Are the courts doing enough to protect religious freedom? [updated]

14 June 2010 by Adam Wagner

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A number of recent cases have ignited an interesting debate on the place of religion in the UK court system, and whether the courts are doing enough to ensure religious freedom as they are obligated to do under Article 9 of the European Convention on Human Rights.

The most notorious example has been McFarlane v Relate Avon Ltd, an unfair dismissal claim brought by a relationship counselor who as a result of his Christian beliefs refused to promote gay sex. The former Archbishop of Canterbury submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the Court of Appeal rejected his arguments outright.

We also posted last week on the Hardeep Singh case, in which Mr Justice Eady in the High Court effectively threw out a libel action because it rested upon fundamental principles of legal doctrine which could not properly be examined by a secular court. We posted:

It is unsurprising, therefore, that more questions are being asked as to whether our judges are properly qualified to understand and rule on such controversial areas, even to the extent of looking more closely at their religious beliefs; something which is common in relation to the United States Supreme Court but until now has been unusual in the UK. As Aidan O’Neill QC put it in a recent blog post, “There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue. The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.”

Jonathan Chaplin, Director of the Kirby Laing Institute for Christian Ethics at Cambridge University, has added his voice to the debate on a UK Supreme Court Blog post. He examines the propositions he says go to the heart of Lord Justice Laws’ judgment, which are (to paraphrase):

1. The state cannot itself determine the truth or falsity of any religious belief
2. The state cannot officially justify a law solely on the ground that it is founded on a particular religious belief held only by some citizens
3. The state can only justify a law on the grounds that it can be seen ‘rationally and objectively to advance the general good
4. Religious belief is, for everyone except the holder, merely subjective opinion, ‘incommunicable by any kind of proof or evidence’, the truth of which ‘lies only in the heart of the believer’.

Dr Chaplin sees the fourth proposition as the most problematic:

… to start with, this is factually incorrect, at least with regard to Christianity. There are many non-Christians, and not only believers in other religions, who would recognise that at least some of the claims of Christianity – historical ones no doubt, or, perhaps, claims about universal moral values – are capable of successful communication to and indeed assessment by others … By relying on a highly contestable – albeit widely, if unreflectively, subscribed to – epistemology, itself the product of the very kind of secularist ‘belief system’ he claims has no place in the justification of law, Lord Justice Laws has, I fear, obscured rather than illuminated the proper relationship between religion and law. In the process he has also thrown the question of the proper foundation for the protection of religious freedom in English law into even greater confusion than it was before.

Proper protection of religious freedom?

The is a debate which will continue apace, and rightly so. The courts may sometimes find it convenient to exclude arguments over religious doctrine, and Mr Justice Eady is right that judges must be very reluctant indeed to make decisions on issues which are in essence disputes between believers over the competing claims of each others’ beliefs.

But as Dr Chaplin argues, the ambit of “religion” and for that matter “doctrine” is wide and often fuzzy at the edges. As such, judges will inevitably have to get stuck in over points of religious principle, probably in matters (such as the Jewish Free School case) where thousands could be affected by their judgment. In such cases, the misuse of a blanket refusal to address issues of religious doctrine may be vulnerable to a human rights challenge.

This challenge may come in one of two ways. Either the courts’ unease over religion will lead to a breach of non-religious rights; for example, in the JFS case, the right to education; or because religious believers are being denied access to the courts which are, after all, under an obligation to protect their rights of “freedom of thought, conscience and religion”. How the courts are to satisfy this obligation must be decided on a case by case basis. A blanket restriction on courts deciding between religious principles is understandable, but it must be exercised flexibly.

Read more:

• Update 14/06/10 – Mark Vernon writes in the Guardian on the decision to clear Cherie Booth QC of judicial misconduct for mentioning a man’s religion when sentencing him. The National Secular Society have responded that the decision was not sufficiently transparent, but hopes that it will be a warning to other judges not to consider religious observance as a mitigating factor whilst sentencing. Vernon disagrees:  “In other words, the NSS is wrong to complain of discrimination against the non-religious. It has mistaken discretion for discrimination, and also confused the difference between everyone being equal before the law and the vital importance, in a humane society, that everyone is treated as individuals by the legal system too. If you lose that, you cease to live in a just society.“
• High Court says Lord Carey “mistaken” on religious discrimination [updated]
• Religious versus other freedoms: the future of Article 9?