Respect for religion: the judge’s dilemma

At the end of September David Pocklington posted about the condemnations by the Council of Europe and the EU of the extremely nasty anti-Islamic video that had been causing so much consternation. The Joint Statement issued by the EU High Representative for Foreign Affairs and Security Policy, the Organisation for Islamic Cooperation, the Secretary General of the Arab League and the African Union Commissioner for Peace and Security began like this:

“We share a profound respect for all religions. We are united in our belief in the fundamental importance of religious freedom and tolerance”.

Which is fully in accordance with Article 9 ECHR and the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief but, in practice, how far can “religious freedom and tolerance” go?

In a recent article, ‘The Secularisation of the British Constitution’ (2012) 14 Ecc LJ 371–399, Julian Rivers looks at the increasing secularisation of the United Kingdom and suggests (at 371) that the law “is coming to treat religions as merely recreational and trivial”. He argues that

“… recent legal developments reveal a fundamental shift in the law’s attitude towards religion. Religions command decreasing respect as grounds of conscientious action, secular courts are becoming less deferential to religious law, and the scope for religions to offer public services in accordance with their own ethos is reducing … There is still freedom of religion. But because religion has no publicly cognisable weight, the claims of conscience, the claims of systems of religious law, the claims of alternative religious ethics of care and visions of social flourishing must all give way to the homogeneous and ‘neutral’ conception of the common good as expressed through the law of the state.” (at 396).

In A Secular Age (Cambridge MA, 2007) Charles Taylor postulates three categories of secularisation which Rivers quotes with approval:

  • the emptying of certain public spaces, such as the provision of welfare services of “God”;
  • the general falling-off of religious belief and practice (which, suggests Rivers at 397, though it has no direct legal consequences “… creates the cultural conditions in which secularisation in other senses can occur”); and
  • the fact that “faith” has increasingly become just one possibility among others.

Or as Grace Davie puts it:

“… on the one hand, religion has re-entered the public square in Europe and demands a response; on the other, the process of secularization is continuing – remorselessly so in many places. As a result, large sections of the European population have lost the concepts, knowledge and vocabulary that are necessary to talk about religion just when they need them most. It is for this reason that the standard of debate in many parts of Europe is so poor”: see Thinking Sociologically About Religion: A Step Change In The Debate?

Secularisation, argues Rivers, has “… reduced the religious claim to authority over the life of the individual or the community to a matter of mere choice” (at 397) and he asks why a court should not rely on a religious reason in justifying a decision:

“One answer refers to institutional propriety: a court of law is not the sort of institution to determine and apply religious requirements. Another answer refers to rational persuasiveness: religious reasons are not, ultimately, rational. This distinction is the difference in legal terms between Taylor’s first and third senses of secularism” (at 398).

He goes on to say that the presumption by a Church that a particular rule is divinely-mandated is irrelevant for a secular court but a proper reason for the Church to follow the rule and that

“[i]f a religious believer can demonstrate a commitment to a religious precept with sufficient coherence and cogency, the court can ‘rely’ on that reason … in securing the right of the believer to act on that reason. But if religious reasons are not, ultimately, rational, there is no reason for anyone to follow them in any context, or to respect those who do” (at 398).

He cites in support of his argument Laws LJ’s judgment in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 and concludes that the effect of the contrast between the objectivity of the law with the subjectivity of religious believers “… is to turn religion into another hobby”.

Comment: The contrast between the supposed objectivity of the law and the presumed subjectivity of religious believers sometimes presents judges with a nigh-on impossible task: how far can you reasonably accommodate religious beliefs or preferences that appear to be in contradiction to the general law?

Said Laws LJ:

“The promulgation of law for the protection of a position held purely on religious grounds cannot … be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion ‒ any belief system ‒ cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself”. (para 24: emphasis added).

Rivers agrees that the law cannot simply adopt or privilege the views of one religious group. He suggests, however, that the traditional way of coping with religious difference has been through “a consensual settling of different institutional spheres of authority” ‒ in effect, collaboration and mutual recognition ‒ and that, as “faith” comes increasingly to be seen as a private choice, that settlement is under threat.

I agree entirely with Julian Rivers’ careful and thoughtful analysis of the problem: however, as I see it there is no going back. When Sir John Laws said that “the precepts of any one religion … cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other” he was almost certainly expressing the current majority view.

There are areas of the law over which all faiths would agree: no religion, so far as I am aware, condones murder, rape or theft. Equally, however, there are areas on which different faith-communities take very different views – polygamy is the obvious example – and what weight is a trial judge to give to the claims of one religious group over the claims of another or the claims of society at large?

