Christopher McCrudden. Ecclesiastical Law Journal. Volume 13, Issue 1. January 2011.
Let’s start from first principles. We can begin by distinguishing three different ways in which we can conceive of the relationship between religion and the public sphere. First, we can think of religion as an aspect of an individual’s identity and belief system. In that context, freedom of religion is conceived as an individual right, and the issue often becomes one of how far the choices that an individual makes based on this set of individual religious beliefs is protected or constrained by law. For example, there has been a running controversy in Malaysia about whether a person classified as a Muslim should be allowed to convert to Christianity without the permission of the Sharia court.
Freedom of religion, seen from the point of view of the individual, can be viewed as encompassing two aspects: the freedom to believe what one’s religion teaches, and the freedom to manifest that belief in certain actions, such as wearing a turban if one is a Sikh man, or wearing a veil if one is a Muslim woman.
We can think of religious freedom as having a second, associational, aspect. That is, religion is seen as involving individuals associating together in formal or informal ways, and practising their religion in common with each other, or as we might say in ‘communion’ with each other. This relationship might (or might not) be formalised by the formation of a Church. Seen in rights terms, the issue becomes what rights the religious community or association or Church has when it acts in a way that impinges on the public domain. We have seen in Germany and Italy, for example, an issue arising as to how far a state-run school should be allowed to display a crucifix. An important element in the German case was the desire of parents to be able to send their children to a school in which religious faith was manifested in common.
The European Court of Human Rights has recognised these two dimensions to freedom of religion in Article 9 of the European Convention on Human Rights. The right to freedom of religion in Article 9 has two complimentary aspects: an individual aspect, and a collective/community aspect. The court in Hasan and Chaush v Bulgaria said:
While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance.
The European Court of Human Rights regularly emphasises that states should not underestimate the importance of the community dimension of the right. As it said in Hasan; ‘The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin.’ Article 9 must be interpreted and applied to allow a religious community ‘to associate freely, without arbitrary State intervention.’
Associations included within the scope of Article 11 protection generally have the right to choose their members, and the court has held in Associated Society of Locomotive Engineers and Firemen (ASLEF) v United Kingdom that where
associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership. By way of example, it is uncontroversial that religious bodies and political parties can generally regulate their membership to include only those who share their beliefs and ideals.
So too, the European Court of Human Rights has refused to permit States to interfere in the choice of leaders of particular churches. In a series of cases, the court has held that the state must ensure that religious organisations retain autonomy in relation to the selection of their own leaders. In Hasan, Article 9 was violated because of ‘an interference with the internal organization of the Muslim community’.
Several of these ‘leadership’ cases concern disputes between different parts of the religious community, and the state has been held to have illegitimately sided with one section of the community by appointing the leader directly. Several principles can be drawn from these cases. When differences within or between religious groups lead to tensions, the court has affirmed that the ‘role of the authorities in such circumstances is not to remove the cause of the tension by eliminating pluralism …’, meaning that the state should not attempt to solve the problem by imposing one view (or leader) on the whole religious community. In the Metropolitan Church case, the court said: ‘Measures taken by a State which favour one of the leaders or certain organs of a divided religious community, or aim to oblige that community or a part thereof to submit against its will to a single governing body, would equally be an infringement of freedom of religion.’ In an intra-religious community dispute, when it is open to one group to establish alternative ways of achieving their aim, then the solution most appropriate to ensuring pluralism is for that group to pursue the alternative, rather than to insist that the other group change its practices.
These two aspects of freedom of religion are often seen as involving different aspects of what American jurisprudence would call the ‘free exercise’ of religion. We can, however, identify a third aspect of freedom of religion. This might be termed ‘freedom from religion’, or at least freedom from religion imposed as an exercise of state authority. In American constitutional terms, this can be seen as manifested in the requirement of ‘non-establishment’ of religion.
This comes in two different versions. The more limited version comes close to a requirement that the state should simply not favour one religion over another. The European Court of Human Rights has held that national governments cannot unreasonably discriminate between religions with regard to the requirements that the church must fulfill. So, Article 9 safeguards the right of one religion to be free to operate on conditions equal to other recognised churches, especially where the action of the State causes an unjustified restriction on the exercise of religious freedom in its collective dimension.
