Until recently the question of the collective dimension to religious liberty was largely neglected in legal and theoretical scholarship. That has begun to change, notably with the publication of Julian Rivers’ book The Law of Organised Religions, reviewed in this Journal.Footnote 1 Jane Norton (a lecturer at the University of Auckland) has produced another timely contribution, focusing on the position of religious organisations in English law.
The central question the book addresses is how the state should respond to activities or norms of religious organisations that potentially differ from English law or its underlying values. As Norton acknowledges, a frequent source of tension in practice is between associational religious freedom and equality norms over such questions as the employment of women or LGBTQ+ persons, as well as membership criteria or the provision of goods and services. Moreover, questions arise of whether the courts should supervise the decisions of these organisations in order to protect the interests of disaffected members or to resolve internal property disputes. The status and position of religious tribunals and internal adjudication when compared to state norms, particularly in mediating family disputes, is closely linked.
Following an introductory discussion, successive chapters concern the membership of religious organisations, the application of legal norms to their employees and property disputes, the family (particularly focusing on marriage and divorce), and goods and services. The conclusion argues for a distinctive approach informed by four general themes: autonomy, the importance of the availability of a religious life as a social form, the self-governance of religious organisations and the application of internal group norms. Of these, autonomy is clearly pre-eminent in that it provides the rationale for the others.
It is conventional wisdom that some form of balance between religious freedom and other rights and interests is needed to resolve these perennially controversial questions. Ultimately Norton also favours such an approach, in which context must be carefully considered. The strength and distinctiveness of her account, however, is the care with which she delineates the normative considerations at stake.
Thus, she argues that there is a stronger case for exceptions from generally applicable laws (such as non-discrimination) in relation to an organisation's internal affairs rather than ‘external activity’ (for example, where the organisation enters the marketplace or deals with third persons who have not consented to be bound by its norms). Norton follows the logic of the argument even when it leads to some unfashionable conclusions, such as questioning why exceptions can be made for religious organisations from sex and sexual orientation discrimination provisions but not for race (as in the well-known Jewish Free School decision of the UK Supreme Court). On the whole, she is more relaxed about when it should be permissible for the courts to intervene in internal disputes of religious bodies, so long as it is clear that the purpose is to enforce the association's own norms or to prevent it from invoking the power of the state in an illiberal cause.
This leaves a third sphere – a religious organisation's activity that is not in any sense contrary to the general law but which may harm individual autonomy; the operation of non-binding religious tribunals in the field of family law (for example, Sharia councils) would be an instance. Here Norton argues that, consistent with advancement of autonomy, the state should throw its weight behind measures to enhance genuine consent and ‘exit’, rather than outright prohibition.
This is a thoughtful, scholarly and nuanced contribution to the literature which can be highly recommended.
