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A New Legal Definition of Religion?

Lorenzo Zucca, Reader in Jurisprudence, King’s College London

Scientology is a religion: this much is clear in the UK Supreme Court’s December 11 ruling in the high profile case of Hodkin v Registrar. The facts of the case are simple. Mrs. Hodkin wants to get married in Church with her fiancé. The only problem is that the Church of Scientology is not registered as a place of worship according to the Place of Worship Registration Act 1855 (PWRA). Moreover, a 1970 precedent of the Court of Appeal (Segerdal) ruled that Scientology is not a religion because it does not believe in any God (Lord Denning), and in any case it does not worship in a manner that can be compared to any other established religion (Winn & Buckley LJ).

Last week, the UK Supreme Court overruled its precedent in a clear and forceful way. Scientology is a religion and its premises should be registered for the purpose of solemnizing a religious marriage. This result is not surprising and largely expected. It seems to be the correct result since there was no readily available principled reason to exclude Scientology from a religious benefit that applies to all other religions.

In the case of Segerdal (1970), Lord Denning honestly confessed that Scientology was not a religion for him. It was more like a philosophy. Implicit in Lord Denning’s position is a Theistic definition of religion: religion has to coincide with a belief in a supranatural divinity. This poses immediate problems: what about widely practiced religions such as Buddhism or Jainism? They do not worship a god: are they religion then? Lord Denning had to grant an exception for Buddhism and for few other religions. He does not explain what justifies the exception. He just asserts that Buddhism is in and Scientology is out.

The UK Supreme Court moved away from a Theistic definition of religion. Lord Toulson, writing for the majority, argues that a Theistic definition of religion does not capture a great number of cases. It would merely impose a Judeo-Christian definition upon the rest of the world’s religious experiences. But is it possible to come up with a watertight definition of religion? Lord Toulson is adamant that lawyers are not fully equipped with the appropriate tools to settle this question. However, he still believes that it is possible to give empirically grounded indicia so as to give an idea of what religion looks like.

Lord Toulson is quick to admit that his is not a legal definition but merely a description. To buttress his point, Lord Toulson looked at other comparative attempts to define religion only to conclude that: “experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word.” That said, Lord Toulson singles out two main comparative points of reference: the judgment of Adams CJ in Malnak v Yogi (1979) and the judgment of the High Court of Australia in the Victoria case (1983). Judge Adams convinces Lord Toulson on the methodology: a judge needs to move away from a Judeo-Christian definition of religion and embrace “a comparative approach to the identification of a religion.” (emphasis added)

Concretely, a judge should proceed by analogy; to do so he needs to single out a number of indicia that will in turn inform the investigation. Lord Toulson, however, does not believe that a new legal definition can emerge by the application of those indicia. Instead he follows Wilson and Deane JJ of the High Court of Australia who suggest that at best a judge can formulate a set of guidelines the importance of which will have to be evaluated in the cultural context and on a case-by-case basis. A description is meant to be informative, but it cannot be used as a stringent legal test.

So what is his description? In his words: “For the purpose of PWRA I would describe religion in summary as 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.” (emphasis added)

Toulson’s description has four elements:

  1. religion is a spiritual or non-secular belief system
  2. adherents to the belief system form a group
  3. the belief system claims to explain mankind’s place in the universe and relationship with the infinite
  4. there is a code of behaviour consistent with the belief system

None of these guidelines is meant to be exhaustive of the idea of religion; they are purely offered as aids to figure out what religion looks like. Needless to say, most leading religions easily meet all the criteria. So the problem remains–what is not to be considered as religion?

One thing alone seems to be excluded according to the first indicium: secular beliefs squarely fall outside of the realm of religion. As if it was easy to tell apart secular beliefs from religious beliefs. Most secular beliefs are formed against the background of Judeo-Christian roots. Think of human dignity: is it a secular or a religious value?

Lord Toulson understands that this distinction is problematic: it imposes a dichotomy between secular and spiritual beliefs. The latter is the realm of religion. The former is, according to Toulson, whatever “can be perceived by the senses or ascertained by the application of science.” This reinforces the well-trodden dichotomy between science and faith, which is much less staunch than one believes.

Moreover it also suggests that to be a secularist is incompatible with having spiritual beliefs. This is clearly wrong. To have a secular outlook simply means that political institutions should not be directly influenced by religious arguments that can only be understood by one group of the community that happens to sign up to the relevant religious beliefs. It is important to stress that it is in the interest of religious pluralism to have political institutions that do not favour one religion over another. A secularist can indeed have spiritual beliefs. In the end, the description provided by Lord Toulson is not going to dispel the greatest problem of all: how do we draw the boundary between religion and everything else?

The description Lord Toulson provides is painted with a very broad brush: it gives an impressionist view of the cathedral, and leaves the contours completely blurry. Perhaps a court cannot do more than that: it just gives us an impression of religion but not a legal definition. The latter is impossible: it would take much more expertise in Theological and Sociological debates as well as in comparative religious studies.

In conclusion, the decision does not provide a new legal definition of religion. It shifts away from a very narrow Judeo-Christian definition of religion to a much more sociological, empirically responsive, and open description that claims to be more suited to a pluralist society. The Supreme Court welcomes Scientology in the Pantheon of accepted religions and leaves the door open for new religions to come forth and ask for the registration of their place of worship. New cases will come up.. The English Registrar will have to do her investigations on the basis of the guidelines provided by the Court. Her negative response will always be reviewable by the courts.

The only real fear concerns the power of the courts. Lord Toulson would like to lower the heat of the debate and tone down the disagreement. He wishes to be modest as to what Judges can say about religion, but the truth is that the last word on this matter will always be theirs.

Suggested Citation: Lorenzo Zucca, A New Legal Definition of Religion?, Int’l J. Const. L. Blog, Dec. 20, 2013, available at: http://www.iconnectblog.com/2013/12/a-new-legal-definition-of-religion

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Published on December 20, 2013
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One Response

  1. Scientology’s bona fides have been officially recognized by a number of governmental agencies and public authorities in the United Kingdom. These include: HM Customs and Excise, Inland Revenue and the ministry of defence.

    Most significantly, the Italian Supreme Court has repeatedly affirmed the religiosity of Scientology. The Italian Supreme Court issued a decision in October 1997 regarding Scientology that is now recognized as the leading European judicial precedent regarding the definition of religion. The Court thoroughly analyzed the criteria for determining religion, concluding that Scientology is a bona fide religion whose activities, “without exception, [are] characteristic of all religious movements.” In reaching this determination regarding Scientology’s bona fides, the Court rejected the definition of religion applied below in the case by the Court of Appeals because it was drawn from Judeo-Christian con cepts:“a system of doctrines centered on the assumption of the existence of a Supreme Being, who had a direct relationship with men and whom they must obey and revere.” The Court found “[s]uch a definition of religion, in itself partial since derived – as asserted – exclusively from religions stemming from the Bible, is illegal under many viewpoints; it is based on philosophical and socio-historical assumptions that are incorrect.” Moreover, the Supreme Court noted that the lower court also erred because the definition used to exclude Scientology also excludes Buddhism, Taoism or any “polytheistic, shamanistic or animistic religions.”

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