Religious Discrimination and Hatred Law

Neil Addison

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781134110070
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Dealing with this new and controversial area, this is the first comprehensive guide to religious discrimination and hatred legislation. Written by a practising barrister, experienced in all courts and tribunals, this book uses many practical examples covering all forms of religious belief.

Exploring part two of the Equality Act and the Racial and Religious Hatred Act, Addison examines the fundamental differences between religion and race which make the operation of these new laws far more problematic than other racial laws. By looking at these new pieces of legislation, together with the existing Human Rights provisions of Article 9 of the European Convention on Human Rights, the 2003 Employment Discrimination Regulations and the 2001 Religiously Aggravated Offences, he is able to draw subtle comparisons and create a holistic overview of religion and the law.

Challenging some common but simplistic views on the nature of religion and its accommodation in the law, this book is an essential read for students and professionals interested in human rights law and law and religion.

Chapter 1

What is a religion?

The question of what is the true religion, or indeed whether there is such a thing as the true religion, is a question for theologians. Why religion exists and why some succeed and others fade is a question for philosophers and historians. Whether a particular belief constitutes a religion, a philosophy or a political opinion can, however, be a question which has to be decided by lawyers. Now that legislation has been passed, dealing with religious discrimination and religious hatred, courts may find themselves having to draw fine distinctions between religious beliefs, philosophical beliefs, political beliefs and personal opinions. Depending on the particular wording of the legislation in question, where the courts draw the line could determine whether or not a person is guilty of unlawful discrimination or guilty of particular criminal offences.

For example, religiously aggravated criminal offences (Chapter 7) and the criminal offence of religious hatred (Chapter 8) both involve hostility or hatred towards ‘a group of persons defined by reference to religious belief or lack of religious belief’, i.e. it is clear that these particular pieces of legislation only apply in relation to ‘religious belief’. Article 9 of the European Convention of Human Rights (Chapter 2), by contrast, applies to either ‘religion or belief’. In employment legislation (Chapter 4), tribunals have to consider discrimination based on ‘any religion, religious belief, or similar philosophical belief’, whilst s 44 of the Equality Act 2006 (Chapter 3) defines ‘religion or belief’ as follows:

1. ‘religion’ means any religion,
2. ‘belief’ means any religious or philosophical belief,
3. a reference to religion includes a reference to lack of religion, and
4. a reference to belief includes a reference to lack of belief.

Whilst Art 2 of the First Protocol of the European Convention on Human Rights (Chapters 2 and 5) refer to ‘religious and philosophical convictions’.

The Oxford English Dictionary offers the following definitions:

Religion A particular system of faith and worship. Action or conduct indicating a belief in, reverence for, and desire to please, a divine ruling power; the exercise or practice of rites or observances implying this. Recognition on the part of man of some higher unseen power as having control of his destiny and as being entitled to obedience, reverence and worship.

Belief Mental acceptance of a proposition, statement or fact as true, on the ground of authority or evidence; assent of the mind to a statement, or the truth of a fact beyond observation on the testimony of another, or to fact or truth on the evidence of consciousness; the mental condition involved in this assent.

Philosophy A particular system of ideas relating to the general scheme of the universe; a philosophical system or theory. Also more generally, a set of opinions, ideas or principles, a basic theory, a view or outlook. Used especially of knowledge obtained by natural reason, in contrast to revealed knowledge.

It is probably fair to say that, in the majority of legal cases, the question of whether a belief is or is not a religion or whether a person is or is not a member of a religion is not in dispute. Courts are entitled to apply their knowledge of life and to take judicial notice of facts which are well known. For example, if a woman wearing a hijab is attacked by someone who shouts ‘I hate you f***ing Muslims’, then the defendant would be charged with religiously aggravated assault and a court would give short shrift to any argument that Muslims were not a religious group. However, what would be the situation if a Muslim shopkeeper regarded Muslim women who do not wear the hijab as ‘bad Muslims’? If he refused to serve a Muslim woman who was not wearing a hijab, would he be guilty of religious discrimination? Are they both members of the same religion, or does the fact that they interpret or apply the same religion differently mean that they, in practice, have different beliefs? And what of people who have deeply held political beliefs which form an essential part of their personality and life? Should their beliefs be regarded as less worthy of protection than the beliefs of someone else who is only a nominal member of a religious group?

There are two main sources of law on the question of what is a religion, namely cases involving charity law and European and UK cases involving Art 9 of the European Convention on Human Rights. Under English charity law, a legitimate charitable purpose is ‘the advancement of religion’ and, because charity status brings many financial and other benefits, many groups have sought to be defined as religions. However, some of the case law involving charities has to be approached with caution, since quite often the court was looking not at whether a particular group or belief constituted a religion but whether its purposes were for the ‘advancement of a religion’ and therefore had an element of public benefit. For example, a purely contemplative or secluded religious order does not classify as a charity because there is no element of public benefit associated with their activities, even though those activities are clearly religious in nature. Cacks v Manners [1871] LR 12; Gilmour v Coats [1849] AC 426.

