what
is religion?
by
Roderick Ramage, solicitor, www.law-office.co.uk
(posted
on site 2 April 2005, published in the Summer 2005 Newsletter of the British
Chapter of the International Association for Religious Freedom)
DISCLAIMER
This article is not advice to any person and may
not be taken as a definitive statement of the law in general or in any
particular case. The author does not accept any responsibility for anything
that any person does or does not do as a result of reading it.
One emotive word applies in three legal contexts.
1 Article
9 of the Convention for the Protection of Human Rights and Fundamental Freedoms
(1950), as given effect by the Human Rights Act 1998, says in para (1):
Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief and freedom,
either alone or in community with others and in public or private, to manifest
his religion or belief, in worship, teaching, practice and observance.
2 The
Employment Equality (Religion or Belief) Regulations 2003 gives a person the
right is not to be discriminated against on the grounds of religion or belief.
3 Alterations
to the Public Order Act 1986 to be made, if
enacted, by the Serious Organised Crime and Police Bill will extend the crime
of inciting race hatred to include religious hatred and, by s17A, will define
religious hatred as “hatred against a group of persons defined by reference to
religious belief or lack of religion”.
Context 1 looks different from contexts 2 and
3. Whilst 2 and 3 are concerned with
religion, context 1 can be concerned with simply the freedom of a person to
manifest his religion. Religion in the
context of the Human Rights Act can therefore be much narrower than under contexts
2 and 3. If this is correct, one can
assert one’s human right in respect of manifestation, but the mere fact of
holding a religion or other belief is sufficient to establish a right against
discrimination in employment or inciting hatred in respect of religion can lead
to prosecution. In neither of the
second and third cases is it necessary for the religion to be manifested.
Whether this distinction will be maintained by the
courts will depend on the extent to which the outward observances of religion
are treated as integral to the substance of religion rather than its form. The Rev Arthur Long, a retired Unitarian
minister, tackled this in his “Christmas Present” sermon. You are delighted at the gaily wrapped
present with a big bow passed to you from the tree. Your delight at the Christmas paper and ribbon is momentary. This is not the present, so you tear off the
paper and there is a sturdy cardboard box.
It speaks of quality, but it is still not the present, so you lift the
lid, remove the tissue paper and there, at last, is your Christmas
present. Yes, you are delighted with
it, but when you pick it out of the box you reflect that what means the most to
you is the thought with which it was given to you.
So what is religion? On this basis the rituals, costumes, insignia and other
accoutrements of religion are not the religion itself but the outer signs of
it, no more than the Christmas paper or even the present itself. What matters from this perspective is not
the manifestation of religion but religion itself. Against this there are those who believe that the accoutrements
are integral to religion, even that one cannot have a religion without some
outward manifestation in the form of rituals etc. The definitions in the legislation provide no assistance. The Human Rights Act has none. The Religion and Belief regulations define
religion or belief in reg 2 saying that religion or belief means “any religion,
religious belief, or similar philosophical belief”. “Religious hatred” is defined as above.
If the courts cannot find religion without any
manifestation, it will reduce the scope for protection from discrimination and
prosecution for incitement to hatred.
The latest case under the Human Rights Act is R v
The Headteacher and Governors of Denbigh School [2005] EWCA Civ 199. The school had a policy of inclusiveness and
permitted girls to wear headscarves to identify themselves as Muslim and also
permitted the shalwar kameeze, but one pupil believed that Islamic law required
her to wear a jilbab, which was not permitted.
The Court of Appeal held that the school, by insisting on its uniform
policy, had unlawfully denied the complainant her right to manifest her
religion.
Three interesting points arise from this case.
First it is
not authority to support or deny a female school pupil’s claim to wear a
jilbab, but was decided on the sole ground that (per Brooke LJ at 78) “because
it approached the matter from an entirely wrong direction and did not attribute
to the claimant’s beliefs the weight they deserved, the School is not entitled
to resist the declarations she seeks …”.
He added at 81: “Nothing in this judgment should be taken as meaning
that it would be impossible for the School to justify its stance …”.
Secondly the case was concerned with a denial of the claimant’s right not to freedom of religion, but to manifest her religion. (The limitations permitted by article 9(2) are in respect of the right to manifest one’s religion and not one’s right to freedom of religion.)
Thirdly, the fact of a person’s belief is to be assessed subjectively. Brooke LJ said at 49: “The sincerity of the claimant’s belief … was not in issue in these proceedings.”; and then cited from the decision in Hasan and Chaush v Bulgaria (26 October 2000: Appln No 30985/96, CHR) at 78, as follows.
“[The court] recalls that, but for very exceptional cases,
the right to freedom of religion as guaranteed under the Convention excludes
any discretion on the part of the State to determine whether religious beliefs
or the means used to express such beliefs are legitimate.”
The significance of the third point is that, as a
person’s belief is by its nature incapable of any proof beyond his or her own
declaration of it, there can be no objective or reasonable person test of a person’s
belief and therefore there will be no exceptions for what might be described as
eggshell religious sensitivity. If this
is right, we can look forward to much interesting litigation, but probably
little of benefit to religion freedom.
copyright Roderick Ramage
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