what is religion?
by Roderick Ramage, solicitor, www.law-office.co.uk
(posted on site 02/04/05, to be published in the Summer 2005 Newsletter of the British Chapter of the International Association for Religious Freedom)
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 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  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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