Outlawing God? The limits of religious freedom

25 July 2012 by

Dinah Rose QC

Monday night’s fascinating seminar on Article 9, “Outlawing God”, saw Dinah Rose QC, John Bowers QC, Dr Evan Harris (Liberal Democrat former MP) and Rabbi Michael Laitner (solicitor and Orthodox rabbi) square off over the relationship of the courts to religious belief and believers, refereed (and sometimes stoked) by Joshua Rozenberg in the chair. The seminar, which raised almost £2,000 for legal advice clinics at the Hebrew University, can be listened to here.

There was a clear division in the room: between the lawyers, who felt that the courts in both the UK and Strasbourg afforded less robust protection to Article 9 rights than to the other rights in the Convention; and Dr Harris, who could not accept that a religious belief was any more worthy of protection than any political belief.

A brief discussion of equal marriage brought the consensus that giving homosexual couples the right to civil marriage could have no real impact on religious believers; but the more interesting question as to whether the government could prevent Christian or Jewish groups who wished to from conducting religious marriages between homosexual partners from doing so under the Marriage Act was not fully answered.

The longest discussion of the evening was reserved for circumcision in the light of the recent German court decision effectively rendering circumcision an offence. Dinah Rose argued that a parent can consent to a procedure on a child if it is in that child’s best interests; and that “best interests” encompass not only physical wellbeing but also the child’s social, family and cultural context: part of a child’s wellbeing is being part of a community. Circumcision was for some communities part of that. As John Bowers pointed out, any disbenefit or harm on the other side of the balance would have to be a matter of evidence.

This brings the debate firmly into the familiar territory of proportionality: would interfering with parents’ choices in this matter be a proportionate means of achieving a legitimate aim? What would be the legitimate aim, in this case? If the aim is to protect the child, the courts must be able to assess the evidence of any harm and evaluate the risk of such harm as against the Article 9 protection and the best interests claimed.

Further, Dinah and John thought that the proportionality exercise meant that the courts must decide which beliefs are worthy of respect in a democratic society  and which are not. Here we come up firmly against Evan’s point: why should a religious belief be worthier of protection than any other?

Moreover, there seems to be a fundamental problem here which was not resolved by the panellists: although it would seem that religious believers do not want their practices to interfered with by the courts, when a religious group seeks legal protection for one of those practices the exercise will necessarily mean external adjudication of the significance and sincerity of the beliefs they espouse in order to assess whether Article 9 bites at all, and then to determine whether the interference is proportionate. It seems dangerously close to asking the court to adjudicate on religious doctrine, exactly what it said – quite rightly – it would not do in Khaira v Shergill [2012] EWCA Civ 983. Rather, must not the assumption be that the state must be very careful indeed before banning anything which doesn’t cause active and demonstrable harm?

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  1. Sean Fear says:

    In general, we allow parents considerable latitude to take decisions on behalf of their children, unless those decisions are very harmful indeed. I just don’t see how male circumcision can be so harmful that it must be prohibited by law, any more than having one’s child’s ears pierced is prohibited by law.

    The fact that a ban on male circumcision would make the practice of Judaism essentially illegal is a very good additional reason for not imposing such a ban. I’m not aware that are adult male Jews who are angry with their parents for having had them circumcised as infants, and I really don’t think non-Jews should be getting upset on their behafl.

  2. It seems that, to a majority of those who have commented, “human rights” means the right of others to live according to the beliefs of those who have commented!

    It would be ridiculous to ignore the history of circumcision. It is a practice that vast numbers of loving, non-abusive parents have engaged in for thousands of years. In that, it is quite unlike FGM or foot-binding.

    This history shows that a prohibition on circumcision would not be compatible with Art 9, because it would not be necessary in a democratic society.

    The willingness of some to trample over the Art 9 rights of Jewish people is worrying.

    1. Alex Kavanagh says:

      Your comment seems to read essentially “we’ve always done this, so it must be okay”.

      Morals in society are something, to my mind, that we are constantly evaluating and negotiating over time. For thousands of years it was acceptable to keep slaves, hang people for capital crimes, transport people to other countries for other crimes and put people in workhouses if they couldn’t pay their bills.

      As a society we’ve moved on (or are moving on) from those things as we, to our eyes, view them as barbaric and unnecessarily harsh; we have more empathy and sympathy.