The most comprehensive statement of what classifies as a religion in English law, the distinction between religion and belief, and the way in which courts should approach these two concepts was given in the case of Barralet v Attorney General [1980] 3 All ER 919. In this case an ‘ethical society’, whose objectives were ‘the study and dissemination of ethical principles and the cultivation of a rational religious sentiment’, applied for registration as a religious charity. During the case the judge, Dillon J, was referred to an opinion by the United States Supreme Court relating to the beliefs of a (non religious) conscientious objector where the Supreme Court had said that, in its opinion: ‘a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for exemption on the grounds of religion comes within the statutory definition’. However, this approach of making religious and non-religious beliefs comparable was rejected by Dillon J, who said (at p 924):

In a free country, and I have no reason to believe that this country is less free than the United States, it is natural that the court should desire not to discriminate between beliefs deeply and sincerely held, whether they are beliefs in a God or in the excellence of man or in ethical principles or in Platonism or some other scheme of philosophy. But I do not see that that warrants extending the meaning of ‘religion’ so as to embrace all other beliefs and philosophies. Religion as I see it is concerned with man’s relations with God and ethics are concerned with man’s relations with man. The two are not the same and are not made the same by sincere enquiry into the question, what is God. If reason leads people not to accept Christianity or any known religion but they do believe in the excellence of qualities such as truth, beauty and love, or belief in the Platonic concept of the ideal, their beliefs may be to them the equivalent of a religion but viewed objectively they are not a religion . . . It seems to me that two of the essential attributes of religion are faith and worship; faith in a God and worship of that God. This is supported by the definition of religion given in the Oxford English Dictionary, although I appreciate that there are other definitions in other dictionaries and books. The Oxford Dictionary gives us one of the definitions of religion: ‘A particular system of faith and worship. Recognition on the part of man of some higher unseen power as having control of his destiny and as being entitled to obedience, reverence and worship’.

What constitutes ‘worship’ was considered by the Court of Appeal (Civil Division) in the case of R v Registrar General ex p Segerdal [1970] 3 All ER 887, in which the court decided that a ‘chapel’ used by the Church of Scientology was not a place of worship. In reaching their decision, the court considered the ‘creed’ of the church and the activities which took place in the ‘chapel’ and held that these did not constitute religious worship. In that case Buckley LJ said (at p 892):

Worship I take to be something which must have some at least of the following characteristics, submission to the object worshiped, veneration of that object, praise, thanksgiving, prayer or intersession.

However, in both these judgments it was accepted that the law could not give an absolute and definitive interpretation of religion. In both cases it was accepted that Buddhism should be regarded as a religion even though Buddhists do not worship a supreme being and Buddhism is, in many ways, more of a philosophy than a religion. However, Buddhism does include prayers, ritual and worship and has a viewpoint regarding the ultimate destiny of the human personality, or soul, after death, which means that, for all practical purposes, it is indistinguishable from a religion which includes a god.

The point in Barralet that ‘religion is concerned with man’s relations with God and ethics are concerned with man’s relations with man’ is still a valuable and relevant distinction to be made. Communism in the 1930s, for example, had many aspects of similarity with religion, perhaps because Stalin was an ex-student from a seminary. Certainly, under Stalin the works of Marx and Lenin were raised almost to the status of divine scripture and many commentators noted that Communist parades and meetings had a ritualistic, quasi-religious atmosphere. However, Communism was concerned only with the relationship of humans to each other and to the state and did not concern itself with the destiny of the individual after death. For that reason, though quasi-religious in many ways, it was never a religion and was never regarded as such.

Another way of distinguishing between a religion and a belief is the extent to which it is possible to be a member of a religion and another organisation. It is, for example, possible for both Mormons and Muslims to be members of the Labour Party but it is not possible for a Mormon to be a Muslim or a Muslim to be a Mormon. A purely personal definition that I suggest is ‘religion is what I do, belief is what I think’, i.e. religion is communal, belief is personal. I may go to the same church as my co-religionists and say the same prayers but whether I believe the same things as them is another matter.

One attempt to define religion is in s 2(3) of the Charities Act 2006:

. . . ‘religion’ includes—

1. a religion which involves belief in more than one god, and
2. a religion which does not involve belief in a god.

It is doubtful if this definition actually changes anything. Charity law already gives equal treatment to polytheistic religions (religion which involves belief in more than one god) such as Paganism, non-theistic religions (religion which does not involve belief in a god) such as Buddhism and monotheistic religions (religion which involves belief in one god) such as Christianity, Islam and Judaism. It is probable that the Barralet decision relating to the distinction between ‘religion and ethics’ will continue to be applied and anything lying outside the definition of religion will fall within the definition of ‘belief’.

