What is a 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:
(a) ‘religion’ means any religion,
(b) ‘belief’ means any religious or philosophical belief,
(c) a reference to religion includes a reference to lack of religion, and
(d) 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