State Neutrality : The Sacred, the Secular and Equality Law 9781108481595, 9781108674430, 2020020933, 2020020934, 9781108722995

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state neutrality The state is legally required to be neutral towards religion, but in many countries it is increasingly anything but. This book conducts a comparative legal analysis of the church–state relationship within and between western countries – including the USA, France and Israel – that are key players in international and domestic dynamics in which religion and religious conflict take centre stage. It analyses how government accommodates diversity, how policies of multiculturalism and pluralism translate into legislation, the extent to which they address matters of religion and belief and what pattern of related issues then come before the courts. Finally, it considers how civil society and democracy in general can maintain a balance between the interests of those of different religions and beliefs and those of none. In this illuminating study, Kerry O’Halloran shows how the relationship between religion and government affects civil society and the functioning of democracy in North America and Europe. Dr Kerry O’Halloran is a qualified lawyer, social worker and academic who often reports to government and sits on government boards. Now retired, he was previously Adjunct Professor at the Australian Centre for Philanthropy and Nonprofit Studies, Queensland University of Technology, Brisbane. His recent publications include Religious Discrimination and Cultural Context (2017).

State Neutrality the sacred, the secular and equality law KERRY O’HALLORAN

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108481595 doi: 10.1017/9781108674430 © Kerry O’Halloran 2021 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2021 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: O’Halloran, Kerry, author title: State neutrality : the sacred, the secular, and equality law / Kerry O’Halloran, independent consultant. description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2020. | Includes bibliographical references and index. identifiers: lccn 2020020933 (print) | lccn 2020020934 (ebook) | isbn 9781108481595 (hardback) | isbn 9781108722995 (paperback) | isbn 9781108674430 (epub) subjects: lcsh: Church and state. | Ecclesiastical law. | Religion and state. | Freedom of religion. | Secularism. | Laicism. | Equality before the law. classification: lcc k3280 .o37 2020 (print) | lcc k3280 (ebook) | ddc 342.08/52–dc23 LC record available at https://lccn.loc.gov/2020020933 LC ebook record available at https://lccn.loc.gov/2020020934 isbn 978-1-108-48159-5 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To Elizabeth

Contents

Acknowledgements

page ix

Introduction

1

part i background 1

2

3

State Neutrality: Background History, Concepts, Definitions and Principle

9

Civil Society: Pluralism, Multiculturalism and the Church–State Interface

45

International Treaties, Conventions, Protocols, Courts and the European Court of Human Rights Rulings

74

part ii the benchmark of state neutrality: contrasting applications 4

The United States of America: The Church–State Wall

143

5

Canada: Bijuralism

201

6

England: The Established Church

250

7

France: Laïcité

308

8

Germany: The Vaterland

357

9

Israel: Halakha and Zionism

398

vii

viii

Table of Contents

part iii towards a more stable civil society 10

Themes of Commonality and Difference

449

11

State Neutrality: A Work in Progress

480

Conclusion

500

Index

503

Acknowledgements

This book was built on foundations laid by earlier publications, including The Church of England: Charity Law and Human Rights (Springer, 2014); Religion, Charity and Human Rights (Cambridge University Press, 2014); Religious Discrimination and Cultural Context (Cambridge University Press, 2018) and Human Rights, Religion and International Law (Routledge, 2019). Given the not dissimilar subject matter and related case law, focused on some of the same jurisdictions, there is inevitably a degree of overlap and I thank the publishers concerned for their understanding. I am mindful of the very many friends and colleagues whose advice, contributions and support along the way have been invaluable. Particular thanks are due to those who offered comment on draft chapters: Frank Cranmer (Research Fellow at the Centre for Law and Religion, Cardiff, and Director, Central Lobby Consultants, London); Gerhard Robbers (Emeritus Professor at University of Trier, Germany); Gwénaële Calvès (Professor of Public Law, University of Cergy-Pontoise, France); Michael Berenbaum (Director of the Sigi Ziering Institute, American Jewish University of Judaism, Los Angeles); Frank Ravitch (Professor of Law and Walter H. Stowers Chair in Law and Religion, Michigan State University); Richard Moon (Professor of Law, University of Windsor, Ontario) and Matthew Harrington (Professeur, Faculté de droit, Université de Montréal). It was a privilege to work with you; your thoughtful contributions and encouragement have meant a lot and this book and its author would have suffered without them. I am very thankful to Cambridge University Press for commissioning the book and for the editorial diligence that has seen it through to completion. Responsibility for any mistakes, inconsistencies or other faults, and for all views expressed, must rest exclusively with me. As always, Elizabeth, I am hugely grateful to you for everything, including the sacrifices you made that allowed me to get this done.

ix

Introduction

Church “capture” of the state, a phenomenon most usually associated with mediaeval Christian Europe and thought safely consigned to history, has proven to be alive and well. Having confidently established itself in the Middle East, it is currently surging through the African continent, destabilising societies from the Caucasus to the Urals and posing a clear and present danger to ostensibly secular regimes in a range of countries including Turkey, Pakistan, India, the Philippines, Indonesia and Egypt. The ISIS campaign – aspiring to lead a global jihad against non-Muslims – is one that pitches religion against states.1 The obverse of the same phenomenon can be seen in the Rohingya genocide in Myanmar and the suppression of the Uighurs in China, both providing evidence, if that were needed, of the state’s willingness and ability to crush religion. It might be thought that matters would necessarily be wholly different as regards modern democratic nations, but that would be to ignore the risks associated with an absence of any natural synergy between religion and democracy. The former is predicated on exclusiveness, a particular set of mandatory beliefs differentiating it and setting its adherents apart from those of all other religious beliefs and those of none. The latter is as equally firmly rooted in inclusiveness, in fostering pluralism and diversity and in welcoming and respecting difference. The capacity for this in-built antithesis to play out in much the same way as above has been graphically demonstrated in the past decades of wars prosecuted by democratic and still largely Christian states against Islamic fundamentalists in Muslim countries. While this dynamic very largely concerns Islam, the repercussions – accelerated by the 2015–2017 migrant crisis – would seem to be awakening a new political awareness of religion in the traditionally Christian Western nations with unpredictable consequences. At present, 1

Abu Bakr al-Baghdadi, ISIS leader from 2010 until his death in 2019, proclaimed his intention to establish a Caliphate in the Middle East to which Muslims were invited to migrate and from which ISIS would conquer Italy, Spain and then all of Europe.

1

2

Introduction

the domestic and international responses of the latter indicate that the management of religiously based social division is set to become a priority for government in the twenty-first century. The above provides a backdrop for State Neutrality: The Sacred, the Secular and Equality Law. This book explores how the state relates to religion and to religious and secular entities in contemporary Western democracies and considers how that relationship is affected by the cross-cutting provisions of equality law. It takes as a baseline the requirement, firmly established by the judiciary in North America and in Europe, that states should maintain a careful neutrality or even-handedness when relating to religion, its organisations and adherents. This is accompanied by the obligation embedded in international treaties and domestic legislation that states respect and apply the principles of equality and non-discrimination when dealing with such matters. To assess how these requirements of neutrality and equality affect the church–state relationship in practice, the experiences of six quite different states – the USA, Canada, England, France, Germany and Israel – are analysed, compared and evaluated. While each is a signatory state to much the same set of international human-rights treaties, conventions and protocols, they have all also, to varying degrees, been involved in US-led wars in Muslim countries, suffered domestic Islamic terrorism and been exposed to the challenges of the migrant crisis. Despite that shared framework, the experience of each state has been significantly different, producing contrasting outcomes and some interesting challenges for the future of democratic society. This comparative legal analysis of the church–state relationship in six leading Western democracies is timely and appropriate given the contemporary context, in which Christianity and Islam are developing fundamentalist fringes, new religions or forms of belief are mutating and proliferating, where secularism has become a potent political force and where the application of equality law – subject to important exemptions favouring religion – is having an overall levelling effect. There is now a pressing need to consider how and why the church–state relationship works as it does. This requires an analysis of how the state accommodates diversity and gives effect to the equality imperative; the extent to which legislation addresses, explicitly or otherwise, matters of religion and belief; the relevance of multiculturalism and pluralism policies; and the pattern of related issues that then come before the courts. Policy outcomes, their veracity and shortcomings, will ultimately be revealed in the case law, which is why this book focuses on judicial and regulatory decisions to abstract and collate any insight they may offer regarding governing principles and related trends. The principle that the state should adopt a neutral approach towards religion offers a tool for identifying and assessing the nature of the actual balance currently struck between sacred and secular matters within nations. By defining the principle – or at least establishing its basic benchmarks – and then applying it to examine national law and constitutional underpinnings, as contrasted with the provisions of

Introduction

3

international conventions and protocols and illustrated by related case law, it is possible to disclose national characteristics of the church–state relationship, identify areas of jurisdictional commonality and difference, track trends in evolving judicial principles and draw conclusions as to the type of issues likely to generate future flashpoints. Having first outlined the developmental history of state neutrality, the book considers the judicial rulings that have now come to define the principle. Using this as a baseline, it compares and contrasts the rationes decidendi of judicial decisions in different jurisdictions, on a specific set of issues intrinsic to the church– state relationship. State Neutrality: The Sacred, the Secular and Equality Law considers how the fundamental human right to freedom of religion is treated in six modern Western democracies with quite different religious and cultural traditions. It deals with the interplay between religious belief, the state, and the equality principle in a range of everyday secular activities, as experienced by those democratic societies, within the framework of domestic and international equality law. While internationally the state–religion relationship continues to be unstable and threatening – and this is taken into account – the primary question for this book is the extent to which that relationship, in a domestic context, is currently governed by the principle that the state should be neutral with regard to religion. The approach adopted is to apply a template to profile each jurisdiction in accordance with the same specification of sacred and secular characteristics so as to facilitate the collation of comparable data. The “sacred” section examines the law and practice relating to the right to freedom of religion and its manifestation giving particular attention to the ways in which religion is protected from state intervention. The “secular” considers the extent of state authority to intervene in religious affairs, to support or constrain religion, to regulate religious organisations and to balance such interests against those of secularism. As in practice both strands intersect in matters such as abortion and gay marriage, where equality legislation most often frames the issues and determines the outcome, the template centres on a checklist of everyday settings – education, employment, health and such – and analyses the related case law. This book considers the similarities and differences in the relationship between church and state, on a range of contemporary matters, in six countries. These – the Part II jurisdictions – are chosen on the basis of the contrasts they offer: the USA and Canada, built on the contribution of immigrants but with sizeable indigenous populations, have distinctively different constitutional interpretations of that relationship; England and Wales and its five centuries of an “established Church”; France, where laïcité resolutely dictates the place of religion; Germany, which struggles to overcome its Nazi past and re-integrate its eastern communist citizens; and the outlier, Israel, “a Jewish State for a Jewish people”, established and maintained to provide distinctly non-neutral protection for a specific religion and one where Judaism and the state are, seemingly, moving ever closer to a theocratic relationship. All six jurisdictions are modern democracies and all are signatory

4

Introduction

nations to international treaties that require states to respect the rights to freedom of religion and to equality and non-discrimination. Part I of the book, in three chapters, explores the background, beginning with the developmental history and differing interpretations of the principle of state neutrality. It then explains how this principle was initially articulated by various academics and applied by the courts. It examines what constitutes “religion”, “beliefs” and “worship”, the freedom of religion, its manifestation, and the respective roles of church and state in determining these matters. It introduces the concept of civil society, explains the importance of a more assertive secularism and considers the relative significance of policies focused on multiculturalism or pluralism and those that further the current general drift towards a “nation State” ideology. It relates this to the growing tensions, between the citizens of developed Western societies and incoming religious–ethnic groups, that constitute the ongoing migrant crisis. It explains the intent and effect of national equality and non-discrimination legislation on the church–state relationship. It then details the supranational framework of treaties, conventions, protocols and such relating to religion and equality and identifies significant principles with reference to the burgeoning body of European case law. Part II, the core of the book, is in six chapters, each of four parts, and examines the church–state relationship in the above-mentioned countries by applying the template to produce comparable case-law data. Each chapter begins by providing an introductory background history of the national characteristics of that relationship and an overview of evolving government policy. Secondly, it briefly outlines the relevant legal framework, international and domestic. This is followed by an assessment of the church–state relationship as it interfaces with the fundamental freedoms of religion, association/assembly and expression, giving particular attention to the nature and extent of contemporary state intervention in religious matters – to protect, support or to regulate – and its capacity to determine religion, beliefs and places and modes of worship, to moderate public manifestations of religious belief and so forth. The bulk of each chapter then deals with how religion–equality intersect in secular matters – education, health services, employment and such – governed by statutory law. It establishes where, when and how the courts in each jurisdiction have addressed the same or similar issues on the church–state interface and considers the extent to which they have, or have not, applied similar rulings in accordance with the requirements of equality legislation. It identifies and contrasts such rules or principles as the judiciary have in fact relied upon and takes into account the relevance of cultural context and the fragmentation of social relationships perpetuated by the pernicious “culture wars” to explain why there are jurisdictional differences in the interpretation and application of the stateneutrality principle. Part III, in two chapters, draws from the findings in Part II to consider what is revealed by the established facts, trends, anomalies and the like, and to analyse their

Introduction

5

significance. It reflects on areas of jurisdictional commonality and difference. In the light of the findings, it reassesses the principle of state neutrality: its role, weighting and its viability; it considers the principle’s potential to contribute to consolidating a pluralistic and stable civil society. It examines the proposition that the principle must be interpreted with sensitivity to cultural context and that its effectiveness will be determined by the extent to which it takes fully into account, and balances, the interests of the sacred and the secular, which, in turn, will mean making hard policy decisions in relation to the levelling effect of the equality principle. The Conclusion closes the book by introducing a sense of perspective. It suggests that the principle of state neutrality, and with it justification for this book, rests primarily on the importance of learning from the destruction caused by reliance on the alternative.

par t i

Background

1 State Neutrality: Background History, Concepts, Definitions and Principle

introduction This chapter begins with an overview of the church–state relationship across time and nations, drawing attention to countries and circumstances in which the principle of state neutrality cannot be said to apply. It then explores the origins of the principle, traces its developmental history in relation to religion in various countries, explains key concepts and identifies some different academic interpretations. It discusses the public–private dimensions to religious belief and their balancing within contemporary democratic society. It gives an overview of the law relating to religious freedom. In so doing, the chapter considers the role of established institutional religions – defined by their reliance upon indices such as belief in a supreme being, worship, tenets and doctrines – and distinguishes between organised religion and religious belief with reference to the range of new religions, philosophies and moral or ethical belief systems and to public–private interests. This leads into a discussion as to what now constitutes a legal definition of “religion” and “belief”. It draws attention to the counterbalance provided by secularism as defined by atheism, agnosticism, impartiality of state institutions and considers its political significance. It introduces key themes that will be tracked through Parts II and III. Particular attention is therefore given to the growing importance of secularism and to the impact of human rights, equality and non-discrimination legislation. The chapter closes with a review of the broader public policy context, its importance in shaping how the church–state intersect, in determining what constitutes a “democratic society” and the threats presented by the current religiously driven acts of international and domestic terrorism.

the church–state relationship “Church” and “state” – once among the most concrete of concepts – would both seem to have lost their former coherence, parameters and currency. Throughout 9

10

Background

their shared history, state and religion – whether Christian, Muslim or any other institutional faith – have been jointly engaged in the same complementary purposes of, respectively, protecting lives in this world in a manner conducive to saving their souls – salus animarum suprema lex – in the next.1 To the state fell the responsibility of ensuring the safety, well-being, civility and orderliness of its citizens while the church was left to regulate beliefs, morality and worship. Their respective spheres of influence overlapped in the religious requirement for such citizens to perform “good works” for their “souls to attain everlasting life”, opportunities for which the state was always prepared to make provision; dual service to church and state was duly performed by the many who volunteered for duties ranging from enlistment in the “religious crusades” to care duties in the almshouses. However, due to factors that include globalisation, neither can any longer guarantee the permanence and exclusivity that membership once promised, nor can non-members be certain what it is that either is now offering. Such fluidity has implications for their relationship that could not have been foreseen a few generations ago.

Historical Context: The Sacred and the Secular Are the sacred and the secular mutually exclusive? In most modern democratic societies, there is a dividing line, usually clear and respected, allowing both to function in tandem, private piety being left at the door of secular processes and institutions and the state refraining from overtly aligning itself with religion in general or any one in particular. However, for the sincerely religious, certainly for adherents of the more traditional religions with their prescriptive doctrines, the sacred–secular distinction is a false dichotomy: they believe they are required to manifest and give effect to their beliefs, through everyday tasks and settings, in public as much as in private; arguably, a society that considers itself democratic must reasonably accommodate the public manifestation of such beliefs. Equally, in non-democratic societies and to a varying extent in those where democracy is not fully embedded, the state may consider it has the right or duty to represent the religion of the majority of its citizens if this has significantly contributed to shaping their collective cultural identity. Moreover, although the modern democratic society is becoming more secular, the growing raft of international human rights, uniformly binding on signatory nations, require a state to facilitate the right to freedom of religion and to respect and protect the culture and beliefs of all its citizens. As those societies now become more religiously and culturally pluralistic, so the dividing line between the sacred and the secular is becoming increasingly fudged.

1

See further O. Chadwick, The Secularisation of the European Mind in the 19th Century, Canto Original Series, Cambridge University Press, Cambridge, 1990.

State Neutrality: Background History, Concepts, Definitions and Principle

11

The State Society in the Part II jurisdictions was founded on the mutuality of the throne and altar, the laws of the former enforcing the moral imperatives of the latter and adherents being enjoined to “render unto Caesar the things that are Caesar’s, and unto God the things that are God’s”. This mutuality was explicitly reinforced by war (e.g. the Thirty Years War 1618–1648 in Europe), by laws to regulate offences (e.g. blasphemy, apostasy and heresy) and by processes (e.g. the Spanish Inquisition). The offence of blasphemy remains on the statute books in fifty-nine countries2 but is now mostly significant in an Islamic context where expressions of irreverence towards Muhammad can have serious consequences and continues to cause the deaths of many in countries such as Pakistan.

theocracy. History reveals that the sacred and the secular have always had an uneasy relationship – what is sacred for some is not so for others – which perhaps goes some way towards explaining why a state might align itself with one specific religion, providing a means of ensuring allegiance and facilitating the solidarity of its citizens. Such theocratic states have a long history. From the records of Mayan and Egyptian dynasties, with their worship of rulers who were held to be deities or the incarnation of deities, to the conduct of rulers in contemporary Islamic states, it is demonstrably clear that some cultures find it appropriate that their affairs be governed by an authoritative fusion of church and state. Currently Iran is perhaps the leading contender for recognition as a theocratic nation state. Theocratic rule, or something like it, provided the environment in which the relationship between church and state was first formulated in Europe, where it established the presumptive dominance of Christianity, its institutions and moral imperatives, a structure for church–state relationships and a model for the social role of religion. Temporal and spiritual authority in Europe were conjoined, if not fused, under the Roman Empire and throughout the Middle Ages. Not until the end of the eighteenth century did they begin to separate. Both civil law and the common law were grounded on religious precepts: the moral imperatives drawn from natural law as expounded by Thomas Aquinas and others, which builds on the categories of conduct that are to be universally regarded as “right” or “wrong”, and immutable across cultures and time, because they are divinely inspired. The resulting body of secular law with its natural law characteristics, but shorn of any theocratic underpinnings, was duly transferred by colonialism to the Americas and elsewhere. While the Christian theocratic states of feudal Europe have long since been consigned to history, their Muslim counterparts in the Middle East and elsewhere have proved more resilient and many – but not all – continue as they always have 2

See 2011 Pew Research Centre report, www.pewforum.org/2011/08/09/rising-restrictions-onreligion6/

12

Background

done to blend religious belief, governance and law. In such countries the organisations and citizens whose religious beliefs conform to those of the governing majority will be preferenced relative to all others. As society in the Part II jurisdictions became less theocratic, with boundaries emerging between the spheres of interest of church and state, so the shared ground for their continued mutual support became less based on matters of religious doctrine. While this had been the case in the USA from the time of the Declaration of Independence, the loosening of the church–state relationship also became a feature of governance arrangements in most other jurisdictions, especially in France, where the ideals of the republican revolution erased the ancien régime and relegated religion to the status of just another non-government entity; the exception was England, where the “established” church retained its constitutional links with the Crown and government. Although scaled back, what did not change in most jurisdictions was the permeating social role of Christianity and its institutions – its presence in terms of buildings, music, literature, emblems and its customs and vernacular – which maintained a cultural overlay overshadowing that of all other religious communities. state sovereignty. Over the centuries, this concept has morphed from a reference to ruler control over people and territory within borders respected by other countries to indicating the sovereignty of the people within a state: from the absolute right of a sovereign ruler – “l’etat, c’est moi” – to the elective rights of citizens, representing a shift in focus away from the closed, exclusive powers of a ruler to the more open, sharing, will of the people. Parliamentary democracy in the Part II jurisdictions has gradually facilitated the range of cross-border arrangements and international commitments that would previously have compromised state sovereignty. The “state” in the present context of supranational treaties, conventions, courts and the broad forces of globalisation can no longer be the sovereign entity as initially conceived. Religion As Dillon J once confidently declared, the “two essential attributes of religion are faith and worship: faith in a god and worship of that god”.3 Traditionally these components have been held to comprise the essence of a religion, serving to affirm the beliefs that commit and bind the members and to differentiate a religion from all others. In the words of Lord Halsbury, “Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines”.4 Along with the associated values and rules for conducting everyday 3 4

Re South Place Ethical Society, Barralet v. Attorney General, [1980] 1 WLR 1565. Free Church of Scotland v. Overtoun, [1904] AC 515, HL (Sc), per Lord Halsbury LC, pp. 612–613.

State Neutrality: Background History, Concepts, Definitions and Principle

13

life, this interpretation commanded the commitment of successive generations of adherents. Only relatively recently has the concept of “religion” been legally expanded to accommodate more than just the traditional institutional religions. religious organisations. Christianity, Judaism and Islam are among the oldest of extant religions and are to be found in all Part II jurisdictions, each being monotheistic with accompanying doctrines and rituals of worship. Other religions such as Buddhism, Hinduism and Sikhism tend to be non- or multi-theistic, with rituals being of central importance. In addition, a large and fluctuating number of organisations exist, with a varying quotient of religious characteristics, of which Mormons, Scientologists, Druze and Zoroastrians are among the more notable. Then there are religious-type groupings that derive from and represent a particular ethnic culture, such as may be found among the indigenous communities of Canada, the USA and elsewhere. Many of these are of ancient origin, preceding Christianity, in which theism is merged with nature. More significant for the definition of “religion”, however, is the evergrowing myriad range of “beliefs” now legally entitled to equal status with the above religions. The incoherence caused by the multiplicity of such beliefs – from veganism to paganism – is compounded by the fact that the law no longer considers doctrines and tenets necessary for identifying a religion and has accepted that they are amenable to subjective interpretation: the sincerity and commitment of an adherent may be sufficient to legitimate their religious belief. christianity. All Part II jurisdictions are rooted in Judaeo-Christianity, meaning that for millennia their societies have shared and been shaped by the same set of beliefs and values and have largely developed not dissimilar cultures. This significant area of commonality has become steadily and unevenly eroded in recent decades as secularism and the impact of other religions – most notably Islam – together with a varied range of philosophical, ethical and other belief systems have combined to undermine their Christian foundations. However, and most importantly, several judicial rulings in different countries sharing the same Christian religious/cultural heritage have recognised the necessity to contemporise traditional religious beliefs and to reinterpret their meaning in the light of the current social context. This approach is largely disregarded by evangelical Christians, who consider themselves bound by biblical precepts. In addition, arguably, Christian beliefs and values are also to some extent becoming diffused and diverted into the “culture wars” in which an agenda of morality issues, serving as proxies for religious confrontation, dilute and mask what might otherwise constitute religiously discriminatory attitudes and conduct (see further in Chapter 2). islam. Unlike Christianity, Muslim prescriptive religious edicts dating from the Middle Ages have not undergone any revisionism to reconcile them to the norms

14

Background

and mores of contemporary society. Muslims, in the main, continue to respect the prescriptive injunctions of sharia law, with its resolute intolerance of “heretics” and “apostates” and the hudud punishments. For many Muslims, however, particularly those who are citizens in Western democratic societies, it is the maqasid, or governing principles and objectives, rather than the regulatory rules and punishments of sharia that inform their religious lives (see further in Chapter 2). judaism. There are three different branches of Judaism: Orthodox (Haredi and Dati); Conservative or Reform (Masorti); and Reform (Hiloni). Orthodox Judaism shares with Islam a commitment to traditional religious beliefs. Adherents continue such practices as daily worship, dietary laws (kashruth), traditional prayers and ceremonies, regular and intensive study of the Torah, and the separation of men and women in the synagogue. Again like Muslims, Orthodox Jews maintain their own religious legal system, which is similarly patriarchal, disrespectful of gender equality and which – particularly in relation to marriage, divorce and other family matter – is at variance with much contemporary statutory law. Judaism teaching is subject to the governing principles of Halakha, or “higher power”, from which the authority of traditional religious precepts are interpreted and applied for guidance in addressing contemporary social issues. From the Sacred to the Secular For all religions, the steady inroads made by modern scientific discoveries into areas hitherto clothed in religious belief have presented a continuous, and increasingly serious, challenge. There are those who consider that science has come to offer an alternative frame of reference to the inherited ancestral beliefs that pictured a transcendental dimension to human life. Some contend that the transcendent is no longer necessarily embodied in religion: its belief systems and spiritual and moral values for leading a “good life” have perhaps been gradually displaced by, or swapped for, the verities of scientifically established knowledge, the values derived from which have come to inform the way we now live, providing, for example, the transcending and near global set of fundamental human rights. Nonetheless, as the best efforts of the state to erase religion – the French revolution, Stalin, Pol Pot, Maoism and such – have conspicuously and repeatedly failed, it may be safely concluded that the secular and the sacred will continue to coexist. The challenges have not always been external – religion has itself been undergoing change. Always prone to schisms, the major religions have lately experienced a greater number of subdivisions with, for example, more extreme Islamic organisations and more evangelical Christian groups gaining adherents and prominence. The consequent tensions between the traditional parent religion and its more recent and radical offshoots parallel the growing acrimony between those with and those without religious belief. All of which has led to the present sharp interfaces between science and religion, secularism and religion, between and within religions and

State Neutrality: Background History, Concepts, Definitions and Principle

15

between religious and philosophical beliefs. While secularism5 has had a marginal, if expanding, social profile from at least the mid-nineteenth century, the interface between religious belief and what to some has since evolved into “a militant secularism”6 is one that, although already tense in the closing decades of the twentieth century, is rapidly becoming more so in the twenty-first. private piety and public conduct. For the religious individual as for religious organisations, private piety and public conduct should be synonymous: both strive to ensure that conduct conforms with religious belief; their views and actions are necessarily often dogmatic because religious dogma leaves them unable to compromise. This has become less true for Christianity as, on the whole, beliefs have become moderated over time by changes in cultural context, but has remained so for Muslims who consider themselves bound by the precepts of the Qur’an and hadith and to an extreme extent by the more radical elements within Islam who adhere to the prescriptive directives of sharia law and the sanctions of jihad as laid down in the early middle ages. The distinction is one that is rapidly growing to become a faultline for our times: how to reconcile the moral propositions derived from traditional religious beliefs with modern equality and non-discrimination law to ensure that religiously inspired conduct conforms to the norms required to sustain contemporary civil society? Are the pious – be they evangelical Christians, Muslims or others – to be treated as archaic bigots and tolerated only if they either conform to social norms or encouraged to retreat to “gated” religious communities? Or should there continue to be an “islands of exclusivity” policy,7 facilitating their participation in civil society but granting them a free pass from particularly onerous constraints of equality and non-discrimination law?

Beginnings of a Partnership for the Public Benefit Christianity, Islam and Judaism are each bedded down on doctrines that require their members to do good for others mainly by caring for the ill or destitute and giving to those otherwise in need. The earliest manifestations of civil society grew from that context in the form of associations or guilds (confraternities in the

5 6

7

The term “secularism” was first coined by George Jacob Holyoake (1817–1906). A term used by Baroness Warsi, Britain’s first Muslim cabinet minister and chair of the Conservative Party, in response to the ruling of Ouseley J in NSS v. Bideford Council, [2012] EWHC 175 (Admin) when he declared it unconstitutional for Bideford Town Council to continue with its long-standing practice of holding prayers at commencement of their meetings. See A. Esau, “‘Islands of Exclusivity’: Religious Organisations and Employment Discrimination”, University of British Columbia Law Review, vol. 33 (1999–2000), p. 719, 734–735.

16

Background

Catholic Church) dedicated to the pursuit of religious aims through various forms of community activity. Christianity and the State The encouragement of Christian beliefs, accompanied by charitable provision for the disadvantaged, was of common interest to church and state – if for no other reasons than to cultivate goodwill, placate the disadvantaged and prevent social disorder – and provided a pathway for those who subsequently and more purposefully sought to build a civil society.

doing “good works”. Jurgen Habermas argues that for the religious individual as for the religious organisation, doctrinal beliefs require private piety to be given effect through public conduct – “ye shall know them by their fruits”.8 Religious doctrine leaves both unable to compromise, and neither can refrain from engaging in actions that manifest religious belief. Consequently, it is precisely the incremental process of separating the public and private strands of religion, as they relate to conduct, that provides the primary means for measuring the extent to which state neutrality now prevails in a democratic society. In the long era of theocratic Christian rule, mutuality of church–state interests in giving effect to religious doctrine was most convincing at times when the nation or community was under threat: whether internal, in the form of plague, crop failure or when facing a perceived danger such as witchcraft; or external, most usually from war or invasion. Their common cause was perhaps never more emphatically demonstrated, if destructively, than during the “religious crusades” between 1096 and 1291, as recently and ominously echoed in the obverse by the ISIS campaign. More positively, a joint church–state partnership approach was also evident from the earliest days of that era when religious organisations worked, with the support of the rulers of the day, to alleviate poverty. King Edward’s code, for example, promulgated at Andover in 963, proclaimed that “God’s churches are entitled to their rights” and required taxes to be paid to the church with severe penalties imposed for nonpayment. The taxes contributed in part to the building of places of worship and their running costs, to the maintenance of priests and clergy, but also towards the provision of food, shelter and alms for the destitute. confraternities. These were associations of pious people who worked together under the guidance of local Christian clergy, to provide for the poor of the parish. As Ted Flack explains, confraternities may have existed in both the Eastern and Holy Roman Empires even before the sack of Rome in AD 410. Some had specialist functions, such as one with a special devotion to the sick and diseased, which flourished in Constantinople in 336 and others in the West, which looked after 8

Matthew 7:16, part of the Sermon on the Mount (“fruits” meaning deeds or works).

State Neutrality: Background History, Concepts, Definitions and Principle

17

abandoned children as early as AD 400.9 Some were devoted to burying the dead. The earliest Catholic lay confraternities were probably formed in Italy as early as the third century. Certainly, by the end of the twelfth century, they were spreading across all of Christendom. In medieval England, as across western Europe, many schools and hospitals were founded by religious organisations and they in turn received powerful support from the state. guilds. These were early forms of trade associations – merchants, craftsmen, masons, clothiers and such – the members of which contributed time and money for good works. They were well established across Europe by the Middle Ages and some were quite specialist. As was noted in the Parish Gilds of Mediaeval England,10 “the gild of the Blessed Virgin Mary in the parish church of St. Botolph at Boston, founded in 1260, which gave a yearly distribution of bread and herrings to the poor in alms for the souls of its benefactors”. charities. The Charities Act 160111 was the first legislation to formalise the partnership between the state and a network of religious and other organisations to promote public benefit in England. It did so by identifying a list of good works that would merit charitable status accompanied by substantial tax exemptions. The preamble to that statute identified the following charitable purposes: Releife of aged impotent and poore people, some for Maintenance of sicke and maymed Souldiers and Marriners, Schooles of Learninge, Free Schooles and Schollers in Universities, some for Repaire of Bridges Portes Havens Causwaies Churches Seabankes and Highwaies, some for Educacion and prefermente of Orphans, some for or towardes Reliefe Stocke or Maintenance of Howses of Correccion, some for Mariages of poore Maides, some for Supportacion Ayde and Helpe of younge tradesmen Handicraftesmen and persons decayed, and others for reliefe or redemption of Prisoners or Captives, and for aide or ease of any poore Inhabitantes concerninge paymente of Fifteenes, setting out of Souldiers and other Taxes.

Thereafter, the state would not regard a purpose as charitable unless it appeared on that list or could be defined as coming within its “spirit and intendment”. It was a partnership model that transferred with the armies of the Crown to all parts of the

9

10

11

T. Flack, Insights into the Origins of Organised Charity from the Catholic Tradition of Confraternities, Occasional Paper, Australian Centre of Philanthropy and Nonprofit Studies, Queensland University of Technology, Brisbane, 2008. H. F. Westlake, The Parish Gilds of Mediaeval England, Macmillan/Allen & Unwin, London, 1919. The Statute of Charitable Uses 1601 (43 Eliz. 1, c.4) for four centuries governed State regulated provision by charitable entities, most usually religious organisations, throughout the common law jurisdictions.

18

Background

British Empire, including the USA and Canada, establishing the presumptive dominance of Christianity, its institutions and moral imperatives, a structure for church–state relationships, and a model for the social role of religion. In France, Germany and elsewhere in Europe, much the same collaboration between state and church was achieved, as noted above, through the development of confraternities and guilds attached to local cathedrals and other places of worship, which functioned as religious brotherhoods or fraternities in providing facilities for the poor, the ill and the homeless. Church, State and Protecting the Marital Family Canon law predated the Reformation by several centuries but has since formed the body of law, rules and regulations underpinning Christianity as administered by its ecclesiastical courts.12 The latter’s terms of reference enabled them to deal not only with religion-related matters but, until the mid-nineteenth century, they also had exclusive authority in respect of marriage, divorce, wills, and defamation. Leaving criminal issues to the secular courts allowed the ecclesiastical courts to focus on those civil issues where immorality was most likely to be manifested and be amenable to policing in accordance with Christian canons and doctrine. In recent centuries this Christian shaping of the law, both unsurprising and rigorous, came to focus on the role of the family, its members, their responsibilities and status. The pace and the extent to which public benefit considerations have since led to a separation of the interests of church and state in relation to family matters is a particularly revealing indicator of state neutrality at work and evidence of a nation’s commitment to developing a pluralistic, democratic society.

the family and the law. For centuries the legal status of marriage, founded on the monogamous commitment of heterosexual spouses, was upheld by church and state as an inviolable building block for constructing a sound Christian society. Christian principles established certain “moral imperatives” that came to inform the law relating to the family and continued to provide the grounds for sustaining such traditional religious beliefs as that marriage was to be monogamous, heterosexual, and for life. For the jurisdictions profiled in Part II of this book, all with their roots in Judaeo-Christianity, the duality of the church–state approach to family matters thus established has been of fundamental importance. marriage and family. Moral imperatives were always prominent in the law relating to the family: generally as regards marriage and procreation but particularly so in relation to sexuality; their importance to both church and state was emphasised by transgressions such as blasphemy or heresy being labelled as a “sin” by one and 12

See, further, R. B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860, Cambridge University Press, Cambridge, 2007.

State Neutrality: Background History, Concepts, Definitions and Principle

19

punished as a criminal offence by the other. Both viewed the marital bond as of fundamental importance. It bound the spouses in an exclusive, mutually supportive union for procreative purposes, granted legal rights to maintenance and property and provided the only context in which sexual relations and the children born thereof could be legitimate; the families and relatives of the spouses in a kinship network; and the marital family to the state as a unit that conformed to the latter’s laws, thereby fulfilling a deep civic contract between family and society. Especially in a hierarchical society – where lineage, class and the orderly devolution of family estates have always been important – marriage was a key social institution. It was primarily a public rather than a private bond and for many centuries they were similarly regarded and policed by church and state. The significance of the joint church–state approach for England and Wales – as for all the Judaeo-Christian jurisdictions – was noted by Lord Finlay L. C. in Bowman v. Secular Society Ltd., when, reflecting on previous centuries of case law, he commented:13 It has been repeatedly laid down by the Courts that Christianity is part of the law of the land, and it is the fact that our civil polity is to a large extent based upon the Christian religion. This is notably so with regard to the law of marriage and the law affecting the family.14

He was quite clear that up until then the courts would have considered themselves bound by such principles when called upon to interpret the meaning of “religion”.15 The distinctively Christian dimension to those principles included monogamous, heterosexual marriage for life; the sanctity of marriage to the exclusion of non-marital sex, any children thereof, and unmarried partnerships; and the rejection of a Darwinian interpretation of the meaning of “life”.16 This dual church–state approach to morality imprinted on the nations concerned, over the centuries, a shared understanding of marriage and family and of actions that are sinful or virtuous. sexuality. The crucial lever – a hallmark of the church–state approved family unit within an ordered society, the approved means for procreation, which provided 13 14

15

16

[1917] AC 406 (H.L.). Ibid., citing: Briggs v. Hartley, (1850) 19 L. J. (Ch.) 416; Cowan v. Milbourn, (1867) L. R. 2 Ex. 230; De Costa v. De Paz, (1754) 2 Swanst, 487; and In re Bedford Charity, (1819) 2 Swanst. 470, 527. A long catalogue of cases beginning with De Costa v. De Paz, (1754) 2 Swans 487, Chancery, including Lawrence v. Smith, Murray v. Benbow, (1822) The Times 2 Feb. 1822, Briggs v. Hartley, (1850) 19 L. J. (Ch.) 416, and ending with Pare v. Clegg, (1861) 29 Beav 589, 54 ER 756, established that “the Courts will not help in the promotion of objects contrary to the Christian religion”. Laws LJ acknowledged as much in McFarlane v. Relate Avon Ltd., [2010] IRLR 872; 29 BHRC 249 when he observed that “the Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy,” para. 23.

20

Background

for the continuance of such families and societies, and the rules for the orderly devolution of their property – was, for many centuries, sexuality. Sexual transgressions attracted the approbation of the ecclesiastical courts, and the principles applied there, which in time became transmuted into legislative provisions, included a rejection of non-marital sexual relations and the prohibition of adultery, bigamy, unlawful carnal knowledge, incest, sodomy, and such. Treated as a moral imperative by both church and state, legitimate sexual activity was confined to the bedroom of the heterosexual marital couple: all other sexual activity was treated and, where possible, punished as illegitimate; legal sanctions were levied not just against the parties involved (primarily the female) but also against any resulting progeny. family law. That same dual approach, rooted in Christian morality, governed the development of family law in all Part II jurisdictions: the “family” in effect was defined by marriage; sexual relations and any resulting children were thereby “legitimated”; property and succession rights were secured, while all relationships and related issues outside that definition were denied equivalent legal protection (see further in Chapter 2). In all the Judaeo-Christian jurisdictions are to be found much the same archives, holding layers of similar statutes, accreted over the centuries, saturated with assumptions of morality specific to Christian culture and religious heritage, which strive to regulate the marital family, its boundaries and social status. Church, State and the Development/Delivery of Public Social Services Religion’s span of population permeation and the ability of its organisations to accumulate wealth, together with an inherent capacity to inculcate values, maintain order and thereby contribute to social cohesion has always assured it of special attention from government. By providing tax-exemption support and legal status for specified public-benefit purposes, the state facilitated religious organisations to develop schools, hospitals and such and to lay the foundations for contemporary social infrastructure. In so doing it also provided the basis for a long-term church–state partnership – fluctuating in accordance with the political credence given to the nationalisation of public services – that has ever since been a characteristic of democratic society as it has evolved in the Part II jurisdictions. An inevitable corollary of such a partnership is that religious beliefs and values have at times acted as a brake on state’s service development and provision. The nature and extent of such a brake, and any jurisdictional differences in its application, are among the interesting aspects of state neutrality to be explored in Part II.

public health and education. Religious organisations have a well-earned reputation for engaging in good works for the public benefit. Their contribution to establishing social coherence and a stabilising set of institutions in all Part II jurisdictions is inestimable. The foundations of the present educational, health and

State Neutrality: Background History, Concepts, Definitions and Principle

21

social care services were laid more by church than state while the churches, schools, universities, and hospital complexes provided the basic framework for building communities, assisted by a unifying Christian ethos, architecture and a network of parish-based clergy and volunteers. other public-benefit services. In the post–World War II era, religious organisations have developed both an ever-increasing spectrum of public-benefit services – mostly in the health and social care field – and their role as contractual agent for the delivery of government services. In relation to the latter, as governments everywhere pared back public spending in the face of falling tax revenues and inexorable demographic trends, they all turned towards the nonprofit sector as this offered more cost-effective modes of service delivery than the overly bureaucratic government departments. Within the nonprofit sector, religious organisations have been particularly attractive as partners for government because of their nationwide networks, their costs subsidised by the involvement of volunteers and tax exemptions and their close working knowledge of the socially disadvantaged who were the primary service recipients. However, the increased faith-based contribution to public service provision has been accompanied by steadily louder protests from secularists who challenge the use of public-benefit-service provision as a platform for showcasing religion, for religious evangelising and for discriminatory practice. There were and are several different aspects to this challenge, including that government should not be in the business of strengthening the social role of religion,17 let alone any particular religion; that publicbenefit service providers should deliver on a religion-free basis; that recipients should have a choice not to be dependent upon making concessions to a particular religion, nor to any, in order to access such services; and that when acting as government’s service-delivery agents, religious organisations should be required to act in a non-discriminatory fashion, not just as regards service access but also in relation to the nature of the services delivered and in the hiring of staff to be employed in the delivery of such services. These matters are in themselves contentious but have become steadily more so leading to church–state partnerships being further threatened as tension increases between the former’s religious beliefs and the latter’s equality and non-discrimination legislation.

Alignment of State, Religion and Culture In the early centuries of the second millennium, the European rulers of church and state launched a succession of “holy wars” from their feudal Christian kingdoms, an initiative subsequently emulated by twenty-first century Islamic fundamentalists, 17

A policy most contentious in the USA. See, for example, Dodge v. Salvation Army 1989, WL 53857 (S.D. Miss).

22

Background

to establish religious hegemony in the “greater” Middle East. Their two centuries of “crusades” sought to impose an alien religion on ethnic cultures that were unable to relate to it and unwilling to accommodate. This was perhaps the first of very many not dissimilar examples of geopolitical adventurism extending across the centuries and across continents such as Africa and Asia, occurring mostly in the context of colonialism, and which have most recently been evident in Kosovo, Northern Ireland, Syria, Myanmar and the Indian subcontinent. All would seem to feature the efforts of “outsiders” to impose religion/culture upon ethnic communities that already had established beliefs, and to do so with disregard for frontiers, in confrontations that may not yet have run their course.18 The difficulty in fitting together ethnic groups, religion/culture and territory to form coherent and neighbourly states was one which the Treaty of Westphalia sought to address in Europe but which has continued to be problematic there and elsewhere over the intervening centuries. Ethnicity, Religion and the State The slippery social construct of “ethnicity” refers to social groups that share such characteristics as language, cultural heritage, ancestral history, territory, and religion or system of beliefs and traditional forms of worship.19 Although often seen as synonymous with “race”, ethnicity differs from it by not being so rigidly determined by genetics. Fredrik Barth has urged that the focus be on the “ethnic boundary that defines the group, not the cultural stuff that it encloses” and that “ethnic identity is about self-ascription and ascription by others in interaction” with the result that group members see themselves as “playing the same game”.20 There can be little doubt that religion or shared beliefs would constitute a significant boundary marker for any ethnic group.

the traditional “nation state”. Following the Treaty of Westphalia in 1648, the rise of the European nation states with their mutually assured rights of sovereignty was largely predicated on ethnicity as demarcated by markers of religion and hard borders: nationality being determined by being a citizen of a state where culture and tradition were shaped by a dominant religion, excepting certain anomalous regions where mixed racial and ethnic groups eventually led to the creation of the culturally compromised states of Belgium, the Netherlands and Switzerland. As the United Kingdom – an amalgam of four nations – went through the process of acquiring and losing the British Empire, colonial immigration led to England also becoming steadily less culturally homogenous. For France the acquisition of nation 18 19

20

S. Huntington, The Clash of Civilizations, Simon & Schuster, Great Britain, 2002. See, for example, T. H. Eriksen, Ethnicity and Nationalism: Anthropological Perspectives, Pluto Press, London, 1993. F. Barth, ed., Ethnic Groups and Boundaries, Waveland Press, Illinois, 1969, reissued in 1998, p. 6.

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23

state status came with – and as a consequence of – a national rejection of religion. It was the ideological principles of the 1789 revolution, replacing the previous boundary markers established by the ancien régime, that instilled a sense of national identity and thereafter provided a distinguishing set of beliefs for this nation and its citizens.21 misalignment of state and religion/culture/ethnicity. National identity was most confidently established when ethnicity, religion and territory coincided and more uncertain when they did not: pluralism and diversity, hallmarks of contemporary democracies, were then anathema to rulers and to the forming of states. In Germany, the boundaries for ethnicity and national identity fluctuated as the various ethnic tribes (Franks, Angles, Saxons and others) had roamed widely leaving their German “folk” descendants spread over large areas of central Europe. Similarly in the Balkans, the mix and match of different ethnic groups within uncertain territorial boundaries has been a constant source of state instability. Arguably, this uncertainty regarding ethnic and territorial congruity – an absence of firm boundary markers – contributed to the rationale for expansionist adventurism, the subsequent wars in twentieth-century Europe, and led to the term “ethnic” becoming linked – harrowingly – with “cleansing”. At the beginning of the second decade of the twenty-first century, there are indications that for some theocracies, where state boundaries do not coincide with territory occupied by adherents of the dominant religion, serious threats to social stability may force a realignment. The friction between Shia and Sunni Muslim communities in Iraq, Iran and Syria, for example, has been building for some years and may well cause religious minorities to relocate to areas where their fellow adherents dominate. In Myanmar and Bangladesh, the ongoing conflict between Muslims and Buddhists could cause similar population movement, as could the fractious relations between the Muslim and Hindu populations of India and Pakistan. The most recent example of such an assertion of religious/cultural identity against the constraints of politically determined boundaries came with attempt by the putative ISIS caliphate to realign national boundaries in Iraq and Syria to conform with territory occupied and controlled by the Wahhabi sect of Sunni Muslims and provide a base from which ISIS could extend its patrimony and religious beliefs to many countries in North Africa and the Far East. This return to an earlier form of geopolitics, typified by the Christian crusades, contrasted radically with the opposite model of religious pluralism that is now a growing characteristic of the Western democracies. However, while the latter, in a collaborative drive with strong resonances to those earlier crusades, may well have brought about the nemesis of ISIS,

21

See E. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality, 2nd ed., Cambridge University Press, Cambridge, 1992.

24

Background

they neither vanquished that particular approach to the church–state relationship nor wholly consolidated their own. the postcolonial, multi-ethnic states. In contrast to the European nation states, but as a direct result of their efforts to enforce separate religious homogenous identities, the USA and Canada have from the outset been multi-ethnic, religiously diverse entities, within relatively fixed territorial boundaries. In their postcolonial phase, which has had to reach an accommodation with their indigenous populations, they have both deliberately sought to cultivate multiculturalist and religiously diverse societies. Arguably, however, in the process both have also allowed ethnic stratification to structure their societies: white, Christian Anglo-Saxons at the top; indigenous communities at the bottom; with black Americans, Hispanics and mixed-race people generally close to the bottom end. Israel, in this context, has the singular distinction of being a state built for the purpose of protecting a specific religion that is itself represented by adherents drawn from a kaleidoscope of different ethnic groups. Among the modern democracies, this “manufactured” state is uniquely different: church and state have a symbiotic and close to theocratic relationship; the territory has uncertain boundaries; the ethnic mix and cultural heritage of its population lacks a coherent provenance; and neighbouring states represent ethnic groups, cultures and religions that are hostile to its very existence. State Cultural Identity A conflation of culture and religion, often enduring over centuries, has done much to shape national identity, particularly in Europe and the Middle East. Some states, such as England, continue to have constitutional arrangements with a designated “established” church in which one specific religion is clearly preferenced above all others. Consequently, such states have dense and deep ties with a particular religion, which many citizens feel that their government has a duty of care to protect. In particular, they would argue that it should not be disproportionately damaged by laws and policies – driven by equality legislation and the neutrality principle – that combine to give added weight to the legal interests of minority groups, thereby eroding the status of their traditional culture. There is an argument that state neutrality imposes such an additional burden upon the primary traditional religion – because of the collateral damage to cultural integrity – relative to all other religions and faiths, that its effects could be discriminatory. The white, Christian, cultural context that provided the framework for building the democratic institutions that now govern contemporary society in the developed Western nations has had some difficulty accommodating religious diversity. Nonetheless, the fact that the same Christian principles infused the formulation of constitutions, legislation, legal processes and judicial decisions did much to build a degree of cultural homogeneity within and between those nations. Christianity

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25

and its canon law precepts have provided a shared and unifying thread, producing an almost identical jurisprudence schematic – particularly as regards family law and related moral matters – well into the twentieth century. This consensus continues to provide the grounds for those of traditional religious beliefs to challenge the changes brought about by equality and human rights legislation. Now as then, it remains impermissible in a democracy for the courts to undermine Parliament by grasping opportunities to change such crucial incidences of Christianity. As Lord Bingham observed in R (Countryside Alliance) v. Attorney-General,22 “the democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament”. christianity and civic morality. The Christian ethos that informed civic morality in the Part II jurisdictions laid the foundations for the current divisive disputes that are now such a feature of their societies, most obviously in the USA. The morality and values represented in the clashes over issues such as abortion and gay marriage derive from that ethos and provide the raw materials for waging the ever-extending “culture wars” (see further in Chapter 2). These disputes are becoming increasingly problematic as adherents of other religions – particularly Muslims – join the resistance to contemporary social mores. In some ways these disputes can be seen as a further stage in a process of working out an authentic sense of identity for societies that have for so long been constricted by the architecture of a Christian culture. At its most extreme, this struggle is highlighted by the difficulties facing the indigenous communities as they strive to free themselves from centuries of colonial policies which, alternating between assimilation and disregard, have left them fighting to retrieve the basic elements of cultural identity – language, customs, territory and their religious beliefs. It is also evident more generally in the relative under-representation of non-Christian religious values. If democracy in the developed Western nations is to be representational and effective, then a place must be found in the culture wars to address issues specific to the currently marginalised communities. It has been said that in democratic societies, the role of the state is not to remove causes of tension between religious organisations, or within them, which might thereby constrain the flowering of pluralism, but to ensure that they tolerate each other.23 However, this presupposes that such organisations and their interests are effectively represented, in all relevant institutions and processes, in the first place.

22 23

[2008] AC 719, para. 45. See Hasan and Chaush v. Bulgaria [GC], Application No. 30985/96, ECHR 2000-XI, Metropolitan Church of Bessarabia and Others v. Moldova, Application No. 45701/99, ECHR 2001-XII and Serif v. Greece, Application No. 38178/97, ECHR 1999-IX.

26

Background

State Neutrality Robert Barro and Rachel M. McCleary, in their survey of 188 countries, established that some 40 per cent, or 75 countries, could be classified as having a state religion.24 This, they explain, enables a government “to favor the majority religion by subsidizing its practices and by restricting religious expression of minorities”.25 The recently acquired salience of state neutrality in all Part II jurisdictions would seem to have followed in the wake of the twin impacts of Islamic terrorism and the mainly Islamic migrant influx on the traditionally Christian cultures of those jurisdictions; until then, notwithstanding 9/11, they had largely looked on from a safe distance as statebacked Islamic fundamentalism overspilled from the rivalry between Saudi Arabia and Iran to destabilise the Middle East before it began to seep towards the Western nations and challenge attitudes towards religion.26 This new awareness of the significance of the church–state relationship has been accompanied by a good deal of uncertainty: what does state neutrality towards religion in the Part II jurisdictions mean in practice and, even if attainable, is it desirable?

Concepts and Constructs In general the concept of neutrality in relation to any subject suggests no involvement, active or passive, but this can stretch to accommodate other interpretations, such as involved but treating the parties impartially, either negatively without providing any support but merely monitoring, or positively by providing it equally; involved by the parties to provide an active but impartial policing role in accordance with agreed rules and processes; or, perhaps, settling for partial neutrality, where only certain closely demarcated aspects will be so treated, and/or only for a timelimited period. It should also be borne in mind that simply doing nothing may have a non-neutral effect: allowing matters to take their course without intervention will favour the stronger party. State Neutrality This principle refers to constraints on permissible or legitimate state action and has featured in decisions by many courts, including the United States Sentencing Commission (USSC)27 and the European Court of Human Rights (ECtHR).28 As 24

25 26

27 28

See R. J. Barro and R. M. McCleary, “Which Countries Have State Religions?” The Quarterly Journal of Economics, vol. 120 (November 2005), pp. 1331–1370. Ibid., p. 13. See, further, K. Ghattas, Black Wave: Saudi Arabia, Iran and the Rivalry That Unravelled the Middle East, Wildfire, 2019. See Van Orden v. Perry, 545 US 677 (2005); Epperson v. Arkansas, 393 US 97 (1968). See Hasan v. Bulgaria, 34 Eur. Ct. H.R. 55 (2000); Manoussakis v. Greece, 23 Eur. Ct. H.R. 387 (1996); Kokkinakis v. Greece, 17 Eur. Ct. H.R. (ser. A) 397 (1993).