There is a rather stronger version of the non-establishment principle: that the state should not be in the business of favouring religion over other beliefs. In France, laicity is motivated by similar concerns: the state should be ‘neutral’ as between religion and other beliefs. In England and Finland, for example, although there is a formally recognised state religion, this is not seen as particularly demanding or intrusive state involvement. I would suggest that, in practice, there is a fast-growing political convention that the state should generally be seen as neutral as between religions, and between religion and other beliefs.
How to reconcile these three aspects of freedom of religion is enormously difficult, and the compromises that states in Western Europe made in the past are now under considerable strain, due in part to the growing importance of what we might (without meaning to be pejorative) call ‘marginal religions’, and the reception into Europe through migration of individuals from parts of the world in which world religions other than Judaism and Christianity are dominant, in particular Islam and Hinduism.
The effect of attempting to rebalance the three aspects of freedom of religion to cope with these developments has, in turn, opened up considerable problems as to how we should view Judeo-Christian practices that previously have been relatively uncontroversial. When these developments are coupled with the growth of human rights thinking more generally, perhaps particularly ideas of equality and non-discrimination, then it is unsurprising that the legal and political systems of several Western European countries are struggling.
There are four recurring issues that arise. The first issue involves a set of closely related questions: what is a ‘religion’ and what are ‘religious’ beliefs and practices for the purposes of the protection of ‘freedom of religion’, together with the closely related issue of who decides these questions. Frequently, this set of issues boils down to the question of whether the courts should decide whether a particular practice is or is not central enough to what is claimed to be a religion to qualify for some degree of protection. This set of issues involves difficult questions relating to the institutional competence of the courts, and the acceptable limits to the institutional autonomy of religious institutions. When the child in the Mandla case wanted to wear his turban to a Church of England school, the court decided that wearing a turban was an essential aspect of Sikhism.
In practical terms, this often involves the difficulty of courts deciding what evidence is admissible and probative as to what practices or beliefs of a religion are central. But it also involves a potential conflict between the individualistic aspects of freedom of religion, and the associational aspects. When the child in the JFS case was denied admission to JFS because the Office of the Chief Rabbi did not regard him as Jewish, although the boy himself considered he was Jewish, the court considered detailed evidence as to who was regarded as Jewish by different traditions of Judaism.
Attempting to resolve these disputes involves the difficult epistemological question of how courts can truly understand a normative system other than the legal system. Until recently, English law was thought to embody a strong principle of abstention when these issues were raised. In several judicial decisions in the recent past the courts expressed a strong principle that these issues were beyond their competence and authority. It is (or was) a basic principle of English law that the courts will not seek to intervene in relation to questions of religious law.
One of the noticeable changes in the last few years has been the extent to which that previous reticence has now been replaced with a much more self-confident willingness to adjudicate contested issues touching on the religious sphere. Perhaps it is simply that judges feel more qualified adjudicating on issues concerning religions that they consider they are familiar with through their own experiences. Or, perhaps, it is due to religious agnosticism becoming more apparent among the judiciary itself than was probably the case in the past. Interestingly, then, judges are increasingly being called on to decide issues involving another normative system about which they themselves may well be highly sceptical.
Other academic disciplines have struggled with a similar issue. Recent historiographical debates, for example, have considered how best historians can analyse forms of early religion that the historians themselves do not believe in personally. One approach, now criticised, is to regard these religions simply from an external viewpoint, as the outward manifestations of forces that the believers themselves may not even have been aware of. So, for example, the approach that Keith Thomas famously adopted in his analysis of religion in sixteenth century England, drawing from African cultural anthropology, considered religious practices from the point of view of an external observer. More recently, there has been a turn to consider the belief systems of religious believers, and their significance, from their own (internal) perspective. This involves an attempt to understand rather than simply to observe.