      I suspect that male circumcision, now that it’s ‘hit’ the mainstream press in such as way, is beginning to be viewed in the same light. We’ve outlawed striking children to punish them yet we still allow permanent modification via circumcision? Seems strange doesn’t it?

      I expect circumcision will become more and more morally unacceptable as time goes on (in western democracies) until it is eventually outlawed for minors.

  3. Jenny Hughes says:

    Stephen wrote ‘So I think it is misleading to present the two cases as if they are somehow equivalent.’

    To my mind (and usually within the law but strangely those who circumcise babies are above the law and not bound by it) abuse is abuse unless consent from the person (not their parents) has been obtained or else medical treatment can be carried out in the person’s best interests, for MEDICAL reasons only. Every case of child abuse should be treated equally by the law with equal and unbiased protection provided by the law with no special favours doled out to particular groups nor discrimination of others. I was trying to talk about how the law (at present, apparently) protects children from abuse by Catholic priests (after the event usually, the deterrent often fails) but systemically fails to protect Jewish boys from abuse that is expected, can be foreseen, and serious physical mutilation that will detrimentally affect their sexuality and sensuality throughout their life. Don’t Jews believe that their god created man (and boys) in his own image, as perfect, or did their almighty and perfect ‘god’ (why else call ‘him’ god if he/she/it is not, was not, omnipotent and very clever, would he make serious design gaffes?) make an error when (as I think their fables claim) he designed boys that must (loving maybe, but unquestioning parents are told to believe) be righted by drastic and sometimes deadly surgery (which lines the pockets of some of the cult’s ‘surgeons’)? How did this ‘god’ manage to do so much better a job with girls so that in these faiths (unlike others which carry out female circumcision) they are deemed to need no ‘corrective’ surgery? People are misled into believing male circumcision does not destroy nerves; sadly for them (and also their partners) circumcised men know no different: they have no idea of the intensity of sensation normal unmutilated men have; these boys and men are now just beginning to rise up (!) and complain, the law should help them and protect them before the event, before the unnecessary surgery that harms, is carried out. These boys and men can never regain lost sensation. a world of sensation that they have been denied, they can never be put into the position they would have been in but for the mutilation, ever. The law fails to protect particular groups of boys, and later men (and their sexual partners).

    And where’s the evidence for the thousands of years of ‘history and tradition’ that allows this abuse and mutilation to continue? Does it only exist in ancient books (post-dating the claimed start-point and suffering from repeated translation)? Is the evidence contained within verbal history which, like chinese whispers (we have robust evidence for this) changes over time? Is the evidence for the ‘history’ that protects the perpetrators from being found guilty of crimes actually only hearsay?

  4. Geoffrey says:

    Cases such as the Ladele judgement (one Christian Islington registrar, of a number, who did not want to perform civil partnerships) and the B&B judgement (where christian hoteliers asked a gay couple not to give overt – and gratuitous – personal offence) are purely political – and staging them was unnecessary gay triumphalism.

    They cannot be likened to male circumcision. This commentator – of mildly orthodox Christian belief – sat down to say why the German court was wrong but found no logical justification for the practice unless it be the avoidance of phimosis.

    Accordingly, I now find myself wondering whether this was a health problem for desert nomads in the Middle East (Muslim and Jew) irrelevant in the modern world?

    Conclusion: Please leave the boys – and the girls – alone in the hands of Nature!

  5. John D says:

    It is claimed that male and female mutilation is de rigeur in either religious or cultural terms, and cannot be abandoned. Should we all therefore start a campaign to bring back foot binding for Chinese girls or suttee for Indian widows? Just to ask the question points up the ridiculousness of the underlying pseudo-logic. Jewish and Muslim religion and culture will continue equally well after genital mutilation has been ended. Chinese culture – which predates Judaism and Christianism – is still going strong, even though their former practice of foot binding for young girls has been ended.
    Wikipedia defines ideology as ‘An ideology is a set of ideas that constitute one’s goals, expectations, and actions.’ (http://en.wikipedia.org/wiki/Ideology), which is how I have always understood it. I also see ideology as offering historical analysis to explain how the world became the way it is, coupled with a contemporary analysis as to how the present world can be changed for the better, and an action plan to achieve a better future world. It is all linked to time: past, present; and future. If you think about it, political and religious ideology operates on virtually the same basis. Ultimately, both areas are sub-sets of business. They both “sell” “product” for “consumption” by “client” groups. They have inner and outer groups of supporters and participants. They are both linked by similar desires for power, influence, wealth and sex. Stop being so misty-eyed about the politics and religion branches of big business. You are not all of you so naive, surely?