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a construct it is suspect: it is vague as it can only be realistically applied within fixed parameters, which is made difficult by the fluidity of an ever-evolving state and the mix of exigencies to which it has to respond; therefore it is pretty much context specific and of doubtful usefulness in measuring difference over time or across cultures. That said, it has relevance as a means of grasping the main underlying political ethos and for identifying and differentiating the priorities of a particular state at any point in time. State neutrality is usually linked to the nineteenth-century philosopher John Stuart Mill and his treatise on liberty and the autonomy of the individual.29 While resisting the temptation to stray into the philosophical arena, it is important to note that much of the debate30 as to what might constitute the “public good”, the role of the state in promoting it and the resulting effects on the individual citizen was triggered by his seminal contribution. Simplistically put, he argued that the greater the level of state involvement in citizens’ lives, the greater the probability of it producing more harm than good: capitalism led to unacceptable inequality in wealth distribution and levels of misery for a disproportionate number of citizens, while socialism was stultifying in its effects on individuality. He predicted that, in terms of socio-economic development, it was inevitable that a “stationary state” would emerge in which, profits having plateaued and social conditions stabilised, a decentralised state would have less reason to be involved in the lives of its citizens. For the developed Western nations, society in the early twenty-first century has changed somewhat from how Mill perceived it in the mid-nineteenth century. In the aftermath of two world wars and the experiments of Chairman Mao, Pol Pot and others, the consequences of state-sponsored ideology for the public good are only too obvious. Moreover, not only have such societies become greatly complicated by the diversity of their citizens’ origins, interests and needs but globalisation has rendered them more permeable, their citizens more transient and citizenship is now conditioned by social media–determined loyalties. The neutrality of the state in relation to the public good in contemporary Western society has now become something to be achieved not through explicit non-intervention but more by discrete regulatory means that monitor processes rather than providing the public good which, more often than not, is increasingly being left to be determined by competitive market forces. Furthermore, within Western societies there may be an emerging distinction between the USA and Europe in state interpretation of what constitutes neutrality: the former adopting a positivist approach that acknowledges that religion, its 29

30

J. S. Mill, On Liberty, 1859 (ed. E. Rapaport, Hackett Publishing Company, Indianapolis, 1978). See, also, Principles of Political Economy, 1848, BiblioLife, 2010. See for example, L. T. Hobhouse, Liberalism, Oxford University Press, London, 1911; J. Rawls, A Theory of Justice, Harvard University Press, Cambridge, MA, 1971; R. Dworkin, “Liberalism”, in S. Hampshire, ed., Public and Private Morality, Cambridge University Press, Cambridge, 1978; and J. Rawls, Political Liberalism, Columbia University Press, New York, 1993.

28

Background

organisations and adherents are per se entitled to state support, within constitutional constraints, but that there must be some parity – between religions and between religion and secular entities – in the assistance provided;31 whereas in Europe, though with important variations, there might be a more religion-negating approach that insists on treating religious and secular entities the same, both governed fairly rigidly by equality law, which declines to attach any legal significance to particular beliefs unless they breach that law.32 the right to religious freedom. The right to religious freedom, which first received international recognition with the introduction of the Universal Declaration of Human Rights in 1948, is now legally recognised and protected in all Part II jurisdictions (see further in Chapter 3).33 It is given effect through the principle of neutrality, which requires the state to remain neutral in relation to religions; to ensure that all who want to can exercise their right to freedom of religion; and to prevent any discrimination based on religion or belief. The right includes the freedom to manifest religion or belief, subject to the non-infringement of the rights of others and the right not to be forced to act in a way that is contrary to one’s beliefs. It also extends to such ancillary rights as to change religion or belief, not to be subjected by state coercion into joining or leaving a religion and the right not to have any religion or belief. the principle of state neutrality towards religion. The origins of the principle of state neutrality, and much of its validity, most probably lie in the difficulties faced by a state when confronted by dogma or dogmas: each and every religion being resolutely committed to the exclusive righteousness of its beliefs, a pragmatic state would readily concede that determining the veracity of a particular set of beliefs, or choosing between groups of citizens with conflicting sets of beliefs, would be outside its competence; moreover, maintaining social stability requires the state to be seen as treating them all with equal diffidence. The corollary is that as all religions share a common orientation towards the transcendental, looking to the sacred rather than the secular for authoritative guidance, they each claim the right to order their own affairs – determine their doctrines, appoint clergy, manage modes of worship and so forth – free from state interference. The autonomy of church and state is then perceived by both parties as mutually beneficial. Among the problems with the above perception is that it fails to take into account the above history of state-nurtured partnership arrangements with religious 31 32

33

See Van Orden v. Perry, 545 US 677 (2005); Epperson v. Arkansas, 393 US 97 (1968). See Hasan v. Bulgaria, 34 Eur. Ct. H.R. 55 (2000); Manoussakis v. Greece, 23 Eur. Ct. H.R. 387 (1996); Kokkinakis v. Greece, 17 Eur. Ct. H.R. (ser. A) 397 (1993). See, for example, in the USA, the First Amendment; in Canada, the Charter of Human Rights and Freedoms, s.3; in Europe, the ECHR, Article 9 and the EU Charter of Human Rights, Article 10.

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organisations, leading to contemporary service contracts. It discounts a differential in state recognition of religions (e.g. an “established” church) where one is associated with national identity. It ignores well-established practices of state financial assistance channelled by way of direct grants, tax-exemption privileges and such. It fails to address the need to differentiate between the proliferating and mutating forms of belief now emerging as a consequence of the liberating but levelling effects of equality legislation. It requires a blind eye to be turned towards the social unrest generated by provocative manifestations of adherence to, or refutation, of religious beliefs and similarly towards any connection between religious beliefs and proxy subjects such as abortion or gay marriage, and, both domestically and internationally, it makes it difficult to develop policies aimed positively or negatively towards particular religious communities, or deal with religiously inspired violence, without attracting condemnation for being sectarian. There is perhaps the further point that if state neutrality is to have an “across the board” application, then all religions must be treated equally: this is problematic given their number and diversity in size, type and longevity. If neutrality is interpreted as something other than indifference, then the state could conceivably be embroiled in endless responses to the varied needs of religious organisations and risk being a hostage to fortune as even the smallest could probably find some grounds for protesting that a state initiative had non-neutral consequences for it. In practice, the two parties have never coexisted autonomously: the state and religion have always had a dense and complex relationship. Given the above, there are some difficult questions to be explored throughout this book, such as should the state simply treat religion as a private matter and bar its access to the public space and can the state otherwise ever relate neutrally to religions? Is there in practice a distinction to be made between negative and positive neutrality: the former being “religion blind”, all religions, their adherents and organisations being treated exactly the same as their secular counterparts; and the latter permitting, perhaps requiring, state intervention to offset any particular disadvantage that may disproportionately affect religions? This may indicate that state neutrality – meaning non-interference – between religions is not tenable as it would inadvertently favour some and punish others. Should the state then go further and take a management role in relation to all religions: orchestrating their place in the public sphere, ensuring fair play and proportionate access to public funds, to opportunities for worship and to modes of proselytising, but remaining neutral in the sense of treating none with preference? Then there is the issue of a state’s duty of care to protect its citizens, which would suggest that it should at least monitor religions to the extent necessary to ensure that beliefs are a legitimate expression of religion and not those of a dangerous cult (e.g. the Peoples Temple Agricultural Project, which resulted in the Jonestown mass suicide in Guyana) or, although legitimate, are not such as lead to systemic child abuse; and that associated manifestations of religious belief cannot be perceived as sectarian or likely to otherwise infringe the rights of others (see further in Chapter 2).

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Background

state neutrality and religious pluralism. How to manage a balancing of secular and religious interests in a democratic society that is growing both evermore secular and religiously fragmented has become a pressing issue for contemporary governments. There is evidence to show that generally, in developed Western countries, the state had adopted the role of impartial organiser of religious pluralism: striving to ensure that religious adherents and their organisations were left to practise their religion and function with autonomy in managing their own internal affairs, provided they did so without infringing the rights of others, and where state support was required, providing it in an even-handed manner. Again, generally, the state took the necessary steps to address intolerance, stigmatisation and negative stereotyping of persons based on their religion or belief, and to counter associated acts of violence or incitement to hatred. This approach allowed the state to take religious perspectives into account when framing policy and law; indeed not to do so would have been seen as treating religion relatively unfairly. More recently, however, the evidence indicates, and again very generally, that the state is taking a more positively benign approach towards religion, perhaps in part because of a concern that a combination of secularism and equality legislation is causing undue harm to its public-benefit service-delivery partners upon which it has become increasingly reliant. This change in approach is evident in initiatives such as the creation of government bodies with responsibility for religious matters, the development of outreach affirmative-action projects targeting specific religious communities, and the gradual but steadily broadening legal recognition being given to the right of health care professionals and others to be excused from participating in public services to which they object on grounds of religious belief.

contemporary public policy in a democratic society “Church and State are not incompatible within the democratic system”, the special rapporteur concluded in his Religion and Democracy report, which pointedly included Islam along with Christianity and Judaism as being among the churches to be viewed as inherently democracy compliant.34 Historically, however, public policy and religion have had a fraught relationship. Many of the most significant public policy issues of the day – including the abolition of slavery, temperance laws to curb alcoholism, universal suffrage and apartheid – were the focus of heated debate, bitterly dividing society on religious grounds and yet were ultimately resolved largely through appeals to religious beliefs. The same pattern can currently be seen playing out in relation to issues such as abortion,

34

Mr Lluis Maria de Puig, Parliamentary Assembly: Committee on Culture and Education, Religion and Democracy, 1998, https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML .asp?FileID=8426&lang=en

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gay marriage and genetic engineering but against a background dominated by an international confrontation with the religious zealotry of ISIS in a cruel mimicry of the religious persecution perpetrated centuries ago by the Christians in the Crusades and Inquisition. In the aftermath of successive Islamic fundamentalist atrocities in their cities, all Part II jurisdictions are now prioritising national and international security strategies to address that source of religious extremism. They are also engaged in a revision of their domestic public policies in the light of general human rights issues, particularly as regards the impact of equality legislation, in relation to religion. The results would seem likely to have profound implications for the interpretation given to state neutrality in the twenty-first century’s democratic societies.

Religion and Public Policy: An Overview Arguably, religion itself does not have a social utility function and therefore does not require a public policy: the effects of intercessory prayer are not measurable, being directed towards the salvation of the soul or souls in the next life, and thus is not readily amenable to a quality audit in this one. As has been said, “the purpose of the Church is to evangelise not civilise”.35 However, religion, religious organisations and their adherents, with few exceptions, have always impacted upon society, and managing the positive and negative aspects of that impact is a public policy matter. Separating Public and Private As Rex Ahdar and Ian Leigh point out,36 If I wish to discipline my children, refrain from taking advantage of life preserving medicine, construct a place of worship, hire only workers who share my faith, decline to rent my bed and breakfast accommodation to unmarried couples (heterosexual or homosexual), the State will have something to say about it. The domain of the “public” and “private” are becoming increasingly blurred in the wake of a much more “omnipresent” State.

There can be no doubt that equality legislation, and fundamental rights awareness more broadly, have prised open the door of private morality and exposed to the scrutiny of public law many such matters hitherto considered as secluded in the domain of religious belief. Personal morality, whether or not shaped by religious

35

36

See F. S. Fiorenza, “The Church’s Religious Identity and Its Social and Political Mission”, Theological Studies, vol. 43, no. 2 (1982), pp. 197–225, 198. R. Ahdar and I. Leigh, Religious Freedom in the Liberal State, 2nd ed., Oxford University Press, Oxford, 2013, p. 15.

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Background

belief, can no longer necessarily be regarded as private if its manifestation impacts upon others. the public interest: benefits. The benefits of religion and other forms of belief can be most clearly seen in their direct effect on adherents: in the peace and equanimity instilled by the prospect of eternal salvation or other forms of redemption, and on communities of the like-minded, through being part of a collective bound by a shared set of values and modes of worship. For the general public, the benefits are more indirect: in the main these result from the exposure to the modelling of responsible civic conduct, and the dissemination of related virtuous teachings; by leading a good life and doing good works the spiritual welfare of the believer – and the more secular welfare of the beneficiary and the wider community – may be furthered. They also emanate from the outreach work of religious organisations. As already mentioned, the faith-based contribution to society has been considerable: religious believers largely built and staffed the education, health and social care infrastructure now in place in all Part II jurisdictions. There are other benefits that may be seen as intrinsic to religion and which enhance the community and public life more generally. These would include its physical presence in the form of churches and other places of worship, which represent pastoral care and signify a source of solace, a refuge or somewhere to turn for those in need; the moral leadership practised by the clergy; the body of acquired theological and legal knowledge; the churches, cathedrals, ceremonies, music, literature, sculpture and other artefacts that are culturally enriching. Religious principles of good and evil, justice and mercy, continue to inform and set boundaries for acceptable social relationships and the heritage of values centred on generosity, altruism, philanthropy and care for the poor and needy – generated by religious doctrines, teachings and practice – has done much to counterbalance other influences on society. As a “pillar of society”, religion (together with other forms of faith and belief ) has continued to uphold and represent virtuous and decent behaviour and to remind citizens that “good works” are needed if society is to be a better place. However, the above accumulated weight of architectural and general cultural heritage, values and network of outreach facilities can also be perceived as overbearing and intimidating for minority religions and newly emerging faith-based groups in a modern democratic society. the public interest: costs. Religion’s innate capacity for generating and maintaining social cohesion has a dark side. It tends to be perceived by others as excluding and marginalising them, which can lead to polarisation and mutual antipathy within and between communities. One example of religion distorting the public interest may lie in the current spread of faith-based schools that carry uncomfortable echoes of an earlier role of

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church-controlled residential educational facilities in Canada, Australia, and Ireland. Religious organisations were then guilty of colonising the educational system for purposes of proselytism, being used as agents of the state to advance policies that separated out and accentuated the marginalisation of minority groups and of setting standards of care that allowed the victimisation of many children. Now, governments are again facilitating the rise of faith-based schools and are supporting religious organisations as providers of publicly funded services and again, unless tightly regulated, this development may come at a cost to the public interest. Throughout the centuries, most recently in the latter half of the twentieth century and continuing into the twenty-first century, religion has demonstrated an ability to cause social divisions and provide grounds for violent confrontations. Where religion or other forms of belief shade off towards the closed-group thinking typical of cults, then the sense of separateness is exacerbated, which can be destructive for both the group and the wider community. Religion may also incline its adherents towards attitudes of acceptance of the status quo and deference to higher authority and thereby act as a conservative force in politics: possibly explaining why it has earned its traditional reputation as “a pillar of society”. Separation of Church and State: Mutual Protection as Public Policy “The strictest separation between State and religion must be observed.”37 Arguably, politicians in the Part II jurisdictions are now to varying degrees in the process of resiling from this injunction, which was once upheld as vigorously in Europe as in the USA. In all Western democracies, state intervention in religious affairs – whether as regulator or supporter – is controversial. Some consider it to be a given that state support is owed to religion and its organisations and that it is verging on the heretical that judiciary or regulators should be empowered or required to question the bona fides of institutions that have survived and flourished for centuries in a society, stabilising it, enriching its culture and being venerated by its adherents. Others, especially the growing number of secularists, consider that religion, its associated organisations and adherents are as capable of crime, civil offences and anti-social conduct as any other entity – pointing to the well-documented and multinational record of child abuse by clergy – and must be made subject to the same standards of transparency and accountability as those other entities and are no more deserving than they of state support. Given the emergence of so many new forms of religion and the current prevalence of religion-inspired violence, there is good reason to consider the merits of introducing state regulatory agencies with a specific brief for churches

37

See CoE, Committee on Culture and Education, “Religion and Democracy” report, 1998, para. 14 II. See further https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp? FileID=8426&lang=en

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and their ancillary organisations – if only to ensure that demagogues neither inflame the discriminatory conduct of adherents or attract that of others. The state is of course required to intervene specifically to protect the fundamental right to freedom of religion as, for example, when an organisation or adherent’s right to manifest their religious beliefs is being unlawfully denied or obstructed or when affirmative action is required in order to redress an undue burden that disproportionately affects a religious person or organisation relative to their secular counterpart. state regulation. The fact that like citizens, religious organisations are deemed to be legal entities vests them with legal responsibilities and in theory has the effect of requiring transparency and introducing processes of accountability into operations that were traditionally regarded as the private internal business of the church. In practice, however, churches and their associated religious organisations are not amenable to any specific state regulatory body but are very largely left to maintain their traditional mechanisms for self-regulation. The organisational management of parishes, dioceses and such comply with the usual requirements of corporate structures but it is a system in which internal affairs are monitored, inspected and determined by boards of directors dominated by clergy and church hierarchical officials. Other than when their service-provision programmes – schools, child care, family planning and so on – interface with government agencies and are then subject to standardised public regulatory processes, churches are very much left to their own devices. Even though they have charitable tax-exemption status, religious organisations encounter at most only very light intrusion from charity and/or tax authorities. state support. It is perhaps axiomatic that organisations and activities deemed to be conducive to promoting the public good would on those grounds be entitled to state support. Arguably, however, the contribution of religion to society rests simply on the solace, strength and equanimity it may instil in individuals that their beliefs and good works in this life will be rewarded in the next, the inducement to better citizenship being essentially self-serving rather than altruistic. Any tangible social utility is merely incidental so there are no good grounds for state support. Religion and its ancillary organisations must take their place in the open market alongside such other social forces, as for-profit concerns, philosophy and philanthropy, compete for their own niche and be subject to the same regulatory constraints. Alternatively, it might be argued that a distinction should be drawn between religion as an institution with its churches, ministers, forms of worship and so forth and any secular role that a religious organisation may have in the community. The former could be entitled to state support on the grounds that, notwithstanding its purpose to prepare those of faith for a supernatural existence, its beliefs embody humankind’s higher aspirations, its values as modelled by adherents contribute to

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making contemporary society a better place and, anyway, for some millennia, civilisation has accorded religion a special status. The latter might also warrant state support to the extent that the outworkings of religious organisations make a contribution to overall public-benefit-service provision. Where provided, support is most usually by way of subsidising the running costs of religious organisations. It may also take the form of representation at central or local government level in offices established to focus on policy development. tax exemption and the state. The tax privileges generally awarded to religious organisations – such as churches, other places of worship, or faith-based hospitals, schools, colleges, universities, their buildings, lands and running costs – but denied to their secular counterparts, are seen by the latter as discriminatory. A consequence of extending the definition of “religion” to ethical, moral and other such belief systems is that they and their ancillary properties can now qualify for similar tax exemption. Such positive discrimination or affirmative action may also occur in relation to discretionary and differentiated state grants to particular religious organisations that comply with government policy regarding same-sex marriages or are facilities belonging to an “established” church. Tax preferencing can give rise to a conflict of interests on the religion and human rights interface. The right of religious parents, for example, to expect that their contribution as taxpayers will result in their child accessing education within a school that promotes their particular religious beliefs may well conflict with the equal right of non-religious taxpaying parents to expect a secular education for their child. Similarly, perhaps taxpayers who fund public services have a right to expect that children in care will be placed by agencies for adoption in accordance with the needs of the child regardless of adopters’ gender; that mosques and Christian churches will not preach that homosexuality is wrong when it is a right permitted by civil law; and likewise that teachers in faith schools will not teach that abortion or gay marriage is wrong (these may be challenged as unethical or immoral perhaps, but “wrong” is to refute prevailing civil law). Taxpayers might wish to question the government subvention of religion through national lotteries and the discrete political massaging of VAT, GST and donor incentive schemes – such as Gift Aid and PBI – that tend to favour religious organisations. Then there is the more vexed issue of direct government channelling of tax revenues through religious organisations to pay for religious flavoured public-benefit services including those provided in the USA to fund faith-based penitentiary rehabilitation schemes, not to mention the Charitable Choice programme. These practices raise the question of what exactly it is that is intrinsic to the identity of such entities that justifies the state’s positive discrimination? Why do religion and related entities warrant such a double take on the tax revenue base: privileged by exemptions and preferential donor-incentive schemes while also recipients of targeted government funding? The permissive parameters of piety,

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Background

accommodating religious institutions that warrant tax-exemption privileges denied to their secular counterparts, are likely to become increasingly contentious.

Democracy, the State and Religion It has been argued that democracy and religion need not be incompatible: democracy, it is suggested, provides the best framework for freedom of conscience, the exercise of faith and religious pluralism, while religion, through its moral and ethical commitment, the values it upholds, its critical approach and its cultural expression, can be a valid partner of democratic society.38 However, although all jurisdictions profiled in Part II identify as democratic states, they vary considerably in their commitment to liberalism and in their accommodation of religion and religious differences. This may be further compromised by the extent to which they variously make room for religious law, particularly the concessions made to sharia law. The Democratic State Democratic government would seem to be strongly associated with Christian culture, as it may well have been a product of it, but democracy is clearly not exclusive to that religious tradition. A definitional requirement of a modern democratic state, such as those featured in Part II, is that it should accommodate impartially those of all religious beliefs and those of none. The legal principle of religious freedom, which they all uphold, requires religious adherents to be given the opportunities to freely worship and to manifest their beliefs. In theory this should not impose any significant stress on a democratic state. In practice, however, in the USA as in Israel and to a lesser extent in the other democratic societies considered in the following chapters, there are now strong lobbies for government to ensure that legislation takes into account the religious beliefs of the Christian tradition, particularly in laws relating to “life” and to family matters. While the fundamentalists of that tradition are gaining political leverage, it is the anxiety associated with the growing Muslim proportion of their populations that is coming to be the biggest threat to those societies.

islam and democracy. Sometimes crudely derided as an oxymoron – which is offensive to countries such as Indonesia, which have paid a high price to achieve democratic government and struggle to maintain it – Islam and democracy are frequently held to be mutually incompatible.39 In Saudi Arabia and Iran, this would seem to be the case but many other countries – including Egypt, Pakistan, Turkey, 38

39

See CoE, Parliamentary Assembly, “Religion and Democracy” report, 1998, para. 5. See further https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=8426&lang=en See T. S. Shah, A. Stepan and M. D. Toft, eds., Rethinking Religion and World Affairs, Oxford University Press, New York, 2012.

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Malaysia, Lebanon and Jordan – have both a largely Muslim population and a democratic government, though, granted, in some such as Turkey, the indices of democracy (free elections, independent judiciary, press freedom and such) may well be compromised. This is probably attributable as much to patriarchal ethnic customs generally as to Islamic culture and religion in particular. Further, very many Muslims are choosing to live in the established democratic societies of the developed Western nations. It is the latter that, for the Part II jurisdictions, have become a focus of contention. a democratic society. Pluralism, tolerance and broadmindedness are the hallmarks of a “democratic society” (see further in Chapter 2). Religious diversity, an important aspect of pluralism, is a particular challenge for any contemporary democratic society, which will invariably contain several religions, a fact that may necessitate restrictions being placed on the freedom of religion in order to ensure an equitable balance is established and maintained between the various religious communities and between them and their secular counterparts. In so doing the state must remain neutral and impartial if it is to preserve pluralism and the proper functioning of democracy. Democracy does not imply that the views of a majority must always prevail; a balance is to be sought that ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position. As the ultimate guarantor of religious pluralism, the state may be required to mediate between opposing parties. Such mediation, if conducted impartially, would not compromise the state neutrality principle though the state must ensure that it does not interfere in matters that are reserved to religious authorities. Problems tend to arise when it comes to agreeing where, in a democratic society, the thresholds should be fixed for permitting private manifestations of religious belief in public places, or for balancing the tensions between religious adherents and others as regards accessing public services such as divorce and birth control, or in determining eligibility for opportunities in employment. In the former instance, the veto can take the form of an insistence that a manifestation of private belief – such as wearing a burqa when teaching or a crucifix on a necklace when nursing – is perceived as a contra-indicator of suitability to perform a public task. In relation to accessing services, such as registering a gay marriage, a veto may be asserted on religious grounds by a registrar seeking to deny others their right to avail of a public service. As regards employment opportunities, a religious organisation may impose such a veto restricting applicants to fellow religious adherents. In such cases a threshold of intolerance can then trigger religious discrimination. As Roger Trigg says, “the problem is where to draw the line between religious practices we may not share but must tolerate, and those that cannot be allowed in a democratic society”.40 40

R. Trigg, Equality, Freedom & Religion, Oxford University Press, Oxford, 2012, p. 110.

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Background

This problem is one that evolves in keeping with developments in such a society and is conditional upon the acceptance of that line by all cultures within it. For example, before the feminist movement, democratic societies accepted gender disparity and tolerated no-go areas for women in certain occupational and social roles. Subsequently, tolerance has faded for continuing practices – such as the – non-appointment of female clergy to certain posts in the Protestant Church, the constraints upon divorce for Jewish women and the general submission to patriarchal control required of all Muslim females – but seemingly not to the point where there is full social consensus that they breach a line and can no longer be allowed. civil liberties and public policy. The areas of public policy that provide the main settings for domestic religious contention in the twenty-first century are much the same as in the twentieth century: family, education, employment, health, housing and social service provision. Equality and non-discrimination legislation has already demonstrated its ability to impact these areas. Religious organisations providing outreach facilities and services – in areas such as faith-based schools, adoption, marriage and family counselling, youth clubs and children’s camps – where religious principles conflict with statutory equality requirements, have found their service provision being terminated. Religious adherents employed in public service agencies such as child care, wedding registry offices and family planning programmes are experiencing a similar conflict and some have felt obliged to resign. Religious colleges and universities providing student accommodation are encountering the same issues when faced with applications from married same-sex couples. Religious employers are finding themselves compromised when staff enter into same-sex relationships. Government grants and contracts to religious universities and charity social service providers are being discontinued where recipients are unable or unwilling to accept the limitations imposed by equality legislation and related public policy, which will similarly cause the very many religious institutions with charitable tax-exempt status to lose that privilege, particularly if they maintain a conscientious objection to same-sex marriage. The range of possible disruption to civil life as a consequence of conflicting religious principles and equality and nondiscrimination legislation is endless. More attention is now paid to policies conducive to building a diverse but equitable society, which entails a special focus on matters such as immigration, faith schools and on the needs of particularly disadvantaged groups. The importance of a nuanced approach, recognising that inequities require intervention and adjustment in some areas more than others, has led to a conclusion that a-one-size-fits-all strategy for addressing social inequality is inadequate and that policies such as affirmative action (favouring the more marginalised) and islands of exclusivity (exempting entities that are liable to be unduly burdened) may therefore be justified. There is mounting pressure to make such adjustments in order to meet the

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challenge that in effect public policy is now disadvantaging religion and that its adherents, organisations and those of emerging belief systems are effectively downgraded as they must compete, on terms contrary to their raison d’être, with other social priorities for equal status. However, the growing proportion of secularists relative to believers in the populations of most developed nations would make any such a recalibration of public policy in favour of religion contentious. Secularism Secularism broadly suggests that matters of government should be wholly insulated from any religious influence.41 As Habermas puts it, “Every citizen must know and accept that only secular reasons count beyond the institutional threshold that divides the informal public sphere from parliament, courts, ministries and administrations”.42 The growth and perceived relative merits of secularism have tended to become entangled with application of state neutrality and for some the result has been interpreted as state preferment of secularism. Roger Scrutton has accurately noted that “Western societies are organised by secular institutions, secular customs and secular laws, and there is little or no mention of the transcendental either as the ground of worldly authority or the ultimate court of appeal in all our conflicts.”43 It would seem readily apparent that, in general, secularism is driving the state to become decidedly less neutral. It is often deployed to justify state-imposed restraints on religion and religious manifestations: the wearing of religious clothing in public, religious tuition in schools, or use of religious emblems, prayers on national official occasions. Others go further and claim that an ideological commitment to secularism is becoming steadily more evident in rulings by judicial and regulatory bodies. There are serious issues for all governments regarding how they should be positioned in relation to religion and associated matters: the distinction between the state as a neutral, impartial broker and a secularist state can have significant consequences; a secularist state is clearly not a neutral state. As McConnell points out,44 When the State is the dominant influence in the culture, the “secular State” becomes the equivalent of a secular culture. . .. This makes achievement of religious freedom far more difficult.. . . As the domain of government increases in scope, some government involvement in religious activity becomes necessary if religious exercise is to be possible at all.

41 42

43

44

See further C. Taylor, A Secular Age, Harvard University Press, Cambridge, MA, 2007. J. Habermass, “Religion in the Public Sphere”, European Journal of Philosophy, vol. 14, no. 1 (2006), p. 10. See R. Scruton, Arguments for Conservatism: A Political Philosophy, Continuum, London, 2006, p. 142. M. McConnell, “Why Is Religious Liberty the ‘First Freedom’”, Cardozo Law Review, vol. 21 (2000), p. 1261.

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Background

secularism: private piety and public policy. Among the crucial differences between the traditional and the contemporary approach to formulating and applying public policy is that secularists in general, and the decidedly more secular institutions of the state in particular, together with an array of equality and nondiscrimination legislation, now play prominent roles in resolving issues that polarise society on religious grounds. This in itself has done much to shunt religion-related policy into the public arena, making it more transparent and amenable to electoral challenge. In the developed Western world, as religion and its adherents diminish relative to secularists, there is a growing confidence in the secular challenge now being levelled at the privileges traditionally enjoyed by religious entities. Ostensibly, the secular policies of a state should be able to coexist with the private and varied religious beliefs of its citizens: the functioning of state institutions, their aims, objectives and output, their procedures, staff and working arrangements would operate without fear or favour in relation to all matters religious; those persons and organisations with religious affiliations would know and expect to leave their beliefs outside the secular door of the state. The varied extent to which this is not the case in practice, why this should be, and the resulting implications for the future, are largely what this book is all about. secularism and democracy. A strong secularist lobby is now demanding to know what it is about religious beliefs that attracts an entitlement to exemption from human rights principles. Secularists have become very alert to the vulnerability of public institutions, such as schools, to penetration by covert proselytism either in the classroom (through use of teachers, teaching materials or fixtures that suggest particular, or any, religious belief ) or in pastoral care (say, through the role of chaplain). As noted earlier by Ahdar and Leigh, this debate is far from being merely academic: courts have ordered religious hospitals and personnel to offer services that breach their religious beliefs; regulators have forced the closure of religious facilities due to their inability to meet legislative non-discrimination requirements; and legislation has been introduced specifically to override the capacity of medical personnel to exercise a religious veto regarding the availability of abortion. Secularists protest that there is no good reason why taxpayers should be left to subsidise the discriminatory practices (religious, sexual and gender) of religious organisations. Secularism can be interpreted as licensing the state to assume responsibility for all decision-making, facilities, administrative systems and processes associated with matters in the public interest, without any concessions to a religion or religions nor to any input from religious organisations. It may also be interpreted as affording religion protection from government interference in all circumstances where there is no evidence of criminality. This might be understood, in the developed Western nations, as starting with constitutional arrangements that clearly separate state and religion. As Richard J. Neuhaus once explained, it is an affront to democracy when those who make political points do so on the basis of private truths: “Public decisions

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must be made by arguments that are public in character”.45 For those same nations, this has led to a steady rise in unease as to how secularism can be married with state neutrality. There would seem to be distinct public policy choices: the public arena may be regarded as an open market in which all religions are equally free to proclaim and manifest their beliefs, compete for adherents and be assured of equal respect and engagement from state authorities; or as one in which all religions were equally prohibited from exercising any presence, that space being reserved entirely for secular entities and their activities, and all religions assured that they would be equally ignored by state authorities or the state would exercise strict neutrality towards religious and secularist entities by treating both with equal impartiality. The latter, it has to be said, would be difficult to achieve as many secularist entities are state established and all would leave the state unable to recognise any special entitlement that may be due to a traditional religion/culture. In recent years there is evidence of government experimentation in new models that move away from such polarising aridity and allow for different balances to be struck between the interests of the religious and the secular. Public Policy, Religion and Contemporary External Threats The ongoing domestic and international engagement with Muslims – whether as “rogue states”, terrorists, migrants or citizens – is licensing greater public policy inroads than usual into the lives of citizens in all Part II jurisdictions. Terrorism State neutrality, together with equality principles, seem to largely fall into abeyance when a state perceives itself as threatened.

international and domestic security. The degree and extent of securityrelated government powers now being applied in and by the Part II jurisdictions are extensive. They have all been involved to a varying extent in the USA-led wars conducted in Muslim countries across the greater Middle East and have suffered related domestic attacks from Islamic fundamentalists. The ongoing crisis centred on Iran and Syria but also engaging Turkey and Russia may well lead to greater threats to the security of those jurisdictions. There is, of course, no avoiding the fact that the resulting increase in antiterrorism measures must be perceived by the individuals and organisations experiencing it as targeting those of that specific religion. To that extent this particular scaling up of government-security initiatives can only be viewed as constraining the functioning of democratic society and compromising state neutrality. The warning issued by the special rapporteur would seem well founded: “Policies adopted to 45

See R. J. Neuhaus, The Naked Public Square, Erdmans, Grand Rapids, 1984, p. 36.

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enhance the capacity of security forces to combat terrorism by limiting fundamental rights, such as the rights to freedom of expression, association and peaceful assembly, often have dire consequences for the enjoyment of the right to freedom of religion or belief.”46 Migrants There is a well-established framework of international law that should govern the state response to refugees, asylum seekers and homeless persons seeking refuge and protection for the right to practise their religion.47 It was a framework that had proved inadequate when Europe faced massive population displacement following the wars of the early twentieth century. In the immediate aftermath of World War II, Hannah Arendt had argued that the inability of states to guarantee rights to displaced people in Europe between the world wars helped create the conditions for dictatorship. Statelessness reduced people to outlaws. She warned that designating a mass of “illegals” as a threat to European security and identity was misplaced, that such rightless people appear “as the first signs of a possible regression from civilisation”.48 It again proved inadequate in the face of the 2015–2017 migrant crisis, which saw nearly 2 million refugees enter Europe in the first year alone when, despite Arendt’s prescient warning, many countries repeated the earlier response to masses of people seeking places of refuge. Given that the causes of the latest crisis have not abated, and are likely to be exacerbated by climate change, it would seem prudent to review how the legal framework could be made to work more effectively, for the sake of both the refugees and for civil society. The migrant crisis heightened the visibility of Muslims in public places throughout the Part II jurisdictions, often exacerbating existing social tensions. They brought with them the poverty, trauma, cultural values, Islamic beliefs and the ethnic conflicts of their homelands. As the crisis abated towards the end of the decade, the Part II jurisdictions seemed to enter a period of retrenchment characterised by tighter border controls, the introduction of programmes to assist the return of migrants and to require those granted asylum to learn the language and customs of their host country. They also seemed to experience a reawakening of interest in their traditional cultures; particularly in Europe, there was a broad revival of nationalism, a new defensiveness of cultural heritage and widespread expressions of concern that national identity was now endangered by the Muslim influx. This, in turn, gave rise to a new populism and to a style of political leadership that adopted a

46

47

48

See Report of the UN Special Rapporteur, “Freedom of Religion or Belief”, A/HRC/34/50, 2017, para. 37. See Convention Relating to the Status of Refugees, 1951, particularly Articles 4 and 33; Protocol relating to the Status of Refugees, 1967; and the General Assembly resolution 65/211. H. Arendt, The Origins of Totalitarianism, Penguin Classics, 1951 (later reprint edition, 6 April 2017).

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partisan approach to national cultural identity that threatened to diverge from the principle of state neutrality. Fundamentalism, a Threat to Civil Society The irreconcilability of traditional religious beliefs with contemporary values and lifestyle choices would seem to have driven a wave of didactic moralism: polarising views and politicising the role of religion within many developed nations and between them and other, largely Islamic, nations. This tendency towards “fundamentalism” – apparent in Islam, Judaism and Christianity – is serving as intended to accentuate religious differences. While the depredations of ISIS now provide more than sufficient evidence of a new wave of religious intolerance, there have also been other indicators. Sectarianism, once thought to have been consigned to history, has shown every sign of undergoing a revival: anti-semitism, that most invidious benchmark of religious discrimination, has become more common.49

domestic. Paradoxically, the lurch towards fundamentalism is occurring in the context of an overall shrinking of religion, at least in the Part II jurisdictions, hastened along by fears associated with the migrant crisis and by the very real effects of murderous Islamic violence directed against innocent civilians. Islamophobia, a real and growing concern in all those jurisdictions, which have witnessed some brutal attacks upon Muslims, is accompanied by more Muslim women wearing burqas and also by what seems to be an increase in the desecration of Jewish graveyards and synagogues. A steady drift towards a “nation state” in mentality and fact is now becoming more discernible, evidenced by a growing insularity, a heightened sense of identity, alienation and a volatile “us and them” tension. Several of the Part II jurisdictions are following the Australian example50 by introducing tighter border controls, mandatory lessons for immigrants in the language and customs of their host nation, coupled with a new emphasis on national socio-economic priorities at the expense of international trade agreements. By 2017, the USA was also imposing strict border controls, though, interestingly, Canada – the leading exponent of multiculturalism – did not.51 Governments were generally adopting measures that asserted and protected, as the primary and governing reference point, the traditional cultural values of a host “nation state”. 49

50

51

See, for example, J. Henley, “Antisemitism on Rise across Europe ‘in Worst Times since the Nazis’”, The Guardian (7 August 2014), www.theguardian.com/society/2014/aug/07/antisemit ism-rise-europe-worst-since-nazis In 2017 Australia further tightened its immigration policy by abolishing the “457 visa”, which permitted entry for temporary workers on the grounds that this was necessary in order to safeguard Australian jobs for Australian citizens. Between November 2015 and January 2017, some 40,000 Syrian migrants had settled in Canada. See further www.cic.gc.ca/english/refugees/welcome/

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international. ISIS, though now militarily degraded in its heartland, has demonstrated a capacity to metastasise and spread, which means that militant Islam will, in some form, continue to present a level of threat for the foreseeable future. Moreover, as the Syrian debacle overspills and draws in other fundamentalists, there is always a risk that regional instability will prove uncontainable and precipitate a wider conflict. The general trend of firmer national borders, increased engagement of international armed forces in the Middle East and heightened tensions between global powers is unmistakeable. The religious dimension to these dynamics is clearly evident.

conclusion For millennia, “religion” has been understood as resting on belief in a supreme being and consisting of a body of immutable doctrines and tenets, accompanied by rituals and modes of worship. In recent years this has changed with many new religions and varied forms of belief gaining legal recognition, leading, arguably, to the distinction between the sacred and the secular becoming less well defined. The “state” also has changed. Whereas the nation state was an independent entity with full control of matters lying within its borders, its modern counterpart is exposed to the vicissitudes of globalisation and its compromised authority seldom permits wholly unilateral action either inside or outside those borders. All of this necessarily complicates the interpretation and application of state neutrality. However, as indicated above, the principle that the state should remain neutral towards religion and religious matters never had much traction in practice, despite its allure in the latter half of the twentieth century as secularism generally took hold. The mutual attraction of working in partnership to enforce contemporary values and social mores – particularly as regards the marital family – to reinforce national cultural identity, and to achieve public benefit outcomes, was established many centuries ago.

2 Civil Society: Pluralism, Multiculturalism and the Church–State Interface

introduction Although primarily engaged with introducing the concept of civil society and examining the associated role of religion, this chapter also explores various definitions, explains the importance of cultural context, considers the significance of the “culture wars” and reviews related public policy matters. As questions of identity are crucial to understanding “religion” and for disaggregating its component parts, a beginning is made by examining the politics of identity. The chapter then considers the competing policies of multiculturalism and pluralism and reflects on the relative effectiveness of these policies in practice. The central section of the chapter deals with civil society in its various iterations and examines how its functioning and sustainability are affected by the church–state relationship. It studies the importance of human rights, giving particular attention to equality and anti-discrimination, discusses their implications for a democratic society and reviews the concern expressed by the UN Special Rapporteur on Freedom of Religion or Belief regarding “the growing evidence of the links between respect for the right to freedom of religion or belief and prospects for societal harmony, economic prosperity and political stability”.1 Particular threats to that stability, emanating from a religious context, are assessed. These include reconciling sharia law with state law, and religious manifestation by way of clothing, symbols and practices in public places. It also probes the significance of the Christian heritage, a legacy that pervades all Western developed nations, such as the Part II jurisdictions, and considers its effect on minority ethnic and cultural groups. The chapter concludes by turning to the “culture wars” phenomenon, and traces the formative legal milestones in its evolution – from abortion to gay marriage – and assesses the threat it now presents to a coherent and integrated civil society. It explains 1

See Report of the Special Rapporteur on Freedom of Religion or Belief, 2017, para. 21.

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46

Background

the subliminal nature of religion, discusses the proposition that some legal issues are of a proxy religious nature (e.g. abortion and gay marriage) and reflects on the rise of didactic moralism.2

identity politics, multiculturalism and pluralism Pride in difference has become a prominent characteristic of Western society. Establishing a unique identity, a brand, is the aspiration of many and one fed by social media, but this has generated a cultural dissonance that now threatens the coherence of civil society. Whether within families and communities, between indigenous people and others, between settled communities and immigrant groups and between such groups, and indeed between nations, a lack of mutual understanding and of a willingness to recognise, respect and adjust to difference is causing destructive tensions. Existing social differences, as illustrated by identity issues in the evolving sexual orientation and gender identity (SOGI) controversies, have been further accentuated in recent years by the twin phenomena of Islamic terrorism and the associated, and largely Islamic, migrant crisis. There can be no doubt that religion has now become a key component of such dissonance. This has been heightened by the accompanying increased assertiveness, domestically and internationally, on the part of the state security establishment in all Western nations. In the space of a few years, the effect of these developments on civil society, and on liberal democracy more widely, has been considerable. This, in turn, has raised questions as to the role now played by identity politics and whether policies of multiculturalism or of pluralism would be best suited to restoring social confidence and stability in the Part II jurisdictions. Identity Politics The fading significance of institutionalised religions and a corresponding increase in secularism, together with the generalised social disruption that followed in the aftermath of World War II – an era dominated by ideologies that competed with religion as much as with each other – were among the contributing factors that led to a weakening of established social mores in the developed Western nations as elsewhere. As globalisation and consumerism took hold and citizens increasingly moved within and between countries – as never before – in search of security and economic opportunities, so also their ties to extended family and social context, to Christian morality, its institutions and practices, all became less binding. Whether as cause or effect of this loosening of traditional parameters and the resulting increased freedom of choice, this was also an era that saw the spread of the civil rights movement and 2

J. Grote, A Treatise on the Moral Ideals, Kessinger Publishing, Whitefish, MT, 2004 [1876].

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improvements in medicine and welfare benefits. Contemporary social policies, including the plausibility of state neutrality, only fully make sense when seen against the background of a process of social change that had begun much earlier. Identity There is now a very considerable body of academic work on identity politics – largely drawn from psychology,3 philosophy,4 anthropology5 and sociology6 – but for present purposes a key starting point is that an entity cannot be recognised in law until it acquires or is ascribed an identity and is then deemed to be vested with a “legal personality” with rights and duties that can be the subject of legal proceedings. Migrants, for example, are non-recognisable in law until they are deemed to have refugee status.

difference. Difference is crucial to identity and catering for it has now become a significant challenge for all institutions in Western society. The range of ethnic, racial, religious and other types of groups and communities seeking affirmation for their distinct identities has multiplied exponentially in recent years and with this has come legislation requiring that all be respected, accommodated and treated equally. This would seem to have powered a competitive striving to assert a unique identity accompanied by international acknowledgement of the human right to do so7 – which has perhaps licensed an upsurge in identity change as new groups emerge, fragment and reform – to the detriment of the collective. Prescribed characteristics (imposed genetically or otherwise), experiences, culture and other contextual influences all contribute to the formation and continuity of an individual’s identity. In many cultures this is fixed at birth, being determined – partly, largely or even entirely – by the family and community into which a person is born, by how they are perceived and treated by others and by the extent to which they conform to a set of stereotypical characteristics. In such circumstances identity is regarded as immutable, like ethnicity or race, as it has little or nothing to do with personal choice. On the other hand, identity may be contingent, negotiated, manufactured for a purpose or even be elective. The LGBT community, an eclectic group of people who, to a varying degree, have in common some SOGI-related characteristics, is a good example of new group-identity acquisition, endorsed by 3

4

5

6

7

See E. Erikson, Identity and the Life Cycle: Selected Papers, International Universities Press, New York, 1959 and Identity: Youth and Crisis, Faber, London, 1968. See M. Heidegger, Being and Time (trans. J. Macquarrie and E. Robinson), SCM Press, London, 1962. See R. Brubaker and F. Cooper, “Beyond ‘Identity’”, Theory and Society, vol. 29 (2000), pp. 1–47 and C. Calhoun, ed., Social Theory and Identity Politics, Blackwell, Oxford, 1994. See P. Weinreich and W. Saunderson, eds., Analysing Identity: Cross-Cultural, Societal and Clinical Contexts, Routledge, London, 2003. See J. Mende, The Human Right to Culture and Identity, Roman & Littlefield International, London, 2016.

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Background

recognition and by status conferment in law but now prone to disaggregation as component parts seek autonomy. cultural identity. “Culture” has been defined as “people’s values, languages, religions, ideals, artistic expressions, patterns of social and interpersonal relationships and ways of perceiving, behaving and thinking”.8 These are commonly taken into account when differentiating the identities of nations, communities or groups. The Convention on the Rights of the Child (Articles 7 and 8), to which all Part II jurisdictions have subscribed, is the only international convention that explicitly refers to identity as a fundamental human right, but others do so at least implicitly.9 In recent years, many judicial rulings have drawn attention to the need to ensure and respect the right to personal and cultural identity, which must be considered not only in the context of the developed Western nations but also in relation to the communities of indigenous people. Social homogeneity, conducive to the developmental process of a nation, has now largely given way to globalized trends determined by the changing patterns of consumer demand in conjunction with the widespread government reliance upon a policy of multiculturalism. This would seem to typify the Part II jurisdictions, though not so much in Israel. cultural identity and indigenous people. For three of the six jurisdictions considered in Part II, cultural identity must also be seen in relation to their communities of indigenous people. These communities have long had their own distinctive religious/cultural mores, the residual vestiges of which they maintained and practised as they coexisted alongside their colonising neighbours. Having avoided, or having neither embraced nor been embraced by, the Judaeo-Christian culture of the colonists, the indigenous people have never wholly acceded to the associated laws and conventions. Moreover, the international human rights framework arguably does not fit well with the cultural experience of indigenous people. cultural identity and migrants/refugees/asylum seekers. A theme in the academic work on “the politics of identity”10 concerns the striving to acquire recognition and status, not so that an entity may join with others in a community of equals but rather that it may establish its own uniqueness. This has been very apparent 8

9

10

M. L. Manning and L. G. Baruth, Multicultural Education of Children and Adolescents, 5th ed., Allyn & Bacon, Boston, 2009, p. 24. Including the Universal Declaration of Human Rights, Article 19, and the European Convention of Human Rights, Articles 8–10. See, for example, G. Barzilai, Communities and Law: Politics and Cultures of Legal Identities, University of Michigan Press, Ann Arbor, MI, 2003 and D. Campbell, Writing Security: United States Foreign Policy and the Politics of Identity, University of Minnesota Press, Minneapolis, MN, 1998.

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in, for example, the unravelling of the separate identities now recognised as constituting the LGBT community and as similarly aggregated within the “migrant crisis”. Since 2015, the latter – overwhelmingly Muslim in nature – has been a prominent political issue for many European countries and also for Israel, the USA and Canada. This is likely to remain the case for the foreseeable future as will the accompanying contention about how best to accommodate the resulting cultural dissonance.11 A large proportion of migrants are not just Muslims but they also belong to very different ethnic cultures from those of the countries they seek to enter and this gives rise to significant tensions for the cultural identity of both parties. The potential loss of cultural identity is a heartfelt issue for the many immigrants forced for various reasons to abandon their country, community and culture of birth. It is also correspondingly difficult for many in the receiving countries who fear the dilution and gradual erosion of their own cultural identity. In particular, the marked disconnect on SOGI issues constitutes a serious obstacle to efforts to bridge cultural differences. Consequently there is considerable government uncertainty regarding the balance to be struck between support of its national culture or in support of multiculturalism, both of which lay claim to religion as integral to culture. Religion and Cultural Identity Religion has always functioned, in part, as a badge of difference. This attribute would seem to have acquired a greater significance for minority ethnic groups – specifically Muslims – who may well fear that their religious and cultural identity is at risk of being swamped by the Judaeo-Christian tradition or lost in the casual, modern pluralism that characterises society in the Part II jurisdictions.

manifesting religious/cultural difference. Private piety becomes a public matter when religious adherents socially manifest their allegiance to particular beliefs. In the Judaeo-Christian tradition, this has long been legally and socially accepted when it occurs in a designated place of worship; clergy or devotees appear in public in their religious apparel; religious symbols, icons or prayers are displayed in appropriate settings and on ceremonial occasions; and when individuals wear discrete items indicating their religious adherence. It has become a good deal more contentious when Muslims, specifically women, display their religious affiliation by wearing face-covering headwear (hijab, burqa, etc.) in all public places including places of employment, education and health care. International provisions12 protect the manifestation of religion or belief on occasions that include, but are not limited to, worshipping and assembling, and maintaining places for this purpose; establishing and maintaining charitable or humanitarian 11 12

See D. Mendelsohn, Waiting for the Barbarians, New York Review of Books, New York, 2012. See the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981.

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Background

institutions; practising religious rites and customs; writing and disseminating religious publications; teaching religion and belief; soliciting voluntary financial support; the training and appointment of religious leaders in accordance with the requirements and standards of the religion or belief; observing religious holidays and ceremonies; and communicating with individuals and communities on matters of religion and belief. This has been reinforced by the Human Rights Council’s (HRC’s) advice that the right to manifest religion or belief includes “not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group”.13 religious legal systems. Secular law has had a parallel religious counterpart for centuries: all Part II jurisdictions accommodate religious law, including the Islamic sharia, Jewish Halakha and Christian canon law; though the secular has a contemporary social application and a national jurisdiction, the religious tends to be unrestricted by such boundaries. There is, however, a particular difficulty in reconciling sharia law with state law. The special rapporteur has warned that “denominational family laws frequently reflect and reinforce inequalities between men and women concerning marriage, child rearing, custody, maintenance, inheritance and other areas of family life”.14 The tension between denominational laws and domestic statute law, particularly on family matters, gives rise to issues in all democratic societies. In terms of the requirement that statutory laws have precedence – for example, as regards divorce or same-sex marriage – it questions the competence of the state to challenge related theological beliefs, and inevitably by doing so also questions the veracity of the stateneutrality principle.

Multiculturalism Multiculturalism is a policy that strives to hold a balance between the interests of the national culture and those of an increasing range of other cultures, ethnic groups, religions and other belief systems, which together with secularists coexist alongside it. While it can be said that it is based on respect for cultural autonomy, on recognition of the integrity of differences in identity and on cherishing cultural diversity, beyond that the policy of multiculturalism is open to wide interpretation.15 13 14

15

See General Comment No. 22, UN Doc. CCPR/C/21/Rev.1/Add.4 [8]. See Report of the UN Special Rapporteur on Freedom of Religion or Belief, A/HRC/34/50, 2017, para. 40. See, for example, C. Taylor, “The Politics of Recognition”, in A. Gutmann, ed., Multiculturalism: Examining the Politics of Recognition, Princeton University Press, Princeton, NJ, 1992, pp. 25–73.

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Social Construct Following the introduction of equality and non-discrimination legislation, multiculturalism requires all minority groups and the traditional national culture to be accorded equal respect, equal rights and equality of opportunity. It places considerable importance upon protecting the cultural identity of minorities from being overshadowed by the inherited national cultural identity, which is largely left to fend for itself. This entails supporting minority cultures and ensuring both that their distinctive cultural identities are maintained and also that they are encouraged to participate in community life and are represented in decision-making forums on an equal basis with representatives of the traditional national culture. It suggests that minority communities should be given distinctive rights, such as the protection of minority languages or special forms of political representation, and that they may have an entitlement to affirmative action from the state, even if this does compromise state neutrality. Multiculturalism requires host countries to accommodate, simultaneously, variations in the primary national religion, together with other traditional institutional faiths, alongside a mutating range of belief systems, some of which are philosophical or sociopolitical and often quite transient in nature. Such societies must make room available both structurally and psychologically for new minority groups: providing a more level playing field and evidence of welcome and engineering a reduction in the permeating influence and high visibility of traditional religions relative to all other religious and belief entities. Unfortunately, however, multiculturalism has also tended to generate a narrow, rights-driven approach towards complex problems with a consequent fragmentary effect on social cohesion. Origins Multiculturalism can be seen as a deliberate strategy for moving beyond the pre– World War II nation-state model whereby each nation upheld its signature dominant culture, which distanced it from others and fostered mutually alienating nationalism. Dating probably from the 1970s, when Canada proclaimed it as its chosen method for managing its singular patchwork of communities, including a particularly high proportion of first-generation immigrants, multiculturalism was subsequently adopted by Australia, and many European countries including England and Wales. Until the second decade of the twenty-first century, it was widely extolled as being an equitable means of keeping in balance a nation’s cultural heritage alongside that of the others sheltering within its borders. Policy Multiculturalism places a priority on the importance of respecting and preserving cultural identity: all cultures, including that of the host nation, are to be valued as of equal status, reinforced by anti-discrimination legislation that requires differences in

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Background

persons or groups to be accommodated and treated equitably within the range of modern social service facilities, and further reinforced by the state neutrality principle, which requires government to take steps to ensure equal treatment for all religions and secularists. This can be challenging in countries that have long been stamped by a dominant culture. In Israel, for example, it would require considerable effort if multiculturalism was to prevail over the influence exercised by the established, deeply ingrained and pervasive religious culture. As a corollary, those jurisdictions with an embedded but culturally siloed population of indigenous people have similarly experienced considerable difficulty in efforts to assist them to achieve parity of status with other mainstream cultures. In all Part II jurisdictions, where society is heavily freighted with the trappings of Christianity, forceful state intervention would be needed to reduce that presence and engineer proportionality relative to other religious entities. Multiculturalism gave recognition to those persons and groups who affiliated to a designated status: the access route to state resources or legal redress required identification with an already established entity; it also permitted the creation of new entities – legal causes of action or cultural groups – if justified by analogy and contiguous with those already established. The emphasis on categorisation, with its accompanying necessity for differentiation – a “niche partitioning”16 – has arguably had significant consequences. Firstly, it may be responsible for the present piecemeal approach that has evolved to govern the way the law relates to religious discrimination: a tendency for it to focus on parts rather than the whole, centring on hate speech, vilification or intimidation, on racial or religious aspects of what might be more holistically conceived as a cultural issue. Secondly, the assumption that cultural heterogeneity, as a principle of liberalism, should be sufficient in itself – that a nation’s traditional culture should be treated on a par with all others within its borders – has in practice proved fatal for multiculturalism. Multiculturalism in Practice The assertion of different cultural identities can lead, and has done in many of the jurisdictions being considered, to a self-imposed cultural ghettoization, which allows ethnic groups to remain in independent communities that make few concessions to wider society. This separateness is often fuelled by benign government intervention that subsidises faith-based schools and facilities or permits homeschooling, thereby encouraging a social fragmentation in which culturally distinct communities compete for recognition, status and resources. A side effect of subsidies, and of affirmative action initiatives more generally, is to reinforce differences: targeted grants induce 16

An ecological term referring to the ability of different species to coexist within the same territory by deliberately emphasising a differentiation in their use of resources. See, for example, J. N. Griffin and B. R. Silliman, “Resource Partitioning and Why It Matters”, Nature Education Knowledge, vol. 3, no. 10 (2011), p. 49.

