The Discomforts of Religion

Religion gives law a lot of trouble. Most often, the difficult question is what to do about it ― what to do about prayer at municipa council meetings, what to do about religious believers asking for exemptions from general laws. But sometimes, the law must confront a more basic, and perhaps an even more difficult question: what is religion in the first place? The Supreme Court of Canada has not had to say very much on this vexed subject. The most it did say was Justice Iacobucci’s pronouncement, without much explanation, in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 SCR 551, at par. 39, that

[i]n essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

The Supreme Court of the United Kingdom, however, had to address the question of the nature of religion in a case it decided earlier this week, R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages, [2013] UKSC 77. The issue it had to decide was whether a Scientologist church could qualify as a “place of meeting for religious worship” for the purposes of the English legislation that grants recognition to marriages performed in such “places.” And to figure out what “religious worship” means, it is necessary to have an idea of the concept of religion.

The exact same issue had arisen in the case of R v Registrar General, Ex p Segerdal [1970] 2 QB 697, where Lord Denning held that Scientology’s churches were not places of religious worship. Those, he explained, were “where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another  God, or an unknown God, but it must be reverence to a deity.” Lord Denning allowed that “[t]here may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship,” but Scientology did not, in his view, have anything like a diety, being more a philosophy than a religion, and so its churches did not qualify.

The Supreme Court in Hodkin declares itself unsatisfied with this reasoning. Lord Denning’s insistence on a deity as a distinguishing hallmark of religion, it says, is misplaced. Because it would exclude from the definition of religion certain groups generally recognized as religious, it would be “a form of religious discrimination unacceptable in today’s society” (par. 51). Indeed, Lord Denning himself was willing to make an exception for Buddhism ― yet his exception was unexplained and seemed unprincipled, suggesting that the rule he proposed was too. In addition, on his approach, courts would be called upon to decide whether a creed did, in fact, refer to a deity or supreme being, or whether the being it referred to was supreme enough. This is the stuff of theology, not of law, and courts would do best to stay out of it.

Embarking on its own search of the meaning of the expression “religious worship,” and thus of the concept of religion itself, the Court observes that

[t]here has never been a universal legal definition of religion in English law, and experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word (par. 34).

Furthermore, the understanding of religion changes over time, and

It is no good considering whether the members of the legislature over 150 years ago would have considered Scientology to be a religion because it did not exist (par. 34).

After an in-depth review of a couple of judicial decisions, one from the US and one from Australia, the court ventures its own definition. Religion, for it, is

a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. … Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science (par. 57).

An additional question is whether the statutory term “religious worship” involves the “adoration of a deity.” Armed with a definition of religion that does not involve a deity, the Court says no. Any religious rites will do. The statute permits

members of a religious congregation, who have a meeting place where they perform their religious rites, to carry out religious ceremonies of marriage there. Their authorisation to do so should not depend on fine theological or liturgical niceties as to how precisely they see and express their relationship with the infinite … Those matters … are more fitting for theologians than for the Registrar General or the courts (par. 63).

The Scientologists are allowed to perform marriages in their church.

This case illustrates a general and increasing reluctance of common law courts to scrutinize religious beliefs. This same feeling was one of the driving factors in the majority decision in Amselem, which held that courts cannot inquire into whether a religious believer was really required to do or not to do something by some correct interpretation of his or her faith. This attitude of the courts is fully justified: judges are not qualified to serve as theological arbiters, and, more importantly, as the agents of a secular state, they have no right to take on that role. That is something that those who defend various forms of prohibitions on the wearing of religious clothing or symbols by arguing that these are not truly required by the religion of those who wear them should keep in mind.

Most Interesting, If I May Say So

Following up on posting about a recording of an interview with H.L.A. Hart, here’s another interview with a giant, Lord Denning. It is the Master of the Rolls’ appearance in 1980 on Desert Island Discs, a BBC talk show on which some interesting person is invited to talk about the 8 records (as well as a book and a luxury item) he or she would take along to a desert island, as well as life, the universe, and everything.

Lord Denning sounds every bit like you expect him to sound―the very model of an elderly, old-fashioned, perhaps a little cantankerous British gentleman. His musical choices are in character too, from “Greensleeves” to “Colonel Bogey” to “Land of Hope and Glory,” which he prefaces with a corny but, I am sure, sincere patriotic outburst about the “one country which we all love, which I love more than any,” and the assertion that “in all of my career I’ve always tried to stand up for the freedom of the individual against the executive or any great authority.”

In the meantime he talks about his life and career, serving in World War I, doing his law degree at Oxford in eight months, becoming a judge fairly quickly and rising to the House of Lords―and then going back to the Court of Appeal because there is more “fun” to be had there, but really, because there is more of a chance of ending up in the majority. In the House of Lords, he had “to be one of five, dissenting…  nobody takes notice of a dissenting judge.” And if Lords reversed one of his judgments in the Court of Appeal, well, “that doesn’t mean they’re right, you know!” Interestingly, in contrast to most of both American and Canadian judges who pronounce on the role of the judiciary, he is candid about his, and his court’s, role in changing the law, both “to keep the law in accordance with the needs of the time,” and as part of a”fight for what I think is just”―or both, sometimes, as in moving the law towards recognizing the equality of women (though “abandoned wives” doesn’t sound altogether egalitarian by today’s standards).

Although Lord Denning mentions a letter from a distraught law student to the Times asking him please not to change the law anymore until the exams are over, I am sure that he has helped many a first-year survive law school. Whatever their legal merits, his judgments are the highlight of any coursepack. He is probably what every law student would like to be―the defender of the widow and the orphan, of liberty and justice, the scourge of abuse of power and trickery, and a great raconteur to boot. If you are a little nostalgic for the good old days in his company, but don’t feel like getting out those contracts cases, just listen to this programme. It is, as he put it, “most interesting, if I may say so.”