This is also the approach lawyers expect those writing about law to take about law: not just to adopt an external perspective, observing the law as a cultural phenomenon involving certain practices, but also as a normative system which requires understanding from an internal perspective. Famously, HLA Hart distinguished between external and internal points of view. Neil MacCormick subsequently distinguished between two components of the internal point of view:
There is [the] ‘cognitively internal’ point of view, from which conduct is appreciated and understood in terms of the standards which are being used by the agent as guiding standards: that is sufficient for an understanding of norms and the normative. But it is parasitic on—because it presupposes—the ‘volitionally internal’ point of view: the point of view of an agent, who in some degree and for reasons which seem good to him has a volitional commitment to observance of a given pattern of conduct as a standard for himself or for other people or for both: his attitude includes, but is not included by, the ‘cognitively internal’ attitude.
We should, I think, expect judges to adopt a ‘cognitively internal’ point of view when considering religious issues. Unfortunately, this point of view is missing, or only occasionally adopted, in several recent high profile judgments. Two examples must suffice for the moment. In JFS, Lord Phillips says this: ‘Membership of a religion or faith normally indicates some degree of conscious affiliation with the religion or faith on the part of the member.’ With respect, this seems to me to bear all the hallmarks of an external viewpoint, and not an internal viewpoint.
Perhaps even more disturbing is the approach taken by Sedley LJ in Eweida v British Airways. He contrasted the protection accorded to discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation, with discrimination on grounds of religion or belief. He continued: ‘One cannot help observing that all of these apart from religion or belief are objective characteristics of individuals: religion and belief alone are matters of choice.’ Presumably, he does not intend here to refer to the choice of God, but to the choice of the individual. This, again, seems to me quite clearly to adopt an external viewpoint, rather than a cognitively internal viewpoint. There is considerable work to do to ensure in future that judges engage in attempting to understand the religious issue from the latter perspective.
A second issue involves the question of what justification there is for a provision guaranteeing freedom of religion at all. Think of it this way. Assume, for the moment, that a Bill of Rights guaranteed freedom of association, freedom of speech and freedom from discrimination (including on grounds of religion): would anything be lost if there were not a provision guaranteeing freedom of religion? We know, of course, of the origins of such protection. The idea dates at least from the need to resolve the religious wars in Europe that scarred much of the seventeenth and eighteenth centuries. Guaranteeing freedom of religion was seen as a means of guaranteeing civil peace. But what is the current justification for freedom of religion in an era when so many other rights are protected?
The European Court of Human Rights considers that freedom of religion is important now partly because it furthers the freedom of individuals, but also because it is in the interests of the society as a whole. In Moscow Branch of the Salvation Army v Russia, the court stated:
It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.
The associational aspect of freedom of religion links Article 9 and Article 11. As the court said in Hasan:
Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the Convention which safeguards associative life against unjustified State interference. Seen in this perspective, the believer’s right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully free from arbitrary State intervention.
The Court refers to this freedom from arbitrary intervention as the ‘autonomy’ of the religious institution. The importance of this organisational autonomy is stated by the court to be derived from democracy. This emphasis on the collective dimension being derived from democracy means that, for the European Court of Human Rights, it carries considerable weight:
Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable.
For the Court of Human Rights, this ‘pluralism’ is built ‘on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts’.
Strong though these words are, I am unconvinced that they really capture the full extent of why those who are believers consider freedom of religion to be so important. If I am right in this intuition, then, again, there is considerable work to be done to begin to articulate a justification for freedom of religion that fully captures the core of the significance of the manifestation of religious belief, and the importance of the religious principles that we seek to have recognised in the public sphere. How to do this I will consider in a moment.
A third issue arises: which manifestations of religious association are so unacceptable as to take the association outside the protection of Article 9 altogether? We can think of various examples in other jurisdictions of potentially unacceptable practices, such as the refusal of the Dutch Reformed Church in South Africa, until recently, to accept black members, or the practice, also now changed, of refusing to permit certain racial minorities to be confirmed as elders in the Mormon Church.