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prospective recipient groups to emphasise their distinctive cultural or ethnic identity to gain government recognition and religious groups may have to present themselves as cultural groups, thereby triggering a cycle that becomes self-fulfilling. It also induces new migrant groups to join the list of those already being nurtured in an ongoing state-dependency relationship. In the long run, the cumulative effect may well be to fuel competition among minority groups, exacerbate greater awareness of cultural separateness and incentivise the spin-off of splinter entities, each claiming subsidized autonomy. For decades in the UK, Canada and elsewhere, the policy of celebrating cultural differences translated into a corresponding differentiation in housing allocation, welfare benefits and community support initiatives (see further in Chapter 5). This prolonged policy resulted in jurisdictions developing an unforeseen social complexity. They became layered with a mix of quite separate cultures – many with ethnic identities imported intact from their countries of origin, existing alongside minority groups with identities acquired as a consequence of welfare rights labelling (as disabled, elderly, youths), and in some cases coexisting with indigenous communities, their differences and separateness reinforced by government-funding policies. The more such separate identities were reinforced, and the more communal civic space fragmented to accommodate expressions of difference, the less integrated the citizens and more inchoate the state of civil society. By facilitating Freud’s “narcissism of the small difference”,17 multiculturalism unwittingly rewarded those who could group themselves into identifiably distinct cultural communities and distance themselves from all others. The combined impact of ISIS and the migrant crisis brought to a head an awareness that multiculturalism was failing as a policy for promoting an inclusive civil society. The evidence had been accumulating for some time: in parts of urban England – such as Bradford, Leeds, Oldham and Stoke – ghettoes had formed where ethnic groups sheltered in internal exile not unlike their counterparts in the Parisian banlieues; similarly, if more starkly, the indigenous communities of Canada and the USA had long been left to lead third-world lives in first-world countries; all were marginalized citizens, bound by their own distinct ties of religion and race, leading parallel ways of life, each quite separate from the others and from mainstream culture.18 The shock of domestic attacks by Islamic “home-grown” terrorists on their fellow citizens was exacerbated by the sudden influx of migrants whose natural wish to be resettled in communities established by their fellow countrymen could only reinforce existing social divisions. The scale of the migrant

17

18

See S. Freud, Civilization, Society and Religion, Penguin Freud Library 12, London, p. 131 and 305; also see further in Chapter 1. See, for example, the Commission on Integration & Cohesion, 2007, http://tedcantle.co.uk/ publications/018%20interim%20statement%20Commission%20on%20Integration%20and% 20Cohesion.pdf

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crisis swamped the housing and other national welfare resources of host countries but proved to be only the first, and among the least, of the ensuing problems. Usually, the necessary mutual re-adjustments can be managed, migrants absorbed and multiculturalism facilitated when the numbers, range and flow of ethnic minorities are not excessive. Unfortunately, in the 2015–2016 crisis, they were. The declared preference for multiculturalism, particularly in European societies – which had consolidated their national cultural heritages over many centuries – wilted when confronted by the number and ethnic/religious origins of waves of homeless refugees. Simultaneously, but not coincidentally, the migrant crisis unfolded against the backdrop of the challenge presented by Islamic militants to Western security, morality and lifestyle. The consequence of these twin events was a marked policy shift away from celebrating diversity and cultural difference towards fostering social integration and promoting support for a common national identity.

Pluralism Pluralism rests on the assumption that it is for the greater good if as broad a mix of social groups as possible are enabled to interact equally. It requires genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs and all forms of cultural expression. This affirmation of diversity assumes that a healthy liberal democracy is one that allows many autonomous legal entities to coexist and prevents authority from being located in one source – a political party, institution or ruler – but instead facilitates a sharing of power and accountability. It requires not just peaceful coexistence or mutual tolerance but purposeful interaction between different social entities. However, while pluralism places a high premium on the retention of the many different and separate identities, it also attaches importance to inducing their participation as part of a greater whole. The promotion of diversity is dependent upon the checks and balances that both preserve the integrity of a nation’s cultural identity and facilitate the healthy development of the many and varied independent entities that constitute a pluralistic society. In contemporary political terms, this is now interpreted as a presumption that all will respect and show primary loyalty to the state – its laws, institutions and culture – a caveat that distinguishes pluralism from multiculturalism. Pluralism became a respectable social policy in twentieth-century England when, in reaction to the social upheaval that characterised the industrial era, some prominent academics19 advocated measures that would facilitate the participation of individuals in associations, fostering a sense of community, such as had been provided by membership of guilds and charities in earlier centuries. 19

See, for example, S. G. Hobson (1870–1940), National Guilds and the State, Wentworth Press, USA, 1919.

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Social Construct Like multiculturalism, pluralism implies a duty on the state to facilitate and promote opportunities for minorities and ethnic groups to participate alongside and engage with the established culture and its related bodies and interests in the public arena. It places considerable importance upon protecting the cultural identity and equality of minority groups. This entails making room for the interests of emerging groups both structurally and psychologically: providing a more level playing field and evidence of welcome, and indeed employing many of the same culturally affirming strategies as in multiculturalism. However, it also resolutely requires that all such groups should function under the umbrella of the national cultural heritage, the primacy of which attracts state support. Origins Where domestic legislation is subject to an overarching authority – a national constitution and/or binding international conventions – in which legal principles providing for the separation of church and state, prohibiting the establishing of a religion and guaranteeing its freedom are firmly entrenched, then a policy of pluralism is most likely to take root. This is most clearly the case in the USA where the First Amendment provisions are quite explicit in that regard. While the modern “melting pot” effect of pluralism in action has been identified as creating a healthy and vibrant mix of cultures, it must be added that such an outcome is also due to the comparatively much weaker welfare support system. New migrants, like their fellow citizens, must find employment and seek out everyday resources if they are to survive: relying on state welfare channelled through government agencies is not an option; participation in the community is necessary. This is less likely to be the case in England and Wales, which is “constitutionally” compromised in the extent to which it can fully commit to a policy that requires a long dominant religious ethos to shrink and that a pluralism of alternative cultures be positively encouraged. Policy Pluralism is a policy well represented by the settled approach of successive US governments towards immigrants. The premium placed upon interactive diversity promotes a cultural exchange that results in the distinctive food, lifestyle, values and cultural practices of migrant communities being absorbed into mainstream society. Pluralism requires the identity of a cultural minority to be respected by providing opportunities for its members to express their distinctive identity through related practices – provided they remain within the law. Pluralism in Practice A policy aimed at achieving median parity runs into difficulties when faced with embedded extremes. The cultures associated with both Christianity and

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indigenous communities, for example, have proved resistant to government equalising strategies. As has been pointed out, “many minority populations have attempted to avoid, in various ways, assimilation becoming erasure”.20 The fear is that they, and/or their children, will be wholly absorbed into Western culture and lifestyle, that jettisoning generations of family and community values and practices may be the price they have to pay for migration. For immigrants, therefore, pluralism presents more of a threat than multiculturalism as the former requires the values of an immigrant culture to give way to those embodied in the laws of the host nation. Culture clashes as manifested in issues relating to religion-specific clothing and customs, or as regards religious practices in employment or education, are consistent with pluralism but not the culture clashes that occur in relation to matters assertively protected under domestic law such as family and personal issues, which will be breached by misogyny, female genital mutilation (FGM), “honour beatings”, conditional divorce and arranged child marriages. A policy of pluralism suggests not just the provision of tuition in language skills but also that the needs of immigrants – an abused wife who wants a divorce, or samesex couples who wish to marry – should be accommodated within the laws and attitudes that represent the values of the host culture.21 Practices such as talaq divorce, nikah marriage or FGM would then be less likely to be overlooked. It would nonetheless remain the case, as judicially noted, that “the role of authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”.22 This promotion of cultural diversity does, however, also give rise to uncertainty as to areas of consensus: What constitutes the common good? Which set of religious beliefs should inform and govern society? Are the values/beliefs of particular religions incompatible with democratic social norms? What should be the role of secularism? Beyond the rhetoric, there are also questions as to whether pluralism actually works given, for example, the evidence of continuing deep racism in US society. Pluralism, Multiculturalism and Religion Immigrant ethnic groups naturally rely on religion as a form of shorthand to represent their identity and to differentiate from others and as a means of asserting the cultural values, language, and traditions that provide them with a comforting sense of commonality in an unfamiliar environment. In Europe, where each country has had many centuries of nurturing its own distinctive cultural identity, 20

21

22

See D. Herman, An Unfortunate Coincidence: Jews, Jewishness and English Law, Oxford University Press, Oxford, 2011, p. 51. See, for example, D. Laycock, A. R. Picarello and F. Wilson, eds., Same Sex Marriage and Religious Liberty: Emerging Conflicts, the Becket Fund for Religious Liberty and Rowman & Littlefield, Lanham, MD, 2008. Serif v. Greece, Application No. 38178/97 (1999), para. 53.

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religious and secular values are often at variance with those of immigrants. Although some such countries, notably the UK, have confidently proclaimed their commitment to multiculturalism, the dominance of a particular religious culture is a reality that must be perceived as intimidating by immigrants. Moreover, while policy makers may debate the respective merits of pluralism or multiculturalism, the reality for religious adherents is that the distinction is beside the point, their first loyalty is to the religious community.

civil society Also known as “the third sector”, this has come to be seen as a benchmark of democracy: the greater the “bandwith” – in terms of the variety of new or firmly established but flourishing non-governmental entities – the healthier the democratic state. If a generous bandwith for non-governmental organisations denotes a “civil society”, then a “democratic society” may be understood as referring to the extent to which the law ensures that all such organisations function and interact in a democratically compliant manner. Both would seem to presuppose a benign and reserved state that stands back somewhat to allow non-governmental entities full and free access to the public space while striving to protect the interests of all concerned.

Concept and Social Construct Across many Western or Westernised nations, there has been a growing demand for governments to put in place (and encourage others to do so) the institutions and infrastructures necessary to establish or consolidate “civil society”.23 While there is some uncertainty as to how this concept should be defined,24 most definitions require the free association of people in the pursuit of aims that complement the public benefit efforts of the state and result in a more coherent and engaged body politic. For present purposes it can be defined as the aggregate of non-governmental organisations and institutions that manifest the interests and will of citizens, or individuals and organisations in a society which are independent of the government.25 Religion and Civil Society Religion has always played a role in the middle ground between state and citizen. The issue is, as Habermas puts it, “How does the constitutional separation of 23

24

25

See Dictionary.com’s 21st Century Lexicon, www.coursehero.com/file/p37k6sn/2-Dictionarycoms21st-Century-Lexicon-defines-civil-society-as-1-the-aggregate/ See J. Bothwell, “Indicators of a Healthy Civil Society”, in J. Burbridge, ed., Beyond Prince and Merchant, Institute of Cultural Affairs International, Brussels, 1997. See, further, R. A. List, H. K. Anheier and S. Toepler, eds., The International Encyclopedia of Civil Society, 2nd ed., Springer, Switzerland, 2020.

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State and Church influence the role which religious traditions, communities and organizations are allowed to play in civil society and the political public sphere?”26 Liberal democracy, the framework for all Part II jurisdictions, has provided a political setting conducive to the flourishing of religion, its institutions and adherents, together with the vast range of associated public benefit activity. Most academics concur that religion is of central importance to civil society: scholars such as Paul Schnabel27 are strongly of the view that “believers” have traditionally formed the cornerstone of civil society while Gürkan Çelik28 argues that “whereas the traditional Christian civil society is becoming smaller, there is a significant role for new religious groups in which religion often has a stronger role in members everyday life”. In his magisterial Postwar, Tony Judt refers to “the need to construct a morally aware civil society to fill the anomic space between the individual and the State”.29 The UN adopts the same perspective when it states that civil society is the “third sector” of society, along with government and business.30 The distinction being made by both is one that rests on a line being drawn between the interests and terms of reference of government and all others, including religious organisations. However, in recent years this line has become decidedly blurred. The ascendant trajectory of secularism has, in the eyes of some, brought with it a “totalitarian liberalism” – implying that institutions such as the church and others exist only with the permission of the state – which suggests that religion, its organisations and adherents must abide by the social norms determined by the state.31 Advocates of this view point to the legislative intent of equality and non-discrimination legislation and to the resulting levelling effect of provisions, which ignore the USP of religion – its core transcendent element – and reduce it to just another socially differentiating characteristic. While it seems fanciful to suggest that secularism has made such progress as to establish a symbiotic relationship with the state that rivals the latter’s previous theocratic relationship with the church, there can be little doubt that it has developed to the extent of creating meaningful cross-sector links that now bind government and non-governmental organisations in terms of policies and standards to be applied when addressing social issues. religion and public services. As all Part II jurisdictions now wind down their public service provision, they are increasingly looking towards religious institutions 26

27

28

29 30 31

J. Habermas, “Religion in the Public Sphere”, European Journal of Philosophy, vol. 14, no. 1 (2006), pp. 1–25, 3. See P. Schnabel and P. Giesen, eds., What Everyone Should Know about the Humanities, Amsterdam, 2011. G. Çelik, “Breakpoint or Binder: Religious Engagement in Dutch Civil Society”, Journal of Civil Society, vol. 9, no. 3 (2013), p. 261. See T. Judt, Postwar: A History of Europe since 1945, Vintage, New York, 2010, p. 695. See further www.un.org/en/sections/resources/civil-society/index.html See P. Tartaglia, “At the Door of the Temple: Religious Freedom and the New Orthodoxy”, Public Discourse (27 June 2012), www.thepublicdiscourse.com/2012/06/5751/

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and their related infrastructure to supplement, or substitute for, government efforts.32 The latter is seeking to harness the selflessness, goodwill, workforce and resources of religious organisations and adherents not just to achieve tangible public benefit outcomes but also to strengthen civil society by generating direct political engagement with the electorate and prompting a sense of civic responsibility. The tactic of franchising out service delivery to non-profit bodies, in preference to private or commercial entities, is attractive – it reduces costs, due to the subsidies of volunteer involvement and public donations, while also fudging accountability, as it places government and such bodies in the position of principal and agent respectively. Very many of the service-delivery agencies are religious organisations or are affiliated to them. Arguably, this arrangement leads to the growing contractual dependency of religious organisations, the diluted independence of the third sector and a hollowing out of civil society.

Religion, Social Capital and Civil Society Religion, with its explicit doctrines, its shared values, beliefs and places of worship, its built-in commitment to doing good and its public ceremonies for birth, marriage and death, its institutions and its outreach facilities, brings with it a unique potential for creating social cohesion. For all its emphasis on the private salvation of souls, it has always done much to mediate and order the public space between citizen and state and, as Schnabel and others33 have pointed out, has contributed to building civil society. However, religion, its organisations and adherents with their proven track record for inciting social polarization, clearly also have a capacity for achieving precisely the opposite. Religion and Social Capital Religion is inherently exclusive and, being member-benefit oriented, the social capital it generates is primarily by and for its adherents. Exclusivity can result in religion becoming socially divisive.

social capital. For the World Bank, “social capital” refers to “the institutions, relationships, and norms that shape the quality and quantity of a society’s social interactions”.34 It argues “increasing evidence shows that social cohesion is critical

32

33 34

See, for example, the experience in Holland following the introduction of the Social Support Act 2007 as outlined by W. Malda-Douma, “Religious Organisations in Civil Society”, in H. Moksnes and M. Melin, eds., Faith in Civil Society: Religious Actors as Drivers of Change, Uppsala Centre for Sustainable Development, Uppsala University, Sweden, 2013, p. 144. See Schnabel and Giesen, What Everyone Should Know, pp. 198–202. See World Bank, What Is Social Capital?, 2000, www.worldbank.org/poverty

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for societies to prosper economically and for development to be sustainable”.35 The operational effect of the concept is evidenced by a range of formal and informal networks and the willing engagement of a significant proportion of a community in civic activity of a reciprocal and mutually beneficial nature, which together with a shared ethos of trust, values and responsible behaviour produces positive outcomes within that community. Undoubtedly, this interpretation captures, in part, the role played by religion, religious organisations and their adherents over the past two millennia or so in building social capital, a role enabled by a secure and responsive legal framework. religion. The contribution of religion to generating and sustaining social capital can take many forms including reinforcing respect for common values and institutions, raising awareness as regards social needs, setting standards and improving coping capacity, and putting in place processes for positive social interaction. In the decades between World War II and the late 1960s, religion maintained its centuriesold investment in politics, at least in those European countries that had not succumbed to communism. This was particularly true in Catholic states where the church retained its powerful influence on reinforcing conservative domestic policies while encouraging the compliant conduct of adherents and guiding their voting choices accordingly. Not until a new era was introduced by contraceptives, more generous welfare benefits and greater social mobility did religion’s capacity to influence domestic politics begin to fade.36 Thereafter, the increased secularisation of matters central to the traditional role of the church in the community – marriage, education, parenting and such – inexorably weakened its social role. However, there was always a distinction to be drawn between the contribution of religion to “bridging” as opposed to “bonding” forms of social capital. social capital: “bridging” and “bonding”. For the past four centuries, religious organisations established and maintained the institutional facilities that formed the foundations of present educational, health and social care services in the Part II jurisdictions (more recently in Israel). Their churches, schools, universities, and hospital complexes provided essential social functions together with a unifying Christian ethos and architecture. Indeed, the distinctive pastoral landscape of a church of England parish became the familiar, comforting, socially consolidating context for communities throughout the British Empire and perhaps continues to do so. More recently, religious organisations centred around a local church have done much to bind communities together by providing places for people to meet, fostering informal social networks of friends and neighbours, engaging people 35

36

See also, J. Habermas, The Theory of Communicative Action, new ed., Polity Press, Cambridge, 1986 [1981]. See T. Judt, Postwar: A History of Europe since 1945, Vintage, New York, 2010, pp. 374–377.

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in community-support projects, informing people about public affairs, delivering welfare services, and drawing together people from diverse social and ethnic backgrounds in associational groups concerned with education, youth work and such. An alternative view, of course, might be that what religion has bought for society – in terms of physical infrastructure, psychological reassurance, community cohesion and suchlike – has been at the cost of suppressing individualism, fostering acceptance of the status quo and inducing nationalistic tendencies. In modern times the vast range of religious buildings, artefacts, activities and services raises questions as to how such an array of material that advertises the separateness, exclusiveness and competitiveness of organisations and their respective adherents could be conducive to promoting a collective sense of public good. Because of its capacity to emphasise difference – including through the socially divisive activity of proselytism – religion has proven to be challenging in the context of social capital. Lord Scott of Foscote’s warning, in Gallagher v. Church of Jesus Christ of Latter-Day Saints, has a relevance for all jurisdictions presently being considered:37 [S]tates may . . . 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. No one who lives in a country such as ours, with a community of diverse ethnic and racial origins and of diverse cultures and religions, can be unaware of this. Religion can bind communities together; but it can also emphasise their differences.

Being essentially a member-benefit activity, religion is constrained by the exclusiveness of adherents’ commitments and their consequent rejection of those adhering to all other religious beliefs or to none. Experiences in many parts of the world from Sarajevo to Belfast to Bahgdad provide evidence of religion’s capacity to further the “bonding” form of social capital at the price of the “bridging”.38 Clearly, although bringing much public benefit, comfort and a sense of solidarity to many, religion can also serve to emphasise differences, accentuate the marginalisation of minority groups and exacerbate tendencies towards polarization.

Civil Society, Law and a Democratic Society “Civil society” and “democratic society” are not interchangeable terms: while the latter must necessarily incorporate the former, the reverse does not always hold true. Countries vary in their adherence to these norms: China, for example, though not a democracy does accommodate some non-governmental organisations. Turkey and 37 38

Gallagher v. Church of Jesus Christ of Latter-Day Saints, [2008] 1 WLR 1852, 1867 [51]. See R. Puttnam, Bowling Alone, Simon and Schuster, New York, 2000. Also see G. Çelik, “Breakpoint or Binder: Religious Engagement in Dutch Civil Society”, Journal of Civil Society, vol. 9, no. 3 (2013), pp. 248–267.

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Egypt are democracies but they limit and closely regulate non-governmental bodies. In Iran, a theocracy, the type and freedom of non-governmental entities fluctuates from time to time but is always tightly government controlled. The Part II jurisdictions are broadly compliant with both sets of norms but vary significantly in their balancing of related policies, perhaps particularly and increasingly so as regards the functioning of a democratic society. In particular the rights to freedom of religion or belief and to freedom of opinion and expression, being closely aligned to the rights to freedom of assembly and association, are – separately and together – indispensable to shaping and sustaining democratic societies. For that reason they are singled out for special attention in the survey of case law in the Part II jurisdictions. Law The law supports and sustains social cohesion by asserting and protecting a nation’s culture and its associated emblems, icons, language and traditions; reinforcing its values and principles; policing its boundaries; and by setting the terms for negotiation with other societies. By legitimising the particular institutions, bodies, officials and processes that bind together the component elements of a society, it enables that society to function as a coherent entity. It affords recognition and protection for the interests of minority groups through equality and non-discrimination legislation and the use of human rights provisions to accommodate diversity and achieve a balance in circumstances of competing rights. In relation to religion, law can confer special privileges – for example, exemption from taxes, equality and anti-discrimination legislation – which often gives rise to objections from secularists on the grounds that this breaches state neutrality. The law also facilitates cohesion by virtue of its integrative effect. Whether as cause or effect, the bonds that draw a society together are represented by its civil and criminal laws and managed through the balancing of various sets of legal rights: the rights and reciprocal duties of each of the parties being statutorily established, delineated and moderated through related administrative bodies and enforced by the courts. However, it would seem that, increasingly, the integrative effect of legal rights is being counterbalanced by a tendency for a rights-conscious approach towards complex problems, which is having a fragmentary effect on social cohesion. Human Rights and Religious Belief For religion, its organisations and adherents, there has been no greater challenge in recent years than the spreading ambit of human rights, equality and nondiscrimination law and the consequent legitimation of activities regarded for generations as sinful and criminal. There is now a growing slippage between church and state on an agenda of contemporary social issues and also, in many cases, between church pronouncements and the practice of religious adherents. Gay marriage in particular is exacerbating the tension between the right to religious freedom and equality principles. Euthanasia, or the right of an individual to choose to end their

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life and be assisted to do so, is set to be another road block for those of religious belief. The right to free speech is licensing media criticism of organisations that discriminate, on the basis of sexual orientation, gender, or suchlike. All of this undermines the moral high ground traditionally claimed by religious organisations. The latter and their members are faced with a double bind: either stand by their beliefs, rely on their religious exemption rights and be placed in moral opposition to principles now sanctioned by law as of central importance to civil society, or become more flexible and accommodating in their beliefs but risk losing their religious rights, adherents and their traditional social role. equality legislation. The principle of equality, underpinning all human rights, is declared in the first sentence of the preamble to the Universal Declaration of Human Rights, where it provides for “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”. This principle, recognised by and binding upon all Part II jurisdictions, has given rise to what has become probably the most significant domestic challenge in modern times to the church–state relationship. It is the application of the equality principle to so many aspects of everyday life that makes it so challenging. As Mrs Eleanor Roosevelt observed, it applied to39 the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. The church–state relationship, and with it the veracity of state neutrality, must therefore be considered in relation to those areas of everyday life – family matters, education, employment, health, commercial services – where the equality principle and religious beliefs intersect. The conflict at some points of intersection is stark. For example, the beliefs of religious fundamentalists – most obviously the Evangelical Christian, Orthodox Judaism or Sunni Muslim – are diametrically opposed to the equality principle, and to other basic human rights precepts, in relation to matters such as gay marriage. State neutrality is then wholly irrelevant: intervention is unavoidable when parallel legal systems such as sharia law produce outcomes that refute the provisions of national legislation, or when religious adherents and organisations maintain that their beliefs require them to oppose matters now legally mandated as indices of life in a democratic society. Religious organisations, being statutorily exempt from many of the constraints of equality legislation, add to the moral complexities. The perceived need of religious 39

As quoted by M. Ignatieff, The Ordinary Virtues: Moral Order in a Divided World, Harvard University Press, Cambridge, MA, 2017, p. 196, citing the Church Peace Union, “In Your Hands: A Guide for Community Action on the 10th Anniversary of the UDHR”, New York, 1958.

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schools and hospitals to make service access and staff employment conditional upon compliance with their beliefs may push the state towards intervening to restrain such service providers and strengthen the capacity of secular alternatives. Similarly, religious individuals can add to the tension between equality and religious freedom as was clearly demonstrated when issues arose in the context of testamentary dispositions subject to a religious condition or, indeed, when subject to a condition that breached parental rights. So, for example, in England and Wales, the courts found that it would be “going much too far” to say that such a trust was contrary to public policy40 and that “neither by express provision nor by implication has private selection yet become a matter of public policy”.41 However, equality norms as given effect by legislative provisions have in recent years made inroads into long-established principles – such as those that protected the rights of testators and parents – bringing the law into conflict with some of the more fundamental beliefs and practices of Christians, Muslims and others. The state itself may further confound the equality principle by funding and/or providing tax exemption for religious organisations in general or for some in particular. It may persist in using traditional religious symbols, prayers, references on coinage and displays in public buildings and ceremonies, which may also include prescriptive rules regarding the wearing of religious clothing or related ornaments by civil servants. State intervention could stretch to affirmative action on behalf of specific religious organisations and will almost certainly intrude into designing the public school curriculum to ensure that pupils are attuned to current civic values and social mores. Moreover, there is the matter of faith schools: whether, in the first place, there should be permission for such schools to be established, specifically for the purpose of providing a religious alternative to state provision; the extent to which they should be entitled to government funding; and whether this should be subject to faith-school curricula providing tuition on basic human rights, including the freedoms of religion, speech, and equality between citizens, and assurances that the school will cultivate open links with its community. These are all difficult issues. There is also an argument that equality is all very well but when religion conflates with culture to give a nation or region a coherent identity, and all that goes with it in terms of a secure sense of belonging for successive generations (producing its distinctive art, artefacts and other cultural characteristics) for the citizens and communities concerned then, in such a case, it is not feasible to regard religion as separable from culture. In terms of achieving equality, it may mean that it would be

40

41

Re Lysaght, [1966] Ch 191, per Buckley J, para. 206 in relation to a testamentary gift made to the Royal College of Surgeons for the purpose of providing a scholarship to a medical student but in terms that discriminated against Roman Catholic and Jewish students. Blathwayt v. Baron Cawley, [1976] AC 397 per Wilberforce LJ, para. 426 when a testamentary disposition that discriminated against Roman Catholics was upheld.

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unreasonable to expect any religiously/culturally coherent jurisdiction to jettison such customs and practice: it would, in fact, be treating any such nation or region unequally, relative to other more pluralist societies, by requiring a devaluation of the role traditionally played by religion in order that parity be achieved. When a nation’s cultural heritage, of which religion is a significant component, is thought to be in danger of being eroded or traduced by the precedence given to other influences, considerable pressure is then placed on the state to intervene and protect that heritage. religious discrimination. Religious discrimination would seem to be a pervasive social phenomenon, overt or sublimated, lethal or benign, that may be borne or imposed by those of religious persuasion (whether individuals, organisations, communities or nations) and those of none. Its systemic nature suggests that a coherent and culturally sensitive response is urgently required on many fronts. As has been pointed out, “intolerance, stereotyping, stigmatization, discrimination and incitement against persons based on their religion or belief do not only affect members of religious communities, but also have an impact on society as a whole. . .. Governments have the responsibility to create a safe and enabling environment in law and practice”.42 For a government to respond effectively to the challenge of religious discrimination, it needs laws that allow it to prosecute those who discriminate on the basis of religion in everyday contractual or transactional exchanges, or who abuse or commit violence on that basis; a regulatory framework that provides for the monitoring of discriminatory conduct, intimidatory manifestations of belief and the investigation and prosecution of alleged offences; but most of all it requires willing support from across the broad base of society, with organisations and citizens being prepared to demonstrate leadership by vigorously defending the rights of individuals to practise their religion, reasonably manifest their beliefs and to exercise their related freedom of expression. protecting religious freedom. In safeguarding this essential freedom, states must be proactive; doing nothing is not a legally permissible option because, as the UN Special Rapporteur on Freedom of Religion or Belief has noted, there is “growing evidence of the links between respect for the right to freedom of religion or belief and prospects for societal harmony, economic prosperity and political stability”.43 States must, therefore, take such measures as may be necessary in order to eliminate all forms of intolerance, stigmatisation and negative stereotyping of persons based on their religion or belief, as well as adopting effective policies to

42 43

A/HRC/31/18, para. 45. See Report of the Special Rapporteur on Freedom of Religion or Belief, 2017, para. 21.

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prevent acts of violence or incitement thereto. It is a responsibility that is growing steadily more complicated. The boundaries of the right to freedom of religion are now very uncertain and, some would argue, that that freedom is itself in danger.44 There are a number of fundamental definitional issues. Perhaps foremost among these is how the Part II jurisdictions should accommodate the traditional prescriptive beliefs of the institutional religions. By far the majority of religious adherents – Muslims, Hindus, Orthodox Jews and evangelical Christians – are resolutely committed to upholding the beliefs as known and respected by previous generations, without making any concession to a need for their reinterpretation in the light of contemporary circumstances and changed cultural values. As mentioned, when such beliefs are nonhuman-rights compliant, this gives rise to serious problems for a democratic society. Of particular importance has been the judicial weighting given recently in some jurisdictions to the subjective understanding of the individual as the key determinant of religious belief.45 This has brought to an end the traditional assumption that, in those jurisdictions, religious belief was simply a derivative of religion: once the identity of the “religion” was established, the prescriptive nature of the associated “beliefs” could be safely assumed, and it followed that a religious adherent was necessarily a representative member of their declared religion, espousing all entailed beliefs. As mentioned above, adherents in those jurisdictions would now seem to be legally entitled to interpret their religion as they see fit – a development accompanied by a corresponding proliferation in the forms of association and modes of communication necessary to give effect to the new belief systems – and renders the above assumptions redundant. This and other developments have, in the space of a generation or two, transformed what for millennia had been an immutable building block in Western society to an increasingly amorphous phenomenon with uncertain parameters, the framing of public policy in relation to which is distinctly fraught. The inescapable corollary of such a widespread deconstruction of what constitutes “religion” in contemporary developed Western societies is that “religious discrimination” must now also be redefined. It has to encompass not just the bigotry and sectarianism to which we have become accustomed but also any prejudicial treatment of or by groups such as the Wiccas, faith healers and, in some countries, naturalists, vegans and the Jedi.46 In addition it has to accommodate the proxy religious confrontations on issues such as abortion and gay marriages. It must also, of course, make room for the regression to mediaeval barbaric persecution perpetrated by Islamic militants.

44 45 46

See, further, www.religion-freedom-report.org See, for example, Ex parte Williamson, [2005] UKHL 15, [2005] 2 AC 246 (HL). The 2001 census in New Zealand recorded 53,000 citizens affirming adherence to the Jedi in response to the question on religious affiliation.

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Fundamentalism and an Uncivil Society47 Citizenship and civil society are necessarily complementary: one helps define the other, but sharing space is not the same as sharing responsibilities. Citizenship and civil society require a level of commitment to common social values. Arguably, a retreat into religious fundamentalism, apart from being a denial of citizenship responsibilities, wholly conflicts with the consensus on broadly shared values and an agreed balancing of interests that would seem essential for civil society. Citizenship requires respect for a society’s cultural heritage, its current cultural ethos and adherence to the social norms affirmed and represented by government policy, laws and conduct. To that extent, adherence to religious beliefs that mandate practices in conflict with citizenship requirements conflict also with those for civil society: it feeds a cultural dissonance that obstructs the essential civic virtues of trust and co-operation.48

islamic fundamentalism. Some of the more fundamental beliefs of Islam present difficulties for those in the Part II jurisdictions wishing to square the status of Muslim and citizen.49 For those migrants whose cultural identity derives from a traditional patriarchal ethnic group, where certain “cultural practices discriminatory to women have been shrouded in religious belief” and “undemocratic regimes have denied human rights to their citizens”,50 the transition to Western citizenship is a challenge both for them and for society. Specifically, the discriminatory hate, rejection and punishment authorized by the Qur’an – in relation, for example, to women, homosexuals, sex offenders and those considered infidels, heretics or apostates – if manifested in practice would present a considerable obstacle to such citizenship. Even the more protective, if patronizing and subjugating, rules of the male guardianship system must be considered to be non-human-rights compliant and contrary to the ethos of civil society. The extremism and barbaric violence currently manifested by Islam militants is clearly most at variance with any concept of civil society, even though perpetrated by a small minority and largely in countries outside the scope of this study. This should not detract from an acknowledgement that fundamentalism among Christians, and indeed among secularists, is also at variance, tends to induce xenophobic attitudes, and adds to the current social fractiousness.

47

48 49

50

For an overview of academic work on this concept, see M. Glasius, Uncivil Society, www .academia.edu/4164816/Uncivil_society See T. Judt, Ill Fares the Land, Allen Lane (Penguin), London, 2010. See, for example, K. Ghattas, Black Wave: Saudi Arabia, Iran and the Rivalry That Unravelled the Middle East, Wildfire, London, 2020 and A. H. Ali, Infidel, Simon & Schuster, London, 2008. S. S. Ali, Gender and Human Rights in Islam and International Law: Equal before Allah, Unequal before Man? Kluwer Law International, The Hague, 2000, p. 5.

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christian morality and the “culture wars” As the social cohesion provided by a shared Judaeo-Christian heritage fades, there has been a tendency, in some of the Part II jurisdictions more so than in others, for this to be offset by groups forming to pursue their separate sets of morality-based interests. At best relationships between them are tense and at worst they can become confrontational – as in the current competition between the religious and the secularists, between fundamentalists and mainstream adherents, between the traditional organised religions, and between them and a proliferating and mutating range of new forms of belief. This reductionist tendency, responsible for proliferating “islands of exclusivity”,51 is now commonly referred to as “the culture wars”. Morality and Christianity Christian principles established the core moral imperatives – dealing with matters such as marriage, sexuality and sin – that came to inform the law relating to the family in the jurisdictions being considered (see further in Chapter 1). From that central reference point, the imperatives would seem to have been contiguously extended by analogy – to accommodate matters relating more broadly to “life” – in keeping with the ebb and flow of advances in science, collapse of confidence in social institutions and retreat into conservative values. Morality and the Changing Social Role of Religion For adherents their religious doctrines may remain immutable but the social role of religion at any point in time within a particular country will change as it is shaped by contextual factors including leadership, local circumstances, the impact of science, politics and other extraneous events. As the law gradually expands to accommodate matters previously left to conscience and religion, removing them from policy debate and possible religious veto, so those of faith and those without conform to the new order. As has been said, “Culture is more powerful than religion in determining a person’s moral code. . .. It shapes how Christians define their beliefs. . .. Religion exists within a society not outside of it.”52

democratic states and morality. In democratic states, the law, morality and religion will never be neatly in synch. Unlike their theocratic counterparts, the judiciary in all Part II jurisdictions have to juggle situations where statute law has

51

52

See A. J. Esau, “‘Islands of Exclusivity’: Religious Organisations and Employment Discrimination”, University of British Columbia Law Review, vol. 33 (2000), p. 719. See M. A. Smith, Secular Faith: How Culture Has Trumped Religion in American Politics, University of Chicago Press, Chicago, IL, 2015, p. 211, citing E. Durkheim, The Elementary Forms of Religious Life, Oxford University Press, New York, 2001 [1912].

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declared the rules to be applied in relation to morality/religion (e.g. in employment, education); where there is a time lag between an emerging moral imperative (e.g. gay marriage, assisted suicide) and its statutory recognition; and where the law has not intervened (e.g. artificial life, intra-species research). The culture wars engulf all three. This juggling act has to be performed against a background in which the institutional role of traditional religions is shrinking, leaving a public space to be filled not just by an increasingly robust secularism but also by a fluctuating assortment of belief systems and by fundamentalism. Moral Imperatives Nuanced and sublimated but omnipresent, moral imperatives surface from time to time to cohere around and crystallise an ethical issue. This has given rise to the same set of legal issues arising in all jurisdictions, as perhaps might be expected in countries where the national identity has long been formed by immersion in a Judaeo-Christian ethos.

moral imperatives: sex related. Issues of sexuality are of course the defining battleground for the current phase of the culture wars, and may, perhaps, have been so from the outset. The list of sex-related issues generating taboos and moral opprobrium over the years is long (e.g. prostitution, single mothers, homosexuality) but currently is mainly focused on gay marriage, other LGBT issues and transgender matters. Sexual relationships, defined for centuries as heterosexual – for all legal, cultural and religious purposes – is no longer so confined and this has engendered a nexus of issues, of which gay marriage has now become the leading moral imperative. While the latter causes angst and protest among many conservative Christians and Jews, this pales in comparison to the virulent reaction it provokes among some of their Muslim counterparts as demonstrated in incidents such as the Orlando gay bar massacre53 in the USA (see further in Chapter 4). moral imperatives: “life” related. Moral imperatives relating to “life”, particularly its beginning and end, are central to the culture wars. The fact that women’s reproduction rights – abortion, contraceptives, IVF – are statutorily confirmed demarcates them from any equivocation: they are firmly established civil rights. The law is less clear in relation to rights to surrogacy, embryo augmentation and to medically assisted death. An ancillary area, of more direct relevance to the culture wars, is that relating to modifications to “life”, through genetic editing and the like. This amorphous area of morality generally does not generate justiciable issues unless or until a patent application is lodged in court when, as in the “oncomouse” saga (see further in Chapter 5), they can then become morally contentious. 53

The June 2016 attack in Orlando, Florida, was perpetrated by a Muslim who proclaimed allegiance to ISIS.

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The Culture Wars Probably first recognised as a sociological phenomenon in the USA in the early 1990s,54 the culture wars were then and in subsequent debates,55 rightly seen as a source of growing social and political polarisation. There is little prospect of any retreat from the frontline issues – abortion, homosexuality and such – and every likelihood of new fronts opening up. Indeed the indications in the USA are that equality and anti-discrimination legislation is serving to drive a socially divisive pushback on areas such as gay marriage and transgender issues. Morality Issues and the Culture Wars Morality issues, being culturally determined, lie along a spectrum that is prone to change from one society to another and within the same society from time to time: for example, patriarchy, slavery, and suffrage. They can include issues such as homosexuality that transcend religious boundaries and may unite, for example, traditional Christians, Orthodox Jews and Muslims against secularists. They have in common their origins in traditional religious values. These embed an intuitive sense of morality that tends to preset the approach adopted to existing and emerging social issues, thereby signposting the culture war battlegrounds. However, the bare fact that culture is able to accommodate dissension and a fluctuating cast of moral imperatives is sufficient to dispense with the dire warning issued half a century ago by Devlin LJ that “societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration.”56 The reason morality issues are now so socially divisive is to a degree a consequence of the rise in numbers of citizens who are not just non-Christian but are firmly irreligious. Probably, also, this simply reflects the diversity of modern democratic societies and the accompanying encouragement for independence and personal responsibility: a move away from collective, prescribed Christian values towards more issue-related morality, autonomous identities and more flexible social roles. The contemporary emphasis on identity is of particular interest because it is now so susceptible to being shaped by sexual orientation – which for some remains firmly a morality issue.

contemporary morality issues. Currently, in the jurisdictions considered, there is much contention over an ever-extending spectrum of morality issues, all 54 55

56

See J. D. Hunter, Culture Wars: The Struggle to Define America, Basic Books, New York, 1991. See, for example, A. I. Abramowitz, The Polarized Public, Pearson Education, New York, 2012; M. Fiorina, Culture War? The Myth of a Polarized America, 3rd ed., Pearson Education, New York, 2010; and R. A. Dahl, How Democratic Is the American Constitution?, 2nd ed., Yale University Press, New Haven, 2001. See P. Devlin, The Enforcement of Morals, Oxford University Press, Oxford, 1965, p. 13.

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variously contributing to the culture wars. One end of that spectrum – consisting of abortion, euthanasia and gay marriage – is closely related to the Christian morality underpinning the law governing religious discrimination; the other – represented by issues such as gun control and women combatants in the armed forces – is only tenuously related. But a considerable number in the middle – including prostitution, genetic editing, embryo research, gene patenting, IVF, transgender matters and many others – often seem to trigger, though not for everyone, the same religious/moral dilemma, one derived by contiguous extension from its roots in Christian morality. proxies for religious belief. The culture wars matter, as the present writer has argued elsewhere,57 not only because they trigger social volatility and disruption but also because they seem to function as a proxy for clashes of religious beliefs, thereby acting as a safety valve by suppressing tensions that might otherwise cause actual conflict. Perhaps, in that respect, this is not unlike football or rugby and other sports, which seem to serve a not dissimilar social function. Religion in the jurisdictions being considered is becoming steadily more culturally sublimated, its characteristics nuanced and diffused throughout various public activities and forums – employment, education, health care and such – rather than represented in institutional places of worship. The sublimation may then surface as in the form of an expedient artifice: religious discrimination, generated in fact by religion or belief, may be passed off as an objection to sexual orientation (e.g. the refusal of bakers with strong religious views to bake celebratory cakes for a gay couples) or concern for animal welfare (e.g. an objection to the non-stunning of animals slaughtered for food). To a large extent, such “domestication” of a traditionally polarising source of social unrest has served to defuse its potency: culture war sophistication gradually displacing overt religious discrimination and removing any excuse for sectarianism, and a fluctuating agenda of moral imperatives substituting for blunt religious confrontation. It may be that moral imperatives, flowing from sacred and secular sources, are draining into a common pool – the culture wars – which is growing to become the forum where conflicts of belief are contested. If so, this may prove conducive to stabilising civil society. By diluting the traditionally visceral element in social divisions based on religious differences and substituting opposition grounded on different interpretations of morality, the threat to civil society is considerably reduced. After all, as noted by Hart, “There is no evidence that the preservation of a society requires the enforcement of its morality ‘as such’”.58

57

58

K. O’Halloran, Religious Discrimination and Cultural Context, Cambridge University Press, Cambridge, 2018, pp. 510–515. H. L. A. Hart, Law, Liberty and Morality, Oxford University Press, Oxford, 1963, p. 82.

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However, because of this proxy role, the culture wars can intersect with human rights – mostly on issues where there is a fusion of sexuality and religion – when rights such as the freedom of expression may then be engaged. As new discoveries push back the boundaries of science and medicine, while legal rights/human rights further shrink the space left to religion and secularists, and emerging belief systems continue to undermine the once pervasive Judaeo-Christian morality, the culture wars can only increase. The case law in Part II provides evidence to suggest that, while culture war issues are proliferating, perhaps the traditional aspects of an underpinning Christian morality are becoming more susceptible to judicial challenge. This, in turn, is highlighting a lack of equivalence in what many now perceive as an increasingly anomalous Muslim morality that – being less amenable to contemporisation – remains in some important respects non-human-rights compliant.

conclusion Assimilation, and consequent cultural annihilation, is the greatest fear for many new immigrants arriving with strong religious/ethnic ties. It explains why, in deference to their sense of cultural identity, multiculturalism has been the preferred policy of the host state. However, the targeted state support of multiculturalism not only reinforces separateness and compromises state neutrality, it stigmatises minority groups, obstructs their participation in mainstream society and accelerates the dilution of that society’s traditional culture. Opting to remain in a minority cultural bunker, and ignore as far as possible the constraints imposed by the law and values of the receiving state, is less feasible when the policy in operation is one of pluralism. The latter is more conducive than multiculturalism to building the “bridging” form of social capital necessary for civil society and for stabilising interfaces between the many diverse groups in modern democracies. Consequently, for most Part II jurisdictions, a switch from multiculturalism to pluralism, from a concern for the integrity and autonomy of the sacred to an emphasis on the secular, or more basically from state neutrality to state management of religious and cultural identities, was a prominent feature of their response to the 2015–2020 combination of terrorism, the migrant crisis and creeping populism. This key chapter picked out crucial threads and thematic strands to be clarified and consolidated by reference in Chapter 3 to the vast body of case law, accreted over many decades in Europe, which will thereafter aid the profiling of the Part II jurisdictions. Prominent among such themes is the importance of religion as an identifier of culture, as a badge of belonging for individuals, highlighting their difference from those of other religions and those of none. Linked to this is the significance of the “culture wars” as a forum for fighting proxy religious issues – from abortion to gay marriage – where a form of didactic moralism, allied to both the sacred and the secular, would seem to be taking hold and which may come to

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deflect state neutrality from its customarily narrowly defined relationship tied to religion per se. The chapter also drew attention to the centrality of the equality legislation as a game changer in the church/state relationship. It noted that any assessment of state neutrality would have to take account of how, in practice, this affected the world of Mrs Eleanor Roosevelt’s “individual person” in relation to those areas of everyday life – family matters, education, employment, health, commercial services – where the equality principle and religious beliefs intersect.

3 International Treaties, Conventions, Protocols, Courts and the European Court of Human Rights Rulings

introduction This chapter outlines the supranational framework of treaties, conventions and protocols relating to religion, explains the limited remit of the accompanying judicial and regulatory bodies and notes the fact that the same or similar declarations of principles are often incorporated into national constitutions and given effect through domestic legislative provisions. It considers the importance of the freedoms of religion, expression and association, their tendency to become entangled and their significance for the state–church relationship. It explains that a broadly similar platform of human rights and equality provisions now exists in all modern developed nations. It discusses the levelling effect of such national provisions when applied in tandem with international convention requirements. The chapter also examines the judicial application of convention provisions in Europe. Building upon the conceptual exploration of Chapters 1 and 2, it focuses on the related case law generated by issues arising on the church–state interface, identifying governing principles from judgments delivered by the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR),1 and drawing attention in particular to principles such as “proportionality”2 and “necessary in a democratic society”,3 which have come to constrain state intervention in religious matters.4 It notes those judicial rulings that specifically uphold the state’s duty of 1

2

3

4

Such case law would include Refah Partisi v. Turkey, (2003) 37 EHRR 1, [2003] ECHR 87; Lautsi v. Italy, Application No. 30814/06 (2011); Bayatyan v. Armenia, (2012) 54 EHRR 15, 494 and Mansur Yalçın & Ors v. Turkey, [2014] ECHR 938. See, for example, Schmidt v. Germany, [1994] EHRR 513; EB v. France, (2008) 47 EHRR 21 and Huang v. Secretary of State for the Home Department, [2007] 2 AC 167. See, for example, Olson v. Sweden (No. 1), (1988) 11 EHRR 299; Kosteski v. “The Former Yugoslav Republic of Macedonia” 3 April 2006 ECHR and Magyar Keresztény Mennonita Egyház and Others v. Hungary, Application Nos. 70945/11, etc. (2014). See, for example, Obst v. Germany, Application No.425/03 (2010).

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neutrality and impartiality when dealing with religious matters5 and the state’s right to protect its traditional primary religion and cultural identity.6 It identifies and discusses problematic aspects of the role of the state as it intersects with religion, such as the funding of faith schools, and considers their destabilising consequences for civil society. It makes the case for the approach pursued in Part II by showing that the pattern of areas of concern addressed by international provisions offers a well signposted pathway for exploring the church–state relationship, for profiling the jurisdiction-specific experience, and for structuring the subsequent comparative analysis.

international framework of conventions and protocols Among the growing body of international treaties, conventions and protocols, there are many that variously impact upon national church–state relationships. Some are binding on most nations and all are binding on a few. Intended to supplement rather than supplant domestic legislation, they may also provide a backstop – an authoritative body of standards – to which appeal can be made when domestic legal processes fail. The Universal Declaration of Human Rights (UDHR) Since its introduction in 1948, the provisions of the Universal Declaration of Human Rights (UDHR) have been incorporated into the legal systems of 165 countries, including each of the six nations studied in Part II. Although without a designated enforcement mechanism, it is now accepted that the UDHR imposes an obligation upon the governments of all signatory states to ensure respect for the full body of rights. Article 2 Proclaiming the right not to be discriminated against, Article 2 of the UDHR requires any difference in treatment to be objectively and reasonably justified. Its importance lies in its status as the first international declaration of equality law and its recognition of boundaries on the right of state intervention into religious matters. Article 3 The most basic human right – the right to life – was initially established by Article 3 of the UDHR and subsequently reinforced by Article 2 of the European Convention 5

6

See, for example, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, Application No. 40825/98 (2008); Jehovah’s Witnesses of Moscow v. Russia, Application No. 302/02 (2010); Jehovah’s Witnesses Association and Ors v. Turkey, [2016] ECHR 453 and Savez crkava “Rijeˇc života” and Others v. Croatia, Application No. 7798/08 (2010). See Folgerø & Others v. Norway, Application No. 15472/02 (2007); Valsamis v. Greece, (1996) Reports of Judgments and Decisions 1996-VI and Lautsi v. Italy, Application No. 30814/ 06 (2011).

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on Human Rights (ECHR) and Article 6 of the International Covenant on Civil and Political Rights (ICCPR). It is unqualified. The importance of its role in the church–state relationship can be seen reflected in legislation dealing with matters that are religiously sensitive, such as the death penalty, abortion and assisted suicide. Articles 6–11 This cluster of articles provides for a right of access to an equitable justice system, including an entitlement to equality before the law and to equality of protection. Its contemporary relevance is apparent in matters such as the standing of sharia law within modern democratic legal systems. Articles 12, 16 and 17 These articles concern the legal integrity and autonomy of the marital family unit. Article 12 provides the right for personal privacy and for protection from arbitrary state intervention in the family home. Article 16 protects the right of men and women of a marriageable age to marry and to found a family, according to national law. This right to found a family is absolute and the state cannot interfere with it, though it has no legal obligation to provide the services that may be necessary for the right to be exercised. The relative legal standing of families formed and dissolved in accordance with Islamic and other cultural customs can be problematic. Article 18 Declaring the right to freedom of thought, conscience and religion, Article 18 encompasses the freedom to adopt or to change religion or belief; to exercise religion or belief publicly or privately, alone or with others; and to do so through worship, teaching, practice and observance. It also provides for the right to have no religion and to have non-religious beliefs protected. In contemporary modern societies where secularism in the public arena is steadily eroding the space customarily reserved for religion, and where the fluidity of personal attachments – complicated by internetbased relationships – generates transient and mutating forms of commitment, there is increasing difficulty in determining what in law constitutes a religion or belief (see further in Chapter 1) and what weighting should be given to such interests relative to those of secularists. Articles 19, 20, 23 and 26 These articles establish, respectively, the rights to freedom of speech, of association, to employment and to education. Each of these substantive rights are prone to clashing with the right to freedom of religion and much of the jurisdiction-specific analysis will focus on the nature and outcome of those conflicts – insofar as they illuminate the church–state relationship – as evidenced in case law.

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The European Convention on Human Rights (ECHR) The UDHR was subsequently enlarged in 1950 by the European Convention on Human Rights (ECHR), this in turn being progressively extended by additional protocols. The European Court of Human Rights (ECtHR) has emphasised the convention’s role as a “constitutional instrument of European public order” in the field of human rights7 and indeed it has been claimed that “the ECHR is one of the ‘leading works’ of the last hundred years on law and religion and possibly, from a purely European perspective, the leading work”.8 While Articles 9 and 14 have direct relevance for religion, other ECHR provisions also have a bearing. The related rulings by the ECtHR have grown to form a considerable body of ever-evolving principles, which will be explored later in this chapter. Article 8 This right to private and family life, initially established by Articles 17 and 23 of the UDHR, has a particularly wide reach and the principles forged in the related case law have proven to be highly sensitive sensors for detecting unwarranted state intrusion. The limitations on state powers as set out in Article 8(2)9 – necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others – also constrain state intrusion into religious activity. Article 9(1) This article replicates Article 18 of the UDHR and together with the conditional Article 14 of the ECHR, they constitute the key elements of the legal framework as it relates to religion.10 With application throughout Europe, they are, therefore, directly binding upon the United Kingdom and Ireland.11 Article 9 recognises the status of “victim”.12

7

8

9 10 11

12

Bosphorus Hava Yolları Turizm ve Ticaret Anonim Sirketi ¸ v. Ireland, Application No. 45036/ 98 (2005). F. Cranmer, “The European Convention on Human Rights”, in R. Sandberg, ed., Law and Religion: The Leading Works, Routledge, London, 2018. See also Article 29 of the UDHR. Specifically Article 9(1), Article 14 and Article 2 of Protocol 1. Though not enforceable see, for example, Hirst v. The United Kingdom (No. 2), Application No. 74025/01 (2004), the case of Ms C in A, B and C v. Ireland, Application No. 26499/02 (2006) and Northern Ireland Human Rights Commission, Re Judicial Review, [2015] NIQB 96. Dudgeon v. The United Kingdom, Application No. 7525/76 (1981); Norris v. Ireland, Application No. 10581/83 (1988); Modinos v. Cyprus, Application No. 15070/89 (1993) and S.L. v. Austria, Application No. 45330/99 (2003).

