Strasbourg on Mormons and their temples

5 March 2014 by David Hart KC

THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. THE UNITED KINGDOM, ECtHR, 4 March 2014 – read judgment

An apparently dry dispute about business rates on one of the Mormons’ temples in Preston (see pic) has reached Strasbourg and raises interesting issues about indirect discrimination on religious grounds. The underlying question was whether the temple was a place of “public religious worship” and therefore exempt from rates. 

 There are over 12 million Mormons in the world, with 180,000 in the United Kingdom and Ireland. Their organisation is important for this application. Local congregations are called wards, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a “stake”. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place.

Preston is one of two temples in the UK. Mormons regard these temples as the holiest places on earth – top of the religious hierarchy. But the question was – is worship there “public”?

Ceremonies or “ordinances” held at the temple carry profound theological significance, and only the most devout members of the church, who hold a current “recommend”, are entitled to enter the temples. To do so, the member has a private interview with the bishop. They are asked searching questions about their personal conduct, worthiness, and loyalty to the Church. They must also certify they are morally clean and that they pay 10% of income to be paid to the Church. That all said, some 950 people a week go to services there.

The case in the domestic courts

The Church’s application for exemption from rates was dismissed by the domestic courts, including the House of Lords  [2008] UKHL 56 which held on the basis of an earlier judgment that worship there was not “public”. It therefore had to pay 20% of the full rates. The Church had argued that there would be breaches of Article 9, taken alone and in conjunction with Article 14. Four of the five Law Lords held that the liability to pay rates did not fall within the ambit of Article 9, since Mormons were still free to manifest their religion and since the statutory requirement to be open to the public applied equally to all religious buildings and did not target Mormons in particular. Lord Hoffmann, as ever, put it pithily

 But the present case is not one in which the Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That seems to me an altogether different matter.

Or, with shades of the arguments in the Eweida cases to come (see post here)

For example, I do not think that a Sabbatarian could complain that he was discriminated against because he was unable, on religious grounds, to provide services on the Sabbath and therefore earned less than people of a different religion.

Even if this can be regarded as a case of indirect discrimination, it was justified. Parliament must have a wide discretion in deciding what should be regarded as a sufficient public benefit to justify exemption from taxation and it was entitled to take the view that public access to religious services was such a benefit.

Lord Scott found that the difference in treatment fell within the ambit of Article 9, although he considered that the Article was not violated:

…states may also recognise that, although religion may be beneficial both to individuals and to the community, it is capable also of being divisive and, sometimes, of becoming dangerously so…. Religion can bind communities together; but it can also emphasise their differences. In these circumstances secrecy in religious practices provides the soil in which suspicions and unfounded prejudices can take root and grow; openness in religious practices, on the other hand, can dispel suspicions and contradict prejudices.

and

I find it impossible, therefore, to hold that the words ‘places of public religious worship’ includes places which, though from the worshippers’ point of view they were public as opposed to domestic, yet in the more ordinary sense were not public since the public was excluded.

Arguments in Strasbourg

In Strasbourg, the Church argued that the UK

•  imposed a tax burden which was not applied to other religious structures. More importantly, they excluded the Church’s most sacred space and rituals from eligibility, while granting exempt status to the full range of worship for other denominations. Implicit in this differentiation were non-neutral State assumptions, stereotypes and stigmatisation that operated prejudicially against the Church.

This was not a case of worship being made private for the purposes of being exclusive or to provide private benefit; it was because the very nature of the worship as understood by its believers required privacy to promote the sacred character of the worship. The relevant analogy would be

to insist that the tax exemption be denied to space devoted to confessionals or to the area behind the iconostasis in Orthodox churches.

Just as an invitation to the general public to enter these spaces would disrupt sacred practices, so the nature of temple worship would be destroyed if there were a general requirement that the public be able to sit in. It was inappropriate for State officials to engage in drawing lines that discriminated between religions on the basis of mistaken understandings of the nature and impact of religious practices or merely because such practices are different from those of more familiar religions.

The Court

The Court fudged the first issue as to whether the complaint fell within Article 9:

The Court can well understand such an assessment by the national courts of the facts of the present case, although it may be that in certain circumstances issues concerning the operation of religious buildings, including expenses incurred as a result of the taxation status of such buildings, are capable of having an impact on the exercise of the right of members of religious groups to manifest religious belief…..  The Court does not, however, need to decide whether…the applicant’s complaint….falls within the ambit of Article 9, so that Article 14 applies, since for the reasons given below it has come to the conclusion that the claim of discrimination is unfounded on its merits.

• The Court agreed with the UK that the complaint might, at most, be characterised as one of indirect discrimination.
• However, it was open to doubt whether the refusal to accord an exemption gave rise to any difference of treatment of comparable groups, given that the tax law in question applied in the same way to all religious organisations, including the Church of England in respect of its private chapels. The Church was not in a significantly different position from other churches because of its doctrine concerning worship in its temples, so as to call for differential treatment, since other faiths do not allow access of the public to certain of their places of worship for doctrinal reasons.

Any prejudice caused to the  Church was reasonably and objectively justified. The purpose of the exemption was to benefit religious buildings which provided a service to the general public and where the church in question “worshipped with open doors.” All the Church’s places of worship that are open to the public, such as its chapels and stake centres, had the benefit of the full exemption from rates.

So there was no discrimination in breach of Article 14 of the Convention, taken in conjunction with Article 9. And the alternative claim under A1P1 was in no better position.

The final argument was that because the House of Lords considered itself bound by earlier precedent, it deprived the Church of an effective remedy under Article 13 of the Convention. This, rightly, got short shrift.

That the outcome of the appeal was not favourable for the applicant does not mean that the remedy was in principle ineffective.

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