It seems probable that the European Court of Human Rights would not be willing to accept an argument that Article 9 protects a racist religion. Such a religion is unlikely to survive the threshold requirement that the court has applied of ‘consistency with human dignity’, which is the test set out in Campbell and Cosans v United Kingdom, and accepted in the Human Rights Act context in R (Williamson) v Secretary of State for Education and Employment by Lord Nicholls.35
This test is not uncontroversial, and not fully tested. For example, when the European Court of Human Rights in Campbell and Cosans adopted this test, the court developed the test in the context of interpreting the limits of philosophical ‘convictions’ in Article 2, Protocol 1, and not explicitly as a set of criteria by which to judge major world religions for the purposes of protection under Article 9. Some British judges have also expressed concern with the Campbell and Cosans threshold test. Rix LJ has said that
[R]eligion is a controversial subject and there would be many who would argue that undoubted religious convictions are not worthy of respect or are not compatible with human dignity. It is in part to guard against such controversy that the Convention guarantees religious freedom.
Lord Walker has also said, and this more generally, ‘in matters of human rights the court should not show liberal tolerance only to tolerant liberals’.
That unease, however, is unlikely to lead to a situation where the Churches are guaranteed significant degrees of autonomy in the way they organise themselves where what they are attempting to protect shocks the conscience of the court. It is more likely that the focus of attention will continue to fall on whether the religion’s practice is regarded as being ‘consistent [ … ] with human dignity’.
There is no clear meaning yet discernable as to what is or is not consistent with human dignity. The most we can say is that the basic minimum content of human dignity seems to have at least three elements. The first is that every human being possesses an intrinsic worth, merely by being human. The first element is what might be called the ‘ontological’ claim. The second is that this intrinsic worth should be recognised and respected by others, and some forms of treatment by others are inconsistent with, or required by, respect for this intrinsic worth. The second might be called the ‘relational’ claim.
This minimum core of the meaning of human dignity seems to be confirmed both by a consideration of the historical roots of dignity, and by the ways in which it has been incorporated into the human rights texts. The human rights texts have gone further and supplemented the relational element of the minimum core by supplying a third element regarding the relationship between the state and the individual. This is the claim that recognising the intrinsic worth of the individual requires that the state should be seen to exist for the sake of the individual human being, and not vice versa (the ‘limited-state’ claim).
Beyond that, however, there appears to be little consensus. We can say that whilst there is a concept of human dignity with a minimum core, there are several different conceptions of human dignity, and these differ significantly because there appears to be no consensus politically or philosophically on how any of the three claims that make up the core of the concept are best understood. They differ, in other words, on their understanding of what the intrinsic worth of the individual human being consists in (the ontological claim), in their understanding of what forms of treatment are inconsistent with this worth (the relational claim), and in their understanding of what the detailed implications of accepting the ontological and relational claims are for the role of the state vis-à-vis the individual (the limited-state claim). This opens up an important area for future further work, and engagement between the Churches and human rights law, given that it seems to me to be the case that the concepts of human dignity that are held in these two spheres are significantly different, and potentially in conflict.
The fourth issue is, in some ways, the most commonly confronted, at least in the United Kingdom. This is the question of what weight should be given to freedom of religion when this freedom stands opposed to other values that we recognise to be important. In particular, given the prevalence of human rights talk, how should freedom of religion be balanced against other human rights, such as freedom of association, and freedom from discrimination? The second issue, what is the point of freedom of religion, is closely linked to the fourth issue, the weight to be given to it when it conflicts with other rights. This is because, the more the court is convinced of the reasons why freedom of religion is important, the more likely it is to give it a strong weight.
Religions, even religions that are consistent with human dignity, are, of course, subject to constraints. However, the Court has accepted that restrictions on the associational aspect of Article 9 should be strictly scrutinised:
The State’s power to protect its institutions and citizens from associations that might jeopardise them must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom.
Indeed, in general, where there are conflicts between Article 9 and other rights protected by the Convention, the European Court of Human Rights seems to give particular weight to the importance of the religious beliefs in relation to competing Convention provisions.
The European Court of Human Rights’ statements in Manoussakis v Greece seem favourable to seeing Article 9 as an important interest to be weighed in the justifiability analysis without having to scrutinise the ‘acceptability’ of the religion under the human dignity test: ‘The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.’ This derives from the ‘State’s duty of neutrality and impartiality’.