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Article 10 This provision, together with Article 19 of the ICCPR, reinforces the right to freedom of expression as established by Article 19 of the UDHR. As it protects the right to articulate opinions and ideas without fear of retaliation, censorship or sanction, it has a direct bearing upon laws dealing with matters such as blasphemy, proselytism and the dissemination of religious beliefs in public places. Article 11 This guarantee of a right to freedom of peaceful assembly, being an essential prerequisite for pluralism and diversity, promotes the growth of a democratic society. The harmonious interaction of persons and groups with varied identities is viewed as essential for achieving social cohesion.13 Article 12 This article provides the right for men and women of a marriageable age to marry and to found a family, according to national law, and as such is directly relevant to issues of gay marriage, arranged marriage, child marriage, adoption and a host of matters affecting the LGBT community. Article 14 The duty imposed by this article on the state and public authorities, acting within the scope of convention rights, is not to discriminate on any of the listed grounds, including religion. It has a narrow application as it can only be invoked after and in support of an alleged breach of a substantive convention right but, in addition to the listed grounds, the catch-all reference to “any other status” infers that once triggered it may apply to grounds such as sexual orientation or marital status. Its limitations include a failure to adequately define “discrimination”. Article 2 of Protocol 1 This article provides for the parents’ right to determine their child’s religious education:14 No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the

13 14

See, for example, Gorzelik and Others v. Poland, Application No. 44158/98 (2004). This protocol was established on 20 March 1952. The leading case on Protocol 1 Article 2 is Belgian Linguistic, (1968) 1 EHRR 252. Also, see Folgerø and Others v. Norway, Application No. 15472/02 (2007); Hasan and Eylem Zengin v. Turkey, Application No.1448/04 (2007) and Appel-Irrgang and Others v. Germany, Application No. 45216/07 (2009).

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right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The article is reinforced by Article 18 of the ICCPR and Article 14(3) of the Charter of Fundamental Rights of the European Union, which guarantees parents the right “to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions . . . in accordance with the national laws governing the exercise of such freedom and right”. There are currently fewer more sensitive issues along the church–state interface. Article 1 of Protocol 12 Providing for a free-standing right to non-discrimination, irrespective of whether the difference in treatment engages another convention right, this article came into force for those states that ratified it on 1 April 2005. It provides for protection equivalent to the non-discrimination guarantees in International Convention on the Elimination of Race Discrimination (ICERD) and the ICCPR.

The International Covenant on Civil and Political Rights (ICCPR) The ICCPR, which came into force in 1976, has become particularly important because of its wide international application and accompanying monitoring process; the Optional Protocol has now been ratified by 170 countries. Some of its provisions replicate, reinforce or extend those of the UDHR and the ECHR. For example, Article 2 of the ICCPR, like its UDHR counterpart, as enlarged in Article 14 of the ECHR, provides for the right not to be discriminated against and is regarded as the cornerstone of anti-discrimination in international human rights law. Article 18 Guaranteeing everyone the right to freedom of belief and religion, this provision lies at the heart of the church–state relationship. It includes the freedom to have or to adopt a religion or belief of choice, and the freedom, either individually or in community with others and in public or private, to manifest religion or belief in worship, observance, practice and teaching. Article 18(3) provides that the freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Moreover, under the terms of Article 4(2) (derogation in time of public emergency), rights under Article 18 are non-derogable. Articles 19 and 20 The general right to freedom of expression is enshrined in Article 19(2) but, under Article 19(3), this is subject to “the interests of other persons or to those of the

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community as a whole”, which permits restrictions when they are “provided by law” and “necessary” for “respect of the rights or reputations of others” or for “the protection of national security or of public order or of public health or morals”. Article 20(2) states that any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. The balancing of rights to freedom of expression and freedom of religion has become a sensitive testing ground for state and judiciary in contemporary democratic societies. Article 22 This article restated the right to freedom of association as initially established by Article 20 of the UDHR and enhanced in Article 11 of the ECHR. It was subsequently significantly enlarged by the International Covenant on Economic, Social and Cultural Rights (ICESCR). Articles 26 and 27 Article 26 of the ICCPR declares that everyone is entitled to equality before the law and to equal protection by the law without discrimination on the ground of religion, among other grounds, while Article 27 gives an assurance that minority groups are free to profess and practise their own religion. Equality issues, arising in everyday situations – education, employment, health services, family life and such – frequently involve religion and in practice generate much church–state case law.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) Adopted by the UN General Assembly in 1966, with effect from 1976, Articles 6 and 7 of the ICESCR considerably expand the right to employment as initially established in Article 23 of the UDHR. The covenant guarantees the right to freedom of religion and specifically requires state parties to ensure that enumerated rights (e.g. to work, to training, to equal pay, to join trade unions) can be enjoyed without discrimination of any kind, specifically including religious discrimination. Article 13 This article, initially stated in Article 26 of the UDHR and developed in Article 2 of Protocol 1, includes a parental right to determine their child’s religious education. It provides for a right of parental choice of school and a right to ensure that their child’s religious and moral education conforms to their own beliefs. Again, it is positioned close to the heart of much church–state contention.

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The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief Proclaimed by the UN General Assembly in 1981, this declaration prohibits unintentional and intentional acts of discrimination. Article 2 This defines religious discrimination as any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.

Article 4 A positive onus is placed on the state, under Article 4(1), to be proactive in efforts to promote the freedom of religion or belief across all aspects of society: All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.

Article 6 This states that a religious community’s joint or shared expression of beliefs is protected equally with the individual’s right. It protects the manifestation of religion or belief including, but not limited to, worshipping and assembling, and maintaining places for this purpose; establishing and maintaining charitable or humanitarian institutions; practising religious rites and customs; writing and disseminating religious publications; teaching religion and belief; soliciting voluntary financial support; the training and appointment of religions leaders in accordance with the requirements and standards of the religion or belief; observing religious holidays and ceremonies; and communicating with individuals and communities on matters of religion and belief. The protections afforded by law to religious organisations in relation to such public manifestations of their belief represent the clearest evidence of state’s intent to respect and not to intrude upon church business.

The United Nations Convention on the Rights of the Child (UNCRC) This convention, which came into force in 1990, provides comprehensive protection for children’s most basic needs.

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Articles 14, 20 and 30 These articles provide, respectively, for a child’s right to freedom of thought, conscience and religion; for the desirability of continuity in a child’s ethnic, religious, cultural and linguistic background when alternative care arrangements are being provided; and for the right of children from such a background, or of indigenous origin, to profess and practise their religion and maintain their culture.

The Charter of Fundamental Rights of the European Union The charter entered into force on 1 December 2009. Article 21(1) This provision prohibits discrimination on the grounds of religion or belief.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) This international declaration provides recognition for the beliefs of indigenous people, among other matters, and was adopted by the General Assembly in September 2007 by 144 states with only four – Canada, Australia, New Zealand and the US (CANZUS) – voting against. The CANZUS nations did not sign until much later and then did so subject to significant qualifications. The declaration asserts the rights of indigenous individuals and people to protect their culture through practices, languages, education, media, and religion (Articles 9–15, 16, 25 and 31). Article 31(2) This provision requires states, acting in conjunction with indigenous peoples, to “take effective measures to recognize and protect the exercise of these rights . . . to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions”.

Other Relevant International Instruments In addition to the above, for present purposes the following can also be regarded as constituents of the international framework of conventions and protocols that now have a bearing upon religion in general and on the church–state relationship in particular: the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) 1979 and the UN Resolutions on the Elimination of All Forms of Religious Intolerance 1981 and 1993, which designate related responsibilities to a special rapporteur. Other more ancillary international instruments would include the International Labour Organisation Discrimination (Employment and Occupation) Convention; the International Convention on the Elimination of

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Race Discrimination (ICERD) 1969, which guarantees the freedom of religion in Article 5; the Universal Declaration on the Human Genome and Human Rights 1997; and the International Convention on the Rights of Persons with Disabilities 2006. Some conventions and protocols are more regional than international. So, for example, the American Convention on Human Rights (ACHR), which took effect in 1978, binds the members of the Organisation of American States to respect a body of rights not dissimilar to the UDHR including, in Article 12, the right to freedom of conscience and religion. This same right is also recognised by Article 8 of the African Charter on Human and Peoples’ Rights (AfCHPR), effective from 1987, and is binding upon the member states of the Organisation of African Unity (OAU). As regards Europe, in addition to the ECHR, it would be difficult to overstate the important effect of four EU anti-discrimination directives in nudging states in the direction of adopting a tougher and more impartial regulatory role towards containing the traditional prejudicial/preferential influence of religion. The Race Equality Directive 2000/43/EC and the Council Directive 2000/78/EC of 27 November 2000 are both particularly significant; the latter because it established a general framework for equal treatment in employment and occupation, which gives direct protection against discrimination based on religion or belief in employment. Article 4 of the Racial Equality Directive, and the Employment Equality Directive, authorises affirmative action: “Member States may provide that a difference of treatment which is based on a characteristic related to [racial or ethnic origin, religion or belief, age, disability or sexual orientation] shall not constitute discrimination.”15 Also important are the European Social Charter 1965 and 1996; the Recast Gender Directive 2006/54/EC on equal treatment in employment; and the Gender Directive 2004/113/EC dealing with sex equality in goods and services. In July 2008 the European Commission published a proposal for an antidiscrimination directive covering goods and services in the four remaining grounds: age, sexual orientation, religion or belief and disability.

National Equality Legislation In addition to the above, and emanating from the principles they established, every modern developed nation now has in place a body of equality and nondiscrimination provisions that are often assimilated into national constitutions and/ or may be found in specifically designated legislation.

15

See also Articles 5 of the Racial Equality Directive and 7(1) of the Employment Equality Directive.

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international framework of courts and regulatory bodies While no court has an international jurisdiction on religious issues, there are some forums, without adjudicative or enforcement powers, that exercise important international functions. Their output, together with the case law produced by certain supranational courts, mainly that of the ECtHR, are inducing a tendency towards convergence in the principles deployed to govern national issues arising on the church–state interface. The Council of Europe “Politics and religion should be kept apart. However, democracy and religion need not be incompatible and can be valid partners”16 as the Committee on Culture and Education stated, not without equivocation, in the introduction to its 1998 Report on Religion and Democracy. A decade later the Council of Europe proclaimed more forthrightly that “one of Europe’s shared values, transcending national differences, is the separation of Church and State”.17 The council works, among other things, to promote greater consistency in the domestic laws of its forty-seven member states. It is known primarily for producing the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, which drew some legal parameters around the interaction of state, family, church and the individual. It has also issued some influential resolutions18 and recommendations.19 In 1999 the Treaty of Amsterdam empowered the council to introduce legislative measures to combat discrimination on grounds that included religion or belief. The Framework Convention on National Minorities This convention requires states to respect the religious rights of minorities. Article 6 obliges states to encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation

16

17

18

19

See further https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=8426& lang=en Council of Europe, Parliamentary Assembly, State, Religion, Secularity and Human Rights, Recommendation 1804 (2007). For example, on 27 June 2018 the Parliamentary Assembly of the Council of Europe adopted Resolution 2230 (2018) “Persecution of LGBTI people in the Chechen Republic (Russian Federation)”. See also Resolution 885 (1987) on the Jewish contribution to European culture and Resolution 916 (1989) on redundant religious buildings. See, for example, Recommendation 1162 (1991) on the contribution of the Islamic civilisation to European culture Recommendation 1202 (1993) on religious tolerance in democratic society, Recommendation 1222 (1993) on the fight against racism, xenophobia and intolerance, Recommendation 1291 (1996) on Yiddish culture and Recommendation 1927 on Islam, Islamism and Islamophobia in Europe (2010).

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among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic, or religious identity, in particular in the fields of education, culture and the media. Commissioner for Human Rights Established in 1999, this is an independent and non-judicial office that functions in an ambassadorial capacity on behalf of the Council of Europe by engaging with member states to raise awareness about human rights issues and to promote the development of national human rights structures.

The United Nations Founded in 1945 to promote international co-operation and prevent further wars, the UN is now the world’s largest and most powerful human rights organisation. It works on behalf of its almost 200 member states to maintain international peace and security, conciliate disputes, promote human rights, foster social and economic development, protect the environment, and provide humanitarian aid in cases of famine, natural disaster and armed conflict. In Article 55(c) of its founding charter, the UN declares that its objective is to “promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”.20 However, and most importantly for present purposes, the charter clearly declares that the UN defers to state sovereignty: it affirms “the principle of the sovereign equality of all its members”, and adds that the UN is not authorised “to intervene in matters which are essentially within the domestic jurisdiction of any State” (Articles 2.1 and 2.7). The UN took an early stand against discrimination that conflates religious and racial prejudices with its 1978 Declaration on Race and Racial Prejudice, which recognised that “religious intolerance motivated by racist considerations” was a form of racism.21 In addition to launching the UDHR, it has been responsible for formulating such foundational human rights instruments as the 1966 International Covenant on Civil and Political Rights together with the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child 1989 and the Declaration on the Rights of Indigenous Peoples 2006. Hugely significant as they undoubtedly are, the effectiveness of these UN human rights instruments is constrained both by the fact that they bind only those states that consent to be so bound and by the absence of any supranational enforcement

20

21

See M. Limon, N. Ghanea and H. Power, “Fighting Religious Intolerance and Discrimination: The UN Account”, Religion and Human Rights, vol. 11, no. 1 (2016), pp. 21–66. Followed in 2001 by the Council of Europe’s First Additional Protocol to the Cybercrime Convention, which defines “racist and xenophobic material” as including “religion if used as a pretext” for racial/ethnic discrimination.

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mechanism; enforcement is possible only if a state chooses to incorporate provisions within its domestic statute law. The Commissioner for Human Rights The Commissioner for Human Rights of the Council of Europe, an important and influential role, has published his views on the French burqa ban in which he states,22 Prohibition of the burqa and the niqab will not liberate oppressed women, but might instead lead to their further exclusion and alienation in European societies. A general ban on such attire constitutes an ill-advised invasion of individual privacy and, depending on its terms, also raises serious questions about whether such legislation is compatible with the European Convention on Human Rights.

The UN Human Rights Council (UNHRC) This subsidiary of the General Assembly, established in 2006 when it replaced the UN Commission on Human Rights, works with the High Commissioner on behalf of member states to oversee global human rights issues for the UN. Among the many themes addressed by the council are those relating to religion23 and associated matters such as issues affecting the LGBT community and racial and ethnic minorities. In 1986 responsibility for identifying existing and emerging obstacles to the enjoyment of the right to freedom of religion or belief was assigned to a Special Rapporteur on the Freedom of Religion and Belief who reports annually to the council making recommendations on ways and means to overcome such obstacles.24 The UNHRC recently attracted criticism from its sister body the UN Committee on the Rights of Persons with Disabilities (CRPD), which has opposed the former’s initiative to create a right to abortion on the grounds of foetal abnormality. CRPD stated that “laws which explicitly allow for abortion on grounds of impairment violate the Convention on the Rights of Persons with Disabilities”. Resolution 16/18, initially introduced in March 2011 at the UNHRC by the Organisation of Islamic Co-operation, called upon UN member states to combat “intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief”. This led firstly, to the Istanbul Process for Combating Intolerance, Discrimination and Incitement to Hatred and/or Violence on the Basis of Religion or Belief, which has 22

23

24

See Thomas Hammarberg, Council of Europe Commissioner for Human Rights, “Viewpoint: Human Rights in Europe: No Grounds for Complacency”, Council of Europe Publishing, 2011, pp. 39–43. See Freedom of Religion or Belief, 2013; Freedom of Religion or Belief – Mandate of the Special Rapporteur on Freedom of Religion or Belief, 2011 and Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, 2007. See annual Report of the Special Rapporteur on Freedom of Religion or Belief (1987–2017), www.ohchr.org/EN/Issues/FreedomReligion/Pages/Annual.aspx

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facilitated six rounds of meetings organised to foster dialogue and share practice experience; and secondly, to the 2012 Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred, which sets out a framework of measures that include the implementation of legislation, jurisprudence and policies to combat activities that constitute incitement to violence and discrimination on multiple grounds, including religion, and calls for the repeal of all anti-blasphemy laws.

Courts, Commissions and Other Regulatory Bodies In the absence of any truly international adjudicative body or forum with a specific brief for determining legal issues relating to religious matters, the rulings of the European courts have assumed great significance. In particular the judgments handed down by the ECtHR, over many decades, have grown to constitute not only an evolving body of jurisprudence governing church–state matters for all fortyseven member states but also to serve as benchmarks for courts and regulatory bodies elsewhere when addressing similar issues. The European Court of Justice (CJEU) Officially the Court of Justice of the European Union (CJEU), and normally referred to as the ECJ, this is the highest court in the European Union on matters of European Union law. It was established in 1952 with a role of ensuring that EU law is interpreted and applied fully and consistently throughout the EU. It adjudicates on legal disputes arising between national governments and EU institutions, enforces decisions taken and settles compensation for any entity that has had their interests harmed as a result of the action or inaction of the EU. The European Court of Human Rights (ECtHR) The ECtHR rules on issues arising from the domestic litigation of the forty-seven member states, including the UK and Ireland, concerning alleged violations of rights enshrined in the convention and its protocols. In making its determinations, the ECtHR is guided by principles such as “proportionality”, “compatibility with democracy” and “a margin of appreciation”. The first requires a fair balance to be struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights.25 The ECtHR looks at the interference complained of in the light of the case as a whole to determine whether the alleged interference is “prescribed by law” and was (i) for a

25

See Olson v. Sweden (No. 1), (1988) 11 EHRR 299; Sporrong v. Sweden, [1982] 5 EHRR 35, para. 69; Tsirlis and Kouloumpas v. Greece, (1997) 25 EHRR 198, para. 116; Razgar v. Secretary of State for Home Department, [2004] UKHL 27, para. 20; and see Kozac v. Poland, [2010] ECHR 280, (2010) 51 EHRR 16.

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legitimate aim that is important enough to justify interfering with a fundamental right, (ii) rationally connected to achieving that aim, (iii) no more than reasonably necessary to achieve it and (iv) in the light of this, striking a fair balance between the rights of the individual and the interests of the community.26 The second imports a liberal measure of balance and tolerance.27 Frequently the ECtHR can be seen applying the test – is this form of state intervention necessary in a democratic society?28 The third permits states a degree of latitude in their interpretation of human rights obligations.29 Each state enjoys a margin of appreciation when assessing what constitutes “discrimination” and the extent to which differences in otherwise similar situations may justify a corresponding difference in treatment. The Venice Commission This organ of the Council of Europe was established in 1990 and has a membership of sixty member states (the forty-seven members of the Council of Europe plus thirteen others). Its primary task is to assist and advise individual countries in constitutional matters in order to improve functioning of democratic institutions and the protection of human rights. It does so by appointing a working group of rapporteurs to advise national authorities on relevant issues. The Human Rights Committee (HRC) Composed of a body of independent experts, the HRC is established under Article 28 of the ICCPR, and provides an independent and impartial monitoring function by reporting on implementation of the covenant by state parties. The latter are required to submit progress reports in compliance with the “periodic review process” to the HRC, which in turn identifies deficits in compliance with Article 18 – the main international legal provision protecting religion and belief – and makes recommendations on improvement by means of its concluding observations. In its General Comment No. 22 on the right to the freedom of thought, conscience and religion, the Committee states that if a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under Article 18 or any other rights recognized under

26

27 28

29

See Huang v. Secretary of State for the Home Department, [2007] 2 AC 167, para. 19; R (Quila) v. Secretary of State for the Home Department, [2012] 1 AC 621, para. 45 and Bank Mellat v. HM Treasury (No. 2), [2013] UKSC 39, [2013] 3 WLR 179, 222, para. 20. See Refah Partisi v. Turkey, (2003) 37 EHRR 1, [2003] ECHR 87. See Olson v. Sweden (No. 1), (1988) 11 EHRR 299, where it is explained that to be justifiable such interference must be “relevant and sufficient; it must meet a pressing social need; and it must be proportionate to the need”. See, for example, Lithgow v. United Kingdom, (1986) 8 EHRR 329, Fredin v. Sweden, (1991) 13 EHRR 784, Abdulaziz, Cabales and Balkandali v. United Kingdom, (1985) 7 EHRR 471.

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the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it.

The term “ideology” for these purposes could be considered to include the state commitment to laïcité in France. Human Rights Commissions It has been customary for human rights issues, including religious discrimination, to be regulated by a designated national or regional Human Rights Commission, with a right of appeal to the appropriate court. Currently, there are three such regional bodies – the European Commission, the Inter-American Commission and the African Commission – in addition to their national counterparts. In 1991, under the auspices of the UN General Assembly, the “Paris Principles” were agreed, which set out a basic template of functions and objectives for every local commission. As equality and non-discrimination legislation has grown, it is now not uncommon for of all domestic issues of human rights, equality and discrimination to be statutorily assigned to and determined by the same local administrative body. In practice, these national or local regulatory bodies – addressing such issues arising in everyday settings such as schools, the workplace and healthcare facilities – are often on the frontline, mediating and determining tensions in the church–state relationship.

Other The Committee for the Elimination of Racial Discrimination monitors compliance with the UN’s International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The Committee on the Elimination of Discrimination Against Women (CEDAW) was established under the UN Convention on the Elimination of all Forms of Discrimination Against Women with its Optional Protocol; this international treaty was adopted in 1979 by the United Nations General Assembly. The committee reviews and makes recommendations on national reports submitted by the state parties within one year of ratification or accession, and thereafter every four years. Also relevant are the Advisory Committee on the Framework Convention for the Protection of National Minorities (FCNM), a monitoring body of the Council of Europe, and the International Partnership on Religion and Development, which was established in 2016 to facilitate the engagement of faith-based organisations in development work. International Reports Reports by international bodies – such as Human Rights Watch – on national progress made or not made, in relation to matters on which the interests of state

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and church intersect, aids transparency and can make an important contribution to promoting positive change. The Universal Periodic Review Introduced by the UN General Assembly in 2006,30 this process is truly international with a remit to review human rights, including those relating to the freedom of religion and belief, in respect of all 193 UN member states. It has a uniform application to all nations presently being considered. It provides an opportunity for each state to make a periodic declaration (usually every four years) to the Human Rights Council regarding the actions taken to improve human rights in its country, to receive comment from its peer signatory states, and to agree goals for the next review. In 2017 it was noted that “despite the fact that the right to freedom of religion and belief intersects with a range of other rights and is integral to the improvement of other fundamental rights and freedoms”, the special rapporteur believes it was under-represented as an issue of concern during the first two cycles of the universal periodic review.31 This process operates in conjunction with the principles relating to the Status of National Institutions (the Paris Principles), adopted by UN General Assembly in 1993,32 which set out the minimum standards required from national human rights institutions if they are to be considered credible and to operate effectively. In order to be effective and awarded “A status”, national human rights institutions must be independent, adequately funded and have a broad human rights mandate. The UN Special Rapporteur on Freedom of Religion or Belief In addition to submitting annual reports to the UNCRC, the mandate for this official includes reporting to and holding discussions with governments in relation to incidents incompatible with international human rights standards and on the adequacy or otherwise of existing or proposed legislation relating to matters of religion or belief. This role may include employing various forms of communication, such as press releases and social media, to advocate on behalf of alleged victims or in relation to various incidents and situations. Since 2016, the special rapporteur has issued communications relating to sectarian attacks on religious minorities, apostasy and blasphemy charges, discriminatory practices relating to the construction of houses of worship, disruption of peaceful religious gatherings in private homes, the targeting of religious leaders, censorship of religious views and the confiscation of religious materials. 30

31 32

Established by UN General Assembly resolution 60/251 of 3 April 2006, it aims to review national human rights performance at four yearly intervals. See Report of the UN Special Rapporteur on Freedom of Religion or Belief, 2017, para. 12. See National Institutions for the Promotion and Protection of Human Rights, UN Doc A/RES/ 48/134 (20 December 1993).

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The Committee on the Rights of the Child (CRC) While UNCRC has no designated enforcement mechanism, the CRC does make recommendations to states, on the basis of reports filed with it under Article 44, for improvements in national law and practice. This audit mechanism provides a useful tool for promoting transparency and accountability and for benchmarking developments in national law while also facilitating international comparative assessments.

european case law: the church–state relationship and fundamental human rights From an early stage, the rulings of the ECtHR33 established the importance of maintaining “the state’s duty of impartiality and neutrality towards various religions, faiths and beliefs”.34 It required the state to adopt a neutral stance in relation to religious matters35 in order to ensure the preservation of pluralism and the proper functioning of democracy.36 It had “a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs”.37 In so doing, the state was assured that it would enjoy a wide margin of appreciation.38 However, in practice, maintaining state neutrality proved to be somewhat complicated. The religious matters of concern to any state, generating the vast bulk of issues resulting in the appearance of states before the ECtHR, are those indicative of the tension between the right to freedom of religion and other human rights – mainly the freedoms of association and expression – that have required state intervention, and the issues triggered along the ever-widening interface between religion and equality. Some human rights specifically recognise circumstances in which religion, religious individuals or religious organisations are entitled to legal protection by or from the state.

33

34 35

36

37

38

See, for example, Dahlab v. Switzerland, Application No. 42393/98, 2001-V Eur. Ct. H.R 449 and Leyla Sahin v. Turkey, Application No. 44774/98, 2005-XI Eur. Ct. H.R. 819. Hasan and Eylem Zengin v. Turkey, [2007] ECHR 787. Dahlab v. Switzerland, Application No. 42393/98 (2001) and Leyla Sahin v. Turkey, Application No. 44774/98 (2005). For an analysis of the relationship between religion, the right to religious freedom, and democracy, see K. Boyle, “Human Rights, Religion and Democracy: The Refah Party Case”, Essex Human Rights Review, vol. 1, no. 1 (2004). Metropolitan Church of Bessarabia and Others v. Moldova, Application No. 45701/99, §§ 115–116, ECHR 2001-XII. The Church of Jesus Christ of Latter-Day Saints v. the United Kingdom, Application No. 7552/ 09 (2014), para. 29, citing: Metropolitan Church of Bessarabia and Others v. Moldova, Application No. 45701/99, §§ 115–116, ECHR 2001-XII; Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, Application No. 40825/98 (2008) and Savez crkava “Rijeˇc života” and Others v. Croatia, Application No. 7798/08 (2010). Cha’are Shalom Ve Tsedek v. France [GC], No. 27417/95, § 84, ECHR 2000-VII.

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Freedom of Religion Central to the church–state relationship and firmly established by an international framework of provisions, this human right is proclaimed in Article 18 of the UDHR and the ICCPR, Articles 9 and 14 of the ECHR, as reinforced by Article 1 of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, the ICESCR, and as stated in Article 10 of the Charter of Fundamental Rights of the European Union. It is, however, most clearly declared in Article 9(1) of the ECHR: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Given effect throughout Europe very largely by rulings of the ECtHR, the United Nations High Commissioner for Refugees (UNHCR) and occasionally by those of the ECJ, this right is considered to be39 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.

Its application to religious organisations is now beyond doubt. As the ECtHR has repeatedly explained, “a church body is capable of possessing and exercising the rights contained in Article 9(1) in its own capacity as a representative of its members”.40 Over the past fifteen years, the constant increase in the number of cases appearing before the ECtHR alleging violations of Article 9 testifies to the corresponding importance of religion and the relevance of state neutrality. Definitions Freedom of religion – together with freedom of thought and conscience – is regarded as “a precious asset for atheists, agnostics, sceptics and the unconcerned”.41 As the special rapporteur has noted, “freedom of religion or belief rightly has been termed a ‘gateway’ to other freedoms, including freedom of expression and freedom of peaceful assembly and association . . . there can be no free religious community life without respect for those other freedoms”.42 Applied internationally by Article 18 of the 39

40

41 42

Moscow Branch of the Salvation Army v. Russia, [2006] ECHR 7288/01, [57]. See, for example, Lithgow v. United Kingdom, (1986) 8 EHRR 329; Fredin v. Sweden, (1991) 13 EHRR 784; Abdulaziz, Cabales and Balkandali v. United Kingdom, (1985) 7 EHRR 471. See, for example, Serbo-Greek Orthodox Church in Vienna v. Austria, Application No. 13712/ 88 (1990). Kokkinakis v. Greece, Application No. 14307/88 (1993). See A/HRC/34/50, para. 33.

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ICCPR, as restated in many national constitutions and legislation, it ultimately provides the governing source of authority for national courts and regulatory bodies. “religion”. The fact that “religion” is not defined in either the text of Article 9 or in ECtHR case law would seem to be deliberate, designed to leave interpretation open to cultural context, to be applicable to the wide range of existing religions and beliefs and able to respond to an unfolding understanding of how they might be construed in the future. It is clear that existing definitions of religion and belief include all the major world religions such as Christianity, Buddhism, Hinduism and Islam together with relatively new ones such as Jehova Witnesses, Mormons and neopaganism and must not be interpreted to the detriment of non-traditional forms.43 The protection afforded to religion is considered to include “not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group”. “beliefs”. The scope of Article 9 is sufficiently wide to protect both religious and non-religious opinions and convictions but if the latter are to benefit from the right to “freedom of thought, conscience and religion”, they must attain a certain level of cogency, seriousness, cohesion and importance. It has been noted that “provided this condition is satisfied, the state’s duty of neutrality and impartiality is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed”.44 An extensive range of beliefs and convictions have been found to fall within the protection of Article 9 including pacifism,45 veganism,46 druidism,47 atheism,48 secularism,49 communism,50 Divine Light Zentrum,51 Krishna Consciousness,52 heterosexual marriage53 and opposition to abortion.54 43 44

45 46 47 48 49 50 51

52 53

54

˙ Izzettin Dog˘ an and Others v. Turkey, Application No. 62649/10 (2016). See European Court of Human Rights, “Guide on Article 9 of the ECHR” 2018, para. 18, citing Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). See further www.echr.coe.int/Documents/Guide_Art_9_ENG.pdf Arrowsmith v. the United Kingdom, Application No. 7050/75 (1978). W. v. the United Kingdom, Application No. 18187/91 (1993). A.R.M. Chappell v. the United Kingdom, Application No. 12587/86 (1987). Angelini v. Sweden, Application No. 10491/83 (1986). Lautsi v. Italy, Application No. 20814/06 (2011). Hazar, Hazar and Acik v. Turkey, Application No. 18187/91 (1993). Swami Omkarananda and the Divine Light Zentrum v. Switzerland, Application No. 8118/ 77 (1981). ISKCON and Others v. United Kingdom, Application No. 20490/92 (1994). Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). Knudsen v. Norway, Application No. 11045/84 (1985).

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worship. As has been pointed out, “the concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest”.55 To be denied a place to worship is to divest religion of all substance.56 State neutrality requires the authorities not to intervene in or impede the holding of religious worship and the ECtHR has often found instances of violation in Russia, Turkey and Bulgaria. While partisan politics was often a factor in such cases, the seizure and confiscation of hallucinogenic drugs for use during the course of worship was found to be justified in Fränklin-Beentjes and CEFLU-Luz da Floresta v. the Netherlands57 as “necessary in a democratic society” for the protection of health. Religious Discrimination Article 14 of the ECHR, which is usually relied upon in conjunction with Article 9, prohibits discrimination based on, among other things, religion and opinions,58 a prohibition reinforced by provisions in other international treaties, conventions, and protocols.59 It is defined in Article 2 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief as any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.

Articles 2(1) and 26 of the ICCPR are particularly important as they bind every signatory nation to prohibit discrimination on the basis of religion, while Article 20(2) provides that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. The United Nations Human Rights Committee, in General Comment 22, emphasises that protection from religious discrimination extends to theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The special rapporteur adds that there is a need for greater sensitivity to more obscure forms of discrimination, such as prima facie 55

56

57 58

59

See the UN Human Rights Committee, General Comment No. 22: Article 18 (Freedom of Thought, Conscience and Religion), 1993, para. 4. Association de solidarité avec les témoins de Jéhovah and Others v. Turkey, Application Nos. 36915/10 and 8606/13 (2016). Application No. 28167/07 (2014). ˙ See further Izzettin Dog˘ an and Others v. Turkey, Application No. 62649/10 (2016), paras. 160 and 165. Including the International Covenant on Civil and Political Rights, Article 26; the International Convention on the Rights of the Child, Article 15; the International Covenant on Economic, Social and Cultural Rights, Article 2(2) and the American Convention on Human Rights, Article 12. Also important are the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 (ILOC); the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief; and the Employment Framework Council Directive 2000/78/EC, Article 1.

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“neutral” rules prescribing certain dress codes in public institutions.60 Although these usually do not target a specific community openly, such rules can amount to discrimination against persons belonging to religious minorities if those persons (often women) obey their conscience in following a particular dress code. Similar problems may arise with regard to dietary rules, fasting, public holidays, labour regulations, public health norms or other issues. An important caveat, being introduced by the International Draft Convention on the Elimination of All Forms of Religious Intolerance, provides that neither the establishment of a religion, nor the separation of church from state, in and of itself, should be held to constitute an interference with the freedom of religion, unlawful discrimination on religious grounds or religious intolerance. Needless to say, the rigour with which religious discrimination is interpreted, detected and prosecuted provides a good indicator of state neutrality. In Thlimmenos v. Greece61 a Jehovah’s Witness was refused an appointment as a chartered accountant because of a felony. His conviction had arisen from a refusal to wear a military uniform because to do so would have been in breach of his particular religious beliefs. The court held that Article 14 was not limited to cases where a state treats differently persons in analogous situations without providing an objective and reasonable justification but was “also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”.62 So, for example, Article 14 prohibits discrimination related to sexual orientation and gender identity.63 (See, further below, particularly the rulings of the ECJ in Achbita64 and Bougnaoui65 and of the ECtHR in Eweida.66) Protecting the State from Religion The kaleidoscope of religious/cultural national traditions that comprise the jurisdiction of the ECtHR has persuaded that body to afford a wide “margin of appreciation” to each state in determining how it may best configure its church–state relationship.

an “established” church. Among the range of church–state models in Europe are those that represent a close and entrenched relationship between these two 60

61 62 63

64 65 66

Special Rapporteur 2016 – Interim Report of the Special Rapporteur on Freedom of Religion or Belief, A/71/269, para. 46. (2001) 31 EHRR 411. Ibid., para. 44. Salgueiro da Silva Mouta v. Portugal, Application No. 33290/96, § 28, ECHR 1999‑IX, Alekseyev v. Russia, Application Nos. 4916/07, 25924/08 and 14599/09 (2010) and P.V. v. Spain, Application No. 35159/09 (2010). Samira Achbita and Anor v. G4S Secure Solutions NV, [2016] EUECJ C-157/15 (31 May 2016). Bougnaoui v. Micropole SA, [2016] EUECJ C-188/15 EU:C:2016:553 (13 July 2016). Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013).

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sets of institutions. In recognising the legitimacy of an “established” church,67 the ECtHR has ruled that such an inherited constitutional arrangement is compliant with Article 9, but it has also found the constitutional arrangements of France, the archetypal secular state, to be ECHR compliant.68 Moreover, it has found that the principle of state neutrality cannot be considered as being likely to diminish the role of a church with which the population of a specific country has historically and culturally been associated.69 However, this has prompted the comment that “it seems difficult, if not impossible, to conceive of an official ‘state religion’ that in practice does not have adverse effects on religious minorities, thus discriminating against their members”.70 Notwithstanding an absence of any such overt preferencing, it is arguably also difficult to conceive the inherited Christian culture of all developed Western states as being anything other than intimidating for secularists and those of non-Christian beliefs. Any state preferencing of a particular religion – extending to positive discrimination in favour of religiously affiliated schools, hospitals, social care facilities and suchlike – has an inevitable relegating effect on all other religious and secularist entities. This in turn questions the veracity of the state neutrality principle. a secular state. For a state to be truly secular, its institutions and instruments of government must be wholly insulated from religion: the operational effectiveness of state neutrality then ensures that all arms of government treat all religions equally dispassionately, neither influencing nor being influenced by religion. A concern that this may lead to a state adopting a doctrinaire approach to secularism, to the detriment of the freedom of religion, was voiced by the special rapporteur:71 The right to freedom of religion or belief is further challenged by attempts by States to impose a doctrinal secularism as noted above, to sanitize the public sphere of concepts associated with religious or belief systems. Therefore, it is reasonable to assume that State–religion relationships can, both directly and indirectly, lead to the unintended or deliberate perpetuation of discriminatory practices that undermine the right to freedom of religion or belief of minority communities.

However, for most modern Western democracies, a cultural heritage weighed down by centuries of Christianity makes this virtually impossible, at least in the short term. 67

68 69

70

71

Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, Application Nos. 412/03 and 35677/04 (2009). Dogru v. France, Application No. 27058/05 (2008). Members of the Gldani Congregation of the Jehovah’s Witnesses and Others v. Georgia, Application No. 71156/01 (2007). See H. Bielefeldt, “Report of the Special Rapporteur on Freedom of Religion or Belief”, presented to the UN General Assembly, Human Rights Council Nineteenth session, 22 December 2011. Also see H. Bielefeldt, N. Ghanea and M. Wiener, Freedom of Religion or Belief, Oxford University Press, Oxford, 2016, p. 37. See Report of the Special Rapporteur on Freedom of Religion or Belief, 2017, para. 45.

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These nations – currently at different stages in a process of transitioning towards secularism – are doing so at different rates and at a varying risk to the stability of civil society. The ECtHR has been clear that the principles of secularism and neutrality embody a rule that implies impartiality towards all religious beliefs on the basis of respect for pluralism and diversity.72 This rule applies also to political parties established to represent the interests of a particular religion, provided their purposes are compatible with a democratic society.73 Referring to the hallmarks of a “democratic society”, the court has attached particular importance to pluralism, tolerance and broadmindedness. It has held that a balance must be achieved that ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.74 accommodating religious law and courts. The ECtHR has been clear that state neutrality means that the state is not required to recognise decisions taken by religious courts.75 So, for example, in D v. France,76 the ECtHR was concerned with the decision of a Rabbinical Tribunal and the refusal of the applicant, a practising Jew, to hand over the get, which would have enabled his former wife to remarry under a religious ceremony. The court rejected his application for protection under Article 9(1). sharia law. The ECtHR, having ruled that sharia law is incompatible with democracy,77 has been vigilant in policing the tension between human rights and sharia law, including upholding a state decision to ban an organisation dedicated to establishing a “global Islamic political party”.78 It firmly discounts any scope for state neutrality in circumstances where an applicant wishes to enforce an Islamic practice that breaches human rights. So, in Khan v. the United Kingdom,79 it rejected a petition to marry, and have sexual relations with a girl under the legal age of sexual consent, from man who claimed that such a marriage was valid under Islamic law. In Karakuzey v. Germany,80 it rejected an application from a Muslim father who argued that his refusal to pay child maintenance to his ex-wife was justified by her having had the child baptised in the Roman Catholic Church. The court declined to accept that a child who had left the Muslim faith had to be considered “non-existent” in accordance with sharia law. Again, in Osmanog˘ lu et 72 73 74

75 76 77 78 79 80

Ebrahimian v. France, Application No. 64846/11 (2015). Refah Partisi v. Turkey, (2003) 37 EHRR 1, [2003] ECHR 87. Young, James and Webster v. the United Kingdom, 13 August 1981, Series A no. 44, p. 25, § 63; Sørensen and Rasmussen v. Denmark [GC], Application Nos. 52562/99 and 52620/99, § 58, ECHR 2006‑I and Fáber v. Hungary, Application No. 40721/08, §§ 37–41, 24 July 2012. Serif v. Greece, Application No. 38178/97 (2000). Application No. 10180/82 (1993). Refah Partisi v. Turkey, (2003) 37 EHRR 1, [2003] ECHR 87. Hizb Ut-Tahrir and Others v. Germany, Application No. 31098/08 (2012). Application No. 11579/85 (1986). Application No. 26568/95 (1996).

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Kocaba¸s v. Switzerland,81 it considered that the refusal by Turkish-Swiss parents of Muslim religion to send their daughters to compulsory mixed swimming lessons as part of their schooling did not warrant Article 9 protection. These and other rulings reveal that the ECtHR allows and indeed requires state neutrality to make an exception in respect of sharia law as it has been judged to be non-human-rights compliant. Protecting Religion from the State Article 9 is mainly concerned with protecting freedom of religion and belief against state interference. It is reinforced by Article 14, which protects against state discrimination in the enjoyment of any convention rights on grounds that include religion and belief. The right to hold a religion or belief is held to be absolute and unconditional.82 The state is required to remain neutral and is prevented from intervening in the decisions of religious communities to admit or exclude members;83 doctrinal differences within the membership;84 and the freedom to choose employees according to criteria specific to the religious community.85 These are matters reserved to the religious organisation.86 It is also prohibited from pursuing religious indoctrination.87 It is accepted that circumstances may arise that demand state intervention and then the ECtHR requires the state to show that the measures taken were justified in principle and proportionate; that there was no other means of achieving the same end that would have interfered less seriously;88 that it was “proportionate to the legitimate aim pursued” and the reasons adduced by the national authorities to justify interference were “relevant and sufficient”, while allowing for a variable margin of appreciation.

determining the legitimacy of religion and beliefs. Article 9 as reinforced by Article 14 “excludes any discretion on the part of the state to determine whether religious beliefs or the means used to express such beliefs are legitimate”.89 It also prevents the state from determining what principles and beliefs are to be considered central to any given religion, from making any determination as to the 81 82 83 84

85 86 87 88 89

Application No. 29086/12 (2017). Ivanova v. Bulgaria, Application No. 52435/99 (2007). Svyato-Mykhaylivska Parafiya v. Ukraine, Application No. 77703/01 (2007). Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others, Application Nos. 412/03 and 35677/04 (2009); Karlsson v. Sweden, Application No. 12356/86 (1988); Spetz and Others v. Sweden, Application No. 20402/92 (1994) and Williamson v. the United Kingdom, Application No. 27008/95 (1995). Obst v. Germany, Application No.425/03 (2010). Miroļubovs and Others v. Latvia, Application No. 798/05 (2009). Angeleni v. Sweden, Application No. 10491/83 (1986). Leyla Sahin ¸ v. Turkey, Application No. 44774/98 (2005). Jewish Liturgical Association Cha’are Shalom Ve Tsedek v. France, (2000) 9 BHRC 27, para. 84 and Manoussakis and Others v. Greece, Application No. 18748/91 (1996), para. 47.

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relative veracity of beliefs held by different groups following a religious schism, and from entering into any other sort of interpretation of religious questions.90 As stated in Hasan and Chaush v. Bulgaria,91 But for very exceptional cases, 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.

State neutrality permits intrusion only so far as is required to establish that the commitment to a religion or belief is held with cogency, seriousness, cohesion and importance.92 It was in Refah Partisi (The Welfare Party) and Others v. Turkey93 that the court gave its strongest ruling against any discretionary exercise of state authority in relation to religion. It then declared that “the State’s duty of neutrality and impartiality [among beliefs] is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs and requires the state to ensure mutual tolerance between opposing groups”. A declaration it has often repeated, most recently in Ibragim Ibragimov and Others v. Russia.94 The ECtHR has accepted that the judicial role is confined to questioning the sincerity of an individual’s alleged religion in exceptional cases and, where necessary, to make factual findings as to whether an applicant’s religious claims are genuine and sincerely held.95 State Treatment of Religion/s The principle of state neutrality is often invoked in the context of any government policy perceived to favour religion per se, or a particular religion, to the detriment of secularism.

equal treatment by the state. The state is required to treat all religious groups equally. As the ECtHR stated in Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria:96 the obligation under Article 9 of the Convention . . . on the State’s authorities [is] to remain neutral in the exercise of their powers in this domain [and] requires therefore that if a state sets up a framework for conferring legal personality on 90

91 92

93

94 95

96

˙ Izzettin Dog˘ an and Others v. Turkey, Application No. 62649/10 (2016) and Kovaļkovs v. Latvia, Application No. 35021/05 (2012). Application No. 30985/96 (2000), para. 78. Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). 13 February 2003 [ECtHR]. Cases Nos. 41340/98, 41342/98, 41343/98, para. 91. Also see Bayatyan v. Armenia, [2011] 234/9/03. [2018] ECHR 684. Skugar and Others v. Russia, Application No. 40010/04 (2009), X v. the United Kingdom, Application No. 8231/78 (1982) and Kosteski v. the former Yugoslav Republic of Macedonia, Application No. 55170/00 (2006). Application No. 40825/98 [2008] ECHR 762, para. 92.

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religious groups to which a specific status is linked, all religious groups which so wish must have a fair opportunity to apply for this status and the criteria established must be applied in a non-discriminatory manner.

A decade later, in the above mentioned Ibragimov case, it explained that the role of the state was to97 help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups. That concerns both relations between believers and non‑believers and relations between the adherents of various religions, faiths and beliefs.

This role included a specific requirement that the state take steps to ensure mutual tolerance between opposing groups.98 state prejudicial intervention. In Savez crkava “Rijeˇc života” and Others v. Croatia,99 the court noted that “the state had a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs”.100 More recently, in the context of ongoing discrimination against the Alevis in Turkey, the ECtHR found against the state in Cumhuriyetçi Eg˘ itim ve Kültür Merkezi Vakfi v. Turkey101 when it ruled that Alevi places of worship had been discriminated against in the supply of free electricity. state-supportive intervention. Very few cases have been brought before the ECtHR on issues relating to state funding of religious organisations and their serviceprovision facilities, which is surprising. In relation to faith-based schools alone, issues concerning their eligibility for direct government funding have caused heated controversy and court cases in many countries. Similar controversy has been associated with government subsidies to hospitals, day centres, homes for the elderly and other such facilities provided by religious organisations and in respect of the tax privileges, employment law exemptions and lax regulatory regimes they enjoy (see further under “Equality”). However, the European Commission of Human Rights has ruled that state support for religious communities, by means of direct public funding, does not violate the principle of freedom of religion as embodied in Article 9 of the ECHR.102 affirmative action. The ECtHR has held that pluralism and democracy, being built on a genuine recognition of and respect for diversity, requires the state to 97 98 99 100 101 102

Ibid., para. 90. Metropolitan Church of Bessarabia v. Moldova, 35 EHRR 13, para. 123. Application No. 7798/08 (2010). Ibid., para. 88. [2014] ECHR 1346 C v. UK, 37 D&R 142 (1983).

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provide for the harmonious interaction of persons and groups with varied identities such as adherence to different religions.103 It has frequently emphasised that the state’s role in such a context is to act as a neutral and impartial organiser on behalf of the various religions, faiths, beliefs and secularists; and that this role is conducive to public order, religious harmony and tolerance in a democratic society.104 Arguably, neutrality requires the state to adopt more than an impartial, uniformly objective, relationship with all religions and their associated entities. For “the preservation of pluralism”,105 the state may be required, in countries where there are several religions, to place restrictions upon the freedom of religion in order to avoid abuse by a dominant culture/religion106 and optimise opportunities for equality.107 Article 11 of the ECHR sometimes requires positive measures to be taken,108 which is of particular importance for persons holding to minority religious beliefs as they are vulnerable to victimisation.109 Article 7 of the EU Employment Equality Directive 2000/78, entitled “Positive Action” allows member states to maintain or adopt specific measures to prevent or compensate for disadvantages linked to any of the grounds covered by the directive “with a view to ensuring full equality in practice”. This is reinforced by Article 5 of the Racial Equality Directive. The need for such positive action has been noted by the UN Human Rights Committee:110 The principle of equality sometimes requires States to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions.

religious symbols/prayers in state facilities. This is a problematic issue, commonly arising in school settings following parental complaints of infringement of their rights under Article 2 of Protocol 1. Indeed it was the presenting issue in Folgerø and Others v. Norway111 and had earlier featured in Valsamis v. Greece.112

103 104

105 106 107 108

109 110

111 112

Gorzelik and Others v. Poland [GC], Application No. 44158/98 (2004). See Bayatyan v. Armenia, Application No. 23459/03 (2011); S.A.S. v. France, Application No. 43835/11 (2014) and Lautsi and Others v. Italy, Application No. 30814/06 (2011). See Bessarabia v. Moldova, Application No. 45701/99 (2001). Leyla Sahin ¸ v. Turkey, Application No. 44774/98, ECHR 2005-XI. Bessarabia v. Moldova, Application No. 45701/99 (2001). Wilson and the National Union of Journalists and Others v. the United Kingdom, Application Nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002‑V, and Ouranio Toxo v. Greece, Application No. 74989/01 (2005). Ba˛czkowski and Others v. Poland, Application No. 1543/06 (2007). See United Nations Human Rights Committee, “General Comment Relating to Discrimination under the ICCPR”, 1989, No.18, para. 10. Application No. 15472/02 (2007). (1996) Reports of Judgments and Decisions 1996-VI.

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The latter concerned a complaint from Jehovah’s Witness parents that their child, who attended a state school, had been punished for not participating in the National Day celebrations commemorating the outbreak of war between Greece and Italy. As their religious beliefs forbade any association with war commemorations, they alleged a violation of both Article 9 and Article 2 of Protocol 1. The court found that it could “discern nothing, either in the purpose of the parade or in the arrangements for it, which could offend the applicants’ pacifist convictions. . .. Such commemorations of national events serve, in their way, both pacifist objectives and the public interest”.113 The court held that neither set of provisions had been breached. The issue is also one that occasionally surfaces in the context of an official requirement to swear an oath before undertaking certain responsibilities. So, in Buscarini and Others v. San Marino [GC],114 some members of parliament, as a prerequisite to taking up their duties, had to swear an oath on the Bible while in Alexandridis v. Greece115 a court “swearing-in” procedure was an official requirement. In both, the court held that there had been a violation of Article 9 because requiring them to take an oath was tantamount to obliging them to swear allegiance to a particular religion. Article 9 was found to be similarly violated in Dimitras and Others v. Greece,116 by an obligation imposed on the applicants, as witnesses in a number of judicial proceedings, to disclose their religious convictions in order to avoid having to take an oath on the Bible. State Protection for Manifestations of Religious Belief The ECHR provides protection for the manifestation of religious belief. Article 9(2) is clear that any limitation placed on a person’s freedom to do so must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein,117 these being public safety, the protection of public order, health and morals or the protection of the rights and freedoms of others;118 though, for the purposes of Article 9, the “manifestation” must be intimately linked to the religion or belief,119 and individuals may need to take into account their specific professional or contractual situation.120 The ECtHR has done much to hold this line. However, not every act motivated or influenced by a religion or belief can

113 114 115 116 117

118

119 120

Ibid., para. 31. Application No. 24645/94 § 34, ECHR 1999-I. Application No. 19516/06 (2008). Application Nos. 42837/06, 3237/07, 3269/07, 35793/07 and 6099/08 (2010). Eweida and Others v. the United Kingdom Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). Sviato – Mykhaïlivska Parafiya v. Ukraine, Application No. 77703/01 (2007) and S.A.S. v. France, Application No. 43835/11 (2014). S.A.S. v. France, Application No. 43835/11 (2014). X. v. the United Kingdom, Application No. 8160/78 (1981).

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expect such protection.121 As the court pointed out in Otto-Preminger-Institute v. Austria,122 “Those who choose to exercise the freedom to manifest their religion . . . cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith”. Nor, in general, does Article 9 confer a right to avoid the effects of legislation that is ECHR compliant and has neutral and universal application.123 religion-specific clothing. The wearing of Islamic apparel has become an increasingly contentious phenomenon in some Western democracies and one regarding which the ECtHR rulings have varied. It has held that the protection of Article 9 extends to include such a public manifestation of personal belief even if the particular item worn was not strictly religious but had such strong traditional roots that wearing it was considered by many to constitute a religious duty.124 It has also held that in a democratic society the state may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety.125 In Ahmet Arslan and Others v. Turkey,126 the ECtHR found that the state had not established a satisfactory reason for imposing a prohibition on the wearing of religious clothing in public spaces, and failed to demonstrate that the restriction was necessary in a democratic society. The clothing in question did not conceal the face, and the prohibition was “expressly based on the religious connotation of the clothing in question”.127 In Dogru v. France128 and Kervanci v. France,129 the ECtHR upheld the expulsion of two girls from schools where they had refused to remove their Islamic headscarves, ruling that such state action was not a violation of the private right to manifest one’s religion under Article 9, and similarly in Leyla Sahin v. Turkey,130 when a university rule barring students who refused to remove their head coverings from attending classes or exams was held not to violate such rights. In S.A.S. v. France131 the ECtHR examined the French burqa ban, which rested on the proposition that clothing that concealed the face in public was 121

122 123

124 125 126 127 128 129 130 131

Pretty v. the United Kingdom, Application No. 2346/02 (2002) and Kalaç v. Turkey, Application No. 20704/92 (1997). Application No. 13470/87 (1993). Fränklin-Beentjes and CEFLU-Luz da Floresta v. the Netherlands, Application No. 28167/ 07 (2014). Hamidovi´c v. Bosnia and Herzegovina, Application No. 57792/15 (2017). Dahlab v. Switzerland, Application No. 42393/98 (February 2001). Application No. 41135/98 (2010). Ibid., paras. 136 and 151. Application No. 27058/05 (2008). Application No. 31645/04 (2010). Application No. 44774/98 (2005). Application No. 43835/11 (2014).