What happens if, for example, a judge is confronted with a Rastafarian charged with possessing cannabis who argues that he uses is for religious purposes? In R v Taylor [2001] EWCA Crim 2263, an appeal by a Rastafarian against a conviction for possessing cannabis with intent to supply, the prosecution had conceded in the Crown Court that Rastafarianism is a religion and that all the cannabis was intended for religious purposes – but the trial judge concluded that the Misuse of Drugs Act 1971 could not be read as incorporating a Rastafarian religious defence under Articles 8 or 9 ECHR and in the Court of Appeal the Vice-President (Rose LJ) rejected the Article 9 argument entirely on the facts of the case.

Or, as I have noted previously, in AlSaffar v AlSaffar [2012] EWCA Civ (25 July 2012: as yet unreported), the Court of Appeal rejected Dr Al-Saffar’s challenge to a maintenance order on the grounds that the belief that maintenance payments to spouses were illegitimate according to Islamic culture was no defence against an order made by an English divorce court – and the Association of Muslim Lawyers supported that decision, expressing the view that, while a judge might properly take into account a divorcing couple’s prenuptial agreement and their  religious or cultural views, the principles of English law should always prevail.

In Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983 (17 July 2012), a dispute about the trusteeship and governance of two Sikh gurdwaras, Mummery LJ held that the dispute turned on matters that were inherently non-justiciable. The principle of non-justiciability meant that the courts would

“… abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition” (para 19).

Nevertheless, he also made it clear that there was no general principle that religious bodies or groups enjoyed a spiritual independence or freedom that placed them above or exempted them from secular law  (para 25).

Or what does the judge do when divorced or separated couples have disputes about the religious upbringing of their children? And they frequently do: see, for example, RE S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam) which involved a dispute between a Muslim woman separated from her Jain husband who wanted to convert her two children to Islam (the Court said “No”) or, very recently, C (A Child), Re [2012] EW Misc 15 (Romford County Court) (11 May 2012) in which an ten-year-old Jewish girl whose father had converted to Christianity wished to be baptised into the C of E against her mother’s wishes (the Court said “yes”: we blogged about it at the time).

Another area on which people of different faiths have opposing views is ritual slaughter. My co-blogger pointed out to me in an e-mail that while many Christians have misgivings about the practice, “but in an Anglican, half-hearted way”, Sikhs are enjoined by their religion not to eat the meat of animals slaughtered in accordance with sharia. There have been moves to require identification of meat slaughtered in this way, most recently in the unsuccessful   attempt on 24 April to introduce a Food Labelling  (Halal and Kosher Meat) Bill [Commons Hansard 24 April c 823]. What would happen if a Sikh sought judicial review of the fact that there is no such labelling scheme at present? How would a judge weigh the interests of Sikhs against the interests of Jews and Muslims – and, indeed, against those of society at large?

Perhaps the most difficult case is where someone claims a conscientious opt-out under the Abortion Act 1967. As we have noted previously, in Doogan & Anor, Re Judicial Review [2012] ScotCS CSOH 32 (29 February 2012) two midwifery sisters at the Southern General Hospital, Glasgow, objected to line-managing more junior colleagues who took part in terminations on the grounds that their right of conscientious objection was implied into their contracts by section 4(1) Abortion Act 1967, which states that “… no person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection”. The Lord Ordinary [Lady Smith] rejected their petition.

We understand that Lady Smith’s judgment has been appealed; and the resulting judgment will be something of a benchmark for the degree to which the courts are prepared to weigh “thought, conscience and religion” against the general interest in the neutral provision of public services.

It might be said in passing that one problem with the presumed subjectivity of religious believers is when a court does not take an objective view of the consequences of a particular action for the believer: in the case of a Roman Catholic, automatic [latae sententiae] excommunication under the terms of Canon 1398. That said, however, there is nothing particularly “religious” about having a principled objection to abortion: though that position tends to be associated with particular religious views there is no reason why an atheist should not refuse to participate in termination of pregnancy simply on secular moral grounds – and the drafting of s 4(1) recognised that fact.

So to return to the question with which we began, how far can “religious freedom and tolerance” go in practice? As we, along with most other commentators, have observed before, the problem is partly one of clashing rights; and the secular law is there to hold the ring in as objective a manner as possible between competing views of precisely what should be tolerated: “the burdensome duty of thinking for itself”. But how to do so in practice is often the judge’s dilemma – and a totally unenviable one at that.

Cite this article as: Frank Cranmer, "Respect for religion: the judge’s dilemma" in Law & Religion UK, 9 October 2012, https://lawandreligionuk.com/2012/10/09/respect-for-religion-the-judges-dilemma/

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