  6. Evan Harris says:

    “There was a clear division in the room: between the lawyers, who felt that the courts in both the UK and Strasbourg afforded less robust protection to Article 9 rights than to the other rights in the Convention; and Dr Harris, who could not accept that a religious belief was any more worthy of protection than any political belief.”

    Not quite right.

    There was indeed a division between the two (apparently religious) lawyers and myself. I supported the decision of the UK courts in the Ladele judgement (Christian Islington registrar who did not want to perform civil partnerships) and the B&B judgement (where christian hoteliers denied a room to a gay couple), that discrimination against gay people in the delivery of a public or commercial (with narrow exceptions where private issues apply) service could not be justified, either on the basis that someone else could do it without denial or delay to the service and/or because it was motivated by religious as opposed to non-religious views. Just because a discriminatory act is religiously motivated does not make it more acceptable in its manifestation in the public sphere than because it is non-religious in my opinion and that of the UK courts..

    Article 9, by its drafting (it is as much about freedom of thought) can be prayed in aid of non-religious discriminatory beliefs as much as religious ones, so I think that that is a distraction. It is just that religious groups have cited article 9 in their challenge to injunctions against discrimination by individuals outside of the private or religious sphere, in a way that the BNP have not done (or not as publicly).

    I made the point – unreported – that, perhaps unlike the lawyers on the panel, I was a major campaigner for more religious freedom, in respect of religious freedom of speech needing to be better protected in the criminal law because – by it’s nature – it was more likely to cause offence. The Public Order Act allows speech which causes insult (but is not abusive peer se) to be illegal and even if the speech is not intended to cause insult. There should be no right not to be offended.

  7. At the Mill says:

    The real issue is that if Jewish & Muslim boys were asked to make the decision whether to have the top of their cocks lopped off at 18, the entire practice would die out in a generation. And where would the skin cream manufacturers be then?

    BTW, Benjamin Gray, it’s very easy to see that male circumcision has a pretty major impact on sensation. Retract your foreskin (if you have one), pop your old chap back in your pants and walk across a room. That’ll probably be pretty tender.

  8. Jenny Hughes says:

    I agree wholeheartedly with JohnD: if there was no long history of male circumcision and a wacky religious sect sprang up (albeit with very many followers) which suddenly decreed now, today, to cut off part of every baby boy’s (who had the misfortune to be born into the sect) penis at 6 days old there would be outrage. Just because something as outlandish as this is widely practiced does not mean it is right. Using the excuse ‘history’ just doesn’t wash: there was a very long history of slavery, it was normal for millennia, but in modern and humane societies it was outlawed. JohnD’s example of cutting off a finger is correct but a penis is even more important of course! Male circumcision was very common in the UK for a while and still is in the USA – it was and still is of course pushed as ‘better’ by religious groups averse to seeing or allowing little boys to masturbate and having a foreskin makes this easier (without lubrication). Indeed the medical profession said for decades it was ‘fact’ that masturbation was detrimental to health, we now know better and doctors no longer (usually) tell these same lies. Circumcision damages nerves and there is less sensation after. I read that some of the Mohel who carry out the Bris (jewish circumcision) suck the blood from baby’s penis after they have cut the foreskin off, this too is ‘tradition’ and 4 babies in New York died from their circumcisions because they caught herpes from the Mohel, here:
    and here:
    See here a father’s account of watching his son be mutilated:

    ‘God told me to do it’ does not wash in court for maiming or murder. There is an age of consent for tattoos, they are permanent but do not change the body just decorate it; how would the law react if a parent wished to tattoo their baby?

    Might it be that adult males in the jewish community would be jealous of those with a foreskin, of those who’s sexual pleasure has not been reduced? ‘Mine’s been cut so yours must be too.’ Some people believe Mohels get a sexual pleasure from mutilating and sometimes sucking babies’ penises, they certainly make big bucks from it, often around $600 to gain entry to the cult, to become a member.

    So the Jewish faith has a lot in common with the Catholic faith: both abuse children (protected from sanction by their head guru, their elders/cult members and ‘history’), just that Jews mutilate baby boys (at an age where they can’t choose, talk and say how much it hurts) whereas Catholics sexually abuse both sexes, they aren’t as particular, but in general (as far as we know) the children are somewhat older. There is no two ways about this and if the law OKs one but not the other the law is an ass: both abuse kids, one is ‘OK’ because it’s ‘religious freedom’ but the other isn’t. How mad is that? That human rights law can protect one set of children but not the other is irrational.