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incompatible with the “ground rules of social communication”. In upholding the right of the state to introduce such a law, the court noted that “the respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society”. The ECtHR acknowledged that the blanket ban was broad, carried the possibility of criminal sanctions, primarily affected Muslim women, and could result in the isolation and restricted autonomy of women who choose to wear a veil over their faces,132 but it accepted the state’s submission that the law pursued two legitimate aims: public safety133 and respect for the minimum set of values of an open and democratic society. As regards the second, it noted that in a democratic society with diverse religious beliefs, “it may be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected”.134 In a ruling that may well have wider ramifications, the ECtHR found that while a blanket ban on face coverings was not necessary for the promotion of public safety, however,135 it indeed falls within the powers of the State to secure the conditions whereby individuals can live together in their diversity. Moreover, the court is able to accept that a State may find it essential to give particular weight in this connection to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places.

This decision is at variance with decisions taken on similar issues by the Human Rights Committee. For example, in Raihon Hudoyberganova v. Uzbekistan,136 the committee found that the expulsion of a student for refusing to remove her hijab, in the absence of justification from the state, violated her right to be free from “coercion which would impair [her] freedom to have or to adopt a religion or belief of [her] choice” as protected by Article 18(2) of the ICCPR. Interestingly, a third European legal forum has recently also ruled on the wearing of religious apparel in 132 133

134 135 136

Ibid., paras. 145–146. See also Phull v. France, Application No. 35753/03 (2008), which upheld the right of airport security officials to require removal of turban, in sharp contrast to Ranjit Singh v. France, Communication No. 1876/2009, when the Human Rights Committee found a requirement to remove a turban for an identification photo violated the right to freedom of religion under the ICCPR; and El Morsli v. France, Application No. 15585/06 (2008), right to deny entry to French consulate on refusal to remove veil in front of a man for an identity check. S.A.S. v. France, Application No. 43835/11 (2014), para. 26. Ibid., paras. 141–142. Communication No. 931/2000. Also, see Bikramjit Singh v. France, Communication No. 1852/ 2008, when the Human Rights Committee found that plaintiff’s expulsion from school for refusing to remove his religious head covering violated his rights under the Covenant; and Rahime Kayhan v. Turkey, Communication No. 8/2005, when CEDAW considered a complaint from a teacher that the required removal of her headscarf violated her right to work under Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women.

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the workplace. The ECJ, in Samira Achbita and Anor v. G4S Secure Solutions NV137 and in Bougnaoui v. Micropole SA,138 considered whether a private employer was permitted to prohibit a female Muslim employee from wearing a headscarf in the workplace and to dismiss her if she refused to remove it. The hearings, conducted by different advocates general, reached different conclusions: rejecting and affirming the appeals respectively. In Achbita the Advocate General Kokott noted, “the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities”.139 He also noted that “if a ban such as that at issue here proved to be based on stereotypes or prejudice in relation to one or more specific religions – or even simply in relation to religious beliefs generally”, then “it would without any doubt be appropriate to assume the presence of direct discrimination based on religion”.140 The decision – that company rules banning the wearing of visible religious, political or philosophical symbols do not constitute direct discrimination on the grounds of religion or belief – would seem to be in contradiction to that delivered by the ECtHR in Eweida (see further in Chapter 6). religion-specific clothing: state employees. If the plaintiff is employed as a public official, then state neutrality applies. The court will uphold the right of the state to give effect to a secularist policy by prohibiting its representatives from wearing religion-specific clothing in the workplace. In Dahlab v. Switzerland,141 for example, the court took into account that the headscarf was sanctioned by principles in the Qur’an but was of the view that these were hard to square with the principle of gender equality. It considered that it was difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, the values of equality and non-discrimination that all teachers in a democratic society must convey to their pupils. It also noted that a teacher wearing a headscarf might have a proselytising effect. In the similar case of Kurtulmus v. Turkey,142 it found that in a democratic society the state was entitled to restrict the wearing of Islamic headscarves if the practice clashed with the aim of protecting the rights and freedoms of others: by choosing to become a civil servant, the plaintiff teacher could be deemed to have accepted the state’s policy. Again, in Ebrahimian v. France,143 the court dismissed a psychiatric social worker’s appeal

137 138 139 140 141 142 143

[2016] EUECJ C-157/15 (31 May 2016). [2016] EUECJ C-188/15 EU:C:2016:553 (13 July 2016). Ibid., para. 3. Ibid., para. 5. Application No. 42393/98 (2001). Application No. 65500/01 (2006). [2015] ECHR 1041.

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against an administrative decision not to renew her contract at a public hospital for refusing to remove her hijab. religion-specific clothing: service users in state facilities. The general rule is that state neutrality applies: as the user is not a state representative engaged in public service, he or she is therefore free to express their religious beliefs by wearing religion-specific clothing inside a public building or in dealings with the public authorities.144 Courtrooms and public hospitals may be exceptions. religion-specific customs, practices and rituals. The extent to which the state recognises and protects the right of groups to claim a distinctive religious/ cultural identity, particularly ethnic minorities, is considered to be a revealing indicator of the health of a democratic society. Conversely, issues are likely to occur when state laws fail to differentiate the needs of such minorities from those of the majority. This becomes more complex when a minority in a democratic state – such as Muslims – assert that modesty is the imperative and this involves the rejection of any representation of the human form – photographs, paintings, sculpture – as idolatrous, or shirk. In Fränklin–Beentjes and CEFLU–Luz da Floresta v. the Netherlands,145 the issue was the seizure and confiscation of a quantity of ayahuasca, a hallucinogenic substance consumed during ceremonies in the religion known as the “Santo Daime Church”. The court decided that the confiscation, taken under drugs legislation, had been “necessary in a democratic society” for the protection of health. However, where a universal policy or law, though couched in neutral terms, has a disproportionately prejudicial effect on the interests of a minority ethnic or religious group and there are no public health and safety concerns, the ECtHR has ruled that this will constitute unlawful discrimination. Such was alleged to be the case in Cha’are Shalom ve Tsedek v. France,146 which concerned a Jewish liturgical association’s complaint about the French authorities’ refusal to grant it the approval necessary for access to slaughterhouses that performed ritual slaughter in accordance with the ultra-orthodox religious prescriptions of its members, for whom meat is not kosher unless it is glatt. In the court’s opinion, observing dietary rules could be considered a direct expression of beliefs in practice and therefore within the parameters of Article 9. However, since it had not been established that Jews belonging to the applicant association could not obtain glatt meat, the court considered that the refusal of approval did not constitute an interference with the applicant association’s right to the freedom to manifest its religion. While the interference was found to be justified in that case, it was not in Jakobski v. Poland147 where the court ruled that it was unlawful for prison authorities 144 145 146 147

Ebrahimian v. France, Application No. 64846/11 (2015). Application No. 28167/07 (2014). Application No. 27417/95 (2000). [2010] 30 BHRC 417. Also see Bayatyan v. Armenia, Application No. 23459/03 [2011].

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to deny a Buddhist prisoner a vegetarian diet even though such a diet was not strictly required by Buddhism; it was sufficient and not unreasonable that the prisoner believed it necessary to manifest his beliefs in that way. Arguably, the threshold of conduct required to justify interference would seem to have changed in recent years and now places a heavier onus upon those doing so to justify their actions. A leading case on the violation of Article 9 due to the disproportionate effects of a universal policy on a minority group was D.H. v. Czech Republic,148 which concerned the routine practice of diverting all Roma children into “special” schools designated for those with learning difficulties. The court found that such a blanket policy clearly worked to the detriment of all Roma children without learning difficulties and considered that there was an “obligation to make reasonable adjustments” – a ruling equally applicable in circumstances where the interests of a religious minority are being significantly disadvantaged by the effects of a blanket policy149 and where the religious rituals or customs of a minority group are detrimentally affected by such policies. Arguably, though, where such customs are not human rights compliant – such as talaq divorce, nikah marriage or FGM – then the strictures of universal domestic law and policy should prevail. However, as has been judicially noted, “the role of authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”,150 though clearly where the cause of tension is also nonhuman-rights compliant, then state suppression of the custom, practice or ritual in question is justified and necessary. state protection of its traditional religious/cultural identity. As important as Article 9 is in asserting the right to freedom of religion, it is subject to the significant caveat that state neutrality must not be interpreted as requiring it to diminish the role of a faith or a church with which the population of a specific country has been historically and culturally associated.151 While “new” religious communities cannot be disadvantaged relative to traditional religious organisations, the state has a right to take steps to protect its cultural heritage, including any religion that may have traditionally formed part of that heritage. To many of those who belong to other religions and to none, the principle of state neutrality may well seem compromised by such a caveat and indeed the special rapporteur has warned that many states promote certain religions in order to define and demark their national or cultural identity; privileged religions also exist under the auspices of “secular” states, and in spite of their claim to be religiously neutral, quite a number 148 149

150 151

Application No. 57325/00 (2007). See, for example, Pla and Puncernau v. Andorra (2006), Application No. 69498/01, 42 EHRR 25. Serif v. Greece, Application No. 38178/97 (1999), para. 53. Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, Application No. 71156/01 (2007).

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of formally secular states nonetheless use religion to demarcate their national identity.152 A judicial concern to ensure that the established cultural identity of a member state does not become neutralised by the secularism of its institutions is evident in the case law.153 So, for example, in Folgerø and Others v. Norway,154 which concerned an objection to the compulsory teaching in state schools of religious knowledge that concentrated on Christianity to the detriment of other religions, finding that such an institutional representation of a nation’s majority religion did not in itself contravene Article 2 of Protocol 1, the Grand Chamber ruled as follows:155 [T]he fact that knowledge about Christianity represented a greater part of the Curriculum for primary and lower secondary schools than knowledge about other religions and philosophies cannot, in the court’s opinion, of its own be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. . .. In view of the place occupied by Christianity in the national history and tradition of the respondent State, this must be regarded as falling within the respondent State’s margin of appreciation in planning and setting the curriculum.

This ruling, coming firmly down in favour of the right of the state to protect its cultural and religious identity, was reiterated in Hasan and Eylem Zengin v. Turkey,156 when the court acknowledged that the “greater priority [given] to knowledge of Islam” was justified by “the fact that, notwithstanding the state’s secular nature, Islam is the majority religion practised in Turkey”. This approach seemed to reach its apotheosis in Lautsi v. Italy,157 which focused on the religious discrimination – as perceived by secularist parents – represented by a crucifix in every classroom of the school in which their child was a pupil. Ultimately the court ruled that this was permissible as “a European court should not be called upon to bankrupt centuries of European tradition. . .. This court ought to be ever cautious in taking liberties with other people’s liberties, including the liberty of cherishing their own cultural imprinting”.158 By way of contrast, the ECtHR found against a plaintiff who objected to a ban on building minarets, which had been added to the Swiss Federal Constitution by referendum.159 The court was able to avoid the cultural issue by finding that the applicant did not have locus standi.

152

153

154 155 156 157 158 159

A/HRC/34/50, para. 28, see further www.ohchr.org/EN/Issues/FreedomReligion/Pages/Annual .aspx Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, Application No. 71156/01 (2007). Application No. 15472/02 (2007). Ibid., para. 89. [2007] ECHR 787. Application No. 30814/06 (2011). Ibid., per J. Bonello, para. 1.2. Quardiri v. Switzerland, Application No. 65840/09 (2011).

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However, proportionality is the key principle in this as in so many other ECHR matters. Accordingly, the ECtHR has adopted a more balanced approach in recent years. For example, it stressed in Akda¸s v. Turkey160 that it is frequently necessary “to take into consideration the existence, within a single state, of various cultural, religious, civil or philosophical communities”. More recently, in Mansur Yalçın and Ors v. Turkey,161 the court reiterated that in the exercise of its regulatory power in this area and its relationship with various religions, faiths and beliefs, the State, as the ultimate guarantor of pluralism in a democratic society, including religious pluralism, must be neutral and impartial.

Safeguarding pluralism, by protecting the rights of several religions coexisting within the same population and thereby stabilising civil society may, as noted earlier, necessitate taking proactive measures to “secure to everyone within their jurisdiction the rights and freedoms defined in . . . [the] Convention” (Article 1) or it may necessitate imposing restrictions in order to reconcile the interests of the various groups. Neutral mediation does not constitute state interference.162

Freedom of Association For those of religious belief, as for those without, the freedom to form associations in order to organise and engage in collective activity in pursuit of their common interests is of fundamental importance and the fact that the rights of Article 9 may be exercised by an ecclesiastical or religious body is, therefore, of significance. Article 20 of the UDHR firmly excludes state interference in any such collective endeavour: (1) Everyone has the right to freedom of association. (2) No one may be compelled to belong to an association. As the ultimate guarantor of the principles of pluralism, tolerance and broadmindedness, the state must act to ensure the freedom to participate in political processes is available to all.163 This right to participate is considered to be a core concept lying at the heart of a democratic society.164 The right to form associations constitutes a hallmark of democracy165 and is reinforced by Article 22 of the ICCPR and Article 8 of the ICESCR. The ECtHR 160 161 162

163

164

165

Application No. 41056/04 (2010). Mansur Yalçın and Ors v. Turkey, [2014] ECHR 938, para. 68. Supreme Holy Council of the Muslim Community v. Bulgaria, Application No. 39023/ 97 (2004). Informationsverein Lentia and Others v. Austria, judgment of 24 November 1993, Series A no. 276, p. 16, § 38. Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42 and Castells v. Spain, judgment of 23 April 1993, Series A no. 236, p. 23, § 43. Also see the Helsinki Accords of the Organisation (former Conference) on Security and Cooperation in Europe (OSCE), the Freedom of Association and Protection of the Right to

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has consistently held the view that a refusal by the domestic authorities to grant legal-entity status to an association of individuals, or to re-register such an association,166 amounts to an interference with the applicants’ exercise of their right to freedom of association.167 Further, it has recognised that “religious communities traditionally exist in the form of organised structures”; therefore, where the organisation of the religious community is at issue,168 “Article 9 of the Convention must be interpreted in the light of Article 11 which safeguards associative life against unjustified state interference.169 Indeed, the autonomous existence of religious communities is considered to be indispensable for pluralism in a democratic society”.170 When adherents of religious organisations congregate for purposes of collective worship, or for other reasons such as teaching, their right to do so finds protection under Article 9.171 This does not confer any right to meet “in community with others” wherever the adherents wish.172 Nor can associations claim, under Article 34, to be a victim of acts or omissions affecting the rights and freedoms of its individual members as the latter have an independent capacity to seek redress.173 However, the freedom of peaceful assembly is capable of being exercised not only by individual participants but also by those organising it, including legal entities.174 Any unlawful disruption will therefore affect the organisers as well as participants and give both a cause for legal action.175 Religious Organisations and the State Only the most serious grounds will justify the banning or dissolution of a religious organisation if this is to meet the test of being “necessary in a democratic

166 167

168 169

170

171

172

173

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Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention 1949 (No. 98). Moscow Branch of the Salvation Army v. Russia, Application No. 72881/01 (2007). See Gorzelik and Others v. Poland [GC], Application No. 44158/98 (2004) and Sidiropoulos and Others v. Greece, Application Nos. 57/1997/841/1047 (1998). Also, Kimlya and Others v. Russia, Application No. 76836/01 and 32782/03, ECHR 2009. See Metropolitan Church of Bessarabia v. Moldova, Application No. 45701/99 (2002). See NF v. Italy, [2001] ECHR 501 and Maestri v. Italy, [2004] ECHR 77 in both of which the ECtHR ruled that the disciplining of judges because they were Freemasons violated their right to association under Article 11. Metropolitan Church of Bessarabia v. Moldova, Application No. 45701/99 (2002), para. 61. See also Hasan and Chaush v. Bulgaria, Application No. 30985/96 (2000) and Genov v. Bulgaria, Application No. 40524/09 (2017), para. 35. The Church of Jesus Christ Latter-Day Saints v. the United Kingdom, Application No. 7552/ 09 (1999). Cyprus v. Turkey, [GC], No. 25781/94, ECHR 2001-IV, Krupko and Others v. Russia, Application No. 26587/07 (2014) and Chappell v. the United Kingdom, Application No. 12587/86 (1987). Fédération chrétienne des témoins de Jéhovah de France v. France, Application No. 53430/99 (2001) and Association des Amis de Saint-Raphaël et de Fréjus and Others v. France, Application No. 45053/9829 (2000). Hyde Park and Others v. Moldova (Nos. 5 and 6), Application Nos. 6991/08 and 15084/08 (2010) and Christians against Racism and Fascism, Application No. 8440/78 (1980). Identoba and Others v. Georgia, Application No. 73235/12 (2015), para. 48.

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society”.176 The ECtHR has ruled that if an association’s activities constitute widespread intimidation, then it can be lawfully banned.177 It was the state closure of the Jumah Mosque Congregation that gave the ECtHR an opportunity to consider more broadly the tension between the rights to freedom of religion and the freedom of association.178 The basis for the enforced closure was that while the organisation purported to be a non-governmental organisation delivering community support services, it was in fact engaging in religious activities and functioning as a religious organisation (registration requirements differentiated between the two) when it was prohibited from doing so. As a broad principle, with application to associations engaging in religious activities, the court noted that179 citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned.

In this instance, however, the technicality that there was no statutory definition of what constituted “religious activity” allowed the court to sidestep any ruling on a possible conflict of rights. The state can of course investigate and instigate proceedings against religious organisations, as it can in relation to any other association or corporate body, where allegations of illegal activities are concerned. The many official national reports detailing the prosecution of churches and clergy for child abuse testify to the fact that they have no immunity from criminal proceedings. intervention in church disputes. State neutrality requires the relevant authorities to resist mediating between religious organisations and the various dissident factions that exist or may emerge within them. Respect for the autonomy of religious organisations implies that the state should accept the right of such organisations to deal with, in accordance with their own rules and interests, any emerging dissident movement.180 Church disputes are not necessarily theological. Serif v. Greece181 and Hasan and Chaush v. Bulgaria,182 for example, both concerned the disputed leadership of Muslim communities. In the latter, the dispute had in effect been resolved by the 176 177 178

179 180

181 182

Biblical Centre of the Chuvash Republic v. Russia, Application No. 33203/08 (2014). Vona v. Hungary, Application No. 35943/10 (2013). See Juma Mosque Congregation and Ors v. Azerbaijan, Application No. 15405/04 (2013) and Islam-Ittihad Association and Ors v. Azerbaijan, Application No. 5548/05 (2014). Juma Mosque Congregation and Ors v. Azerbaijan, Application No. 15405/04 (2013), para. 39. Sindicatul “P astorul cel Bun” v. Romania, Application No. 2330/09 (2013) and Fernández Martínez v. Spain, Application No. 56030/07 (2014). Application No. 38178/97, ECHR 1999-IX. Application No. 30985/96 (2000).

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Bulgarian Government replacing the incumbent with another candidate who had previously held the post. The ECtHR found there had been a failure by the authorities to remain neutral in the exercise of their powers in the administrative registration of religious communities and concluded that the state had interfered with the believers’ freedom to manifest their religion within the meaning of Article 9 of the convention. This case was closely followed by Metropolitan Church of Bessarabia and Others v. Moldova,183 which concerned the Moldovan authorities’ refusal to recognise the Metropolitan Church of Bessarabia, an Orthodox Christian church, on the ground that it had split up from the Metropolitan Church of Moldova, which was recognised by the state. The ECtHR took the view that the Moldovan Government had failed to discharge its duty of neutrality and impartiality: its refusal to recognise the applicant church constituted an interference with the right of that church and the other applicants to freedom of religion, as guaranteed by Article 9. Some time later, in Jehovah’s Witnesses of Moscow v. Russia,184 the court considered a complaint about the dissolution of the religious community of Jehovah’s Witnesses of Moscow, the banning of its activities, and the refusal of the Russian authorities to re-register their organisation. It found that the decision regarding the community’s dissolution constituted a violation of Article 9 as this had been an excessively severe and disproportionate sanction. The court also held that there had been a violation of Article 11 of the convention read in the light of Article 9, finding that in denying re-registration to the Jehovah’s Witnesses of Moscow, the Moscow authorities had not acted in good faith and had neglected their duty of neutrality and impartiality vis-à-vis the applicant community. Again, in Magyar Keresztény Mennonita Egyház and Others v. Hungary,185 the applicants were various religious communities that had been registered as churches in Hungary and received state funding until the introduction of the Church Act in 2012. Thereafter only a number of recognised churches continued to receive funding while all other religious communities lost their status as churches but were free to continue their religious activities as associations. The ECtHR considered that the deregistration had not been “necessary in a democratic society” and therefore held that there had been a violation of Article 11, read in the light of Article 9. The Hungarian Government had not shown that there were not any other, less drastic solutions available. It was inconsistent with the state’s duty of neutrality in religious matters that religious groups had to apply to Parliament to be re-registered as churches.186

183 184 185

186

Application No. 45701/99 (2001). Application No. 302/02 (2010). Application Nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12 (2014). Also see Magyar Keresztény Mennonita Egyház and Others v. Hungary (Just Satisfaction), [2016] ECHR 593.

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Similarly in Jehovah’s Witnesses Association and Ors v. Turkey,187 which concerned an allegation that the thirty-four groups of Jehovah’s Witnesses in Turkey were discriminated against because they were members of a minority religious community and effectively denied any legal place of worship as these were likely to be closed by the authorities at any time and worshippers prosecuted. The ECtHR found that the state took no account of the needs of small religious communities, even though all they required was a simple meeting room in which to worship, meet and teach their beliefs. This amounted to a direct interference with the applicants’ freedom to manifest their religion that was neither proportionate to the legitimate aim pursued nor necessary in a democratic society.188 The principle was also applied in Savez crkava “Rijeˇc života” and Others v. Croatia,189 where the question for the court was whether the difference in state treatment had “objective and reasonable justification”, that is, whether it pursued a “legitimate aim” and whether there was a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. It held that in this instance, state intervention amounted to religious discrimination. As “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”,190 the ECtHR gave the matter of such autonomy close examination in Sindicatul “P astorul cel Bun” v. Romania,191 which concerned a dispute regarding trade-union rights. The applicants, who were Orthodox priests and lay employees of the Romanian Orthodox Church, had formed a trade union to defend the professional interests of its members but the respondent state authorities had refused to register the trade union as this was debarred by statute. The archdiocese had opposed recognition arguing that the aims set out in the union’s constitution were incompatible with the duties accepted by priests by virtue of their ministry and their undertaking towards the archbishop. It asserted that the emergence within the structure of the church of a new body of this kind would seriously imperil the freedom of religious denominations to organise themselves in accordance with their own traditions, and that the establishment of the trade union would therefore be likely to undermine the church’s traditional hierarchical structure. The ECtHR found that it had been reasonable to take the view that a decision to allow the registration of the applicant union would create a real risk to the autonomy of the religious community in question and it disallowed the appeal. 187 188 189 190

191

[2016] ECHR 453. Ibid., para. 108. Application No. 7798/08 (2010). Obst v. Germany, Application No.425/03 (2010), para. 44, citing: Hasan and Chaush v. Bulgaria, Application No. 30985/96 (2000); Metropolitan Church of Bessarabia and Others v. Moldova, Application No. 45701/99, §§ 115–116, ECHR 2001-XII and Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, Application Nos. 412/03 and 35677/04 (2009). Application No. 2330/09 (2013).

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state preferencing of religious organisations and communities. In some countries, the freedom of association coexists with state privileges for associations that happen to be religious. An extreme example of this is the phenomenon of an “established” church that exists in a number of countries and is invariably accompanied by social facilities owned and often staffed by it. Essentially, the freedom of association is predicated on the autonomous existence of religious communities, which is clearly compromised by the concept and role of an “established” church. Autonomy would seem indispensable for pluralism in a democratic society, for religious organisations of all types, for their ancillary entities and for their adherents. This has been recognised by the ECtHR and is viewed as warranting the protection of Article 9.192

Freedom of Expression As the ECtHR has noted, “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self‑fulfilment”.193 For the religious and religious organisations,194 as for all others, Article 19 of the UDHR declares that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Reinforced by Articles 19 and 20(2)195 of the ICCPR and Article 10 of the ECHR, this right is constrained by conditions under the ICCPR, by “certain restrictions” as are “necessary”, and under the ECHR, by such restrictions as may be “necessary in a democratic society”. Being for the greater good of society, these constraints are viewed as compatible with state neutrality.196 The expression can be ideological or obscene, denigrating or untruthful, and it may be lawfully exercised in a manner that causes outrage. In Ibragim Ibragimov and Others v. Russia,197 the ECtHR considered the domestic courts’ decision to ban books from publication and distribution because their Islamic “extremist” nature posed a threat to public authority. It found that the Russian courts had failed to justify why it had been necessary to ban the books, which had first been published in 2000, translated into fifty languages and had never been known to cause social unrest. The ECtHR, asserting the importance of state neutrality, ruled that it had not 192

193 194 195 196 197

Hassan and Tchaouch v. Bulgaria, Application No. 1448/04 (2007) and Fernández Martínez v. Spain, Application No. 56030/07 (2014). See, for example, Ibragim Ibragimov and Others v. Russia, [2018] ECHR 684, para. 91. X and Church of Scientology v. Sweden, Application No. 7805/77 (1979). Also see A/HRC/22/17. Dubowska and Skup v. Poland, Application Nos. 33490/96 and 34055/96 (1996). Ibid.

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been “necessary in a democratic society” to ban the books in question, therefore Article 10 had been violated, and it repeated advice it has offered in the past:198 The Court has frequently emphasised that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. . .. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.

While the law is most often concerned with clashes between the rights to freedom of expression and freedom of religion, arguably the two sets of rights can also be viewed as mutually reinforcing. Indeed the Human Rights Council, in resolution 16/18,199 attaches great importance to their interaction, which it considers plays a key role in building trust between different religious or belief communities as well as in society at large: this includes a broad range of measures in the areas of education, awarenessbuilding, outreach strategy, inter-religious communication and public discourse. As the Rabat Plan of Action explains:200 It is often purported that freedom of expression and freedom of religion or belief are in a tense relationship or even contradictory. In reality, they are mutually dependent and reinforcing. The freedom to exercise or not exercise one’s religion or belief cannot exist if the freedom of expression is not respected, as free public discourse depends on respect for the diversity of convictions which people may have. Likewise, freedom of expression is essential to creating an environment in which constructive discussion about religious matters could be held.

Free Speech Europe in the twenty-first century has so far seen no more poignant challenge to the importance of free speech for democracy than the cruel attack perpetrated by Saïd and Chérif Kouachi, on the staff of the Charlie Hebdo magazine in Paris.201 In fact this right is frequently associated with alleged violations of the freedom of religion and across the world clashes between the two are increasingly attracting lethal violence. In Handyside v. The United Kingdom,202 and in other cases,203 the ECtHR declared that the right to free speech

198 199

200 201

202 203

Ibid., para. 90. See further www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.RES.16.18_en .pdf See A/HRC/22/17 Add.4, appendix, para. 10. On 7 January 2015, two Islamic gunmen attacked the Paris office of the satirical magazine Charlie Hebdo, killing eight staff and others. (5493/72) [1976] ECHR 5. For example, Mouvement raëlien suisse v. Switzerland [GC], Application No. 16354/06 (2012), Stoll v. Switzerland [GC], Application No. 69698/01, ECHR 2007-V and S.A.S. v. France, Application No. 43835/11 (2014).

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is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.

This approach has prompted it to issue rulings condemning government bans on public demonstrations by LGBT groups.204 However, the ECtHR has recognised that there is a balance to be struck between the right to exercise free speech by expressing matters of conscience and the duty to do so in a manner that does not violate the rights of others and, at this point, it is incumbent upon the state to demonstrate neutrality, not bias or indifference.205 It has ruled that the state has a duty to prevent hatred-motivated violence on the part of private individuals and is allowed to take measures “to provide protection against seriously offensive attacks on matters regarded as sacred by Christians”206 and equally “to provide protection against offensive attacks on matters regarded as sacred by Muslims”.207 It has advised that “amongst the responsibilities of the member states – in the context of religious opinions and beliefs – may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs”.208 It also has a duty to investigate the existence of a possible link between a discriminatory motive and an associated act of violence. These form part of the state’s positive responsibilities under Article 14209 and include a responsibility to foresee a predictable confrontational response to a legitimate exercise of free speech and to take appropriate protective measures.210 In particular the state must ensure that any violence associated with an exercise of free speech does not breach the Article 3 threshold – no one shall be subjected to torture or to inhuman or degrading treatment or punishment – that may occur when that speech is unduly provocative and inflammatory. Whether or not it does so will depend on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in

204

205

206 207 208 209 210

Ba˛czkowski and Others v. Poland, Application No.1543/06 (2007); Alekseyev v. Russia, Application Nos. 4916/07, 25924/08 and 14599/09 (2010) and Genderdoc-M v. Moldova, Application No. 9106/06 (2012). Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, Application No. 71156/01 (2007). Also see Begheluri v. Georgia, Application No. 28490/02 (2015) and Tsartsidze and Others v. Georgia, Application No.18766/04 (2017). Wingrove v. the United Kingdom, (1996) 24 EHRR 1, para. 57. I.A. v. Turkey, Application No. 42571/98 (2005), para. 30. Wingrove v. the United Kingdom, (1996) 24 EHRR 1, para. 49. B.S. v. Spain, Application No. 47159/08 (2012). Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, Application No. 71156/01 (2007), and Identoba and Others v. Georgia, Application No. 73235/12 (2015).

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some instances, the sex, age and state of health of the victim.211 As Article 3 extends to the infliction of psychological suffering, the violence can be qualified as degrading when it arouses in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them.212 For example, in Identoba and Others v. Georgia,213 the ECtHR ruled that violence perpetrated against LGBT claimants by others during a peaceful march, and the lack of police protection, constituted a breach of the claimants various rights under the ECHR. It also found that the state had failed in its positive obligations, under Articles 3 and 14, to take appropriate preventative measures when faced with predictable violence – a failure to effectively exercise state neutrality – and thereby could be perceived as condoning or conniving in it. The court found that214 genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 of the Convention. This provision sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.215 That positive obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation.216

The ECtHR has often ruled that using religious artefacts to deliberately provoke adherents can constitute a violation of their rights under Article 10217 but also under Article 9.218 Further, the special rapporteur has warned that the freedom of religion primarily confers a right to act in accordance with one’s religion, not a right for believers to have their religion itself protected from all adverse comment.219 In general, however, plaintiffs appealing under Article 9 that their religious sensibilities have been offended are most usually dismissed as there is no right not to be offended. blasphemy. Statutory offences outlawing apostasy, heresy and blasphemy reflect a traditional state commitment to protect religion and require public respect for the

211 212

213 214 215

216 217

218 219

Costello-Roberts v. The United Kingdom, 1993, § 30, Series A no. 247‑C. Gäfgen v. Germany [GC], Application No. 22978/05 (2010) and Eremia v. the Republic of Moldova, Application No. 3564/11 (2013). Identoba and Others v. Georgia, Application No. 73235/12 (2015). Ibid., para. 94. Citing Wilson and the National Union of Journalists and Others v. the United Kingdom, Application Nos. 30668/96, 30671/96 and 30678/96 § 41, ECHR 2002‑V, and Ouranio Toxo v. Greece, Application No. 74989/01 (2005). Citing Ba˛czkowski and Others v. Poland, Application No. 1543/06 (2007). See Wingrove v. the United Kingdom, 25 November 1996, Reports of Judgments and Decisions ˙ 1996-V; I.A. v. Turkey, Application No. 42571/98, ECHR 2005-VIII; Giniewski v. France, Application No. 64016/00, ECHR 2006-1 and Klein v. Slovakia, Application No. 72208/01 (2006). Otto-Preminger-Institut v. Austria, 20 September 1994, Series A no. 295-A. A/HRC/31/18, para. 6; citing A/HRC/2/3, para. 37.

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status of the church. As the Special Rapporteur has commented, “Blasphemy laws do not contribute to a climate of religious openness, tolerance, non-discrimination and respect. . .. They often fuel stereotyping, stigmatization, discrimination and incitement to violence”.220 The Human Rights Committee has declared them to be incompatible with the ICCPR221 and, although not prohibited by Articles 18 and 19, such laws have now been largely repealed; though not in some fifty-nine countries, including a few common law jurisdictions.222 Currently blasphemy is mostly significant in an Islamic context where expressions of irreverence towards Muhammad can have serious consequences, resulting in the deaths of many in Pakistan and also in twenty-first century protests, violence and death in Europe, where those judged to have insulted or acted with disrespect towards the prophet Muhammad have been attacked by his followers. In 2018, the ECtHR upheld the conviction for blasphemy of Elisabeth Sabaditsch-Wolff, an Austrian political activist who described the Prophet Mohammad as a “paedophile”, and ruled that the Austrian conviction did not violate Article 10 of the ECHR.223 As interpreted and practised by some Muslim communities in contemporary Western societies, blasphemy has come to indicate a serious threat to the stability of civil society.224 The Rabat Plan of Action calls for the repeal of all anti-blasphemy laws on the grounds that “such laws stifle and unduly inhibit both the right to freedom of expression and the right to freedom of religion or belief”.225 proselytism. Proselytism is subject to a test of reasonableness and must not be exercised improperly226 as will be the case, for example, if it interferes with the rights of others to be free from the inappropriate promotion of religion either as a service user or while working. This is reinforced by Article 18(1) of the ICCPR, which provides that no one shall be subject to coercion that would impair the ability to choose a religion and that freedom to manifest one’s religion may be subject to domestic legal restrictions such as are “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. Arguably, Islamic proselytism – or dawa – is not ICCPR compliant as, going far beyond information dissemination and persuasion, it licenses indoctrination.227

220 221 222

223 224 225 226 227

A/HRC/31/18, para. 60. See the Human Rights Committee, General Comment no. 34 (2011). See 2011 Pew Research Centre report, www.pewforum.org/2011/08/09/rising-restrictions-onreligion6/ Application No. 38450/12 (2018). See, for example, Germany v. Y and Z (Cases C–71/11 and C–99/11), [2013] 1 CMLR 5. See Report of the UN Special Rapporteur on Freedom of Religion or Belief, 2017, para. 18. Kokkinakis v. Greece, [1993] 17 EHRR 397. See further A. H. Ali, The Challenge of Dawa, www.hoover.org/sites/default/files/research/docs/ ali_challengeofdawa_final_web.pdf

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In Kokkinakis v. Greece the ECtHR defended the right to proselytise as follows:228 [T]o manifest one’s religion . . . not only exercisable in community with others, “in public” and within the circle of those whose faith one shares, but can also be asserted “alone” and “in private”; furthermore, it includes in principle the right to try to convince one’s neighbour . . . through “teaching”, failing which . . . “freedom to change [one’s] religion or belief” . . . would be likely to remain a dead-letter.

The court then drew a distinction between “evangelism” and “improper proselytism” when it found that the Greek courts were wrong to convict a Jehovah’s Witness for “improper proselytism” following his attempt to bring his neighbour “good news” by entering her house and offering to sell to her some booklets advertising that religion and ruled that the Greek anti-proselytism law impermissibly interfered with freedom of religion. There are circumstances in which the proactive dissemination of doctrines and observances might include activities that others may find objectionable and some could experience as discriminatory. In D.H. v. Czech Republic,229 the ECtHR considered that the Islamic veil was a “powerful external symbol” capable of having a proselytising effect, at least on very young children. Although, as in Lautsi v. Italy,230 it would seem that where the symbols manifesting religious beliefs are of a passive nature, not such as to constitute indoctrination or misplaced proselytism, then they should be accommodated. Matters of Conscience That “everyone shall have the right to freedom of . . . conscience” is clearly established in Article 18 of the ICCPR. Although the ECtHR has found that “one” does not include a collective such as a religious organisation as a legal entity cannot exercise freedom of conscience,231 it does recognise that freedom of thought, conscience and religion is “a precious asset for atheists, agnostics, sceptics and the unconcerned”.232 In practice, this right is one that tends to overlap with the freedom of expression.

refusal to bear arms. Not until Bayatyan v. Armenia233 was it determined that the claims of a conscientious objector need not be subject to the constraints of Articles 18 of the UDHR and ICCPR but could find protection under the broader umbrella of Article 9 of the ECHR.234 This case concerned a Jehovah’s Witness who alleged that his conviction for refusal to serve in the army had violated his right 228 229 230 231 232 233 234

Kokkinakis v. Greece, (1993) 17 EHRR 397, p. 418. Application No. 42393/98, 2001-V ECtHR 449. Application No. 30814/06, ECtHR (18 March 2011). Kontact-Information-Therapie and Hagen v. Austria, Application No. 1192/86 (1988). Kokkinakis v. Greece, [1993] 17 EHRR 397. [2011] 234/9/03. See Arrowsmith v. United Kingdom, (1978) 3 EHRR 218 for evidence that Article 9 was initially narrowly construed.

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to freedom of thought, conscience and religion. The ECtHR took the view that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.235 This decision, reversing previous case law and preparing the ground for several similar cases also involving Jehovah’s Witnesses,236 offer protection not only to those whose religion clearly prohibits military service but also to anyone who holds authentic beliefs to the same effect and, arguably, it applies to conscientious objection in other contexts such as the delivery of abortion services. It thereby significantly adds to the existing onus on the state to extend protection to those who, for reasons of religion, belief or conscience, are to be exempted from civic duties that bind their fellow citizens. public interest and personal conscience. The ECtHR has accepted that the right of an individual to act in accordance with their conscience may be legitimately restricted by the public interest in ensuring equal treatment for all users: for example, as regards the treatment of children of Jehovah’s Witnesses and of same-sex couples.237 Interestingly, the ECtHR has repeatedly found no violation of Article 9 in cases where a conscientious objector has protested that laws of universal application unduly burden their particular religious beliefs, as, for example, when a citizen refused to pay taxes because some of the revenue would fund abortions238 or when a Sikh motorcyclist refused to wear a crash helmet as this would entail removing his turban.239 Particularly as regards healthcare, it has emphasised the need for states to police the balancing of private conscience and public benefit:240 States are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.

It would seem that in such cases, including where a Quaker objected to paying a certain percentage of his tax unless he could be sure it would not be allocated to

235 236

237 238 239 240

Bayatyan v. Armenia, Application No. 23459/03 [2011], para. 110 See in Armenia, Bukharatyan v. Armenia, Application No. 37819/03 (2012) and Tsaturyan v. Armenia, Application No. 37821/03 (2012); and in Turkey, Erçep v. Turkey, Application No. 43965/04 (2011), Feti Demirta¸s v. Turkey, Application No. 5260/07 (2012) and Buldu and Others v. Turkey, Application No.14017/08 (2014). Ibid. Bouessel du Bourg v. France, Application No. 20747/92 (1993). X. v. the United Kingdom, Application No. 8160/78 (1981). R.R. v. Poland, Application No. 27617/04 (2011), para. 206 and ECHR, P. and S. v. Poland, Application No. 57375/08 (2012), para. 106.

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financing the military sector,241 state neutrality is in play as the public benefit to all citizens is held to justify the imposition of a universal burden even though this proportionately disadvantages some more than others. There is a long and wide-ranging spectrum of ECtHR case law dealing with the tension between public healthcare requirements and compliance with personal conscience.

european case law: the church–state relationship and equality rights Equality rights have demonstrated a propensity for entanglement with the right to religious freedom, as “the right to freedom of religion or belief and the right to equality are intimately linked”.242 The laws relating to matters of equality and discrimination are inescapably relevant for present purposes because they reflect the balance struck in domestic church–state relationships and because they reveal the nature of religion and equality intersects – located, as Mrs Eleanor Roosevelt noted sixty years ago,243 primarily in the family, in education and in the workplace – which results in the contemporary domestic case law patterns outlined below. It should, perhaps, also be borne in mind that the roots of certain fundamental human rights issues – such as gender inequality – precede the current clashes between religion and equality as they can probably be traced back to a religiously assigned patriarchal social structure. Equality and the Church–State Relationship State neutrality requires the state to notionally cordon off a public space within which religious organisations may take their place, alongside a range of organisations representing those of different beliefs and those of none, to share equally in creating and being subject to laws and policies that relate to matters affecting their mutual interests.244 The role of the state is no more than that of honest broker, mediating between the parties in order to facilitate their capacity to participate equally in resolving issues. It is a policy that argues for even-handedness rather than insulation, in government dealings with the interests of all relevant parties, and runs counter to the tradition of preferential treatment. 241 242 243

244

C. v. the United Kingdom, Application No. 10358/83 (1983). See Report of the UN Special Rapporteur on Freedom of Religion or Belief, 2017, para. 31. See M. Ignatieff, The Ordinary Virtues: Moral Order in a Divided World, Harvard University Press, Cambridge, MA, 2017, p. 196, citing the Church Peace Union, “In Your Hands: A Guide for Community Action on the 10th Anniversary of the UDHR” (New York, 1958). For example, Declaration 11 of the Treaty of Amsterdam states, “The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. The European Union equally respects the status of philosophical and non-confessional organizations”.

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The Religious Exemptions The policy of selecting religious organisations for exceptional privileges is questioned by some who link a benign state approach to decades of undetected transcontinental child abuse by clergy, and on the more straightforward grounds that it clearly discriminates against all secular bodies. Undeniably, it represents a candid refutation of state neutrality.

tax-exemption privileges. The relationship between churches and taxes in Europe is interesting:245 in all there are tax-exemption privileges based on the principle that churches and religious organisations, being institutions established for the public benefit, should not be additionally burdened with taxes collected for the same purpose; in many there is also a mandatory tax levied on religious adherents specifically to raise public revenue to be then donated by the state to their churches. There is an argument that the latter – the church tax – enhances state neutrality as it confirms a separation of church and state by creating a separate pool of funds for religious institutions to use at their discretion, without having to rely on government subsidies. In relation to the former, the ECtHR has been clear that religious organisations per se do not qualify for special tax-exemption privileges:246 freedom of religion does not require churches, their organisations or members to have a different tax status from that of other taxpayers.247 In practice, religious organisations, churches and their associated service provision emanations tend to automatically qualify for exemption from most taxes on the basis of a state presumption of their public benefit status. Although such an entitlement gives rise to frequent protests of unequal treatment from secularists, not least because they are thereby placed in the position of having to make good the resulting shortfall in national tax revenues, seldom do complaints come before the courts. Of the few cases heard by the ECtHR, three concerned France and the taxexemption entitlement of religious organisations, in respect of which judgments upholding such an entitlement were handed down at the beginning of 2013248 (see further in Chapter 7). testamentary privileges. The centuries-old judicial rule – that every effort must be made to give effect to a testator’s wishes – voluntas testatoris servanda est – as 245

246 247 248

See further Pew Research Center: Religion and Public Life, “Western European Countries with Church Taxes,” 2019, www.pewforum.org/2019/04/30/in-western-european-countries-withchurch-taxes-support-for-the-tradition-remains-strong/#fn-31369-9 Association Sivananda de Yoga Vedanta v. France, Application No. 30260/96 (1998). Alujer Fernández and Caballero García v. Spain, Application No. 53072/99 (2001). Association Cultuelle du Temple Pyramide v. France 50471/07 – HEJUD [2013] ECHR 105 (31 January 2013), Association des Chevaliers du Lotus D’Or v. France 50615/07 – HEJUD [2013] ECHR 104 (31 January 2013), and Eglise Evangelique Missionnaire and Salaûn v. France 25502/ 07 – HEJUD [2013] ECHR 107 (31 January 2013). See further www.lawandreligionuk.com/2013/ 02/06/taxation-and-religious-organisations-three-french-cases-at-the-ecthr/

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expressed in their last will and testament,249 has worked to permit testators’ dispositions to be treated as legally valid, at least in the common law jurisdictions, even if they contain bequests subject to conditions of flagrant religious discrimination. So, throughout the twentieth century, and continuing, if to a variable extent, at present, bequests to next-of-kin on condition that they do or do not marry someone of a specified religion, for example, have created no legal difficulty. The fact that the state in many countries has chosen not to intervene with legislation explicitly prohibiting such violations of universally accepted non-discrimination principles is relevant for present purposes. employment law exemptions. That religious organisations and associated entities are entitled to a degree of autonomy from prevailing statutory constraints is recognised in the UN Declaration on Religious Intolerance, which provides for the right to “train, appoint, elect, or designate by succession appropriate leaders” and the right to “establish and maintain appropriate charitable and humanitarian institutions”.250 The EU Equal Treatment Directive 2000/78 of 27 November 2000 also provides for exceptions to be made in circumstances where religion or religious ethos is a factor: Article 4(1) relates to situations where being of a particular religion or belief is a genuine and determining occupational requirement and permits an exemption from the anti-discrimination prohibition, provided the objective is legitimate and the requirement proportionate. Subsequently, exemption privileges have been considerably broadened and are now embedded in equality legislation that permit religious organisations to restrict employment opportunities, and often service and facility access, to those who share their religious beliefs. As the outworkings of such organisations reach ever further into public benefit provision, and indeed into commercial services, so the extent of their state exemption from the laws that govern secular employment tends to generate ever more contentious case law. regulatory exemptions. Being mainly tax exempt and legally presumed to be for the public benefit, religious organisations have been excluded from the regulatory processes that uniformly scrutinise all other bodies – their governance arrangements, finances and activities – in the charity sector. Instead the state has very largely permitted such organisations to be self regulating, subject only to routine inquiries from the national tax office. Although the evidence indicates that they are unlikely to be immune from criminal activity – and the nature of their work often creates greater opportunities for abuse than are available to their secular counterparts – there is little indication that the state is prepared to change its non-interventionist 249 250

For example, Robertson v. Robertson’s Executors 1914 AD 503, 507. The UN Declaration on the Elimination of All Forms of Intolerance And of Discrimination Based on Religion or Belief, Article 6(g) and (b) respectively.

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policy and require religious organisations to be subject to the same registration and regulatory processes as other entities.

Equality, Family, Life, Death and the Church–State Relationship Equality case law with a bearing on the church–state relationship, as determined by the ECtHR and other courts, mostly concerns secular matters that the church has always regarded as being of the greatest importance: procreation, the family unit and the sanctity of life. This fusion of religion with the most elemental aspects of human life was proclaimed in the preamble to the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief: “religion or belief, for anyone who professes either, is one of the fundamental elements of his conception of life”. It is a fusion that can generate very different responses within the Christian, Muslim251 and Jewish religions. The Marital Family The Victorian ideal family model – characterized by the monogamous, lifelong union of a heterosexual couple, parenting the children of their marriage – has not, for some time, been the ubiquitous norm it once was.252 The pace of change that displaced that model with many variants was determined not just by the strength of opposition presented by the values of conservative Christians but also by the fundamental beliefs, doctrines and opinions of many others. Consequently, maintaining civil society in the face of cultural upheaval while also accommodating the laws and practices of other cultures – for example, as regards underage marriages253 and parental chastisement of children254 – presents profound challenges for church and state.

spouses. One aspect of that change has been the recognition of a more conspicuous status difference between marriage solemnised by state and by church. Whereas traditionally the two were usually culturally synonymous, since divorce and other religious groups became more prevalent in Western societies, so also has the salience of this distinction. It is gradually becoming a pressing concern, particularly as regards the differences between national statute requirements and sharia law, with inevitable civil society implications.255 The ECtHR has ruled that the state is not 251

252

253 254 255

See, for example, Muslim Khan v. the United Kingdom, Application No. 11579/85 (1986), Karakuzey v. Germany, Application No. 26568/95 (1996) and X. v. Germany, Application No. 8471/79 (1981) ; Jew – D. v. France, Application No. 10180/82 (1983) and Tennenbaum v. Sweden, Application No. 16031/90 (1993). See, for example, A. S. Wohl, ed., The Victorian Family: Structure and Stresses, Croom Helm Ltd., London, 1978. Khan v. the United Kingdom, Application No. 11579/85 (1986). Abrahamsson v. Sweden, Application No. 12154/86 (1986). Khan v. the United Kingdom, Application No. 11579/85 (1986).

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required to recognise decisions, including marriages, taken exclusively by religious bodies and unaccompanied by national statutory processes.256 It was the ECtHR ruling in Dudgeon v. The United Kingdom257 that broke the legal mould of the traditional marriage upheld for centuries by church and state. This was the decision that first signalled the invalidity of an argument grounded on resisting legal change simply because many viewed it as offensive to their religion and culture: the court found that to do so would be to condone discrimination258 – a ratio decidendi applicable to other signature hallmarks of religious cultural tradition that persist in pockets of democratic Western society, including forced marriage, female genital mutilation, forced conversion, honour killings, dress codes, and the denial of female educational and employment opportunities. Following on from a widespread decriminalising of homosexual relations, the legal sanctioning of gay marriages was a logical next step in an environment increasingly conditioned by considerations of equality and human rights. In Schalk and Kopf v. Austria,259 for example, while the ECtHR found that it could not force states to make marriage available for same-sex couples, it noted that the right to marry is granted to “men and women”, and includes the right to found a family, which could be interpreted as granting the right to two men or two women, because, as the court observed, all other convention rights are granted to “everyone”. The court stated that it would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex.260 This stance hardened in Oliari261 when it ruled that state failure to provide same-sex couples with any kind of legally recognised civil union violated their human rights. The ECtHR has, however, ruled it is for each religion to decide whether and the extent to which they permit same-sex unions.262 Recognition of a right to marry does not extend to a right to divorce.263 parenting. As the ECtHR stated in Sijakova v. The Former Yugoslav Republic of Macedonia,264 neither the right to marry and to found a family, nor the right to private and family life, nor any other right guaranteed by the convention implies a right to procreation. Having become a parent, however, then church and state have tended to agree on the basic framework of responsibilities to be borne by such a

256 257 258 259 260 261 262 263 264

Serif v. Greece, Application No. 38178/97 (1999). Application No. 7525/76 (1981). See also Smith and Grady v. United Kingdom, 29 E.H.R.R. 493 (1999). Application No. 30141/04, Council of Europe: European Court of Human Rights, 24 June 2010. Ibid., para. 61. See also Hämäläinen v. Finland, [2014] ECHR 787. Oliari and Ors v. Italy, [2015] ECHR 716. Parry v. the United Kingdom, Application No. 42971/05 (2006). Johnston and Others v. Ireland, 1986, Series A no. 112. Application No. 67914/01 (2003).

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person. There are areas of difference: one is that the Catholic Church, and many adherents of various religions, reject the right of same-sex couples to become parents by fostering or adoption; another is that the state will permit the medical withdrawal of lifesaving treatment for a child, despite the religious objections of parents, in circumstances prescribed by law and justified by welfare considerations.265 sexual orientation and gender identity (sogi) issues. Protected mainly under Articles 2, 3 and 14 of the ECHR, sexual orientation and gender identity issues have in recent years been appearing with increasing frequency before the ECtHR, most often originating in incidents of abuse against members of the LGBT community in Russia, eastern Europe and Turkey.266 In the recent and typical case of Lapunov v. Russia,267 the ECtHR found sufficient evidence of persecution of the LGBT community in Chechnya to recommend that the authorities undertake an investigation into possible violations of Article 14 of the ECHR taken alone or in conjunction with Articles 3 and/or 5. suicide and medically assisted death. While there is no right to procreate, nor to have an abortion, there is now – in some jurisdictions – a right to die with medical assistance. As with so many other aspects of “family” and “life”, suicide is yet another matter traditionally regarded as sinful and criminal by church and state respectively which, having been first decriminalised by the judiciary, has then become sanctioned by legislation – albeit at a variable national pace. Indeed, the fact that medically assisted death has in some countries been elevated to a public service is an intriguing indicator of state neutrality. In Haas v. Switzerland,268 which concerned the right of an individual to avail of the services of Dignitas in Switzerland, the court found “that an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to private life within the meaning of Article 8 of the Convention”.269 This ruling pointedly stops short of conceding that such an individual has any entitlement to medical assistance when exercising this right.

265 266

267 268 269

Lambert and Others v. France, Application No. 46043/14 (2015). See, for example, Aghdgomelashvili and Japaridze v. Georgia, Application No. 7224/11 (2014), Sabali´c v. Croatia, Application No. 50231/13 (2014), M.C. and C.A. v. Romania, Application No. 12060/12 (2016) and Chechetkin v. Russia, Application No. 42395/15 (2017). Application No. 28834/19 (2019). Application No. 31322/07 (2011). Ibid., para. 51. See also Koch v. Germany, (2013) 56 EHRR 6, paras. 46 and 51, and Gross v. Switzerland, (2014) 58 EHRR 7, para. 60.

