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)
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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