Is there a way of boosting the weight to be given to religion in this balancing exercise? The British Churches tried to do this in section 13(1) of the Human Rights Act 1998, which requires that ‘particular importance’ should be accorded to Article 9. A similar requirement regarding Article 10 is to be found in Section 12(4) of the HRA regarding freedom of expression. Early commentators, however, tended to regard the former provision as having no real content. Several judicial decisions since then have considered Section 13(1). There have also been several decisions in which Section 12(4) has been considered. The upshot of both these sets of cases can be set out in the form of two propositions: First, these provisions do not give greater weight to either Article 10 or Article 9 than they would otherwise enjoy under the Convention. Second, because these provisions refer to the whole right (that is, including the paragraph 2 limitation of each right), the provisions require as much weight to be given to the limits of the right as to the prima facie right itself. I am unconvinced that the courts would be any more willing to accord greater weight to freedom of religion even if the provision were more carefully drafted.
We cannot escape the fact that many recent legislative interventions adopt ideas of proportionality when rights or interests conflict. This includes the Human Rights Act itself and the recently enacted Equality Act 2010. This has the effect of emphasising the importance of interests being articulated in a form that is consistent with the idea of what has been called ‘public reason’. What is ‘public reason’? A recent book by Gregoire Webber, puts the point well. ‘It is a communicative orientation that provides me (a citizen) with a norm against which to evaluate whether my reasons are appropriate in my attempt to convince you (a fellow citizen) of the merits of my argument.’ Quoting John Finnis, he continues: ‘My reasons should only be those reasons which are “accessible” to all fellow citizens “whatever their religious beliefs or cultural practices”.’ For Finnis, accessibility involves the use of ‘principles … called in the tradition “natural law”, on the understanding that they are “natural” because, and only because, they are rational—requirements of being practically reasonable—and thus accessible to beings whose nature includes rational capacities.’
For some, the content of human rights, and their limits, should not be subject to requirements of ‘public reason’ in this sense because human rights should operate, as Dworkin said, as ‘trumps’, having neither to be justified nor negotiated. European human rights law is not of that character, except perhaps in that limited set of rights characterised as ‘absolute’, such as the right not to be tortured, although even that may be changing. Certainly, all those rights that involve varying degrees of proportionality require public reasoning, in the sense I have already defined. Michael Ignatieff suggests that human rights advocates should ‘stop thinking of human rights as trumps and begin thinking of them as a language that creates the basis for deliberation.’ I agree, and I think that is increasingly the judicial approach as well.
But, if the good news is that human rights advocates in general have a job to do in convincing others that human rights are a good thing, then the bad news is that those who argue for particular human rights, such as freedom of religion, or who argue for the limits on other rights in the name of freedom of religion, are also required to articulate such public reasons, and that involves a ‘willingness’ on the part of the citizen, as John Rawls put it ‘to listen to others and a fairmindedness in deciding when accommodations to [one’s] views should reasonably be made.’ It is my impression that, in their attempts to follow the precept of presenting public reasons for their stances on various issues, the Churches have been notably unconvincing.
In conclusion, then, I am suggesting that the scope and meaning of human rights is anything but settled and that this gives an opportunity to those who support a role for religion in public life to intervene. The architecture of human rights and its relationship to religion is in the course of being constructed. I have suggested that this engagement, to the extent that it is legal, should address four main issues.
- there is considerable work to do to ensure that judges engage in attempting to understand religious issues from a cognitively internal viewpoint;
- there is considerable work to be done to begin to articulate a justification for freedom of religion that fully captures the core of the significance of the manifestation of religious belief, and the importance of the religious principles that we seek to have recognised in the public sphere;
- there is a golden opportunity for engagement between the Churches and human rights law as regards the meaning of human dignity, given its centrality to both religious and secular perspectives on rights;
- I have argued that the Churches should consider much more carefully what it means to give ‘public reasons’ in the current political and cultural context and how they can engage much more effectively in the process of ‘public reasoning’ regarding the meaning and limits of human rights.