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Equality, Healthcare and the Church–State Relationship While the ECHR does not guarantee any right to healthcare, the rulings of the ECtHR have over time gradually given increased recognition to rights of a socioeconomic nature, some of which extend protection to aspects of healthcare. Initially the rulings were mainly concerned with enforcing a paternalistic duty of care owed by the state to its citizens under Articles 2, 3, 8 and 14 of the ECHR but in recent years this has evolved to rulings on more positive duties requiring state intervention, and of these some have a strong relationship with religion or religious values. Healthcare Services Article 2 of the ECHR gives rise to positive obligations on the state to safeguard its citizens, including the provision of health services. Those generating cases with a religious dimension tend to be associated with the traditional joint concern of church and state with family matters, particularly as regards procreation and abortion.

the services. The traditional approach to reproduction, and women’s rights in that regard, was evident in S. H. and Others v. Austria,270 which concerned the Austrian ban on using sperm and ova donations for IVF treatment. In confirming the ban and overturning its 2010 decision, the court turned away from endorsing medical intervention using artificial means to assist pregnancy and instead restored the concepts of “natural procreation” and “natural family” as the basic foundations for the parenting model known to the law. It confirmed that the central rule – mater semper certa est (the mother is always certain) – in a decision that imposes constraints on the future use of IVF. “Natural procreation” was also a factor in Menneson v. France,271 which concerned the parents of twins conceived following surrogacy treatment in the USA who, following their return to France, were unable to enter the children’s birth certificates into the French register of births as French law did not recognise that form of parent-child relationship. Ultimately, the court found no violation of the applicants “family life” but it did find that the children’s right to an authentic identity and to “family life” were compromised in comparison with their biological counterparts and for that reason held that France had breached Article 8. In relation to abortion, the ECtHR has struggled to balance “on the one hand, the need to ensure protection of the foetus and, on the other hand, the woman’s interests”.272 It has avoided going so far as to suggest that there exists such a thing

270 271 272

Application No. 57813/00 (2011). Application No. 65192/11 (2014). See Boso v. Italy, Application No. 50490/99, Eur. Ct. H.R. 846 (2002). Note that in Parrillo v. Italy, Application No. 46470/11 (2015), the ECtHR, applying the margin of appreciation rule, recognised that a state could take steps to protect the right to life of an embryo.

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as a right to abortion273 (though the Article 8’s right to private life does extend to respect for decisions to become a parent or not274) but, once a state does allow it in some circumstances, then the court has repeatedly stressed that the state is under a positive obligation to create a procedural framework informing and enabling a pregnant woman to effectively exercise her right of access to that service.275 professional exemption from healthcare service provision on religious grounds. Defining the nature, scope and entitlement to exercise a religious type veto on service provision, and determining the range of public services to which such a veto might apply, are difficult matters for a neutral state. How such issues are addressed are revealing indicators of national commitment to the state neutrality doctrine. The ECtHR ruling in Eweida276 was something of a milestone. It then found that while the right of one of the applicant’s to manifest their religious beliefs by refusing to provide therapist services to a gay couple was protected by Article 9 of the ECHR, that right was not absolute. The court held that the applicant’s right did not prevail against the employer’s right to require services to be provided in a manner that did not unlawfully discriminate against bona fide service users. Protection for the conscientious objections of a professional working in public service provision has been examined by the Council of Europe,277 and has been found to lie within Article 9(1) as has been demonstrated in relation to matters such as opposition to abortion services;278 refusal to sell contraceptives;279 opinions on the benefits of alternative medicine;280 and refusal to work on registering homosexual civil unions.281 The committee, which monitors the implementation of CEDAW, has also examined conscientious objection and urged that such objections by health professionals “remain a personal decision rather than an institutionalized practice”.282

273 274 275

276

277

278 279 280 281

282

P. and S. v. Poland, Application No. 57375/08 (2012), para. 99. Evans v. the United Kingdom, Application No. 6339/05, § 71, ECHR 2007-IV). See, for example, A. B. and C. v. Ireland, Application No. 25579/05 (2010), Tysia˛c v. Poland, Application No. 5410/03 (2007) and Vo v. France, Application No. 53924/00 (2005). Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). See the Social, Health and Family Affairs Committee of the Parliamentary Assembly of the Council of Europe, “The Right to Conscientious Objection in Lawful Medical Care” (Resolution 1763, 2010) which requires member States to provide guidance and regulations regarding the conscientious objections of professionals in public healthcare services. Knudsen v. Norway, Application No. 11045/84 (1985). Pichon and Sajous v. France, Application No. 49853/99 (2001). Nyyssönen v. Finland, Application No. 30406/96 (1998). Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). UN Doc. CEDAW/C/HUN/CO/7–8, CEDAW Committee, “Concluding Observations: Hungary,” 2013, para. 31.

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Equality, Education and the Church–State Relationship The balancing of religious and secularist interests in state education systems has generated a considerable and increasing level of litigation throughout Europe, much of which continues to filter through to the ECtHR as a consequence of alleged violations of Article 2 of Protocol 1. State Schools and Religion Equality for all in relation to the role of religion in state schools is probably impossible to achieve: the protests from those who want religion to have an increased prominence are as loud as those who want it reduced.

educational content and instruction. In a school context,283 the role of the teacher – including the clothes they choose to wear – may well have an influence on their pupils, particularly those of a young and impressionable age.284 The Human Rights Committee noted that public education that includes instruction in a particular religion or belief is inconsistent with Article 18(4) of the ICCPR unless provision is made for non–stigmatising exemptions or alternatives.285 Indeed, the ECtHR has ruled that “teaching” does not infer an obligation on states to allow religious education in public schools.286 Should a state choose to do so then, in order to be neutral and to avoid breaching the Article 14 prohibition on discrimination, it is obliged to ensure that pupils of all faiths receive equal religious teaching. On the other hand, the ECtHR has acknowledged that a state’s cultural heritage may, in the context of such religious teaching, permit it to give a preferential weighting to a particular religion. In Folgerø and Others v. Norway,287 it noted that Norway gave Christianity much more attention than any other religion or belief but held that this was legitimate given the state’s margin of appreciation and “the place occupied by Christianity in the national history and tradition” of 283

284

285

286 287

Note Campbell and Cosans v. UK Application No. 30814/06 (2011), when the ECtHR upheld a challenge to the use of corporal punishment in state schools on the grounds that it violated parental beliefs. This provides authority for the view that the obligation to respect parental religious and philosophical convictions in schools applies to educational method as well as to content. Dahlab v. Switzerland, Application No. 24095/94 (1996), Kurtulmus v. Turkey, Application No. 65500/01 (2006) and Leyla Sahin ¸ v. Turkey, Application No. 44774/98 (2005) See HRC, General Comment No. 22, on Freedom of Thought, Conscience or Religion, para. 6 (adopted at the Forty-Eighth Session of the Human Rights Committee, 30 July 1993). Note also the Committee of Ministers’ Recommendation Rec(2010)5, which encourages “safeguarding the right of children and youth to education in safe environment, free from violence, bullying, social exclusion or other forms of discriminatory and degrading treatment related to sexual orientation or gender identity” (para. 31 of the Recommendation). Savez crkava “Rijeˇc života” and Others v. Croatia, Application No. 7798/08 (2010). Application No. 15472/02 (2007).

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Norway: if this was “a departure from the principles of pluralism and objectivity”, then it was justified. Kjeldsen, Busk Madsen and Pedersen v. Denmark288 was an early case in a long sequence of similar cases concerning sex-education lessons in state schools. The claimants alleged that such lessons in Danish state schools were offensive to the religious sentiments of some parents. The ECtHR found that Article 2 of the Protocol 1 did not grant parents any right to object, on moral grounds, to school contents or practices, provided these are developed in an “objective, neutral and pluralistic manner”, and that the public school system must remain neutral with regard to religion or belief. It ruled that “the State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions”. In Folgerø it noted that the second sentence of that protocol289 aims in short at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the “democratic society” as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised . . . The verb “respect” means more than “acknowledge” or “take into account”. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State.

As in Zengin, the ECtHR indicated that recognizing the students’ parents a right to conscientious objection is a necessary “safety valve” when the actual neutrality of teaching in public schools is debatable.290 More recently the court has emphasised that education necessarily entails exposing children to a range of values and that “it would be unrealistic to expect that parents’ religious or philosophical views would have to be given automatic priority in every situation. . .. The Court reiterates in this context that the Convention does not guarantee the right not to be confronted with opinions that are opposed to one’s own convictions”.291 Sex education in primary school was thus found to be justified in A. R. et L. R. v. Switzerland.292 This approach is supplemented by the caveat that schools should provide non-stigmatising opt-out opportunities for those pupils whose parents would rather they did not participate.293 In Mansur Yalçın and Ors v. Turkey,294 the ECtHR was concerned about the mandatory nature of Sunni Islamic teaching in a secondary school, which had 288

289 290 291

292 293 294

(1979–1980) 1 EHRR 711. See also Hasan and Eylem Zengin v. Turkey, (2008) 46 EHRR 44, [2007] ECHR 787. Folgerø and Others v. Norway, Application No. 15472/02 (2007). Hasan and Eylem Zengin v. Turkey, (2008) 46 EHRR 44, [2007] ECHR 787. Citing Appel-Irrgang and Others v. Germany, Application No. 45216/07 (2009) and Dojan and Others v. Germany, Application No. 319/08 (2011). Application No. 22338/15 (2017). Grzelac v. Poland, Application No. 7710/02 (2010). [2014] ECHR 938.

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caused Alevi parents to allege that they were the direct “victims” of a violation of their rights under Articles 9 and 14 of the ECHR. While stressing that religious education was not contrary to the convention, provided pupils were not forced to participate in a particular form of worship or exposed to religious indoctrination,295 the court found that because the syllabus in question gave more importance to Sunni Islam over various minority interpretations and over other religions and philosophies, this could amount to a breach of the principles of pluralism and objectivity. The mandatory nature of the particular course content was unacceptable. Subsequently, the state introduced legislation extending compulsory Sunni Islamic religious education throughout Turkey and to all school grades (though exempting Armenian and Orthodox schools). Such blatant rejection of any semblance of state neutrality can only exacerbate the alienation experienced by the Alevis,296 and all others not exempted, and further the instability of civil society in that country. religious prayers and symbols. In Lautsi v. Italy,297 it was the alleged, more subtle indoctrination caused by crucifixes displayed in every classroom of an Italian state school that prompted protest from a secularist parent. The ECtHR eventually found that Article 2 of Protocol 1 did not prohibit a state from including any matters touching on religion in the schools’ curriculum; rather, the aim of the provision was to safeguard pluralism in education and to prevent indoctrination by the state.298 Noting that “a crucifix on a wall is an essentially passive symbol”, it ruled that their presence was a matter falling within the margin of appreciation of the respondent state, which was justified by the need to “take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development”,299 and that the contracting states’ decisions in such matters, including the place they accord to religion, should in principle be respected. This important decision would seem to recognise a state right to passively allow church icons or symbols in state institutions and facilities if they represent the state’s cultural heritage. Faith Schools The right of a parent to determine the religious education of their child is recognised in an array of international provisions (as noted earlier). In religiously divided societies, such a strong legal mandate offers considerable reassurance to those whose religious/cultural identity is threatened but it can also do much to institutionalise and ensure the perpetuation of those divisions – a debate that tends to become more focused and heated when centred on the role of faith schools. 295 296 297 298 299

Ibid., para. 64. See also Sinan I¸sık v. Turkey, Application No. 21924/05 (2010). Application No. 30814/06 (2011). Ibid., para. 66. Ibid., para. 68.

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state involvement. As might be expected, equality legislation generally permits a range of exceptions to discriminatory practice on the grounds of religion: exceptions that favour faith schools and undoubtedly compromise state neutrality. Such exceptional treatment includes state funding to become established; permission to discriminate in pupil admissions and staffing; a teaching curriculum skewed in favour of religious belief; and a corresponding alignment of social values in regard to issues such as gay marriage and abortion. While there would appear to be a dearth of ECtHR case law on church–state issues relating to faith schools, there is little shortage of it on a national basis. Equality, the Workplace and the Church–State Relationship In recent decades equality legislation has required the state to test its neutrality in the workplace by mediating on conflicting tensions relating to religion. As explained in Achbita,300 While an employee cannot “leave” his sex, skin colour, ethnicity, sexual orientation, age or disability “at the door” upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.

This approach is endorsed by EU directive – the Framework Equality Directive 2000/78/EC – which gives direct protection against discrimination based on religion or belief in employment. In particular, Article 21 of the Charter of Fundamental Rights, as specifically referenced in that directive, is intended to ease the disadvantages of cultural minorities, facilitate their access to employment and thereby assist the consolidation of civil society. Hiring and Firing Staff Exemption privileges favouring religious organisations, which can allow employment contracts to be framed around religion-related duties, have not always prevented the firing of staff hired on those terms.

religious organisations. The ECtHR has ruled it reasonable that a religion be represented by a person whose way of life is not flagrantly at odds with its beliefs but equally, when a question arises regarding the significance of a way of life that breaches such beliefs, then the person concerned should be sufficiently prominent to be seen as truly representative.301 The application of this principle in practice was 300

301

Samira Achbita and Anor v. G4S Secure Solutions NV, [2016] EUECJ C-157/15 (31 May 2016), para. 116. Fernández Martínez v. Spain, Application No. 56030/07 (2014).

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illustrated in the cases of Obst v. Germany302 and Schüth v. Germany,303 a country where the issue of a conflict between the values of an employing religious organisation and an employee doctor also led to an ECtHR ruling304 More recently, the ECJ in JQ v. IR305 considered the lawfulness of JQ’s dismissal, which was justified by an alleged infringement of the duty of good faith and loyalty to his German employer’s religious ethos (see further in Chapter 8). secular organisations. There is an acceptance that employers, whose ethos is based on religion or belief, have a right to impose related occupational requirements upon employees306 and the latter have a right to manifest their religion or beliefs in the workplace provided this is not disruptive. This is counterbalanced by the responsibility of individuals to choose occupations that do not fundamentally conflict with their beliefs and to accept that, once employed, their religious beliefs are not grounds for then refusing to undertake the duties of a post. In Kottinenen v. Finland,307 for example, the ECtHR upheld an employer’s right to dismiss a Seventh Day Adventist who had refused to continue working after sunset on Fridays as required by his contract. In Kosteski v. The Former Yugoslav Republic of Macedonia,308 the ECtHR found that there was no right as such under Article 9 to have leave from work for particular religious holidays and therefore it was not unreasonable that an employer might regard absence without permission or apparent justification – to attend a Muslim festival – as a disciplinary matter. More recently, in Fernández Martínez,309 that court by a bare majority upheld the decision not to reappoint a priest to his teaching post in a state secondary school following media publicity regarding his involvement in the Movement for Optional Celibacy. Article 5 of the Employment Equality Directive provides for the principle of reasonable accommodation, but the wording restricts this duty to disability. Nonetheless, broadly speaking, the principle is expected to prevail unless ousted by specific contractual obligations.310 Any restriction on the manifestation of a religion or belief in the workplace “requires to be justified, even in a case where the employee voluntarily accepts an employment or role which does not accommodate the practice in question or where there are other means open to the individual to practice or observe his or her religion as, for instance, by resigning from the

302 303 304 305 306 307 308 309 310

Application No. 425/03 (2010). Application No. 1620/03 (2010). Rommelfanger v. Germany, Application No. 12242/86 (1989). [2018] EUECJ C-68/17. Lombardi Vallauri v. Italy, Application No. 39128/05 (2009). (1996) 87 DR 68. See also Stedman v. United Kingdom, (1997) 23 EHRR CD 168. Application No. 55170/00 (2006). [2014] ECHR 615. See further K. Alidadi, Religion, Equality and Employment in Europe: The Case for Reasonable Accommodation, Hart Publishing, Oxford, 2017.

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employment or taking a new position”.311 In the leading case of Eweida and Others v. the United Kingdom,312 the ECtHR considered the appropriateness of restricting two employees from using religious symbols – a crucifix on a necklace – while at work. In the case of the airline employee, the court found a violation of the applicant’s right to manifest her religion because such use was discreet and there was no evidence that it had breached the rights of others, for example, by negatively impacting the company’s image. In the case of the nurse employee, it held that the requirement to remove the necklace was justified for health and safety reasons. proselytism in the workplace. Proselytism, though legal, can pose a threat to civil society. In Turkey, for example, where an imperfect democratic state struggles – ostensibly – to maintain a balance between secularism and Islam, Christian proselytism can present a greater threat to social stability than it would elsewhere. or, perhaps, just provides a convenient opportunity for local government and media to appease a vociferous Islamic constituency.313 The dismissal of a judge in Russia, who had used her position to advocate Christianity, prayed in court and promised reduced sentences for accused who became Christians, was upheld by the ECtHR as compatible with state neutrality.314 In Larissis and Others v. Greece,315 airforce officers were disciplined for seeking to convert a number of people to their faith, including three airmen who were their subordinates. The ECtHR did not find that the disciplinary measures were disproportionate, or that there had been a violation of Article 9, as it was necessary for the state to protect junior airmen from being put under undue pressure by senior personnel. However, it did find a violation of Article 9 with regard to the measures taken against two of the applicants for proselytising civilians as the latter were not subject to the same pressure and constraints as the airmen. In Dahlab,316 the ECtHR acknowledged that wearing religious clothing or symbols may be proselytising in intention and/or effect.

Equality, Service Provision and the Church–State Relationship Equality and non-discrimination legislation together with EU directives, underpinned by international conventions such as the ECHR and decades of ECtHR rulings, require services to be accessed and provided without any form of prohibited discrimination. 311 312 313 314 315 316

Ibid., para. 2(b). [2013] ECHR 37. See Bremner v. Turkey, [2015] ECHR 877. Pitkevich v. Russia, Application No. 47936/99 (2001). Application Nos. 23372/94, 26377/94 and 26378/94. Dahlab v. Switzerland, Application No. 42393/98, ECHR 2001-V.

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Service Provision: Public and Private Where religious bias exists, or is so perceived, in the provision of goods and services – particularly as regards public services such as housing and schools – then, as in Northern Ireland in the late twentieth century, in the Parisian banlieues or in contemporary Turkey, this can present a serious threat to civil society.

service provision by religious organisations. Religious organisations have been fundamentally challenged by equality and anti-discrimination legislation and some have chosen to withdraw services rather than accept equality principles: Catholic adoption agencies in various countries have opted to shut down their adoption services rather than make them available to gay couples. Others – including many charitable institutions such as the YMCA – have availed of statutory exemption privileges excusing them from actions that if undertaken by other entities would constitute religious discrimination. If funded and contracted to deliver public services on behalf of a government body, however, then they lose their exemption privileges and are obliged to act in a non-discriminatory manner. public sector service provision. The onus to maintain neutrality rests heavily on public sector service providers. So, in Ivanova v. Bulgaria,317 the ECtHR found that the dismissal of a swimming pool manager at a Bulgarian state vocational school because of her membership of a Protestant evangelical community, at a time of a political/media campaign against that community, had violated her right to freedom of religion. In particular, neutrality must be maintained in relation to the public services available to those in heightened dependency, vulnerability and powerlessness vis-à-vis the staff responsible for their care, including children in residential establishments, patients in hospitals and incarcerated prisoners. In Mockut_e v. Lithuania,318 for example, the ECtHR found that the attempt by doctors to “correct” a patient’s beliefs by disparaging them and encouraging her to “adopt a critical attitude” towards the Osho movement and her adherence to its practices constituted a violation of her freedom of religion. Access to public services can be at risk when obstructed by the religious beliefs of a state employee. In Francesco Sessa v. Italy319 the ECtHR dismissed the complaint of a Jewish lawyer that the refusal to adjourn a case in which he was to provide representation services, to a date which did not coincide with the Jewish holidays of Yom Kippur and Sukkot, was an interference with his right to manifest his religion. The court considered that such interference was justified on grounds of the protection of the rights and freedoms of others – and in particular the public’s right to the proper administration of justice. The ECtHR had earlier outlined the governing 317 318 319

Application No. 52435/99 (2007). Application No. 66490/09 (2018). Application No. 28790/08 (2012).

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principle in Pichon and Sajous v. France320 when it gave the following explanation for its ruling that two pharmacists who refused to sell contraceptives had gone beyond legally permissible limits by seeking to impose their beliefs on the public: “as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products”. private service provision. State neutrality in relation to private or commercial service provision is exercised through domestic equality and anti-discrimination legislation as supplemented by international human rights instruments. This generates much the same range of alleged breaches of religious freedom in relation to services such as bed and breakfast accommodation, hotels and social function venues and outdoor pursuit centres. broadcasting services. As the ECtHR has frequently emphasised, the freedom of expression constitutes one of the essential foundations of a democratic society but, as Article 10(2) expressly recognises, the exercise of that freedom carries with it duties and responsibilities which, in the context of religious beliefs, include the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs. This requirement includes a duty to avoid any expression that is, in regard to objects of veneration, gratuitously offensive to others and profane.321 In relation to expressing views by means of radio and TV broadcasting, it is clear that any restriction on disseminating information necessarily interferes with the right to receive and impart it.322 It is less clear, however, as to where the threshold for interference lies – where the balance is to be struck between Articles 9 and 10.323 In Otto‑Preminger‑Institut v. Austria,324 it was maintained that those who hold religious beliefs must tolerate and accept their denial by others, including the latter’s propagation of doctrines hostile to their own. Even an expression that could be considered offensive, shocking or disturbing to the religious sensitivities of others, will find protection under Article 10. The court then found, as a matter of fact, that the views expressed were in this instance so offensive as to constitute a malicious violation of the spirit of tolerance. It held that there was an obligation to avoid, as far 320 321 322 323

324

Application No. 49853/99 (2001). Otto‑Preminger‑Institut v. Austria, Series A no. 295‑A (20 September 1994), paras. 46, 47 and 49. Öztürk v. Turkey [GC], no. 22479/93, § 49, ECHR 1999-VI. See Glas Nadezhda EOOD and Elenkov v. Bulgaria, [2007] ECHR 804 where the ECtHR held that as State refusal without adequate reason to license a religious radio station clearly violated Article 10, it was unnecessary to consider whether it also breached Article 9. Series A no. 295‑A (20 September 1994).

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as possible, expressions that were gratuitously offensive.325 Similarly, in Wingrove v. the United Kingdom,326 which concerned a soft-porn video purportedly depicting the erotic fantasies of St Teresa, entitled “Visions of Ecstasy”, the ECtHR considered the ban imposed by the regulatory authority as justified in a democratic society and therefore compliant with Article 10(2) of the convention. In both cases the court indicated that a greater margin of appreciation was to be accorded to the state in matters of morals and religion. However, there is a balance to be struck. As the court pointed out in Murphy v. Ireland,327 “the concepts of pluralism, tolerance and broadmindedness on which any democratic society is based mean that Article 10 does not, as such, envisage that an individual is to be protected from exposure to a religious view simply because it is not his or her own”.328 Equality, National Security and the Church–State Relationship The combination of ISIS terrorism and the migrant crisis induced tough reflexive government responses in all Part II jurisdictions. Inequality and discrimination in state policy, domestic and international, became rapidly evident in the surveillance and targeting of members of one particular religious group. State Response to Terrorist Threat Article 9(2) of the ECHR makes no mention of “national security” (unlike Articles 8(2), 10(2) and 11(2) of the convention together with Article 2(3) of Protocol 4). The omission of this specific ground, from among the legitimate grounds of state intervention, reflects both the fundamental importance of religious pluralism as “one of the foundations of a democratic society” and the fact that the state cannot dictate what a person believes or take coercive steps to make a person change his or her beliefs.329 This would seem to indicate a strong affirmation of state neutrality as it prevents government from using the need to protect national security as the sole basis or pretext for restricting the exercise of the right of a person or a group of persons to manifest their religious beliefs.

anti-terrorism measures. For some years now, an extensive range of measures has been deployed, domestically and internationally, by major Western powers – exclusively Christian in religious and cultural heritage – against a perceived threat from terrorists, almost exclusively Muslim. This collaborative effort has proceeded with little regard for equality and non-discrimination laws. To a varying extent in all the jurisdictions involved, the consequences have necessarily compromised the ideals of state neutrality and have come to pose a long-term threat to civil society. 325 326 327 328 329

Ibid., paras. 46–50. (19/1995/525/611) 25 November 1996. Application No. 44179/98 [2004] 38 EHRR 212. Ibid., para. 72. Nolan and K. v. Russia, Application No. 2512/04 (2009).

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State Response to Migrant Crisis In a recent landmark case, the ECtHR found that when a state is presented with the issue of how to respond to a request for asylum, the determining principle should be the personal circumstances of the migrant: to qualify for asylum and be entitled to the protection afforded by the ECHR, Article 3, a migrant must demonstrate that he or she would be exposed to real risk of degrading or inhuman treatment if not granted asylum; seeking to avoid military service or an opportunity for a better life was insufficient.330

religious/cultural differences. Following the introduction of equality and non-discrimination legislation, multiculturalism became the policy of choice for most developed Western nations. This required that all minority groups and the traditional national culture be accorded equal respect, equal rights and equality of opportunity. It placed considerable importance on a need to protect the cultural identity of minorities from being overshadowed by the inherited national cultural identity. However, it was a policy that wilted when confronted by the number and ethnic/religious origins of waves of homeless refugees. The resulting clashes in culture, lifestyle and religiously determined social mores became a rapidly escalating source of tension in the Part II jurisdictions from 2015 onwards. revival of “nation state” ideology. The drift towards a “nation state” in mentality and fact was evidenced by a growing insularity, a heightened sense of identity, alienation and a volatile “us and them” tension. Tighter border controls were introduced, along with mandatory lessons for immigrants in the language and customs of their host nation, coupled with a new emphasis on national socio-economic priorities at the expense of international agreements. Governments generally adopted measures that asserted and protected, as the primary and governing reference point, the traditional cultural values of a host “nation state”. It would seem that the continent that “invented” the “nation state”, then experimented successfully with a supranational model, is now entering a phase that threatens the future of that experiment.

conclusion This chapter, essentially, provides a digest of relevant international instruments and related case law (ECtHR, ECJ and HRC) as a guide to themes, a yardstick to trace evolving European law and a source of reference available to inform and assist analysis of Part II material. It suggests that decades of ECtHR case law on issues with a bearing upon the church–state relationship reveal a pattern to be used for structuring the Part II 330

M.O. v. Switzerland, Application No. 41282/16 (2017).

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chapters. While this rests mainly on well-established points of intersection in the human rights arena – particularly as regards the freedoms of religion, expression and association – it is apparent that equality and non-discrimination legislation is now fuelling an increase in the volume and diversity of contemporary cases. Added justification for looking to Europe for indices to measure and assess this relationship can be found in the fact that it is there that state neutrality has been under prolonged strain due to factors that include the legacy of centuries of religious/cultural differences, the variable range of church–state relationships including an “established” church, and the impact of Islamic terrorism and the scale and nature of the migrant influx.

part ii

The Benchmark of State Neutrality Contrasting Applications

4 The United States of America: The Church–State Wall

introduction This chapter, picking up on themes addressed by its predecessor, models the structure and content for the five following jurisdiction-specific chapters. It begins by noting the significance attached to religion in the 1776 Declaration of Independence. It points out that the separation of church and state was then established as an explicit requirement1 and explains the context that gave rise to the free exercise and antiestablishment clauses in the Constitution. It takes into account the distinction between federal and state powers. It explores the policy background giving particular attention to themes – multiculturalism and religious diversity – that are the common concern of church and state. It then outlines the contemporary relevant legal framework, as governed by statutory and constitutional provisions, noting the extent to which the country is a signatory state to relevant international treaties, conventions and protocols. In particular this chapter considers the genesis of the state neutrality principle in the anti-establishment clause as confirmed by decisions of the United States Supreme Court (USSC) in a wide range of cases including Church of the Holy Trinity,2 Everson3 and Zorach4 and as emphasised by O’Scannlain J in World Vision.5 It delves into the very considerable body of religion-related case law to 1

2 3

4 5

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Church of the Holy Trinity v. United States, 143 US 457 (1892). Everson v. Board of Education, 330 US 1 (1947). Also see Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 US 203, 305 (1963); Agostini v. Felton, 521 US 203 (1997) and the “Lemon test” as originating in Lemon v. Kurtzman, 403 US 602 (1971) and applied in Mitchell v. Helms, 530 US 793, 120 S. Ct. 2530 (2000); Americans United For Separation of Church and State v. Prison Fellowship Ministries, 551 US 587 (2007). Zorach v. Clauson, 343 US 306 (1952). Spencer v. World Vision, Inc., 619 F.3d 1109 (9th Cir. 2010).

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identify the principle’s bearing on the rights to freedom of religion, of conscience, expression and association before examining how it relates to equality and nondiscrimination law. It focuses on the various tests successively applied by the USSC in its efforts to police the church–state boundary.6 The chapter identifies and discuses some different academic approaches to what has been an evolving principle of state neutrality in the USA. It considers the Jürgen Habermas argument that “the principle of separation of Church and State demands that the institution of the State operates with strict impartiality”.7 It reviews the growing strength of secularism, discusses whether religious freedom is in danger of being curtailed by current government equality policies and reflects on the rigorous policing of discrimination.8 It discusses the views of Geddicks (that the separation of church and state in the USA is more a matter of equality rights than liberty rights9), Farr (who sees religious freedom as more a constitutional matter than one of individual liberty)10 and Laycock (that in assessing state neutrality, much depends on context). It questions whether the principles initially conceived has been subsequently undercut by wide-ranging judicial interpretations of the free exercise clause as illustrated in cases such as Hobby Lobby11 and Hosana Tabor12 and as challenged more recently in Trinity Lutheran,13 Bryant14 and Masterpiece.15

policy overview Federal public policy as it relates to religion and religious organisations has been governed by the checks and balances built into the Constitution.

6

7

8

9

10

11 12 13

14 15

For example: the “excessive entanglement test” as applied in Walz v. Tax Commission, 397 US 664 (1970); the “neutrality test” in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US (1993) and the “permissive accommodations test” in Corp. of Presiding Bishop v. Amos, 483 US 327 (1987); and the “Lemon test” as originating in Lemon v. Kurtzman, 403 US 602 (1971) and applied in Mitchell v. Helms, 530 US 793, 120 S. Ct. 2530 (2000); Americans United For Separation of Church and State v. Prison Fellowship Ministries, 551 US 587 (2007). J. Habermas, “Religion in the Public Sphere”, European Journal of Philosophy, vol. 14, no. 1 (2006), pp. 1–25. See, for example, R. Trigg, Equality, Freedom, and Religion, Oxford University Press, Oxford, 2013. F. M. Gedicks, “The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in the United States”, Emory International Law Review, vol. 19 (2005), p. 1187. See T. F. Farr, “Bringing Religious Freedom Back into American Religious Freedom Policy”, Cardus Policy in Public, Winter issue 2011. Burwell v. Hobby Lobby, 573 US 134 S. Ct. 2751 (2014). Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 US – (2012). Trinity Lutheran v. Corner, 582 U.S. (2017). Also see Locke v. Davey, 540 US 712 and the “play in the joints” between the Establishment and Free Exercise Clauses. Barber v. Bryant, 17-547, and Campaign for Southern Equality v. Bryant, 17-642. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 US (2018).

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Background Independence brought with it a Constitution that gave effect to a public policy determined to break with the “established” religion that had underpinned the British Empire and fuelled a history of religious persecution. It was no coincidence that the “first freedom” listed in the First Amendment was the pledge to uphold religious liberty: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. This proclamation was intended to assure citizens that, unlike the European countries from which they and their families had migrated, in the USA all faiths and none would be equally respected. Religious Neutrality: An Evolving Principle Successive governments have struggled to implement policies declared as intended to balance the constitutional duty to uphold the freedom of religion and to maintain a relationship of neutrality with religious and secular entities while doing so.

interpreting the principle. The principle of state neutrality was probably first articulated in the USA by Philip B. Kurland in 1961 when he suggested that the religious clauses of the First Amendment in the Bill of Rights “should be read as stating a single precept: that government cannot utilize religion as a standard for action or inaction because these clauses, read together as they should be, prohibit classification in terms of religion either to confer a benefit or to impose a burden”.16 It made its entrée into US jurisprudence in Everson17 and was later endorsed by the ruling in Walz v. Tax Comm’n of New York18 when the court, commenting on tax exemptions for places of worship, declared that19 the general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.

In fact, around the same time, there were a number of cases involving churchproperty disputes in which the courts referred to the need not to become engaged in

16

17

18 19

See P. B. Kurland, “Of Church and State and the Supreme Court”, University of Chicago Law Review, vol. 29, no. 1 (1961), p. 96. Everson v. Board of Education, 330 US 1 (1947). Author acknowledges advice from Frank Ravitch on this point (note to author: 04.02.2020). 397 US 664 (1970). Ibid., p. 669.

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theological matters, in which they had no competence, but to instead remain neutral as to relative merits of religious beliefs while focusing squarely on property law principles.20 “the wall”. As Mr Justice Black memorably declared in Everson,21 “The First Amendment has erected a wall of separation between Church and State. That wall must be kept high and impregnable. We could not approve the slightest breach.” In this, “the bus case”, the USSC ruled that it was not incompatible with state neutrality for public funds to be used to recompense parents for the cost of busing their children to parochial schools as part of a general scheme of using public funding to cover the costs of bus fares for school children. It was a rationale in keeping with previous rulings,22 and often to be repeated, but one that begs the question asked by Habermas: “How does the constitutional separation of State and Church influence the role which religious traditions, communities and organizations are allowed to play in civil society and the political public sphere?”23 Laycock, in his important contribution to the debate as to the meaning of this principle, emphasises that much depends on any further specification attached to “neutrality”,24 which may include “direct regulation of conduct, resolution of private disputes, expenditures of government funds, taxation and tax exemption, and so on through the whole range of ways in which religion and government interact”. He proposes an interpretation that he calls substantive neutrality “the religion clauses require government to minimize the extent to which it either encourages or discourages religious belief or disbelief, practice or nonpractice, observance or nonobservance”.25 He acknowledges the problem that this needs a baseline from which to measure encouragement and discouragement – what state of affairs is the background norm? – but arguably dodges a circularity in his logic, the baseline or norm itself needs to be neutral. In practice the pursuit of state neutrality would seem likely to require an endless recalibration to maintain traction in a context of fluid background norms that include random political exigency.26

20

21 22

23 24

25 26

See, for example, Presbyterian Church v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 US 440 (1969) and Jones v. Wolf, 443 US 595 (1979). Everson v. Board of Education, 330 US 1 (1947), per Justice Black at p. 18. For example Quick Bear v. Leupp, 210 US 50 (1908); Dunn v. Chicago Industrial School, 280 Ill. 6.13, 618, 117 N.E. 735, 737 (1917); and McCollum v. Board of Education, 33 US 203 (1948). Habermas, “Religion in the Public Sphere”, p. 3. D. Laycock, “Formal, Substantive, and Disaggregated Neutrality toward Religion”, DePaul Law Review, vol. 39, no. 4 (1990), p. 993, 998. See further http://via.library.depaul.edu/lawreview/vol39/iss4/3 Ibid., p. 1001. See also F. Ravitch, Masters of Illusion: The Supreme Court and the Religion Clauses, NYU Press, New York, 2007.

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Religion and Contemporary Public Policy In recent decades state neutrality has played out against a background dominated by foreign wars with Muslim countries and by Christianity-inspired culture wars in the homeland; responding to religiously driven fundamentalism has become a significant public policy theme. For Habermas this “political revitalization of religion at the heart of the United States” is “surprising”.27

population. The population of the USA remains overwhelmingly Christian. The pattern of immigration may have changed in recent years, bringing a greater annual proportion of non-Christian ethnic groups, but this has barely dented the dominance of Christianity. According to the Pew Research Centre,28 between 2007 and 2014, the Christian proportion of the US population slipped from 78.4 per cent to 70.6 per cent, due largely to a decline in the numbers of Catholics and mainstream Protestants; while non-Christians rose from 4.7 per cent to 5.9 per cent; and nonbelievers increased from 16.1 per cent to 22.8 per cent or from roughly 36 million to 56 million. An interesting finding is the proportion of religious adherents who have changed religions: a total of 34 per cent of adults have a religious identity different from the one in which they were raised, and a quarter of those raised as Christians have ceased their adherence. Also interesting is Stephen Prothero’s observation, in 2008, that “forty percent of Americans call themselves born-again Christians”.29 multiculturalism or pluralism. The USA has perhaps always been characterised by a strong national ethos rooted in a folk image of “the shining city upon the hill”,30 a place of refuge and an example to others, which has drawn in a great variety of ethnic groups from all corners of the globe. A population comprised of migrants, descendants of slaves and the remnants of a very considerable network of Native American tribes, it is now the most populous culturally mixed nation on earth. It is also a population in which difference has often meant dissidence – racism being a persistent stain on the social fabric – prompting government to purposefully address problems of segregation and discrimination: the Civil Rights Act 1964, its iconoclastic response, inspired a generation across many very different lands. In the USA today the evidence points less to the implementation of a multiculturalist policy and more towards an iteration of the competitive free-market ideology, which has become such a characteristic feature of the nation’s socio-economic way of life. If there is any social policy strategy being pursued, it is one of pluralism: all

27 28

29 30

Habermas, “Religion in the Public Sphere”, p. 1. Pew Research Centre, 2014 Religious Landscape Study, www.pewforum.org/2015/05/12/ americas-changing-religious-landscape/pf_15-05-05_rls2_1_310px/ S. Prothero, Religious Literacy, Harper One, New York, 2008, p. 31. It was President Ronald Regan, circa 1980, who added “shining” to the “city set on a hill” from the Sermon on the Mount, Matthew 5:14–16. See also John Winthrop (1588–1649).

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cultures can be assured of equal respect, support and non-state intervention provided all accept and demonstrate primary allegiance to the USA and its institutions. religious diversity. Diversity has traditionally been a cause for celebration in the USA and no aspect more so than its vibrant mix of religions. Over recent decades, as the spread of religions became less Christian-centric and the culture wars have heated up, this has steadily become less true. In fact religious diversity is now more likely to generate dissension than celebration. Tensions between Christian fundamentalism and secularism, more strained in this than in any other developed Western nation, have permeated a wide range of everyday social settings including education, healthcare and the workplace, triggering issues with a proven inter-generational capacity to divide and polarise communities. Nearly thirty years ago Laycock quite rightly commented that31 in a nation of immense religious diversity, it is of great symbolic value that government views all manner of religious belief neutrally. That the government aspires to religious neutrality, and that the courts stand ready to hold government to its aspiration, is an important reassurance to religious minorities.

He may well continue to believe in the symbolic value of the aspiration but perhaps not in the likelihood of government achieving it. If anything, the state is showing every sign of developing a closer engagement with religion and with religious organisations, albeit at least striving to avoid being drawn into partisan relations with any in particular – though arguably favouring Christianity in general – while a general antipathy towards Muslims can be detected not far beneath the surface. state agencies for religious matters. The twenty-first century has seen the emergence of an elaborate system of government agencies to mediate between church and state. Initially it was difficult to judge whether this development refuted or enforced the Habermas argument that “the principle of separation of Church and State demands that the institution of the State operates with strict impartiality vis-à-vis religious communities; parliaments, courts, and the administration must not violate the prescription not to privilege one side at the cost of another”.32 It seemed that state agencies would remain impartial: federal policy being to do no more than maintain open relationships between government and religious bodies, while the Civil Rights Division of the Department of Justice policed any breaches of federal statutes prohibiting religious discrimination in education, employment, housing, public accommodations, and access to public facilities. However, a more positive interventionist strategy is now evident. 31

32

Laycock, “Formal, Substantive, and Disaggregated Neutrality”. See further http://via.library .depaul.edu/law-review/vol39/iss4/3 Habermas, “Religion in the Public Sphere”.

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In January 2001, President George W. Bush established the White House Office of Faith-Based and Community Initiatives.33 Later, executive orders created centers for the office within the Departments of Justice, Labor, Health and Human Services, Housing and Urban Development, Education, and Agriculture, as well as at the Agency for International Development. Since then many states have created state offices of faith-based and community initiatives and have passed legislation or enacted administrative policy changes to give effect to faith-based initiatives. Critics have argued that this represents a violation of the establishment clause. That administration also launched the Charitable Choice initiative, intended to replace public welfare benefit entitlement with non-profit and privatised service provision, it provided direct government funding to religious organisations to facilitate their provision of social services.34 Implemented primarily through a variety of executive orders issued by President Clinton, Charitable Choice was made part of the Children’s Health Act of 2003 by President George W. Bush. Most recently, the Obama administration expanded government funding for “faith-based initiatives”35 but also introduced the Affordable Care Act 2010 with its provision for access to contraceptives, which generated much protest from religious organisations, a provision eventually overturned by the Trump administration. In July 2013, the White House issued a National Strategy on Religious Leader and Faith Community Engagement with objectives that included advancing pluralism and human rights, particularly the protection of religious freedom. It also then established the Office of Religion and Global Affairs to advise the secretary of state on policy matters as they relate to religion. That office accommodates the Office of International Religious Freedom, established to promote religious freedom as a core objective of US foreign policy, and is headed by an ambassador-at-large for international religious freedom. The Trump administration36 has furthered federal interest in religion by instituting a new department – the Division of Conscience and Religious Freedom – within Health and Human Services, under the auspices of the Office of Civil Rights, and by issuing an executive order “Promoting Free Speech and Religious Liberty”. The newly established division is intended to protect doctors, nurses and other healthcare workers who refuse to undertake certain service delivery responsibilities on religious grounds. These initiatives, domestic and international, have not included policies to address the beliefs of Native Americans, 33

34 35

36

The White House Office of Faith-Based and Community Initiatives was rechristened by the Obama Administration as the White House Office of Faith-based and Neighborhood Partnerships. See Executive Order No. 13,279, 67 Fed. Reg. 77141 (12 December 2002). President Obama’s White House Office of Faith-Based and Neighborhood Partnerships developed a comprehensive partnership guide, Partnerships for the Common Good. For insight into this administration’s interest in reviving and actively supporting traditional conservative religious values, see President Trump’s address to the Values Voter Summit in Washington, DC, 2017, www.whitehouse.gov/briefings-statements/remarks-president-trump2017-values-voter-summit

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although the USA in 2010 finally became a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Habermas position would seem to have been undermined.

contemporary legal framework The overarching provisions of the Constitution, particularly its Bill of Rights, provide a framework for the law relating to religion and any issues arising are regulated through the courts and commissions with ultimate recourse to the United States Supreme Court (USSC). International Conventions USA was a leading nation in ensuring the adoption of the Universal Declaration of Human Rights (UDHR) and in recent decades has become a signatory nation to most of the ten core international human rights instruments, some with optional protocols. In 2010, it declared its support for the United Nations Declaration on the Rights of Indigenous Peoples. It has also signed and ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and has signed but not ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the United Nations Convention on the Rights of the Child (UNCRC), the International Convention on Economic, Social, and Cultural Rights (ICESCR) and the American Convention on Human Rights. The International Covenant on Civil and Political Rights (ICCPR) The USA has signed and ratified the International Convention on Civil and Political Rights (ICCPR), thereby undertaking to provide protection against religious discrimination through Articles 2(1) and 26 and to participating in an international review of its progress on human rights matters through the mandatory Universal Periodic Review process. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Having refused, in 2007, to sign this international declaration providing recognition for the beliefs of indigenous people, among other matters, the USA eventually decided to “lend its support” in 2010. International Reports In 2015, at the second Universal Periodic Review, concerns were expressed regarding the increasing restrictions on women’s right to abortion in some states37 and there 37

See further at www.wired.com/2014/03/united-nations-human-rights-committee-considersreport-united-states/

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were direct challenges regarding the abortion restrictions that the USA periodically imposes on the disbursement of its foreign aid. The UN Human Rights Council (UNHRC) has expressed concern regarding the lack of free prior and informed consent of indigenous people when decisions are taken in relation to issues such as sacred sites and mineral extraction on their lands.38 The Constitution and Domestic Legislation The Virginia Declaration of Rights was proclaimed in 1776: the “marvelous Article 16” which, Habermas notes, “is the first document of freedom of religion guaranteed as a basic right that democratic citizens accord each other across the divides between the different religious communities”.39 That section was crafted by George Mason or James Madison, who repudiated the institutionalised role of religion in England and set the USA on its own singular path. The Constitution of the United States of America The terms of reference for the church–state relationship have long been set by the US constitution. When the First Amendment of the Bill of Rights40 was adopted in 1791, it declared that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. These two constitutional clauses – the establishment clause and the free exercise clause41 – formed the basis for an evolving church–state relationship and provided the standard of “neutrality and general applicability” that came to govern state legislative intervention in religious matters. Also relevant are the speech clause of the First Amendment, and the Fourteenth Amendment – which declares that the states may not “deprive any person of life, liberty, or property, without due process of law”. This is important as the courts have held that its protections are fundamental and therefore extend to the states’ due processes of law and provide constitutional protection against religious discrimination.42

the religious land use and institutionalised persons act, 2000. This statute includes a section protecting individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws, and a section protecting the religious rights of persons confined to institutions, such as prisoners. It amended the 1993 act by redefining an exercise of religion as any exercise “whether or not compelled by, or central to, a system of religious belief”, 38 39 40 41

42

Ibid. Habermas, “Religion in the Public Sphere”, p. 3. The first ten amendments to the Constitution make up the Bill of Rights. The Employment Division (Department of Human Resources of Oregon) v. Smith, 494 U.S. 872 (1990), per Scalia J. See, for example, Bolling v. Sharpe, 347 US 497 (1954).

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which is to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution”. This was upheld by the USSC in Gonzales v. O Centro Espirita,43 which emphasised that in establishing the existence of a “compelling interest” that would justify interfering with an exercise of religion, the burden of proof always rested on the government and if, as in that case, the evidence is in equipoise, the court must rule against the government. the international religious freedom act, 1998. This requires the State Department to focus its international intervention on the humanitarian objectives of denouncing persecution and saving victims. the religious freedom restoration act, 1993 (rfra). The RFRA, a legislative response to the USSC ruling in Employment Division v. Smith,44 prohibits federal government from applying its laws in a way that substantially burden a person’s religious conduct and requires all federal laws to satisfy a “compelling interest test” in circumstances where the protection of national security or of human life is at risk.45 The prohibition applies “even if the burden results from a rule of general applicability” except when able to satisfy the compelling interest test to “demonstrate that application of the burden to the person (1) is in furtherance of a compelling government interest and (2) is the least restrictive means of furthering that compelling governmental interest”.46 Some twenty states have replicated this statute and a further eleven have introduced religious liberty legislation with similar provisions. the civil rights act, 1964: title vii. The Civil Rights Act, an iconic milestone for the USA and for anti-discrimination laws everywhere, sought to prohibit discrimination in public life on a federal basis, including in commerce and education. Title VII prohibits employers, with fifteen or more employees, from discriminating against employees or prospective employees on specified grounds including religion, and also requires employers to “reasonably accommodate” the religious practices of employees provided that this does not cause the employer “undue hardship”. As the USSC has pointed out,47 Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or 43 44 45

46 47

546 US 418 (2006). 494 US 872 (1990). The non-applicability of the RFRA to state laws was confirmed in City of Boerne v. Flores, 521 US 507 (1997). Reference 42 US Code 2000bb, s.3(a) and (b). Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch Stores Inc., 575 US (2015), per Scalia J at p. 7.

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discharge any individual . . . because of such individual’s “religious observance and practice”. . .. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Further, in Trans World Airlines, Inc. v. Hardison,48 the USSC interpreted Title VII to require employer accommodation only if the cost of doing so was de minimis. Other Legislation The US Commission on International Religious Freedom and the ambassador for that commission, both of which were established by the International Religious Freedom Act of 1998, have been influential. There are also a number of federal statutes, most importantly the Affordable Care Act of 2010 (ACA) and much statespecific legislation, some quite dated, that address matters of equality and diversity. In 2013, the Islamic Society of North America – the largest Muslim organisation in USA – declared its approval of the Employment Non-Discrimination Act (ENDA), adding its name to an interfaith coalition.

equality and non-discrimination. The proclamation in the Declaration of Independence that “all men are created equal” was the starting point for US equality laws and this principle subsequently found endorsement in the “equal protection of the laws” provision in the Fourteenth Amendment. Currently, in practice, many of the associated issues are litigated under the provisions of the Civil Rights Act of 1964, particularly under Title VII of this federal statute, while each state has its own roughly similar framework of equality and non-discrimination laws. Litigation is also initiated directly under the equal protection clause, under state law, and under other federal statutes.

Courts and Tribunals Issues involving religion are treated as exclusively domestic matters to be heard and resolved in federal and state courts and administrative proceedings, though there is recourse to review on certiorari by the USSC, at its discretion. International Judicial decisions within the USA are not amenable to any external appeal process.

the domestic judicial and regulatory systems. The federal court system has three main levels: district courts, circuit courts and the US Supreme Court. Each state has its own judicial system – which includes lower courts, general trial 48

432 US 63 (1977).

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courts, appeals courts and state supreme courts – and a regulatory system. The state supreme courts are the final authority on all questions of state law. the united states supreme court (ussc). This court is vested with a review jurisdiction, on certiorari, over all US courts, but only on matters of federal law. Through the course of its very many rulings on religious matters, this court has defined the key concepts and formulated and applied the principles that have become central to the law relating to religion and religious discrimination. Appointments to this court are made on the basis of nomination by the president and confirmation by the senate, which leaves them open to political bias and prone to divided decisions.49 the equal employment opportunity commission (eeoc). This federal agency administers and enforces civil rights laws and as such is the regulatory body for matters arising under Title VII of the Civil Rights Act, 1964. It mediates all complaints of discrimination, including those based on religion, and other statutorily prescribed indices of inequality. Many states have equivalent agencies with a right of appeal to the courts, which adjudicate on points of law.

case law: the church–state relationship and fundamental human rights The combined effect of “the Establishment Clause”50 and “the Free Exercise Clause”51 in the First Amendment was, as declared in Everson v. Board of Education,52 to erect “a wall of separation between Church and State. That wall must be kept high and impregnable”.53 The first clause operates to prevent any attempt by Congress to permit the collection of taxes or provision of public money to support any specific religion. The second prohibits Congress from interfering with the manner in which any person chooses to worship. Freedom of Religion This principle is enshrined in the Constitution but is also present in at least two supranational conventions to which the USA is a signatory: UNCRC (Article 14); 49

50

51 52 53

See M. O. DeGirolami, “Constitutional Contraction: Religion and the Roberts Court”, Stanford Law & Policy Review, vol. 26 (2015), pp. 385–409, 387 – an article was presumably written before Obergefell v. Hodges, 576 U.S. ___ (2015), in which the Court again divided 5:4. See Everson v. Board of Education, 330 US: it cannot “set up a church”, or “adopt . . . teach or practice religion”, pp. 15–16. See, for example, Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 US 203, 305 (1963). 330 US 1 (1947). Frank Ravitch comments: “This wall has been heavily eroded by SCOTUS since the mid1980s” (note to author: 04.02.2020).

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and the American Convention on Human Rights (Article 12). The USSC has determined that for constitutional purposes a “religious” belief or practice can be defined as “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living”,54 which includes “all those whose consciences . . . would give them no rest or peace”.55 It excludes a “merely personal moral code” that is “in no way related to a Supreme Being”56 but accommodates sincere non-believers57 (see further in Chapter 1). Definitions While it has been said that “the theistic theme has always been well to the fore in definitions of religion in American cases”,58 nonetheless, the courts in the USA moved away from reliance upon a belief in one “Supreme Being”, as the defining characteristic of “religion”, earlier than their UK counterparts.

“religion”. An exclusively theistic approach was rejected in 1961 by Black J in Torcaso v. Watkins59 when the USSC struck down a Maryland law requiring officials to declare a belief in God in order to hold office in that state and referred to a list of what could be termed “religions” – including “Buddhism, Taoism, Ethical Culture, Secular Humanism and others”. In Fellowship of Humanity v. County of Alameda,60 the court identified four characteristics of religion: “a belief not necessarily referring to supernatural power, a cult involving a gregarious association openly expressing the belief, a system of moral practice resulting from adherence to the belief, and an organization within the cult designed to observe the tenets of the belief.” “beliefs”. The shift from reliance upon the traditional theistic definition was furthered by: United States v. Seeger,61 in which the court defined “religious belief” as one that included “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

54 55 56 57

58

59 60 61

Wisconsin v. Yoder, 406 US 205, 215–216, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1971). Welsh v. United States, 398 US 333, 344 (1970). United States v. Seeger, 380 US 163, 173, 186, 85 S. Ct. 850, 858, 864, 13 L. Ed. 2d 733 (1965). Torcaso v. Watkins, 367 U.S. 488, 496 (1961) (requiring atheist to affirm belief in God violates his “freedom of belief and religion”); cf. EEOC v. Townley Eng. & Mfg. Co., 859 F.2d 610, 613 (9th Cir. 1988) (requiring atheist employee to attend religious services at work discriminates against him on basis of religion), cert. denied, 109 S. Ct. 1527 (1989). As cited by Laycock, “Formal, Substantive, and Disaggregated Neutrality”, p. 1002. H. Picarda, The Law and Practice Relating to Charities, 3rd ed., Butterworths, London, 1999, p. 73. 367 US 488 (1961). 153 Cal. App. 2d 673 (1957). 380 US 163, 186 (1965).