    1. Stephen says:

      .”.. just that Jews mutilate baby boys (at an age where they can’t choose, talk and say how much it hurts) whereas Catholics sexually abuse both sexes, they aren’t as particular, but in general (as far as we know) the children are somewhat older. There is no two ways about this and if the law OKs one but not the other the law is an ass: both abuse kids, one is ‘OK’ because it’s ‘religious freedom’ but the other isn’t. How mad is that? That human rights law can protect one set of children but not the other is irrational.”

      There is of course, one important difference between the two cases of child abuse you describe.

      In the Jewish religion, the alleged abuse (circumcision) may be a tenet of that religion’s faith. In contrast, child abuse is not a tenet of Catholicism and I doubt the Catholic Church has ever claimed religion privilege to justify what are clearly criminal cases of child abuse..

      To frame the distinction more formally, it is a question of whether the alleged abuses are a requirement of the respective religions. In the case of the Jewish faith it may be a requirement. In the case of Catholicism it is quite clearly not.

      So I think it is misleading to present the two cases as if they are somehow equivalent.

  9. Ganesh Sittampalam says:

    I can see the argument that not circumcising a single child in a community where circumcision is expected could lead to that child being excluded from the community.

    But if circumcision were outlawed, in theory noone in that community would be circumcised. Would the community really cease to exist as a result?

    1. No, if circumcision were outlawed it would be carried out elsewhere. It’s about as enforceable as a ban on abortion.

  10. The point about children is that any issue of religious practice should be determined in the child’s best interests. One can come to different conclusions on what those interests entail, but that is the starting point. As for some of the other examples, I would suggest that faith schools are extremely hard to justify: children should be able to learn about religion from a neutral standpoint and then decide for themselves which if any they would want to follow.

    There are also issues concerning religion which do not involve others’ rights quite so directly. For example, should a person be exempted from certain aspects of a university course on religious grounds? I would say definitely not, but some argued to the contrary when I was at University (in particular, they did not wish to learn about abortion and various other things at medical school on religious grounds; the answer is choose another course).

    The general principle I try and apply in most of these questions is to observe that one is required to respect a person’s right to their belief, but not to respect those beliefs themselves. Thus everyone is free to worship as and how they choose, but not to demand different employment conditions or education conditions or any other exception to the general law (assuming the general law to be otherwise justifiable). Which is not to say that it is always easy in practice …

  11. In reply to Alex Kavanagh, the effect of banning circumcision would be to criminalise the practice of judiaism. The effect of postponing to adulthood would have a similar consequence, as I understand (jewish posters will correct me if I am wrong) that judaism requires circumcision on the 8th day after birth. As loving parents have had their sons circumcised for centuries and continue to do so, does not experience show that it is not something that needs to be prohibited in a democratic society? Does the fact that we would not be having this discussion if we were talking about removing a finger or a testicle show that circumcision is so far from those examples as to make them meaningless as a comparison?

    It is all very well to say that the rights of one person end where they interfere with those of another. But parents regularly make choices for their children that interfere with the child’s rights – with its Art 9 rights (by educating it in a particular faith or none), its Art 10 rights (by prohibiting it from swearing), how many parents follow an Art 6 compliant procedure before grounding or withdrawal of pocket money? There are obviously times when the state needs to interfere with parental decisions, but centuries of experience shows that male circumcision is not one of them.

  12. Religion is involves significantly more than just metaphysical views. It’s disingenuous to treat it as identical to political ideology, not least because of the inherently confined nature of the latter.

    “It is arguable that if people support one form of genital mutilation (male) then they must also support the other form of genital mutilation (female) – or do they?”

    No. The difference is in effect. Circumcision is largely cosmetic. FGM by contrast has a significant impact on sensation and sexual function. The more apt comparison would be with castration.

