 (Lord Phillips).

46 Webber, G, The Negotiable Constitution (Cambridge, 2009), p 185.

47 Finnis, J, ‘On “Public Reason”’ (2007) Oxford Legal Studies Research Paper No 1/2007, p 6.

48 Ignatieff, M, ‘Human Rights as Idolatry’ in Gutman, A (ed), Ignatieff, M, Human Rights as Politics and Idolatry (Princeton, 2003), pp 53 and 95.

49 Rawls, J, Political Liberalism (New York, 1993), p 217.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
  • URL: /core/journals/ecclesiastical-law-journal
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