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for the exemption”; by Welsh v. United States,62 when the USSC held that the definition of “religion” is not dependent on a belief in a “Supreme Being;” and by Wooley v. Maynard63 when “belief” was held to include mere written or verbal affirmations or other manifestations of what one does (or does not) believe. In United States v. Meyers,64 as Amit Shah points out, the court found that religious organisations generally exhibit ultimate ideas, metaphysical beliefs, a moral or ethical system, comprehensiveness of beliefs, and the accoutrements of religion.65 Although they were clear that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”,66 there were limits to what the courts were prepared to accept as constituting “religion” or “belief”. In Brown v. Pena,67 the court summarily rejected a plaintiff’s religious-discrimination claim based upon his “personal religious creed” that Kozy Kitten People/Cat Food contributed significantly to his state of well being, and thus, to his overall work performance by increasing his energy; it was dismissed as a mere personal preference. It then cited three factors to determine whether a belief is religious:68 (1) whether the belief is based on a theory of “man’s nature or his place in the Universe” (2) which is not merely a personal preference but has an institutional quality about it, and (3) which is sincere. Unique personal moral preferences cannot be characterised as religious beliefs. Neither, as was demonstrated in Cloutier v. Costco Wholesale Corp.,69 can body piercings; it was then argued, unsuccessfully, that these were a manifestation of beliefs required by the “Church of Body Modification”. In Peterson v. Wilmur Communications, Inc.,70 the plaintiff’s white supremacist belief system called “Creativity” was deemed to be a religion within the meaning of Title VII because it “functions as religion in [his] life”. However, in Swartzentruber v. Gunite Corp.,71 it was held that membership in the Ku Klux Klan (KKK) did not qualify as religious belief; the employee had suffered harassment not because of his religious beliefs but because of his self-identification as a member of the KKK, which is “political and social in nature”.72 Nonetheless, in 2017 the IRS determined that the Pussy Church of Modern Witchcraft – a femaleonly, lesbian led group – had religious beliefs that entitled it to legal recognition as a “church”.73 62 63 64 65

66 67 68 69 70 71 72 73

398 US 333 (1970). 430 US 705, 713 (1977). See also, Malnak v. Yogi, 592 F (2d) 197 (1979). 906 F. Supp. 1494, 1501 (D. Wyo. 1995). A. Shah, “The Impact of Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418”, 2006, www.lawandreligion.com/sites/law-religion/files/Impact-of-Gonzales-Shah.pdfub Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S 707 (1981), p. 714. 441 F.Supp. 1382 (D.C. Fla. 1997), aff’d, 589 F.2d 1113 (5th Cir. 1979). See Brown v. Dade Christian Schools, Inc., 556 F.2d 310, 324 (5th Cir. 1977) (dissent). 390 F.3d 126 (1st Cir. 2004). 205 F. Supp. 2d 1014 (E.D. Wis. 2002). 99 F. Supp. 2d 976 (N.D. Ind. 2000). See Slater v. King Soopers, Inc., 809 F. Supp. 809 (D. Colo. 1992). See further at www.them.us/story/terf-church-irs

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The liberties and rights latent in the First Amendment – specifically those practices and privileges associated with manifesting “beliefs” – were the subject of USSC scrutiny in Employment Division v. Smith.74 In this case Native Americans, dismissed from their jobs for the illegal use of peyote (which they claimed was an important aspect of a ceremony associated with their religion) were then unable to claim unemployment benefits and sought to have their conviction overturned on grounds that essentially rested on alleged religious discrimination. As mentioned earlier, the decision to uphold the conviction established the principle that government could impose legal restrictions upon religious freedom, provided the law was neutral and universally applied to all persons equally. This led to the introduction of the RFRA and subsequently to the ruling in the analogous case of Gonzales,75 which held that a law prohibiting the importation of a sacramental tea (a hallucinogenic) for use for similar purposes breached the RFRA. An important aspect of that judgment, was the judicial acknowledgement that the “RFRA requires the government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person . . . the particular claimant whose sincere exercise of religion is being substantially burdened”.76 This denotes an emphasis upon the particular person’s burden, not the burden on society, but it must still satisfy the above test in Brown v. Pena by demonstrating the veracity of a claimed sincere belief. This both greatly complicates the law relating to religion, while also bringing it into closer alignment with the corresponding interpretation currently prevailing in the UK and in the ECtHR. worship. The right to religious freedom guaranteed by the First Amendment includes the free exercise clause, which protects the freedom to worship and prevents Congress from making any law “prohibiting the free exercise thereof”. The clause protects actions – rituals, ceremonies, other practices and associated artefacts – used to express religious beliefs. The tension between the free exercise clause and the accompanying establishment clause has generated much case law:77 mainly this has concerned issues that suggest that the extent of the exemption from legislation granted in the first clause has encroached upon the state neutrality guaranteed by the second; in practice, while a manifestation of religion or belief is privileged by exemption from law, this is only to the extent that it does not unduly burden other citizens. indigenous beliefs. The Native Americans suffered a not dissimilar history of ignominious treatment by colonial emanations of church and state as did the First 74 75 76 77

48 US 872 (1990). Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418 (2006). Ibid., pp. 419–420. See, for example, Thomas v. Review Board, 450 US 707 (1981).

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Nations in Canada and the indigenous people in Australia and elsewhere – a policy that included enforced assimilation involving the use of residential schools and the outlawing of their language, religious beliefs and culture. Not until the American Indian Religious Freedom Act of 1978 was state-enforced religious discrimination – the threat of imprisonment for practising their religious rituals – finally removed. Religious Discrimination Religious discrimination occurs when someone is denied “the equal protection of the laws, equality of status under the law, equal treatment in the administration of justice, and equality of opportunity and access to employment, education, housing, public services and facilities, and public accommodation because of their exercise of their right to religious freedom”.78 The landmark civil rights case Newman v. Piggie Park Enterprises79 is relevant in this context. It concerned a barbecue chain that refused to serve black people in violation of an anti-discrimination statute. The resulting litigation gave rise to the principle that there could be no religious justification for exemption from anti-discrimination laws in respect of conduct that blatantly violated those laws causing harm to others. This principle clearly resonates with current LGBT-related issues. Protecting the State from Religion “The Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favour the adherents of any sect or religious organization.”80

an “established” church. The legislative and judicial record speaks to a resolute determination to give effect to the establishment clause directive and avoid facilitating the “establishing” of any particular religion. Beyond that, though, there is little evidence of intent to curb the cultural dominance of the Christian legacy or to address the evangelism of Christian fundamentalism. The latter would seem to be playing a leading role in the nation’s culture wars. a secular state. Arguably, the secular state intended and designed by the US Constitution has largely failed to materialise. No other nation has as frequent recourse to the highest court in the land to vigorously assert the independence of the state from religious influence but also no other is as polarised and divided on culture war issues with their religious underpinning. While the US officially proclaims its secularism, it is simultaneously locked in combat with Muslim 78

79 80

US Commission on Civil Rights, 1979: Religious Discrimination: A neglected issue; A consultation sponsored by the United States Commission on Civil Rights, Washington, DC, 9–10 April 1979. 390 US 400 (1968). Gillette v. United States, 401 US 437 (1971) per Marshall J.

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fundamentalism abroad while attempting to placate Christian fundamentalism at home. State neutrality is sorely tested in the USA. accommodating religious law and courts. Religion-specific legal forums – tribunals and mediatory bodies – are well established in the USA and have a long history of arbitrating family disputes. The Pew Centre estimates that the Catholic Church has nearly 200 diocesan tribunals that handle a variety of cases, including an estimated 15,000 to 20,000 marriage annulments each year, while many Orthodox Jews use rabbinical courts to obtain religious divorce. sharia law. Sharia law and its associated courts have attracted State intervention. Between 2010 and Spring 2018, a total of forty-three states introduced 201 anti-sharia law bills and in fourteen they have been enacted. Ostensibly, the legislative intent of such measures is to prohibit any foreign law that conflicts with rights guaranteed by the Constitution of the USA or that of the state. In practice, it is sharia law that is being targeted and this may leave states open to the challenge that they are engaging in religious discrimination, which risks inflaming Islamophobia; interestingly, the Oklahoma statute has been struck down because, as Ravitch comments “most of these laws are unconstitutional as they target Islam even if they claim to be neutral”.81 An example of the disconnect between sharia law and domestic statute law was demonstrated in S.D. v. M.J.R.82 This case concerned a Muslim husband who was convicted of sexually assaulting his wife despite a plea that his religious beliefs negated the wilful intent necessary for him to have committed a crime. Protecting Religion from the State The free exercise clause governs the freedom to manifest religious beliefs and, as declared in Kedroff,83 religious organisations have “power to decide for themselves, free from State interference, matters of church government as well as those of faith and doctrine”. However, the free exercise clause “does not prohibit governments from validly regulating religious conduct”.84 The USSC in Reynolds85 set an early benchmark for assessing the circumstances constituting a breach of the free exercise clause. This case concerned George Reynolds, a Mormon residing in Utah, who challenged his 1878 polygamy conviction under federal law by arguing that this marital practice was sanctioned by his religion. In rejecting his argument, the USSC distinguished between religious belief and religious conduct: while the right to religious belief was absolute, the 81 82 83 84 85

Note to author (04.02.2020). 415 N.J. Super. 417, 427–429, 431 (N.J. Super. Ct. App. Div. 2010). Kedroff v. St. Nicholas Cathedral, 344 US 94, 116, 73 S. Ct. 143, 97 L.Ed. 120 (1952). Grace United Methodist Church v. City of Cheyenne, 451 F.3d, 643, 649 (10th Cir. 2006). Reynolds v. United States, 98 US 145 (1879).

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government had a responsibility to curb religious conduct that conflicted with the broader interests of the community.86 the “compelling interest” test. The USSC, in Sherbert,87 resolved a dispute concerning a Seventh-Day Adventist denied welfare benefits following her sacking for refusal to work on Saturdays due to religious beliefs, by formulating and narrowly construing a “compelling interest test” for any law licensing state intervention in religious practice. Such a law would be valid only if it imposed an actual burden on the exercise of the religion in question, and if there was a “compelling interest” justifying the particular infringement complained of, and if there was no reasonable alternative that would achieve state objectives while causing a lesser degree of infringement. This test, as mentioned above, was severely constrained by the ruling in Smith,88 which concerned Native Americans dismissed from their jobs for the illegal use of peyote (which they claimed was an important aspect of a ceremony associated with their religion), who were then unable to claim unemployment benefits and sought to have their conviction overturned. The court ruling – that “the right of free exercise . . . does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’ on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)”89 – established the principle that the state could impose legal restrictions upon religious freedom provided the law was neutral and applied to all persons equally. This ruling departed from earlier decisions holding that the First Amendment required governments to provide exemptions to laws burdening religious beliefs or practices, unless such exemptions would compromise compelling state objectives.90 The legislature promptly responded with the RFRA, specifically in order to redress the onerous effects of Smith by providing protection for religion and for those of religious belief when they were disproportionately affected by any such law of universal application. The RFRA states that the “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”.91 It may do so “only if it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest and . . . is the least restrictive means of furthering that compelling governmental interest”.92 Such an interest may not be present, as demonstrated in Lukumi,93 when the right of 86

87 88 89 90

91 92 93

See further in S. Pepper, “Reynolds, Yoder, and Beyond: Alternatives for the Free Exercise Clause”, Utah Law Review, 309 (1981). Sherbert v. Verner, 374 US 398 (1963). Employment Division v. Smith, 48 US 872 (1990). Ibid., p. 879. See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972); Frazee v. Illinois, 489 U.S. 829 (1989). 42 USC § 2000bb-1(a). 42 USC § 2000bb-1(b). The Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US 520 (1993).

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Santeria adherents to practice ritual animal sacrifice was upheld. Kennedy J then explained that “religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection”.94 Indeed, “although a law targeting religious beliefs is never permissible, if the object of the law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral”.95 As was declared in Grace United, “a law is neutral so long as its object is something other than the infringement or restriction of religious practices” and a “law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context”.96 This pronouncement must now be viewed in the light of the ruling in Masterpiece.97 the “unduly burden” test. The introduction of the RFRA in 1993 reinforced the protection available to religious organisations from state interference in their affairs.98 As the USSC revealed in Gonzalez,99 the RFRA requires “the government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person . . . the particular claimant whose sincere exercise of religion is being substantially burdened”.100 Nevertheless, it remains the case that proof must be adduced to show that the legislation does in fact unduly burden any such practice. This was demonstrated in U.S. v. Winddancer,101 where the defendant, charged with six separate counts relating to having eagle feathers in violation of federal statutes, claimed he was a Native American and that the government was infringing his religious beliefs. While federal law allows Native Americans an exemption for their religious practices in keeping eagle feathers, the defendant was not part of a recognised Native American tribe and therefore was unable to show that the law burdened his practice of religion. At much the same time and on much the same issue, the court in U.S. v. Tawahongva102 dismissed the claim of a Native American, charged with possessing golden eagles, that he was entitled to RFRA protection because he did not have 94 95 96

97

98

99 100 101 102

Ibid., p. 545. The Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US (1993), p. 533. Grace United Methodist Church v. City of Cheyenne, 451 F.3d, 643, 649 (10th Cir. 2006), pp. 649–650 (citing The Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US (1993)). Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 US (2018). See further at www .scotusblog.com/2018/06/symposium-masterpiece-cakeshop-not-as-narrow-as-may-first-appear/ See, for example, Navajo Nation v. US Forest Serv., 479 F.3d 1024 (9th Cir. 2007); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418 (2006); Cutter v. Wilkinson, 544 US 709 (2005); Tenn. v. Lane, 541 US 509 (2004); Kimel v. Fla. Bd. of Regents, 528 US 62 (2000); City of Boerne v. Flores, 521 US 507 (1997); and Swanner v. Anchorage Equal Rights Comm’n, 513 US 979 (1994). 546 US 418 (2006). Ibid., pp. 419–420. 435 F. Supp. 2d 687 (M.D. Tenn. 2006). 456 F. Supp. 2d 1120 (D. Ariz. 2006).

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standing to bring such a claim. Interestingly, in the more recent case of Salazar v. Buono,103 an appeal against a judicial ruling permitting a large Latin cross at a military monument was confirmed. Concluding a protracted process of litigation, the USSC then upheld the initial proposal that a cross and the land upon which it was erected should be transferred by statute from public to private ownership. This resolution of a fraught issue was viewed by many as compromised because all options considered seemed to discriminate in favour of a government-assisted solution to protect Christian interests; it entailed a good deal of judicial equivocation as to how government intervention could minimise its accepted necessary infringement of the parties’ free exercise rights, and, arguably, it was not wholly successful in avoiding an entanglement in establishment issues. the “strict scrutiny” test. In McDaniel v. Paty104 the USSC found that ministers could not be disqualified from becoming delegates to a state constitutional convention and held that special disabilities imposed due to religious status are subject to a test of strict scrutiny. This test was reinforced by the recent USSC ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer,105 which concerned the Trinity Lutheran Church Child Learning Center, a Missouri preschool and daycare centre that had been originally established as a non-profit organisation but later merged with Trinity Lutheran Church. It sought to avail of a grant to replace its playground’s gravel surface but the state department had a strict, express policy of denying grants to any applicant owned or controlled by a church. The USSC determined that the policy violated Trinity’s rights under the free exercise clause by denying the church an otherwise available public benefit on account of its religious status, emphasising that “it has remained a fundamental principle of this Court’s free exercise jurisprudence that laws imposing ‘special disabilities on the basis of . . . religious status’ trigger the strictest scrutiny”.106 It declared that the department’s discriminatory policy did not survive the “most rigorous” scrutiny that the court applies to laws imposing special disabilities on account of religious status,107 a standard that demands a state interest “of the highest order” to justify the policy at issue.108 determining the legitimacy of religion and beliefs. The USSC in Brown v. Pena found that it is quite open to the courts to test the sincerity, though not the basis, of a claimed religious belief, and, as in that case, to rule that it is not constituted by mere personal preferences. Even where beliefs are found to be 103 104 105 106 107 108

130 S. Ct. 1803 (2010). 435 U.S. 618 (1978). 582 U.S. (2017). Ibid., 533. Citing The Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US (1993), p. 546. Citing McDaniel, 435 US, p. 628.

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sincere, this will be of little assistance to a defendant who seeks to shield his illegal actions by protests that he believed these to be a permissible means of giving effect to his religious beliefs, as in S.D. v. M.J.R.109 state protection of beliefs/culture of indigenous people. The American Indian Religious Freedom Act of 1978 recognised the inherent right of Native Americans to believe, express, and exercise traditional religious rights and cultural practices, including access to sacred sites, freedom to worship through ceremonial and traditional rites, and their right to use and possess objects considered sacred. Arguably, however, the above litany of court cases regarding matters such as the ceremonial use of eagle feathers and peyote and the ritual slaughter of animals testify to a continuing official reluctance to accommodate the manifestation of indigenous beliefs. State Treatment of Religions “The Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favour the adherents of any sect or religious organization.”110 However, a level of state intervention, by way of affirmative action, may on occasion be necessary in order to orchestrate a more equitable balance between the parties, though, arguably, this may compromise neutrality.

equal treatment by the state. “The Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact.”111 Even-handedness was the judicial message in Widmar v. Vincent.112 Indeed, the First Amendment is often considered to mandate both kinds of governmental neutrality – “between religion and religion, and between religion and nonreligion”.113 However, although Souter J declared in Kiryas Joel114 that “government should not prefer one religion to another, or religion to irreligion”, in fact the evidence points to a conservative state finding it increasingly difficult to hold to any concept of neutrality – certainly as regards religion and irreligion – veering instead towards finding evermore exceptional circumstances that justify support for religion 109 110 111 112 113

114

415 N.J. Super. 417, 427–429, 431 (N.J. Super. Ct. App. Div. 2010). Gillette v. United States, 401 US 437 (1971) per Marshall J. Ibid. 454 US 263, 102 S. Ct. 269, 70 L. Ed. 2d. 440 (1981). Epperson v. Arkansas, 393 US 97, at 104 (1968). See also Everson, per Black J. (“Neither a state nor the Federal Government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another”); McCreary County v. American Civil Liberties Union, 2005 US Lexis 5211, per Souter J. for the majority. Board of Education of Kiryas Joel Village School District v. Grumet, 512 US 687 (1994).

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and religious entities, an approach that attracts judicial endorsement. In Everson v. Board of Education115 (complaint that tax revenue was used to subsidise transportation costs to private denominational schools), as in Van Orden v. Perry116 (complaint that a monument of the Ten Commandments on the grounds of a court house violated the establishment clause), the USCC found against the complainants, ruling that the state was neither favouring one religion over another, nor officially establishing a religion. state prejudicial intervention. Judicial rulings, in the mid- to late-twentieth century, reveal a concern to police state initiatives providing facilities for religious use where to do so would constitute giving prohibited support to an institution of religion.117 This was particularly evident in the context of government funding of schools; many such funding arrangements were struck down by the courts.118 As explained in Calvary Bible Presbyterian Church v. Board of Regents,119 public funds may not be expended for “that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct”. This approach changed with the USSC decision in Zelman v. Harris.120 By the early years of the twenty-first century, contention had come to focus on programmes whose participants lack true freedom of choice (children and prisoners in particular121). In 2006, for example, the InnerChange Freedom Initiative (IFI), an intensely religious rehabilitation programme delivered under the auspices of the Prison Fellowship Ministries, which required an enrolled prisoner to constantly satisfy an evangelical Christian programme, was found to be “pervasively sectarian”.122 The following year the civil rights group Freedom from Religion Foundation filed a lawsuit challenging the legality of the White House Office of Faith-Based and 115 116 117 118

119 120 121

122

330 US 1 (1947). 545 US 677 (2005). Tilton v. Richardson, 403 US 672 (1971). See, for example, Meek v. Pittenger, 421 US 349 (1975), government loans to religious schools; Wolman v. Walter, 433 US 229 (1977), government loans for services away from the religious school campus; Illinois ex rel. McCollum v. Board of Education of School District, 333 US 203 (1948) and Bowen v. Kendrick, 487 US 589 (1989), disallowed the use of public buildings for optional religious instruction; and Rosenberger v. Rector and Visitors of Univ. of Va., 515 US 819 (1995), required that equal funding be granted to evangelical Christian groups. 72 Wash. 2d 912, 919, 436 P. 2d 189, 193 (1967). 536 US 639 (2002). In recent years, several judges have concluded that children and teenagers, like prisoners, have too few options and too little power to make the voluntary choices the USSC requires when public money flows to programmes involving religious instruction or indoctrination. See Teen Ranch v. UDOW, 389 F. Supp. 2d 827 (W.D. Mich. 2005), and Freedom From Religion Foundation v. Towey, No. 04-C-381-S, 2005 US Dist. LEXIS 39444 (W.D. Wis., 11 January 2005). Americans United For Separation of Church and State v. Prison Fellowship Ministries, 432 F. Supp. 2d 862 (S.D. Iowa 2006).

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Community Initiatives, alleging that any such preferencing of religious organisations breached the establishment clause. The resulting decision of the Supreme Court in Hein v. Freedom From Religion Foundation123 ruled that taxpayers do not have the necessary locus standi to challenge the constitutionality of expenditures by the executive branch of the government, a decision that in effect gave the green light to further executive funding of faith-based initiatives. Most recently the ruling in Awad v. Ziriax124 is very much on point. This concerned an attempt to pass legislation in Oklahoma – supported by 70 per cent of voters – to prohibit the use of sharia law in state courts, an initiative challenged by a Muslim citizen who asserted that the proposed proscription of sharia law interfered with his right to practice his religion. The Tenth Circuit, though upholding the decision of the court of first instance, did so on a different rationale grounded on the establishment clause: by singling out sharia law, the statute had breached this clause as it had explicitly discriminated between religions and against Muslims. Additionally, the government had failed to satisfy the “compelling interest” test as it had not identified an actual pressing problem to which the statute proposed an appropriate solution, let alone doing so in compliance with the minimal intervention rule. state-supportive intervention. The initial, if very different, landmark cases in this context were Reynolds125 and Everson,126 in both of which the USSC essentially ruled that government tax revenues could be raised by neutral laws of general application – against the wishes of some citizens – and used in support of religion.127 In Everson the court upheld a reimbursement programme established to offset the travel expenses incurred by parents whose children attended either public secular schools or Catholic schools; the latter having given rise to the litigation as a complainant alleged that the programme thereby breached the establishment clause. The court found that as the programme was a public service benefitting all families – religious or non-religious – equally, it was constitutionally compliant. In the process of interpreting the establishment clause, the USSC has wrestled with various guiding principles. The most enduring, and enduringly contentious,128 of these has been the “Lemon test” formulated by Burger CJ in Lemon v. Kurtzman.129 This case concerned the practice of authorities in Rhode Island and Pennsylvania of supplementing the salaries of teachers in religiously based private schools for 123 124 125 126 127

128 129

551 US 587 (2007). 670 F 3d 111 (2012). Reynolds v. United States, 98 US 145 (1879). Everson v. Board of Education of Ewing Township, 330 US 1 (1947). Also see Larson v. Valente, 456 US 228 and Board of Education of Kiryas Joel Village School District v. Grumet, 512 US 687 (1994), both of which involved religious discrimination. See, for example, Lynch v. Donnelly, 465 US 668, 679 (1984). 403 US 602 (1971).

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teaching secular subjects, a practice found to violate the clause. The test has three parts: first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion”. The latter is an early USSC iteration of the state neutrality principle, which Laycock views as representing a “disaggregated” version of neutrality comprising “no advancement” and “no inhibition” tests because “it is always possible to find some effect of advancing or inhibiting religion”.130 In Zelman v. Simmons-Harris,131 the USSC examined the school voucher scheme, whereby state funding is made available to pay for tuition at private schools, including religious schools. It found that the programme did not violate the establishment clause mainly because it was enacted for a secular rather than a religious purpose. The point of allowing parents to use public money to send their children to private schools was to enable parents in poor areas with failing public schools to get a better education for their children. The fact that in practice most used their vouchers to transfer to religious schools was incidental: they were entitled to make that choice; it did not mean that government was funnelling public dollars to religious institutions. The court found it important that whether any particular secular or religious private school received voucher funds depended on the decision of the individual student and his or her parents or guardians, and not on the government. However, it is hard to avoid concluding that there is some incongruity in the fact that state funding of religious schools is technically unconstitutional but voucher schemes to the same effect are permissible. In recent years the courts have moved towards interpreting the establishment clause as permitting funding but only in a manner that ensures the state maintains a position of “neutrality”, at least between religions.132 As O’Scannlain J stated, in Spencer v. World Vision, Inc.,133 the establishment clause commands “neutrality among religious groups”. This would seem to justify, for example, the government grants that currently provide two-thirds of the funding for Catholic Charities USA, while the Jewish Board of Family and Children Services receives 75 per cent of its funding from the government, for the non-discriminatory provision of contracted services. Understandably, such government funding continues to generate contention. In Young v. Shawnee Mission Medical Centre,134 the court determined that a religious hospital did not lose its Title VII exemption simply because it received

130 131 132

133 134

Laycock, “Formal, Substantive, and Disaggregated Neutrality”, p. 1007. 536 US 639 (2002). The IRS treatment of churches and religious organisations has been judicially scrutinised to ensure compatibility with the “neutrality principle”. See Walz v. Tax Commissioner, 397 US 664 (1970) and Committee for Public Education v. Nyquist, 413 US 756 (1973). 619 F.3d 1109 (9th Cir. 2010). Also see Epperson v. Arkansas, 393 US 97, 103–104 (1968). No. 88-2321-S, 1988 US Dist. LEXIS 12248 (D. Kan., 21 October 1988).

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thousands of dollars in federal Medicare payments as such payments did not “transform [the hospital] into a federally funded institution”. In assessing whether or not the state was acting properly when funding faith-based bodies, facilities or services, O’Connor J in Mitchell v. Helms135 employed “the Lemon test” and concluded that religious organisations should monitor and “compartmentalize” government funding received in the form of aid for education programmes. Where the aid is used for secular educational functions, then there would be no problem. If, however, the aid flowed into the entirety of an educational activity and some “religious indoctrination [is] taking place therein”, then that indoctrination “would be directly attributable to the government”.136 affirmative action. Laycock, in calling attention to the important distinction between “equality” and “neutrality”, was alluding to the need for positive action from a neutral but differentiating state to channel such resources as necessary to offset inequality and ensure a level playing field.137 Many states seek to achieve this by legislating for “affirmative action”, the school voucher scheme in the above mentioned case of Zelman v. Simmons-Harris138 being such an initiative. In recent years equality case law has narrowed the application of state’s affirmative-action provision to the point where these are now virtually confined to easing the admission of the socially disadvantaged into higher education. In Fisher v. University of Texas,139 the USSC upheld the university’s admissions policy, which conferred a preferential weighting on the basis of race but warned that it must be subject to strict scrutiny. religious symbols/prayers in state facilities. It has long been the case that the swearing of an oath or any other type of religious test is prohibited as a requirement for accepting a public post. The USSC affirmed this in Torcaso v. Watkins,140 when it unanimously held that Maryland’s requirement for a person holding public office to declare a belief in God violated the First and Fourteenth Amendments.141 It had earlier ruled that the same principle applies to prayers or other religious ceremonies in state schools.142 As the USSC explained some thirty years ago, “the prohibition against governmental endorsement of religion preclude[s] government from conveying or attempting to convey a message that religion or a

135 136 137

138 139 140 141 142

530 US 793, 120 S. Ct. 2530 (2000). See also Sch. Dist. v. Ball, 473 US 373, 398–400 (1985). Laycock, “Formal, Substantive, and Disaggregated Neutrality”, p. 997. See further at http://via .library.depaul.edu/law-review/vol39/iss4/3 536 US 639 (2002). 579 US_2016. 367 US 488 (1961). Elk Grove Unified School District v. Newdow, 542 US 1 (2004). McCollum v. Board of Education, 333 US 203.

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particular religious belief is favoured or preferred”.143 Nonetheless, the Christian heritage continues to attract singular recognition. So, in Marsh v. Chambers144 the practice of beginning the legislative session of the House of Representatives of Nebraska with a prayer by a publicly funded chaplain was found not to be contrary to the First Amendment, and indeed the Supreme Court’s own sessions begin with “God save the United States and this honorable Court”. It is continued also in the proclamation on US coinage – “In God we trust” – and in the Pledge of Allegiance – “one nation under God” – although, curiously, in the opinion of Justice O’Connor these do not indicate state preference for any particular religion.145 State Protection for Manifestations of Religious Belief In the landmark decision of Reynolds v. United States,146 the USSC refused to grant an appeal against a conviction for polygamy because to do so would “make the professed doctrines of religious belief superior to the law of the land, and in effect . . . permit every citizen to become a law unto himself”.147

religion-specific clothing. The weight of case law confirms that wearing religious apparel is not in itself sufficient to breach the establishment clause.148 Many cases concern pupils in state schools wearing religion-specific clothing while being taught which, in part, is attributable to the bearing of established case law precedents upholding children’s right to freedom of expression.149 Hearn and United States v. Muskogee Public School District150 concerned a Muslim girl who was suspended twice from school for wearing a hijab as required by her faith but the court ruled that she was entitled to do so. The school authorities, by singling her out because of her Islamic faith, had intentionally discriminated against her and the court quoted from the ruling in Lukumi that “at a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs”.151 143

144 145 146 147 148

149

150 151

County of Allegheny v. American Civil Liberties Union (Greater Pittsburgh Chapter), 492 US 573 (1989). See also McCreary County v. ACLU, 545 US 844 (2005). 463 US 783 (1983). See Elk Grove United School District v. Newdow, 542 US 5–6 (2004). 98 US (8 Otto.) 145 (1878). (1879) 98 US 145, p. 167; 25 Law Ed 244, p. 250. See further in the US Equal Employment Opportunity Commission (EEOC), “Religious Garb and Grooming in the Workplace: Rights and Responsibilities”, www.eeoc.gov/eeoc/ publications/qa_religious_garb_grooming.cfm See, for example, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 US 503, 506 (1969), pupils wearing black armbands to signify disapproval of Vietnam war; Chalifoux, 976 F.Supp. 659 (1997), high school students wearing white rosary beads to signify their Catholicism; and Alabama and Coushatta Tribes v. Big Sandy Schools District et al, 817 F.Supp. 1319 (1993), Native American school children with long hair to signify tribal identity. 020, No. Civ. 03 598-S (E.D. Ok., 2003). Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US (1993), p. 532.

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The same principle, as illustrated by the sequence of cases concerning the policy of clothing retailer Abercrombie & Fitch to ban the wearing of the hijab by its Muslim staff and job applicants is transferable to other settings.152 In the absence of any evidence that permitting Muslim employees to wear their hijabs placed an undue hardship on the employers,153 the latter were found to be guilty of religious discrimination.154 The USSC made the important point that “Title VII gives favoured treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices”.155 religion-specific clothing: state employees. There is a good deal of state legislation explicitly prohibiting teachers from wearing religion-specific clothing in classrooms. religion-specific clothing: service users in state facilities. The “reasonable accommodation” rule in Title VII of the Civil Rights Act of 1964 provides general protection for service providers and users in state facilities, as elsewhere, subject to the exceptions noted earlier. religion-specific customs, practices and rituals. In the Lukumi case,156 the USSC held that a state could not intervene to prevent the ritualistic slaughter of animals practised by a religious minority. Had the impugned ordinance been neutral and of universal application that incidentally unduly burdened that particular minority then – as per Employment Division v. Smith157 – the authorities could have sought the protection of the state neutrality doctrine. As it was, the ordinance clearly intended to prohibit that practice by the Santeria group so it was anything but neutral and universal. Following the introduction of the RFRA, the USSC has developed a more affirmative approach towards defending religion-specific customs that manifest sincerely held beliefs.158 In the earlier mentioned “eagle cases” where Native Americans’ have claimed an entitlement, on grounds of religious belief, to hunt, keep or take the feathers of eagles in contravention of neutral laws of general 152

153

154

155 156 157 158

See, for example, United States v. New York Metropolitan Transit Authority, No. CV-04 4237 (2004) and Axson-Flynn, 356 F.3d 1277 (10th Cir. 2004). See further in Equal Employment Opportunity Commission (EEOC), “Religious Garb and Grooming in the Workplace: Rights and Responsibilities” (2014), www.eeoc.gov/eeoc/publica tions/qa_religious_garb_grooming.cfm Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch Stores Inc., 575 US (2015). Ibid., pp. 2–7. The Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US 520 (1993). Employment Division, Department of Human Resources of Oregon v. Smith, 494 US 872 (1990). See P. Currier, “Freeman v. State of Florida: Compelling State Interests and the Free Exercise of Religion in Post September 11th Courts”, Catholic University Law Review, vol. 53 (Spring 2004).

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application – the test requires proof either that the legislation does unduly burden any such practice or that, nonetheless, the government’s interest is sufficiently compelling to justify the restriction imposed. So, in U.S. v. Friday,159 where the defendant was charged with taking one bald eagle without asking permission from the secretary of the interior, he claimed that as a Native American he was exempt from the charges and even if the Bureau of Native Americans did not recognise him as such, the charges should still be dismissed as his actions were protected by the RFRA. The court, having analysed the RFRA claim and citing Gonzales, ruled in favour of the defendant, specifically noting that160 the Government may be able to meet [the compelling interest burden], as the Tenth Circuit considered the protection of bald eagles to be [a compelling interest]. Nonetheless, the RFRA test is not satisfied by generalized assertions.

The same principle grounded the ruling of Ambro J in the Eruv Association case,161 where he found that as the borough had not enacted a genuinely general or neutral ordinance – it permitted a wide variety of attachments to utility poles for nonreligious purposes, including posting signs and other items – it could not, therefore, selectively exclude attachments for religious purposes. In Watchtower Bible and Tract Society of New York v. Village of Stratton,162 the court considered town ordinances that made it a misdemeanour to engage in door-to-door advocacy without first registering with town officials and receiving a permit. Jehovah’s Witnesses argued that these ordinances violated their First Amendment right to canvass door to door as part of their religious belief that they should share the Gospel with others. The USSC agreed and stated that the ordinances were “offensive, not only to the values protected by the First Amendment, but to the very notion of a free society”.163 Again, in Gonzales,164 the USSC ruled that the government – in prohibiting the importation of a sacramental tea, required for manifesting the beliefs of a Brazilian church – had failed to meet the burden imposed by the 1993 act and demonstrate that its intervention served a compelling government interest; therefore the prohibition was invalid. In Cutter v. Wilkinson,165 a case involving five Ohio prison inmates with quite different belief affiliations (two Norse pagans, a Wiccan witch, a Satanist and an evangelical Christian), the plaintiffs collectively and successfully claimed that their access to ceremonial items and opportunities for 159 160 161

162 163 164 165

2006 WL 3592952 (D. Wyo., 13 October 2006). Ibid., pp. 1–2. Tenafly Eruv Association v. Borough of Tenafly (309 F.3d 144). An “eruv” being an urban area enclosed by a wire boundary that symbolically extends the private domain of Jewish households into public areas, permitting activities within it that are normally forbidden in public on the Sabbath. 122 S. Ct. 2080 (2002). Ibid., p. 2087. See also, Hare Krishna case. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418 (2006). 544 US 709 (2005).

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group worship was mandated under the Religious Land Use and Institutionalised Persons Act of 2000. More recently, the USSC refused to order the removal of a seven-foot tall cross, which had stood as a war memorial for seventy years on a dominant rock on federal land in the Mojave desert,166 as requested by a plaintiff who claimed to be “deeply offended by the display of a Latin Cross on governmentowned property”. Although the court ultimately ruled in favour of a government statute that ensured the retention of the commemorative cross by transferring ownership of it and the land on which it stood to a private party, the powerful dissenting judgment of Stevens J, joined by Ginsburg and Sotomayor JJ, indicates just how uncertain and divided the court was: It is undisputed that the “[L]atin cross is the preeminent symbol of Christianity. It is exclusively a Christian symbol, and not a symbol of any other religion.” We have recognized the significance of the Latin cross as a sectarian symbol, and no participant in this litigation denies that the cross bears that social meaning. Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian.

state protection of its traditional religious/cultural identity. The establishment clause of the First Amendment would seem intended to operate as a roadblock to prevent any overt government initiative favouring its Christian cultural heritage, or any other. Arguably, however, the above evidence of preferencing Christianity in coinage, school prayers, and on state ceremonial occasions indicates that this has not been wholly successful. It also indicates the relative lack of recognition, weighting and protection given to the religious/cultural identity of Native Americans. Freedom of Association As was declared in NAACP v. Alabama ex rel. Patterson,167 “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment.” Religious Organisations and the State The courts have been slow to licence state intrusion into the autonomy of religious organisations.

intervention in church disputes. A considerable body of case law attests to the fact that state intervention is impermissible in relation to church-property 166 167

Salazar v. Buono, 130 S. Ct. 1803 (2010). 357 U.S. 449, 460–461 (1958).

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disputes.168 As the court noted in Jones v. Wolf,169 “The First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. . .. It prohibits civil courts from resolving (such) disputes on the basis of religious doctrine and practice.” In fact, however, this ruling has subsequently been interpreted as giving the courts a wide discretion to interfere with property disputes if they can do so without having to decide religious questions. The state is similarly constrained as regards its capacity to challenge a church’s right to choose its minister: the free exercise clause protects a religious group’s right to shape its own faith and mission through its appointments.170 However, whether an issue presents as a church-property dispute or as a religious organisation’s employment dispute, a preliminary task is to determine if the parties can be defined as coming within the religious parameters required by the exemption privilege. This must necessitate some enquiry into the religious status of the organisation and of the parties involved. To that extent at least, a court or other body has to intervene in church matters – to establish the “religiosity” of both organisation and parties while also analysing the functional roles of those concerned – notwithstanding First Amendment constraints. state preferencing of religious organisations and communities. State preferencing comes in the form of various exemptions and other privileges which, as they generally apply uniformly across the board to all churches and other religious organisations, conform to a positively supportive but even-handed state neutrality model. It also derives from policy, laws and bodies instituted specifically to support religious organisations and to mediate between them and government that undermines that neutrality. Any analysis of state neutrality, as applied in the USA, must also take into account the constitutional implications arising from concessions granted to communities such as the Amish, fundamentalist Mormons and to Native Americans, in deference to their religion or beliefs, exempting them from state laws of universal application. The pivotal case of Wisconsin v. Yoder171 stands as a landmark. It demarcates the limits of state interventionism, under the First Amendment, in matters of religion. Although the effect of this decision has since been diluted by rulings in cases such as Employment Division v. Smith,172 and by the overall ironing out of disparities

168

169 170

171 172

See, for example, Watson v. Jones, 80 US (13 Wall.) 679 (1871); and Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440, 441, 449–450 (1968). 443 US 595, 602 (1979). See, for example, Watson v. Jones, 80 US (13 Wall.) 679 (1871); Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 US 94; and Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 US 696. 406 U.S. 205 (1972). 48 US 872 (1990).

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achieved by equality and non-discrimination legislation, nevertheless, the fact that religious communities can acquire such significant carve-outs from the constraints imposed upon all other religious and secular entities constitutes an important characteristic of the church–state relationship in the USA. Secular Organisations, Religion and the State Boy Scouts of America v. Dale173 concerned the Scouts, an independent ecumenical association, with a moral code derived from the teachings of its principal sponsors – mainly the Catholic, Methodist, and Mormon Churches – compliance with which could be understood as constituting a criterion for membership and a significant rationale for the existence of that association. When the USSC ruled that the organisation was constitutionally exempt from a law prohibiting discrimination against homosexuals, it was acknowledging that any association was entitled to set its terms of membership and include or exclude accordingly: the freedom of association guaranteed by the First Amendment (within the freedoms of speech and of assembly) and the Fourteenth Amendment, protected the organisation from accepting the forced inclusion of Dale, an LGBT activist, whose presence would be likely to infringe its freedom of expression by significantly compromising its capacity to give effect to its purpose for associating. Rehnquist CJ cited in support the earlier decision in Hurley,174 when the USSC concluded that a St Patrick’s Day parade organised by a private association should not be compelled to accept an LGBT group, which would be likely to represent a message it deemed to be at variance with its associative purpose. Both decisions are limited by the distinctive nature of the organisations involved – expressive associations – whose raison d’être is to represent a particular set of ideas. Both are, therefore, held to be distinguished from earlier decisions, particularly the USSC rulings in Jaycees175 and Rotary176 requiring male-only organisations to admit women. In this context, mention must also be made of Burwell v. Hobby Lobby,177 which extended preferential state treatment to commercial entities owned by those with religious beliefs. In so doing, employees in such entities are being placed at a disadvantage relative to their counterparts elsewhere as their choices may well be constrained by the religious beliefs of their employers. Such a differentiation, unfairly burdening a class of employees on religious grounds, can be construed as due to compromised state neutrality.

173 174 175 176 177

530 US 640 (2000). Hurley v. Irish-AmericanGay, Lesbian and Bisexual Group of Boston, 515 US 557, 573 (1995). Roberts v. Jaycees, 468 US 609, 618 (1984). Board of Directors of Rotary International v. Rotary Club of Duarte, 481 US 537, 544 (1987). 573 US 134 S. Ct. 2751 (2014).

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Freedom of Expression Constitutionally asserted in the First Amendment,178 the freedom to express is seen as the hallmark of democracy in the USA where it has always been staunchly defended. However, not all views expressed qualify for First Amendment protection: they must touch upon a matter of public concern, and the time, place and manner are also significant.179 Free Speech Constraints upon the dissemination of religious views180 have been the subject of continuous judicial probing in the USA,181 particularly in respect of religious speech by Jehovah’s Witnesses.182 The USSC has ruled that laws that compel public disclosure of information that could attract threats or harassment, would breach the free speech clause of the First Amendment183 and such constraints have been extended to include the expression of views judged to be obscene or sexually offensive.

blasphemy. Nationally, blasphemy laws in the USA have been deemed unconstitutional, but they remain on the statute books in some states. In Joseph Burstyn, Inc. v. Wilson,184 the USSC held that the State has no legitimate interest in protecting any or all religions from views distasteful to them. . .. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine.

However, no one has been jailed in the USA for blasphemy since 1838. proselytism. Proselytism is protected by the First Amendment, though not if federal funds are used for that purpose.185 Otherwise any impairment of the right to distribute pamphlets, religious or otherwise and even anonymously, is contrary to 178

179 180 181

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183 184 185

See the Virginia Statute of Religious Freedom 1777, drafted by Thomas Jefferson, guaranteeing freedom of religion to all, and endorsed by the USSC in Reynolds v. United States, 98 US 145 (1879). US Supreme Court in Pickering v. Board of Education, 391 US 563 (1968). See the “clear and present danger” cases. See, for example, Good News Club v. Milford Cent. Sch., 533 US 98 (2001); Rosenberger v. Rector, 515 US 819 (1995); Capital Square Review and Advisory Bd. v. Pinette, 515 US 753 (1995); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 US 384 (1993); Bd. of Educ. v. Mergens, 496 US 226 (1990); and Widmar v. Vincent, 454 US 263 (1981). See, for example, Marsh v. Alabama, 326 US 501 (1946); W. Va. State Bd. Educ. v. Barnette, 319 US 624 (1943); Martin v. City of Struthers, 319 US 141 (1943); Cox v. New Hampshire, 312 US 569 (1941); and Cantwell v. Connecticut, 310 US 296, 309–310 (1940). Brown v. Socialist Workers Party, 459 US 87 (1982) 343 US 495 (1952). See Hein v. Freedom From Religion Foundation, 551 US 587 (2007).

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the First Amendment’s free speech clause as was recognised in McIntyre v. Ohio Elections Commission.186 Where, however, as in Heffron v. International Society for Krishna Consciousness,187 such distribution would interfere with the state’s legitimate interest in ensuring public health and safety, then a state ordinance preventing this so as to allow for control of crowds at a fair will be upheld. When the proselytism becomes harassment, as in Ng v. Jacobs Engineering Group,188 then the normal civil liberties of others will be upheld. In that case, an evangelical Christian, whose religious beliefs compelled her to share those beliefs with her co-workers in order to save them, persisted in using company equipment and facilities for religious proselytising. When eventually fired, she filed a claim for religious discrimination based on her employer’s failure to accommodate her religious beliefs and practices. The court found in favour of the employer: it considered that the company could potentially be liable for religious harassment claims by the plaintiff’s co-workers if she were allowed to continue her proselytising, and held that Ms Ng’s proselytising violated the company’s policies on anti-harassment and email use (see further at “Proselytism in the Workplace”). Matters of Conscience The freedom to express views, or to otherwise give effect to personal beliefs or convictions, most clearly gives rise to issues in the context of healthcare provision and in military service when individuals refuse, on religious grounds, to perform a duty owed to the state. A similar conflict between duty and conscience may arise in relation to the provision of commercial services.

refusal to bear arms. The history of the law relating to the treatment of citizens who, on religious grounds, refuse to bear arms on behalf of the state, probably begins in the early nineteenth century when many governments exempted Quakers and other religious objectors from military service by statute. During World War I, imprisonment and harsh punishment was meted out to Hutterites, Mennonites and others who refused to serve. By World War II, this approach had been moderated to one of mandatory public service work in camps. In Gillette v. United States,189 the USSC broadened the definition of “conscientious objector” to include any person with “no particular sectarian affiliation or theological position . . . who has deeply held beliefs that cause them to oppose participation in war in any form”. public interest and personal conscience. The long-running culture wars have been extended, over the past decade or so, to LGBT issues, which have 186 187 188 189

514 US 334 (1995). 452 US 640 (1981). Also see Int’l Society for Krishna Consciousness Inc. v. Lee, 505 US 672 (1992) Super. Ct. No. BC320996, filed 10/16/06. 401 US 437 (1971), per Marshall J.

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brought with them many opportunities for organisations and individuals to seek exemption, on the grounds of religion, from new statutory requirements to facilitate processes they perceive as breaching their conscience or beliefs: matters that lie at the heart of the First Amendment. The USSC confirmation of the constitutionality of the Obama administration’s Patient Protection and Affordable Care Act (ACA) triggered considerable controversy as to public health measures that restrict personal choice: in particular there were arguments that requirements of the act violated the right to freedom of conscience by mandating access to contraception as a form of public service provision, which violated the beliefs of many religious organisations and individuals. Some states responded by introducing so-called religious liberty laws that provide opt-outs for service-delivery staff, permitting them to decline involvement in services on the grounds of personal conscience. This trend was consolidated by the Trump administration when it repealed crucial aspects of the ACA contraceptive provisions and established the Conscience and Religious Freedom Division, as part of the Office of Civil Rights, within the purview of the Department of Health and Human Services (HHS). The remit of this new division, tasked with enforcing federal laws protecting civil rights and conscience in health and human services, has been reinforced by the recent USSC decision to decline to hear a case challenging the introduction of the Religious Liberty Accommodations Act in Mississippi due to the plaintiffs lack of standing.190 This legislation permits state employees to refuse to participate in service provision to LGBT persons if doing so would contravene their religious beliefs. It specifies three beliefs that qualify the holder for exemption: that marriage happens only between a man and a woman; that sex should only take place in that kind of marriage; and that a person’s gender is decided at birth and cannot be changed. The ramifications of this USSC decision not to grant a hearing are currently difficult to predict but the law remains on the statute books, even if not yet implemented.

case law: the church–state relationship and equality rights The equal protection clause of the Fourteenth Amendment places a legal obligation on the state, and, therefore, on all government entities, to ensure that similarly situated individuals are treated equally.191

190

191

Also known as the Patient Protection and Affordable Care Act of 2016, or HB 1523. See Barber v. Bryant, 17-547, and Campaign for Southern Equality v. Bryant, 17-642. Alford v. Consolidated Gov’t of Columbus, Ga., 438 F.App’x 837, 839 (11th Cir. 2011); citing Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006).

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Equality and the Church–State Relationship Frederick M. Gedicks has asserted that “freedom of religion in the United States is less a liberty right than an equality right”192 and this would seem to be borne out by the weight of case law that addresses the manifestation of belief as one of a flux of what can be competing rights – most often to do with privacy, gender and sexual orientation. The Religious Exemptions Based on an interpretation of freedom of religion in the First Amendment, churches generally are presumed to be charitable and tax exempt193 while the broad and uncertain parameters of that right has resulted in religious organisations generally experiencing a light regulatory regime.

tax-exemption privileges. Many religious congregations and thousands of churches are not required by law to register with the IRS and choose not to do so. Tax exemptions are available for churches under IRS 501(c)(3) and any parishioner donations are tax deductible.194 The reasoning in the Schulman case195 clearly indicates that even anti-theistic organisations (with locus standi) are eligible to be grouped under “religion and beliefs” and qualify for section 501(c)(3) exemption status. testamentary privileges. Testamentary dispositions subject to a religiously discriminatory condition have long been found to be valid. In Shapira v. Union National Bank,196 for example, a father left his money to Israel, his wife and their three sons subject to the latter being married to a Jewish girl or marrying a Jewish girl within seven years of his father’s demise. The court found that it was dutybound to honour his intentions. Similarly, in re the Estate of Max Feinberg,197 the Illinois Supreme Court upheld a condition in the will of a deceased Chicago dentist, which prohibited marriage outside the Jewish faith with the effect of disinheriting his four grandchildren. 192

193

194

195

196 197

See Gedicks, “The Permissible Scope of Legal Limitations”. Also see P. Kurland, Religion and the Law: Of Church and State and the Supreme Court, University of Chicago Press, Chicago, 1961. See IRS Publication 1828, “Tax Guide for Churches and Religious Organizations”, www.irs .gov/pub/irs-pdf/p1828.pdf However, note that in Jimmy Swaggart Ministries v. Board of Equalization, 110 S. Ct. 688 (1990), the court unanimously held that churches can be taxed, so long as the tax laws do not single out churches for discriminatory rates or incidents of taxation (as cited by Laycock, “Formal, Substantive, and Disaggregated Neutrality”, p. 1007). American Atheists Inc. v. Schulman, 2:2012cv00264 (United States District Court, Eastern District of Kentucky, Northern Division), 2014. 39 Ohio Misc. 28, 315 N.E.2d 825 (1974). (2009) 235 Ill. 2d 256.

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the ministerial exception. The appointment of church ministers is governed by the so-called ministerial exception, which is grounded in the First Amendment. Such matters are most likely to be raised in the context of alleged inequality or discrimination and tend to be adjudicated under the provisions of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws. In Rayburn198 the court found that “if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered ‘clergy’”.199 Then Elvig v. Calvin Presbyterian Church200 confirmed that the appointments of ministers and clergy are exclusively matters for determination by religious organisations – thus the Catholic Church may deny ordination to women – and are completely immune from a Title VII challenge. But it was the ruling in Hosanna-Tabor201 that marked a turning point. The USSC then considered whether the Lutheran Church could avail of the exception in response to an unfair dismissal claim by an employee teacher at one of its religious elementary school who had taught the full secular curriculum, but also taught daily religion classes, was a commissioned minister, and regularly led students in prayer and worship. The court found that the teacher had functioned as a minister – in part because her employers had held her out as a minister with a role distinct from that of its lay teachers and in part because she held herself to be a minister by accepting the formal call to religious service required for her position – and concluded that her status as such outweighed the secular aspects of her job. Roberts CJ explained that the purpose of the exception privilege is not limited to hiring and firing decisions made for religious reasons, adding “we cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers”. The USSC reaffirmed that the establishment and free exercise clauses bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. It distinguished its ratio decidendi from that in Smith as follows:202 Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

As has been argued, “The combination of Smith and Hosanna-Tabor means that religious individuals have absolutely no protection from neutral laws of general applicability, even if the laws bar them from participating in a sacrament (the Smith rule), while religious institutions may be protected absolutely, even if their acts have 198 199 200 201 202

Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir.1985). Ibid., 1169. 397 F.3d 790, 790 (9th Cir. 2005). Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 US – (2012). Ibid., p. 697.

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no religious basis (the ministerial exception approved by Hosanna-Tabor).”203 However, this may be an exaggeration. As Gedicks points out, “Hosanna-Tabor applies only to ministers. . .. While churches have been aggressive trying to classify employees as ‘ministers’, the courts have not given them carte blanche on this.”204 employment law exemptions. The “exemption doctrine” emerged in the 1960s to provide special protection for religion under the free exercise clause as this seemed a permissible way of balancing the special disabilities imposed on religious activity under the establishment clause. It empowered courts to excuse individuals from complying with a neutral law of universal application if they could show that the law unduly burdened their sincere religious practices, unless the government could show that mandating uniform obedience to the law was required by a compelling interest that could not be protected in any less intrusive manner.205 By the 1980s it had seemed that the exemption was being narrowly interpreted: religious entities were not, as a matter of course, able to claim immunity from state laws intended to have universal application;206 as underlined by the USSC, in Employment Division v. Smith.207 Following introduction of the RFRA in 1993, the USSC developed a more affirmative approach to the exemption in rulings, which emphasised that the burden of proof continued to rest firmly upon federal government to satisfy the “compelling interest” test established in Sherbert v. Verner208 if it was to justify any law that interfered with religious organisations. The Smith decision, however, has not been wholly legislatively overturned: it remains the case that religion does not give a blanket indemnity from the requirements of neutral laws of universal application; there remains an onus on the entity claiming exemption to show both evidence of religious status and of the extent to which the entity functionally gives effect to it; but the RFRA and associated case law have undoubtedly imposed severe restrictions upon its scope. The decision in Gonzalez209 introduced further complications by ruling that in calculating whether that compelling interest was justified, the government should take into account the sincere belief of those likely to be affected: their subjective perception of what constituted a religious belief was to be the benchmark, which would vary from case to case.210 The RFRA, it has 203

204 205

206

207 208 209 210

C. M. Corbin, “The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC”, Northwestern University Law Review, vol. 106, no. 2 (2012), pp. 950–971, 955. Note to author, 19.04.17. See A. Green, “The Political Balance of the Religion Clauses”, Yale Law Journal, vol. 102 (1993), p. 1611. For example, in Alamo Foundation v. Secretary of Labor, 471 US 290 (1985). Also see United States v. Lee, 455 US 252 (1982). 48 US 872 (1990). 374 US 398 (1963). 546 US 418 (2006). See Multi Denominational Ministry of Cannabis and Rastafari, Inc. v. Gonzales, 474 F. Supp. 2d 1133 (N.D. Cal. 2007).