  13. John D says:

    It is protection of the rights and freedoms of children which is at stake here. They should be allowed to make their own decisions as to whether or not they wish to have their genitalia mutilated when they are of an age to make the decision for themselves. Simply allowing parents to force such decisions upon them clearly contravenes the rights of the children – whether male or female.
    It is straightforward assault, if not grievous bodily harm – that is being carried on the grounds of the religious beliefs of the parents or other adults enforcing their own beliefs and wills upon defenceless children. Can that be right?
    Just because parents hold particular beliefs this does not entitle them to impose those beliefs upon their own children. We have had a number of cases in this country where parents or carer/guardians, believing the child in their control was possessed of evil spirits or the devil, pursued actions which resulted in serious harm to – and even death in some cases – young children. We do not excuse that kind of behaviour on the grounds of their religious beliefs; nor should we excuse genital mutilation on religious grounds either.
    Go and watch last night’s edition of Newsnight and listen to some of the victims of female genital mutilation. These outdated practices need outlawing, not non-existent entities that irrational and misguided individuals believe in.

  14. Stephen says:

    “I agree with Evan Harris: religion is just another form of ideology – like politics – and should be treated no differently. ” John D,

    On this point I disagree with Evan Harris and John D..

    Ideologies are beliefs that concern themselves with how economies or the material world should be run. Religions concern themselves with personal behaviour and with the after-life. Although both are belief systems they are concerned with distinct aspects of human existence. I believe this distinction is significant which should be recognised in case law.

    An absurdity I have actually witnessed because of conflation of the two is the proposition that Christianity is no less wicked than Nazism (!). Such a proposition has issued from the pens of seemingly otherwise educated people. I would hope that even the most ardent atheist would have the intelligence and education to realise the absurdity and falseness of this proposition.

  15. Alex Kavanagh says:

    In reply to David Hughes: But there is a fundamental problem with the idea that one person’s rights to practice their religion (the parent) can override another person’s rights not to have their body modified without their consent (the child). This is a permanent modification that the child cannot consent to that they carry for the rest of their lives. We wouldn’t even be having this conversation if it was the left index finger being removed, or the left testicle.

    In my mind the rights of one person end precisely when they start to interfere with another’s. Finding the balancing point is not particularly difficult in this area; simply delay until the age of consent is reached. Then the child (now an adult) can decide for himself.

  16. The problem with John D’s comment above is that Art 9 expressly refers to “religion” as well as thought and conscience. John D and Evan Harris are willing to exercise his right to freedom of thought and conscience, but they seem to have a problem with other people exercising a right to hold a religious belief that they do not share.

    Re John’s point re male circumcision, Art 9 guarantees the right to manifest religious beliefs, subject to limitations necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Whilst one can see an argument that a prohibition on circumcision might be in the interests of the health of others (the boys involved), it seems to me to be impossible to say that the limitation is “necessary in a democratic society”. This is all the more so when the democratic society in question is one that is committed to respecting religious freedom.

    Dinah Rose’s point summarised re best interests also seems to me to be impossible to counter.

  17. John D says:

    I tried listening to the playback but gave up because the speakers – other than the one introducing the evening and Joshua Rozenberg – were too quiet to be heard easily.
    On the question of male genital mutilation, I wonder where the supporters of this practice stand with regard to female genital mutilation? It is arguable that if people support one form of genital mutilation (male) then they must also support the other form of genital mutilation (female) – or do they?
    Basically, I believe either form of genital mutilation involves a physical assault on the young children involved and that the German Court is correct to ban such practices until such time as an individual has become an adult.
    If adults wish to choose to have themselves mutilated and the law does not forbid it then I suppose they will be free to make such a choice – however irrational most of the rest of us in society may find such a choice.
    Provided they do not harm themselves or others excessively then our system of legal freedoms and liberties make it possible for them to exercise these choices for themselves.
    People undergo lip, tongue and ear piercings, as well as sometimes bizarre forms of tattooing. Personally, I would never subject my body to such practices but provided the individuals involved are not harming themselves excessively then they are free to do it to themselves.
    I agree with Evan Harris: religion is just another form of ideology – like politics – and should be treated no differently. The fact is that UK law exempts religious organisations from a wide range of equalities legislation and the recent spate of tribunal and court cases represents an attempt to extend the extent to which religious organisations may discriminate against others not of their persuasion.
    As we all know, all of the cases so far brought before the courts have all failed to win approval, which makes it clear that the claimants are not being “persecuted” by the law or by their employers.
    To return to the title, it is impossible to outlaw “god” – because “god” does not exist. It is impossible to outlaw any non-existent entity. You might as well try to outlaw fairies, hobgoblins and leprechauns. It is essentially the same thing.

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