In the Australian case of Islamic Council of Victoria v Catch the Fire Ministries Inc. [2004] VCAT 2510 there was an attempt to argue that Islam was not a religion. This point was argued on technical legal grounds but the judge took the view that the decision as to whether or not Islam was a religion was a question of fact and not a question of law:

376 The question of whether Islam is a religion was raised by the respondent. The Tribunal’s view is quite simple, and that is that it is a religion. The expert witnesses who were called by the complainant each conceded that it was a world religion. An obscure argument was put by Mr Perkins based upon a number of essentially legal issues. The respondent seeks to deny that Islam is a religion by reference to a decision that the law of blasphemy only applies to Christianity. The basis of that view is in doubt in this State and, indeed, may not even exist (see the view of Harper J in Pell v. The Council of the Trustees of the National Gallery of Victoria (1988) 2 V.R. 39). The fact that there is an absence of strict division between church and State does not detract from the conclusion that Islam is a religion. The relationship between the two may be an issue, but to suggest that there is no such thing as an Islamic religion does not stand scrutiny. The above is demonstrated by the fact that Islam, which has adherers, in excess of one billion people throughout the world; who regard the

as equivalent to the Bible; that it agrees substantially with Christian beliefs save for particular events; that it is accepted by millions of people as a religion by which people live their lives based upon the teachings of the

and Hadiths; that it has a structured organisation which teaches and promotes its views; and finally has places of worship world wide, that is, mosques, has to deny any argument that it is not a religion.

However, though courts have an important and legitimate role in determining what constitutes religion or religious belief, it is no part of the role of secular courts to take sides in religious controversy or to decide which particular religious belief is correct. Two cases illustrate this point clearly. In Amicus v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin) the Amicus trade union were objecting to s 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, which exempted ‘employment for purposes of an organised religion’ from the regulations (Chapter 4). Amongst other points it was argued that Christian groups which were opposed to homosexuality were theologically wrong in their understanding of the teaching of the Bible. This approach was categorically rejected by Richards J in paras 36–39 of the judgment:

36 The NUT disputes the existence of a coherent theological basis for the interveners’ views on sexual morality, in particular on homosexuality and homosexual behaviour. The evidence before the court includes witness statements, extracts from the Bible and other material directed to this issue. In my view, however, it is not an appropriate issue for this court to entertain. First, this is a judicial review challenge in the context of which the interveners’ beliefs have an illustrative rather than determinative function, helping in particular to cast light on the background to regulation 7(3) and on the competing claims between which a balance has to be struck. Secondly, and in any event, I consider that the resolution of the theological dispute raised by the NUT would take the court beyond its legitimate role.

37 In R (Williamson) v. Secretary of State for Education and Employment [2003] QB 1300, which raised the question whether the claimants’ belief in the use of mild corporal punishment as part of a Christian education was a ‘belief’ for the purposes of article 9 of the Convention, Arden LJ observed that the court’s function at the fact-finding stage was to decide what the claimants’ beliefs were and whether they were genuinely held:

‘Religious texts often form the basis from which adherents develop specific beliefs. It is not the court’s function to judge whether those beliefs are fairly based on the passages said to support them’ (1370B-C, para 252).

Although the other members of the court did not adopt the same approach, it is one that seems to me to have a great deal to commend it.

38 A more extreme case, relating as it did to a doctrinal assessment of the fitness of a rabbi, but again one that points to the appropriateness of judicial restraint in this general area is R v. Chief Rabbi, ex parte Wachmann [1992] 1 WLR 1036. In that case Simon Brown J stated that ‘the court would never be prepared to rule on questions of Jewish law’ and that, in relation to the determination of whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office, the court ‘must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state’ (1042G–1043A).

39 I should also note a case on which Mr Dingemans has placed substantial weight, namely the decision of the US Supreme Court in Boy Scouts of America v. Dale (2000) 8 BHRC 535, where it was said (at 541h–542b):

‘The [New Jersey Supreme Court] concluded that the exclusion of members like Dale ‘appears antithetical to the organization’s goals and philosophy’ . . . But our cases reject this sort of inquiry; it is not the role of the courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent . . . The Boy Scouts asserts that it ‘teaches that homosexual conduct is not morally straight’ and that it does ‘not want to promote homosexual conduct as a legitimate form of behavior’ . . . We accept the Boy Scouts’ assertion . . .’

Such an approach is certainly in line with that which I consider to be appropriate in the present case in relation to religious beliefs.

Following the Amicus case, the fact that it is not for secular courts to take sides on theological questions was restated in unequivocal terms in the House of Lords case of R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, where several Christian schools were arguing that legislation restrictin...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Useful Websites
• Glossary of Terms
• Introduction
• Chapter 1: What is a Religion?
• Chapter 2: Religion and Human Rights
• Chapter 3: Religious Discrimination
• Chapter 4: Religious Discrimination in Employment
• Chapter 5: Religious Discrimination in Education
• Chapter 6: Religious Harassment
• Chapter 7: Religious Crimes
• Chapter 8: Religious Hatred
• Appendix A: Religion and International Human Rights Provisions
• Appendix B: Equality Act 2006, Part 2
• Appendix C-1: Employment Equality (Religion or Belief ) Regulations 2003
• Appendix C-2: ACAS Guidance on Religion or Belief in the Workplace
• Appendix D: Legislation Relating to Religion and Education
• Appendix E: Harassment Legislation
• Appendix F: Religious Criminal Offences
• Appendix G: Racial and Religious Hatred Act 2006