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been said, “forces courts into the awkward position of assessing the sincerity of a group’s religious beliefs and then carving out exceptions to federal statutes in order to accommodate these beliefs”.211 The exemption is restricted to protect only those activities of a religious organisation that are religious in nature.212 However, in Burwell v. Hobby Lobby,213 the USSC greatly extended the potential scope of the religious exemption by ruling that commercial entities, if “closely held” (i.e. with few shareholders whose shares are not traded on public markets), were equally eligible. It then acknowledged “worries about forcing the federal courts to apply the RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws . . . (citing the ruling in Smith)”, but nevertheless asserted that “Congress, in enacting RFRA, took the position that ‘the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests’. . .. The wisdom of Congress’s judgment on this matter is not our concern”.214 As noted by Ginsburg J in her dissenting opinion, the decision “gives commercial companies an opt-out from any law, except tax laws, considered to be incompatible with their sincerely held religious beliefs”.215 It is a decision that, by extending the religious exemption to include hybrid organisations – neither religious nor charitable, but mainstream commercial entities that happen to be owned by those with religious beliefs – sets the USA on a different course to that followed in other Part II jurisdictions. Churches were exempted from the requirement in the Affordable Care Act of 2010 that companies providing health insurance for their employees must include coverage for sterilisation procedures and birth control medication. However, religious entities delivering public service, such as Catholic hospitals, universities, schools and agencies, were required under ancillary regulations to allow their employees to freely choose whether or not to avail of such coverage. regulatory exemptions. Religious organisations, per se, are exempt from many regulatory mechanisms imposed upon other entities in the commercial and nonprofit sectors. Such exemptions and concessions apply not only to churches but also to the ever-extending religiously affiliated non-profit facilities such as universities, hospitals, child care centres and homes for the aged. Often unlicenced, tax exempt, and frequently in receipt of state grants and service contracts, it can be argued that these state-subsidised facilities enjoy an unfair advantage over their secular counterparts – in contradiction to any semblance of state neutrality. 211 212 213 214 215

Ibid., 1145. Redhead v. Conference of Seventh-Day Adventists, 440 F. Supp. 2d 211 (E.D.N.Y 2006). 573 US 134 S.Ct. 2751 (2014). Ibid., p. 54. Ibid., pp. 60–61.

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Equality, Family, Life, Death and the Church–State Relationship State neutrality has been largely responsible for the secularisation of family law, a process that occurred steadily in most Western countries throughout the latter half of the twentieth century. In recent years the effects of this process have been compounded by the impact of equality legislation. The Marital Family Marriage, the social institution that traditionally brought sexuality and religious belief into legal alignment, has been severely strained by the pace of social change in recent years.

spouses. The basic definition of “marriage” was first tested by the polygamous practices of the Mormons, then by the prescribed roles and duties of the parties as laid down in religious law for Muslims (sharia) and Jews (ketubah). The ongoing difficulties in aligning religiously defined divorce proceedings – particularly the Islamic mahr agreements216 and the Jewish “get” – with statutory requirements can trigger allegations of religious discrimination from both those who believe their cultural traditions are being disrespected by being subordinated to statutory law and by those disadvantaged as a consequence of their enforced adherence to those traditions. However, it was the extension of the legally defined marital relationship to accommodate same-sex couples that presented the institutional religions with what has probably been their single most profound challenge in centuries. The 2015 ruling in Obergefell v. Hodges217 established the legality of same-sex marriage on a nation-wide basis and demonstrated the realities of the neutrality principle. Some may read the decision of the USSC to stand aside in the appeal proceedings lodged against the Mississippi legislation as, paradoxically, being in support of this principle:218 a state should have the freedom, when legislating on cultural/religious matters, to favour prevailing cultural norms when doing so, provided that the legislation stays within human rights parameters, as, perhaps, illustrated by the state response to Amish and Mormon issues. However, by standing aside, it has really simply left matters as they were. Obergefell had set a national bar that this legislature chose to curtail throughout its jurisdiction (though with effects that would be difficult to confine to religious/cultural groups) in order to affirm the equal rights of those with religious beliefs. However, if implemented, the consequences of this statute will be far reaching: permitting an opt-out for all state employees whose beliefs align with one or more of the three specified in the statute will licence very 216

217 218

See C. A. Sizemore, “Enforcing Islamic Mahr Agreements: The American Judge’s Interpretational Dilemma”, www.georgemasonlawreview.org/wp-content/uploads/2014/06/18-4SIZEMORE.pdf 576 US (2015). Barber v. Bryant, 17-547, and Campaign for Southern Equality v. Bryant, 17-642.

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many to withhold service provision, thereby discriminating against and disadvantaging some citizens relative to others. Inevitably, it will also set a precedent for the private and non-profit sectors. parenting. Developments in medicine and law have greatly impacted upon parenting, increasing the extent to which maternity is now a chosen option as pregnancy may be achieved by artificial insemination and surrogacy, avoided through the use of improved contraceptives, or terminated by abortion. sogi issues. As if the challenge to the traditional heterosexual marital relationship, as known to the law for millennia, wasn’t enough to cope with, the legislature and courts have also struggled to catch up with the changing social mores in relation to roles and relationships hitherto anchored upon an equally traditional binary gender model. Legislating for transgender recognition and for transgender facilities – notably access to bathrooms – has given rise to issues here as in other countries. There is considerable disparity across the states with many now introducing “religious liberty” laws providing opt-outs for service providers (mainly public healthcare professionals) who have issues of religious/beliefs/conscience with service users from the LGBT community. suicide and medically assisted death. The engagement of the state in prescribing the circumstances in which individuals can or should die – whether involuntarily by capital punishment or voluntarily by suicide – is a matter that traverses religious beliefs and, therefore, inevitably, impacts upon state neutrality while also contributing significantly to the culture wars. In 2016, Colorado became only the sixth state to allow terminally ill patients to legally end their lives with medical assistance.219 The case law leading to this point had been protracted and cautious with the USSC ruling in 1990, in Curzon,220 that while there is no constitutional right to suicide, there is a fundamental right to refuse medical treatment; in 1997, in Glucksberg,221 that the due process clause gives a terminally ill individual the right to commit suicide but not a right to medical assistance in doing so; and in 2006, in Gonzales,222 that Oregon’s Death With Dignity Act, or “right to die” law, was constitutional and that physician-assisted suicide had a “legitimate medical purpose” – which paved the way for five other states to enact similar provisions. While these legislative steps are undoubtedly important – constituting significant milestones for both the neutrality principle 219

220 221 222

As of 2020 this right had been extended to ten states: California, Colorado, District of Columbia, Hawaii, Montana, Maine, New Jersey, Oregon, Vermont, and Washington. Curzon v. Director, Missouri Dept of Health, 497 US 261 (1990). Washington v. Glucksberg, 521 US 702 (1997). Gonzales v. Oregon, 546 US 243 (2006).

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and the culture wars – arguably they are outweighed by the fact that so far the vast majority of states have chosen not to follow suit.

Equality, Healthcare and the Church–State Relationship Public healthcare has long been entangled with controversy over the free exercise and anti-establishment clauses of the First Amendment: how to balance the public laws mandating universal services subvented by tax revenues with the private rights of those who maintain that involvement in such provision would violate their religious beliefs.223 In fact, for that reason healthcare services have come to play a prominent role in the US culture wars. Healthcare Services As mentioned earlier, the newly established Division of Conscience and Religious Freedom, located within the Department of Health and Human services and under the purview of the Office of Civil Rights, is intended to protect doctors, nurses and other healthcare workers who decline to take part in healthcare service provision because to do so would violate their religion, beliefs or morals. Building upon recent USSC decisions224 and state “religious liberty law” initiatives, it marks an important point of departure from the law governing public healthcare services elsewhere, which generally does not permit public service providers to choose those aspects of legally mandated provision with which they will or will not comply. Arguably, such a freedom of choice is prohibited under the Fourteenth Amendment. In terms of state neutrality, this initiative is very interesting and future developments will require close analysis.

the services. Unlike the situation in other developed nations, IVF in the USA is lightly regulated, very expensive and lacks a central agency with responsibility for providing a national overview and service coordination. Essentially, rather than the state assuming responsibility for regulating artificial reproduction technology, this has largely been treated as a matter best left to medicine and the market. Since at least 1973 and the decision in Roe v. Wade,225 abortion services have been the most long-running, socially divisive, family-related issue to test the US church– state relationship, an issue that may have been defused somewhat, or perhaps just further complicated, by improvements in contraception. The Affordable Care Act brought into sharp focus the issue of access to contraception and triggered a flow of cases featuring religious employers protesting that to provide employees with a 223 224

225

See Griswold v. Connecticut, 381 US 479 (1965). Burwell v. Hobby Lobby, 573 US 134 S. Ct. 2751 (2014) and Zubik v. Burwell, 136 S. Ct. 1557–2016. 410 US 113 (1973). Note, also, Planned Parenthood v. Casey, 505 US 833 (1992).

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health plan that included contraceptives would be to impermissibly burden their religious beliefs.226 This issue reached a climax with the decision of the Trump administration in 2017 to allow all employers a religious exemption to the contraception coverage requirement in the ACA. Decades of pro-life/pro-choice confrontations,227 and the profound divisions in religious and secular principles represented by the strongly associated culture war issues, have imposed a serious stress test on civil society and on the principle of state neutrality. The considerable case law history228 tracks a pattern of alternating victories and defeats notched up by pro-life and pro-choice protagonists. The introduction of the Religious Liberty Accommodations Act, followed most recently by contention over the Bryant case,229 has done much to further the fracturing of US society. professional exemption from healthcare service provision on religious grounds. While clearly aimed at offering protection to public healthcare staff engaged in abortion and contraception services, the potential remit of the Division of Conscience and Religious Freedom is uncertain. If, as seems likely, it extends to matters addressed in the Mississippi legislation – such as protection for those refusing to deal with LGBT and transgender issues – it will be difficult for the division to avoid compromising state neutrality and further inflaming the culture wars. There is also the possibility that the protection could accommodate issues such as assisted suicide or capital punishment and it may reach beyond direct service providers to those in ancillary positions such as radiographers or even receptionists. Possibly, given the competitive “free market” context, the new constraints will, in practice, be offset by correspondingly new opportunities to access services in the private sector, if affordable. In late 2019, the Department of Health and Human Services issued a new regulation: Protecting Statutory Conscience Rights in Health Care; Delegations of Authority.230 This lists an extensive array of procedures, professionals, agencies and associated agency and state funding/strategy programmes to be treated as governed

226

227

228

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Including Little Sisters of the Poor Home for the Aged, Denver, Colorado, A Colorado Non-profit Corporation, et al., Applicants. v. Kathleen Sebelius, Secretary of Health and Human Services, et al. 134 S. Ct. 1022 (2014), Burwell v. Holly Hobby Stores, Inc., 134 S. Ct. 2751, 2765 (2014) and Zubik v. Burwell, 135 S. Ct. 2924 (2015). Note that at least seven abortion clinicians have been murdered in the USA and Canada in the past ten years by religiously motivated individuals. Including Rust v. Sullivan, 500 US 173 (1991) and Planned Parenthood v. Casey, 505 US 833 (1992). Barber v. Bryant, 17-547, and Campaign for Southern Equality v. Bryant, 17-642. DHHS, Office of the Secretary, 45 CFR Part 88, RIN 0945-AA10. See further at www.hhs.gov/ sites/default/files/final-conscience-rule.pdf

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by a “conscience protection” clause. This Trump administration initiative has been criticised as likely to adversely impact healthcare services for the LGBT community.231 Equality, Education and the Church–State Relationship Education is a proven means for maintaining inter-generational cultural values, which is why its facilities have become a crucible for the US culture wars. Needless to say, matters have become more complicated and politicised with the introduction of LGBT, transgender and gender fluidity issues. In addition to the institutional effect, the role model that teachers provide for their pupils can also influence the development of the latter’s beliefs. State Schools and Religion Title IV of the Civil Rights Act of 1964 prohibits discrimination based on religion in public primary and secondary schools, as well as in public colleges and universities.

educational facilities. In Bob Jones University v. United States,232 the USSC found that a religious university with a racially discriminatory admissions policy, and other policies relating to religious beliefs against interracial dating and marriage, was not protected by the religion clauses of the First Amendment. Where a state university adopts a blanket policy that singles out, and thereby discriminates against, religious speech, then, as in Widmar v. Vincent,233 it may find itself accused of religious discrimination. By way of contrast, in Christian Legal Society v. Martinez,234 the USSC upheld the right of a college of law to prohibit the Christian Legal Society, a student organisation in the college, from restricting membership to those who agreed to comply with an explicit set of religious and lifestyle principles. Ward v. Polite235 concerned a student in her final semester of a counselling course at Eastern Michigan University who told her professors that she had no problem counselling individual gay and lesbian clients but could not in good conscience assist them with their same-sex relationships; her subsequent expulsion for violating the school’s anti-discrimination policy was quashed on appeal and the school settled out of court.236 educational content and instruction. The principle that parents have the right to direct the education of their children was acknowledged in Pierce v. Society

231

232 233 234 235 236

See further at www.pbs.org/newshour/health/what-the-new-religious-exemptions-law-meansfor-your-health-care 461 US 574 (1983). 454 US 263, 277 (1981). 130 S. Ct. (2010). 667 F.3d 727 (6th Cir. 2012). Author acknowledges advice from Frank Ravitch on this matter (note to author: 04.02.2020).

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of Sisters.237 That this fundamental right of parents, based on freedom of religion, outweighs the public service duty of the state to ensure provision for the education of children, has been established since at least Wisconsin v. Yoder238 when the USSC ruled that Amish parents could not be compelled to send their children to high school, thereby setting a legal precedent for the home schooling of children, which in the second decade of the twenty-first century is now escalating as parents, dissatisfied with the religious content of teaching in the public education system, have opted to teach some 3.5 million children at home. As Chief Justice Warren E. Burger then noted: “A state’s interest in universal education, however high we rank it, is not totally free from a balancing process when it impinges upon . . . the traditional interest of parents with respect to the religious upbringing of their children.” The rationale, for a parental right to insulate children from an unwanted religious influence in the classroom setting, was explained as follows by Brennan J in Edwards:239 Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary. . .. The State exerts great authority and coercive power through mandatory attendance requirements, and because of the student’s emulation of teachers as role models and the children’s susceptibility to peer pressure.

This principle was reiterated in Peloza v. Capistrano Unified School District240 when a biology teacher sued his employers alleging that the school district violated his rights under free speech clause of the First Amendment by requiring him to teach evolution and alleged that the teaching of “the religion of evolutionism” violated the establishment clause of the First Amendment. In rejecting his claim, the Ninth Circuit commented that:241 while at the high school, whether he is in the classroom or outside of it during contract time, Peloza is not just any ordinary citizen. He is a teacher. . .. The likelihood of high school students equating his views with those of the school is substantial. To permit him to discuss his religious beliefs with students during school time on school grounds would violate the Establishment Clause of the First Amendment.

237 238 239

240

241

268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). 406 US 205 (1972). Edwards v. Aguillard, 482 US 578, 107 S. Ct. 2573, 96 L.Ed.2d 510 (1987), p. 584. Also see Grand Rapids School District v. Ball, 473 US 373, 105 S. Ct. 3216, 87 L.Ed.2d 267 (1985). 37 F. 3d 517 (9th Cir. 1994). Also see Johnson v. Poway Unified School Dist., 658 F. 3d 954 (9th Cir. 2011). Ibid., 522.

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religious prayers and symbols. The decades of School Prayer cases established that any memorial service, sponsored or organised by a school and involving a prayer, would compromise the neutrality of the public education system.242 By logical extension, this principle was also found to apply to teachers wearing religious clothing. United States v. Board of Education for the School District of Philadelphia,243 for example, was not untypical of a number of such cases244 usually concerning Muslim female teachers in public schools and statutory directives stating that “no teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination”.245 The court, finding that such a statute explicitly discriminated against certain practices precisely because they were religious, followed the rationale developed in the earlier and very similar Cooper case246 in which the plaintiff was a Sikh teacher who wore white clothes and a white turban and whose teaching certificate was revoked when she continued doing so despite repeated warnings. In that case the findings of the Oregon SC – that “a rule against such religious dress is permissible to avoid the appearance of sectarian influence, favoritism, or official approval in the public school”247 – were accepted by the USSC, which dismissed the appeal. Adopting the Cooper proposition, that such statutes permissibly advance a compelling interest in maintaining the appearance of religious neutrality in the public school classroom and do not breach Title VII, Ackerman J stressed the importance of “ preventing subtle inculcation of the message that religion is preferred over nonreligion (irrespective of whether that message is intentional or inadvertent) by forbidding one to teach in public schools while clothed in religious raiment keeps public-school classrooms swathed in constitutional neutrality”.248

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246 247 248

See Santa Fe Indep. Sch. Dist. v. Doe, 530 US 290 (2000); Lee v. Weisman, 505 US 577 (1992); Wallace v. Jaffree, 472 US 38 (1985); Sch. Dist. of Abington Township v. Schempp, 374 US 203 (1963); and Engel v. Vitale, 370 US 421 (1962). United States v. Board of Education for the School District of Philadelphia, 911, F.2d 882 (3d Cir. 1990). Also see United States v. Board of Education for the School District of Philadelphia, 911 F. 2d 882 (3rd Cir. 1990). See, for example, Bhatia v. Chevron USA Inc., 734 F.2d 1382, 1384 (9th Cir. 1984) and EEOC v. Sambo’s, 530 F.Supp. 86, 89–90 (N.D.Ga.1981). Section 4(a) of what is commonly referred to as Pennsylvania’s Garb Statute 1895. But note the decision of the Supreme Court of Pennsylvania in Hysong v. Gallitzin, 164 Pa. 629, 30 A. 482 (1894), which held that there was no barrier to garbed Catholic nuns and priests teaching in the public schools. Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (1986). Ibid., 723 P.2d, p. 308. United States v. Board of Education for the School District of Philadelphia, 911, F.2d 882 (3d Cir. 1990), para. 90.

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Faith Schools The USSC has often upheld the principle that the right to direct the education and upbringing of children lies with their parents rather than the state.249 For example, in applying the “compelling interest” of the “highest order” test, the USSC held that this was not satisfied where Amish parents were penalised for refusing to send their children to high school when they had “deep religious convictions” for not doing so.250 A contemporary version of that attitude may be seen in the “charter schools movement”. These schools receive government funding but operate independently of the established state school system and have grown to become a significant part of the US education system catering for some educating 2.8 million children in 2015.251 An interesting case in this context was the USSC ruling in Kiryas Joel,252 which found that a local government’s administrative decision to create a school district with boundaries aligned with those of a religious community of Hasidic Jews, thereby explicitly designating those schools “faith schools”, to be unconstitutional and warned against “the forced separation that occurs when the government draws explicit political boundaries on the basis of peoples’ faith”. The dissenting judgment of Scalia J, seemingly grounded on multiculturalism, is challenging on what basis does Justice Souter conclude that it is the theological distinctiveness rather than the cultural distinctiveness that was the basis for New York State’s decision? The normal assumption would be that it was the latter, since it was not theology but dress, language, and cultural alienation that posed the educational problem for the children.

He argued that treating the residents as a culture rather than a religion would be in keeping with state policy in relation to other groups such as Native Americans and similarly the creation of a special, one-culture school district for the benefit of those children would pose no problem. The neutrality demanded by the Religion Clauses requires the same indulgence towards cultural characteristics that are accompanied by religious belief.

state involvement. A long case-law trail records the experience of state schools failing to achieve a legally required balance between religious and secular interests.

249

250 251

252

See, for example, Pierce v. Society of Sisters, 268 US 510 (1925); Farrington v. Tokushige, 273 US 284 (1927); Lehr v. Robertson, 463 US 248, 257–258 (1983); Hodgson v. Minnesota, 497 US 417 (1990); and Troxel v. Granville, 530 US 57 (2000). Wisconsin v. Yoder, 406 US 205 (1972). See further in the National Center for Education Statistics (NCES), https://nces.ed.gov/ fastfacts/ Kiryas Joel Village School District v. Grumet, 512 US 687 (1994).

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The use of government funds intended for educational purposes has often prompted contention. In Mitchell v. Helms,253 the issue concerned a programme of governmental assistance that entailed direct aid to organisations, including religious organisations. Guided by the analysis used in Agostini v. Felton,254 O’Connor J employed “the Lemon test” in the following process of analysis. Firstly, does the programme of aid have a secular purpose? Secondly, does it have the primary effect of advancing religion: is the aid actually diverted to religious indoctrination; does the programme define the eligibility of participating organisations without regard to religion, and does the programme create excessive administrative entanglement? She noted that the educational aid in question was to supplement rather than to supplant monies from private sources, that the nature of the aid was such that it could not reach the coffers of a religious school, and that its use was statutorily restricted to “secular, neutral, and nonideological” purposes. She noted also that the aid consisted of materials and equipment rather than cash, and that the materials were loaned to the religious schools with government retaining ownership. O’Connor J went on to reject an alleged breach of the establishment clause in circumstances where government aid may be, but is not intended to be, diverted to serve religious purposes. The effect of this decision was to overrule the two 1970s cases and to hold that the government may provide instructional equipment to parochial schools.255 The same judicial rationale was subsequently applied in Good News Club v. Milford Central School,256 which concerned a Christian club for children that challenged a refusal to allow the club use of school premises for afterschool Christian prayer and activities. The Supreme Court found the school had “no valid Establishment Clause interest”, in large part because the school did not sponsor the activity. This approach is in keeping with rulings that have upheld the use of federal funds for construction work at a religious hospital257 and required that equal funding be granted to evangelical Christian groups.258 The decisions in both Bowen v. Kendrick259 and Mitchell v. Helms260 reveal a strong judicial awareness of circumstances in which government funding could result in the responsibility for a service provided by a religious organisation being imputed to its government funder in accordance with the agent/principal rule. In 253 254

255

256 257 258 259 260

530 US793, 120 S. Ct. 2530 (2000). 521 US 203 (1997). This landmark decision, reversing Aguilar v. Felton (1985), found that it was not a violation of the establishment clause for a state-sponsored educational initiative to allow public school teachers to instruct at religious schools, so long as the material was secular and neutral in nature and no “excessive entanglement” between government and religion was apparent. See further in C. H. Esbeck, “The Establishment Clause as a Structural Restraint on Governmental Power”, Iowa Law Review, vol. 84 (1998), p. 1. 533 U.S. 98, 121 S.Ct. 2093, 2103, 150 L.Ed.2d 151 (2001). Bradfield v. Roberts, 15 US 291 (1899). Rosenberger v. Rector and Visitors of Univ. of Va., 515 US 819 (1995). 487 US 589, 623 (1988). 530 US793, 120 S. Ct. 2530 (2000).

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particular, the above comments of O’Connor J stand as a general warning to all educational facilities in receipt of government funding; though, as noted earlier, their weighting was subsequently considerably diluted by the decision in Zelman.261

Equality, the Workplace and the Church–State Relationship Employment is crucially important for individuals and for civil society. Because it provides the means for an individual to maintain himself or herself and their dependants, shapes a sense of self worth and personal identity, secures their role in society and contributes to collective social progress, the right to employment has always attracted political contention and engaged the interests of both church and state. For such reasons it is has also served as a marketplace for their interests, one in which the principle of state neutrality has been considerably strengthened by the introduction of equality and non-discrimination legislation. Hiring and Firing Staff Title VII provides that it262 shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

It expressly forbids employers with fifteen or more employees to discriminate on the grounds of race, colour, sex, religion, or national origin.263 Discrimination is interpreted to include harassment, segregation and a failure to provide reasonable accommodation – including allowing for wearing religious apparel, prayer and flexibility for observance of religious ceremonies – in the workplace. Employers may not make any employment decisions based on such grounds, including hiring, firing, promoting, demoting, and determining assignments and workloads. As noted by Burger CJ in Griggs v. Duke Power,264 “It proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation.”265 religious organisations. The latitude extended by the state to religious organisations in their staffing arrangements – in contrast to their secular counterparts – is considerable. The free exercise clause of the First Amendment permits such 261 262 263

264 265

Zelman v. Simmons-Harris, 536 US 639 (2002). 42 U.S.C. § 2000e-2(a)(1). Congress in 1972 added an exemption, codified in Section 702 of the act, for “religious corporation[s], association[s], educational institution[s], or societ[ies]” to the prohibition against religion-based discrimination. 401 US 424, 91 S. Ct. 849 (1971). Ibid., 431.

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organisations to discriminate when hiring and firing, on the basis of religion, contrary to the Title VII prohibition, and in addition to both the “ministerial exception” and the bona fide occupational requirement (BFOR). This is also permitted by the establishment clause as was confirmed in Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos266 when the USSC upheld the constitutionality of a law permitting religious organisations to exercise a religious preference when making employment decisions. The right to discriminate is not restricted to jobs that are wholly religious in nature but also includes those that are only “connected” with the activities of a religion. In Dodge v. Salvation Army,267 the court ruled that a Salvation Army’s domestic violence shelter was wrong to terminate the employment of a counsellor because of her religious beliefs. As the employing religious corporation was in receipt of substantial government funding, it was not entitled to rely on the exemption normally available to such bodies from laws prohibiting religious discrimination. This ruling provided authority for the view that a religious organisation loses its protected right to discriminate in the hiring or firing of staff if the latter are engaged in government-funded service provision: this corresponds to similar rulings in the UK but is now possibly negated by a combination of Bryant and the remit of the newly established Conscience and Religious Freedom Division of the HHS. There have been many court cases concerning employment practices in schools. In general, religious schools must comply with Title VII and the Equal Pay Act, though in practice disputes tend to revolve around their doctrines and it is often issues that combine sex, gender and an organisation’s ethos that lead to disputed firings. Where a teacher’s duties are primarily secular, then an employing religious organisation will be bound by Title VII requirements and cannot rely on the “ministerial exception” when firing staff for conduct inconsistent with its religious beliefs.268 However the effect of the earlier mentioned Hosanna-Tabor269 has been to extend the protection of the “ministerial exception” parameters available to religious organisations when they employ teachers to staff their schools. secular organisations. Equality and non-discrimination legislation has greatly impacted upon the extent to which it is permissible for employers in secular organisations to be influenced by religious considerations when hiring or firing staff.270 266 267 268 269 270

483 US 327, 329, 339 (1987). 1989, WL 53857 (S.D. Miss). Redhead 440 F. Supp. 2d 211 (EDNY 2006). Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 US – (2012). See EEOC v. Covergys Corp. (E.D. Mo. 2011) and EEOC v. Voss Elec. Co. D/B/A Voss Lighting Civil Case No. 4:12-cv-00330-JED-FHM (2013), when applicants were unlawfully rejected because of religious considerations; Campos v. City of Blue Springs, 289 F.3d 546 (8th Cir. 2002) and Backus v. Mena Newspapers, Inc., 224 F. Supp. 2d 1228 (W.D. Ark. 2002), when such considerations resulted in employees being unlawfully fired; and Seshadri v.

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Title VII, section 703(a)(1), in conjunction with the 1967 Equal Employment Opportunity Commission (EEOC) guidelines, require an employer, short of “undue hardship”, to make “reasonable accommodations” regarding the religious needs of employees. The “undue hardship” rule, however, is set at a low threshold enabling an employer to claim economic cost, inconvenience or complaints from other workers as sufficient justification for not making “reasonable accommodation”. An employee’s belief or practice can be “religious” even if the employee is affiliated with a religious group that does not espouse or recognise that belief or practice, or if few – or no – other people adhere to it. Title VII’s protection also extends to those who are discriminated against or need accommodation because they profess no religious beliefs. An exception to this rule exists if an individual’s religion is a BFOR as when it is an essential part of their job description. The law applies to federal, state and local employers. The ruling in United States v. Lee271 adds that an employer cannot deprive employees of a statutory right because of religious beliefs, noting that “mandatory participation is indispensable to the fiscal vitality of the social security system” and the “tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious beliefs”. In the important case of Sherbert v. Verner,272 the court upheld a claim by a person denied state unemployment benefits because she refused to work on Saturdays due to her religious beliefs. However, a necessary prerequisite is that the sincerity of professed beliefs must be established as a matter of fact.273 In Bailey v. Associated Press,274 it was found that an employer did not violate Title VII by denying a request for time off on Sundays from an employee who had not made such a request during the entire fourteen years of his employment, did not inform the employer that it was for religious reasons, and testified that he did not attend religious services on Sundays and was subject to no religious prohibition against working on Sundays. Similarly, while in principle an employer would be expected to respect a Seventh-Day Adventist’s objection to union membership, where there is evidence that such an employee has often acted in a manner inconsistent with the associated religious beliefs (by being divorced, taking an oath before a notary upon becoming a public employee, working five days a week instead of the six required by his faith) then they may forfeit any claim to the protection of accommodation.275

271 272 273

274 275

Kasraian, 130 F.3d 798 (7th Cir. 1997), when it was held that such considerations will only corroborate a claim of unlawful firing when the claimant actually has a religion. 455 US 252 (1982). 374 US 398 (1963). See, for example, E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997) (en banc), Burns v. Warwick Valley Cent. Sch. Dist., 166 F. Supp. 2d 881 (S.D.N.Y. 2001) and EEOC v. Chemsico, Inc., 216 F. Supp. 2d 940 (E.D. Miss. 2002). 2003 WL 22232967 (S.D.N.Y., 29 September 2003). EEOC v. Union Independiete De La Autoridad De Acueductos y Alcantarillados De Puerto Rico, 279 F.3d 49 (1st Cir. 2002).

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Arguably, however, the constraints imposed by equality and non-discrimination legislation were loosened by the USSC ruling in the landmark case of Burwell v. Hobby Lobby.276 This concerned a claim that government had a compelling interest in providing the insurance coverage necessary to protect the health of female employees. More specifically, the USSC considered whether, under the RFRA, the religious beliefs of an employer of a secular commercial company could prevail over the “contraceptive mandate” – a regulation adopted by the US Department of Health and Human Services under the Affordable Care Act – which required employers to financially provide for certain contraceptives. It found that “closely held”277 for-profit corporations were entitled to rely on their established religious beliefs to avoid being compelled to provide contraception under their healthcare plans as the statutory contraceptive mandate did not show how this was “the least restrictive means of furthering (the State’s) compelling interest”.278 The court concluded by addressing “the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction” but considered that the decision “provides no such shield”.279 This ruling may, however, provide a shield for companies owned by those whose religious beliefs could in future be manifested in constraints on employees’ rights and liberties (e.g. family planning services, same-sex relationships or even accessing blood transfusions). All in all, Hobby Lobby has lowered yet further the threshold set by Title VII, section 703(a)(1). In thereby undermining the universality of equality and nondiscrimination legislation, it has tipped the balance in the church–state relationship in favour of the former and brought into question the veracity of state neutrality in an employment context; as previously mentioned, this trend is likely to have been hardened by the Bryant decision. proselytism in the workplace. Title VII requires employers to provide reasonable accommodation for employees’ sincerely held religious beliefs (though not extending to allowing employee to wear an anti-abortion badge280) and the latter are entitled to a degree of First Amendment protection should they choose to express those views in the workplace, but the mere fact that they are known to have strong religious views does not place an onus on an employer to take any action.281 There are limits: being perceived as too religious does not in itself constitute grounds for firing,282 but causing “undue hardship”283 when attempting to impose those beliefs 276 277

278 279 280 281 282 283

573 US 134 S. Ct. 2751 (2014). “Closely held” corporations, as defined by the IRS, are estimated to constitute approximately 90 per cent of US corporations and employ approximately 52 per cent of the US workforce. Burwell v. Hobby Lobby, 573 US 134 S. Ct. 2751 (2014), p. 46. Ibid., p. 52. Wilson v. U.S. W. Communications, 58 F.3d 1337, 1341–1342 (8th Cir. 1995). Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1020 (4th Cir. 1996). Dixon v. The Hallmark Companies, Inc., 627 F.3d 849 (11th Cir. 2010). Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985).

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upon others in the workplace will do so.284 Moreover, employees in the public sector clearly bear a heavier onus not to compromise the state by proclaiming beliefs while acting as its representative. So, in Knight v. State of Connecticut, Department of Public Health, and Quental v. State of Connecticut Commission on the Deaf and Hearing Impaired,285 born-again Christians who felt called upon to proselytise while working with clients were reprimanded and then brought actions claiming unfair treatment. In both cases, the Second Circuit found in favour of the employers: in the circumstances of each case, the government had the right to restrict employee speech; expressing religious views to clients caused undue hardship and interfered with the performance of their duties. As the court then commented,286 the Establishment Clause prohibits the State “from appearing to take a position on questions of religious belief”. . ..287 Thus, the interest of the State in avoiding an Establishment Clause violation may be a compelling one justifying an abridgment of free speech otherwise protected by the First Amendment.288 The Supreme Court recently recognized that the State interest in avoiding an Establishment Clause violation may be characterized as compelling and therefore may justify contentbased discrimination.289 . . . When government endeavors to police itself and its employees in an effort to avoid transgressing Establishment Clause limits, it must be accorded some leeway, even though the conduct it forbids may not inevitably be determined to violate the Establishment Clause and the limitations it imposes might restrict an individual’s conduct that might be protected by the Free Exercise Clause if the individual were not acting as an agent of government290. . .. Permitting appellants to evangelize while providing services to clients would jeopardize the State’s ability to provide services in a religion-neutral matter.291

At much the same time, in Downing v. West Haven Board of Education,292 a teacher unsuccessfully sued both the school district and a number of individual board employees alleging that the board had impermissibly infringed on her right to free

284

285 286 287

288

289

290

291 292

Hall v. Tift County Hosp. (M.D. Ga. 6/10/13) and Dombrowski v. Federal Aviation Administration, Civil Action No. 1:06-CV-1444-BBM (N.D. Ga. 2008). 275 F.3d 156, 168 (2001) (consolidated cases). Ibid. Ibid., citing County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 593–594, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). Ibid., citing Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Ibid., citing Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 2103, 150 L.Ed.2d 151 (2001) (quoting Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981)). Ibid., citing Marchi v. Board of Coop Educational Services of Albany, 173 F.3d 469, 476 (2d Cir. 1999). Ibid., citing Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1020 (4th Cir. 1996), p. 1021. 162 F. Supp.2d 19 (D.Conn. 2001). Also see Marchi v. Board of Coop Educational Services of Albany, 173 F.3d 469, 476 (2d Cir. 1999); Holloman ex rel. Holloman v. Harland, 370 F. 3d 1252 (11th Cir. 2004); and the many “student initiated” school prayer cases.

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speech and free exercise of her religion when it told her to stop wearing a tee-shirt that read “Jesus 2000, J-2K” during instructional time. More recently, in Hall v. Tift County Hospital,293 the court rejected an employee’s religious discrimination case stemming from disciplinary action for sending a Christian-themed email to a gay co-worker. It may be fair to conclude that the establishment clause constraints upon the state, together with the relative scope afforded to the individual under the free exercise clause, provide such an individual with more freedom to bring their religious beliefs into the workplace than would be available to their UK counterparts and makes the neutrality principle particularly important.

Equality, Service Provision and the Church–State Relationship Service provision is a context that can provide a challenging testing ground for state neutrality. While constitutional protection from discrimination is available under the equal protection clause of the Fourteenth Amendment, and Titles III and IV of the Civil Rights Act of 1964 provide statutory protection when accessing public services, it is Title II that specifically prohibits discriminatory practice by any establishment that leases, rents or sells goods or provides services.294 Specifically, section 2000a(a) of the Civil Rights Act of 1964 declares that “all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin”. Service Provision: Public and Private Public benefit service provision – such as the allocation of social housing, healthcare or community policing – because it rests on a needs-based and taxpayer-funded entitlement, is a particularly sensitive interface between church and state. While the basis for private provision of goods is different, the fact that this is subject to the equal protection clause of the Fourteenth Amendment and to state-based equality and non-discrimination legislation can result in a religiously biased service affecting interests wider than those of service users and may similarly trigger community unrest.

service provision by religious organisations. The previously mentioned religious exemption privileges clearly impact upon service provision by religious organisations and to that extent they also detract from the neutrality of the state. In all states same-sex marriage has been legal since the Obergefell decision295 and the relevant legislation imposes no requirement upon religious organisations and 293 294

295

M.D. Ga. 6/10/13. See, for example, Heart of Atlanta Motel Inc. v. U.S., 379 US 241 (1964) and Katzenbach v. McClung, 379 US 294 (1964). Obergefell v. Hodges, 576 US (2015).

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their ministers to provide marriage services (i.e. a celebrant, use of church premises) for such couples. In addition, exemptions from tax liability may be extended to premises and services provided by a religious organisation (e.g. education and healthcare facilities). It is only in downstream service provision that the state neutrality principle has any real application. Adoption and foster-care services delivered by religious organisations, for example, have undoubtedly been affected. In 2006, Catholic Charities in Boston failed to gain exemption from the state’s anti-discrimination statute and terminated its adoption work rather than continue to place children under the “guardianship of homosexuals”. Similarly, in Washington, DC, in 2010, the same body took the same step when faced with a statutory requirement that government-funded religious entities providing public services do so by including same-sex couples. Also, in that year, the government declined to renew a contract with the US Conference of Catholic Bishops to provide services for human trafficking victims because of Catholic Charities’ refusal to refer sexual assault victims for contraception and abortion advice. In 2012, the Illinois Department of Children and Family Services revoked its contract with Catholic Charities after its refusal to provide adoption and fostercare services to same-sex couples causing the transfer of more than 1,000 children to secular agencies. Clearly, when religious organisations are contracted to provide services on behalf of government – acting as agents of the state – they are wholly bound by state legislation. While the religious beliefs, the organisations and the issues are the same as those that brought Catholic Care to court in England, the numbers of children adversely affected in the USA – by a firmer line being drawn in the church–state relationship – are far greater, which has recently led to some states introducing legislation to try and prevent the defunding of religious adoption agencies. public sector service provision. A curious illustration of the influence of religious organisations on public benefit service provision surfaced in Cooke v. Town of Colorado City296 and its associated cases. This litigation concerned the provision of public services by a municipality staffed by members of a particular religion and seemingly managed largely in defence of their religious interests. The plaintiffs successfully challenged housing allocation and utility-service-provision practices that were biased against them solely because they were not members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. The court proceedings disclosed systemic manipulation of service allocation, on religious grounds, by municipal authorities controlled by members of that religious organisation, intended to disadvantage and discourage all others. This anomalous set of circumstances demonstrates the extent to which the principle of state neutrality can itself be wholly neutralised: circumstances seem to have allowed a theocratic synergy of interests to take control of a community’s basic municipal utilities. 296

No. CV 10-08105-PCT-JAT (2012).

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private service provision. The judicial approach to differentiating between the interests of church and state in relation to organisations that are neither wholly religious nor wholly bound by government contract, but are religiously inspired, has tended to lean towards the former – a generous extension of the free-exercise obligation to protect religion from state intervention. This was demonstrated in Spencer v. World Vision Inc.,297 which concerned a Christian humanitarian organisation, heavily funded by government, that terminated the employment of three members of the staff because they had ceased attending daily devotions and weekly chapel services held during the workday and because they had denied the deity of Jesus Christ. The staff concerned sued World Vision for unfair dismissal; the latter responded by claiming that it was a religious entity and therefore exempt from Title VII. Ultimately, the court ruled that even though World Vision was not a traditional house of worship, it was entitled to the institutional religious liberty accommodation: as a “religious corporation”, it qualified for exemption from equality and non-discrimination constraints. This important decision was reinforced three years later by the USSC ruling in Burwell v. Hobby Lobby298 and has now been further broadened and complicated by the legislative initiative in Mississippi and the Bryant299 decision. These rulings greatly increase the potential protection available to companies engaged in religiously influenced service provision and, of course, to religiously influenced individuals engaged in service provision to the LGBT community. Private service providers (e.g. owners of hotels and boarding houses), claiming exemption from equality and religious discrimination provisions on the grounds of personal religious belief, gives rise to a great deal of controversy throughout the USA. However, as Justice Kennedy recently explained,300 It is a general rule that [religious and philosophical] objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.

Cases include the refusal to bake a cake ordered to celebrate gay marriage301 and led to the USSC decision in Masterpiece.302 Unfortunately the USSC was then unable to make any finding as to whether or not the baker’s refusal to provide services was protected by the First Amendment as it was deflected by process irregularities and had to confine itself to ruling that the Colorado Civil Rights Commission did not act “with the religious neutrality that the Constitution 297 298 299 300

301

302

No. 08-35532, 2011 WL 208356 (9th Cir. 25 January 2011). 573 US 134 S. Ct. 2751 (2014). Barber v. Bryant, No. 16-60477 (5th Cir. 2017). Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 US (2018). Citing Newman v. Piggy Park Enterprises, Inc., 390 US 400 (1968) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 572 (1995). See the decision of the Oregon Bureau of Labour and Industries to fine Sweet Cakes by Melissa for such a refusal at: V. Richardson, “Oregon Panel Proposes $135k Hit against Bakers in GayWedding Cake Dispute”, Washington Times, 24 April 2015. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 US (2018).

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requires”303 when it considered the bakery’s arguments. Had this claim succeeded the court would have thereby licenced similar discretionary religious/sexual discrimination from a limitless range of “expressive” service providers including architects, hairdressers, tailors, designers etc.304 Arguably, the principle that a religious employer may restrict product availability on the grounds that to do so would violate sincerely held religious beliefs has already been conceded in Burwell v. Hobby Lobby.305 However, as Ravitch comments, “Hobby Lobby is not binding on state RFRAs so we could possibly see some states not including for-profit, or at least large for-profit entities, under their state RFRA”.306 The above case law trend would seem to indicate that – despite Justice Kennedy’s admonition – there is a growing state willingness to shrink its neutrality in favour of extending exemption from equality legislation to those who, on grounds of religious belief or conscientious objection, chose to restrict access to public or private services. broadcasting services. In multimedia broadcasting, as in many other matters that touch upon the church–state relationship, the Fourteenth Amendment is of central importance. However, the declaration that “Congress shall make no law . . . abridging the freedom of speech” is not absolute. Thomas v. Chicago Park District307 provides authority for the view that government can generally impose time, place and manner constraints on its exercise. The USSC then reasoned that the licensing scheme permitting use of a public park for events was not based on subject-matter censorship. Compliance with the First Amendment’s free speech guarantee only requires that any restrictions be content neutral and reasonable rather than narrowly tailored to serve a significant government interest. Unless exercised in a manner that actually or potentially incites hatred or violence, is defamatory or is otherwise in breach of the law, the freedom to express religious views, or views about religion – however insulting – is constitutionally protected.

Equality, National Security and the Church–State Relationship Following 9/11, ratcheting up with subsequent Islamist terrorist attacks on the homeland, and culminating in the 2015–2017 migrant crisis, this state has increasingly focused its intervention on the adherents of a particular religion.

303

304

305 306 307

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US (1993) and Employment Division v. Smith, 48 US 872 (1990). See further D. Laycock and T. Berg, Symposium: Masterpiece Cakeshop – Not as Narrow as May First Appear, www.scotusblog.com/2018/06/symposium-masterpiece-cakeshop-not-asnarrow-as-may-first-appear/ 573 US 134 S. Ct. 2751 (2014). Note to author: 04.02.2020. 534 US 316 (2002).

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State Response to Terrorist Threat Inequality and discrimination in contemporary state policy, domestic and international, has been evident in the surveillance, imposed constraints and in direct action taken against Muslims.

anti-terrorism measures. The USA Patriot Act of 2001 was the federal government’s principal domestic security measure taken in response to the 9/11 terrorist attacks. This comprehensive statute substantially revised dozens of existing laws to allow the security agencies to take invasive measures, including powers of search and surveillance, detention, and seizure of property. The Detainee Treatment Act of 2005 denied those detained without trial by the military in Guantánamo access to the federal justice system.308 Foreign policy has been dominated, for at least the past seventeen years, by a USled counter-insurgency strategy in Iraq, Afghanistan and many other Muslim countries. Not only has this resulted in the citizens of those countries experiencing state directed warfare, thus contributing to the migrant crisis, but it has also caused US Muslim citizens to feel socially exposed and vulnerable. The domestic application of religiously discriminating counterterrorist measures was reinforced in early 2017 by a ban preventing the citizens of seven specified Muslim countries from entering the USA. State Response to Migrant Crisis The US response to the ongoing migrant crisis, triggered in 2015, has been to increase its financial contribution to refugee aid agencies but to drastically reduce its annual migrant intake: capped at 45,000 in 2017, which represents a 50 per cent reduction in the numbers admitted during the last years of the previous administration. Moreover, homeland security measures will ensure that Muslim migrants attract closer scrutiny – under “likelihood of assimilation” tests – than migrants of other religious beliefs or none.

religious/cultural differences. Protracted overseas wars in Muslim countries, together with multiculturalism and the spiralling “culture wars” at home, are possibly pushing the state to adopt firmer policies in relation to religious matters, particularly when these conflate with culture. The present administration considers that there have been difficulties in socially assimilating migrants from different cultures and therefore it would be justified in introducing threshold tests to establish whether prospective immigrants have the skills and cultural aptitudes likely to facilitate citizenship. Though, it has to be said that there are many US citizens 308

Notwithstanding the USSC decision in Boumediene v. Bush, 553 US 723 (2008) that detainees at Guantánamo Bay have a constitutional right to habeas corpus.

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belonging to culture-specific groups – such as the Native Americans, the Amish and the Mormons – who might struggle to satisfy any such test. revival of the “nation state” ideology. The “America first” dictum of the present administration, underlined by new immigration policies and emphasised by the comment of the ambassador to the UN that US involvement in the European migrant crisis would be incompatible with US sovereignty, are among the measures and sentiments that indicate that the USA is currently retreating from its previous global leadership role and is looking more towards safeguarding domestic interests.

conclusion State neutrality with regard to matters of religion and belief has long been upheld as a cardinal principle designed and deployed to guide government, at all levels, in its constitutional duty to keep separate the interests of church and state. Voluminous case law attests to the breadth of interpretation accompanying its application, which has necessarily evolved in keeping with changes in social context and given rise to certain benchmark rules, such as that neutral laws of universal application that unduly burden religion can only be justified by a compelling government interest as determined by the strictest scrutiny. That context has become more diffuse in recent years, due, in part, to an expansive legal interpretation of “religion” and “belief” together with a proliferation of disputes rooted in a conflation of religion and culture. It has become clear that the thorniest of these “culture war” issues – abortion, same-sex marriage, capital punishment, assisted death, education policy, LGBT matters and a host of others – are increasingly being left to the judiciary as government at all levels fear being caught on the wrong side of polarising social issues. There may, of course, be more to it than that: possibly state neutrality is being compromised mostly by a growing willingness to politicise religion. A background of prolonged state warfare against Muslim countries, attacks by Islamist terrorists on the homeland and the scale of the mainly Muslim migrant crisis, may have permitted or encouraged a firming up of Christian fundamentalism. This, in turn, could have exacerbated the home-grown culture wars. Government at federal and state levels are now at risk of being drawn into religiously contentious legislative initiatives – such as the no-cost contraception provisions in the ACA and the Religious Liberty Accommodations Act, respectively – and politicians are perhaps finding that they have to choose between appeasing the factions likely to maintain their constituency credibility or uphold the state neutrality. At this particular juncture in US politics, a politically weighted USSC may not be in a strong position to hold the line.

5 Canada: Bijuralism

introduction If Canada, a federal nation of ten provinces and three territories, is accustomed to being described negatively and superficially – as not the USA – this is at least true in relation to walls: unlike its neighbour, Canada has no constitutional “wall” separating church from state. This chapter begins with an introductory background history of the church–state relationship, noting the significance of the Charter of Rights and Freedoms. It takes into account the effects of federation, particularly the distinctive constitutional position of Quebec and the associated complications of laïcité, but also addresses the legacy and current impact of bijuralism. It considers the evolving and current government’s social policy towards religion and the bearing this might have on multiculturalism, pluralism and the stability of civil society. This leads into an overview of the contemporary relevant legal framework, as governed by statutory and constitutional provisions, noting the extent to which the country is a signatory state to relevant international treaties, conventions and protocols. The main body of the chapter is structured similarly to its US predecessor. It gives a brief account of the law relating to the current definition of “religion” and “belief” before examining in some detail the church–state relationship as illustrated by case law relating to the freedoms of religion, association and expression. It considers the constitutional and legislative provisions that provide protective buffers between church and state. It examines certain Canadian academic assessments of the evolving application of state neutrality in Canada, such as the contribution of Alvin J. Esau and his “islands of exclusivity” argument,1 and it traces the main influences that have combined to shape the current social role of religion. The chapter then

1

Esau, “Islands of Exclusivity”, p. 719.

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turns to focus on the effect of equality and non-discrimination law on the church– state relationship as illustrated by the related case law. It explores whether the Supreme Court of Canada (SCC) – after Multani,2 Dhillen3 and other recent religion cases4 – is moving towards a firmer interpretation of the state neutrality principle, one which entails a more rigorous separation of church and state. The chapter concludes by considering the nature and extent of jurisdictional congruity with US as regards their current interpretation of the principle; highlighting any distinctive Canadian characteristics; identifying any particular principles or rules relied upon by the judiciary or administrative bodies; and assessing the significance of cultural context as a differentiating factor.

policy overview Bijuralism – the coexistence of French and British legal traditions – is a characteristic of the Canadian legal system as established initially by the Quebec Act, 1774,5 then by the British North America Act,6 and now protected by the Constitution Act, 1867, section 92(13). This provides for a division of authority that removes “property and civil rights” from the federal heads of power and reserves them exclusively to the jurisdiction of the provinces. Quebec is thereby empowered to exercise property and civil rights in accordance with French civil law while British common law prevails elsewhere. Subsequently, Parliament statutorily devolved jurisdiction in respect of property and civil rights to the territories. As the Department of Justice explains,7 Bijuralism reflects a commitment to common law and civil law in the federal context, more particularly when it comes to legislative drafting and interpretation. This is not to say that bijuralism excludes the recognition of other rules that are specific to federal law, the integration of other sources of law, for instance in the context of international law, or the respect of other legal cultures, more particularly with regard to Aboriginal cultures.

Coherence in the Canadian legal system is, therefore, challenged not just by bijuralism and bilingualism but is further complicated by the need to take into account the transference of laïcité from France, and the traditional culture and 2

3

4

5 6 7

Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6; see also Nijjar v. Canada 3000 Airlines Ltd., (1999) 36 C.H.R.R. D/76. Dhillen v. British Columbia Ministry of Transportation and Highways, (1999) 35 C.H.R.R. D293 (B.C.H.R.T.). See also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 SCR 650; Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3; and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293. (U.K.) 14 Geo. III, c. 83. U.K. 1867, 30 & 31 Victoria, c. 3. See Department of Justice, “About Bijuralism”, www.justice.gc.ca/eng/csj-sjc/harmonization/ bijurilex/aboutb-aproposb.html

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laws of the First Nations, Inuit and Metis. Consideration of state neutrality in such a complex legal environment is, therefore, somewhat problematic.

Background Confederation brought with it the problem of how best to reconcile the religious/ cultural traditions represented by the long established French and British colonies. The denominational clauses written into the British North America Act of 1867 and subsequently incorporated into the Constitution were an important strategic step in that direction. This was more than a symbolic gesture: it formally separated Canada West and Canada East (formally Upper and Lower Canada), which prior to 1867 had a single legislature. Provision was then made for a division of power between federal and provincial governments, which provided recognition and protection for the religious/cultural identity of the provinces (including Quebec): the legislative intent was, in part, to insulate federal authority from the provincial religious divisions that had polarised Upper and Lower Canada but also to guarantee the rights of the two dominant religious minorities, the Protestant minority in Catholic Lower Canada, and the Roman Catholic minority in Protestant Upper Canada. This arrangement, ensuring that religiously significant areas of influence – e.g. education and health facilities – remained the responsibility of the provinces, has continued into the twenty-first century. Religious Neutrality: A Principle That Permits State Support for Religion Dickson CJ in Big M8 established a minimum baseline for state neutrality with the pronouncement that “the State shall not use criminal sanctions . . . to achieve . . . the uniform observance of the day chosen by the Christian religion as its day of rest”.

interpreting the principle. In Chamberlain v. Surrey School District No. 36,9 the court noted that a “gradual separation of Church and State in Canada has been part of a broad movement to secularize public institutions” and “following a realistic and non-absolutist approach, State neutrality is assured when the State neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected”. This view was endorsed by Deschamps J in SL v. Commission scolaire des Chênes,10 who explained that “religious neutrality is now seen by many Western states as a legitimate means of creating a free space in which citizens of various beliefs can exercise their individual rights”. Subsequently, Gascon J in 8 9 10

R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, 1985 CanLII 69 (SCC). [2002] 4 SCR 710, 2002 SCC 86. [2012] 1 SCR 235, para. 10.

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Mouvement laïque québécois11 added that the “State’s duty of religious neutrality . . . flows from the freedom of conscience and religion”12 and went on to explain the meaning of this term as follows: The evolution of Canadian society has given rise to a concept of (this) neutrality according to which the State must not interfere in religion and beliefs. The State must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief. . .. In a case in which a complaint of discrimination based on religion concerns a State practice, the alleged breach of the duty of neutrality must be established by proving that the State is professing, adopting or favouring one belief to the exclusion of all others and that the exclusion has resulted in interference with the complainant’s freedom of conscience and religion.

State neutrality “allows churches and their members to play an important role in the public space where societal debates take place, while the State acts as an essentially neutral intermediary in relations between the various denominations and between those denominations and civil society”.13 That this is subject to limits was made clear by Wilson J in R. v. Jones,14 who stated that section 2(a) of the Canadian charter “does not require the legislature to refrain from imposing any burdens on the practice of religion . . . the ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises”. No right is absolute. This was further illustrated by the Hutterite case,15 which concerned the Alberta government’s decision to withdraw an exemption previously available to Hutterites (whose religious beliefs prohibited them from willingly allowing their pictures to be taken) from the requirement that their drivers’ licences include photographs, an exemption clearly illustrative of state concern that a neutral law of universal application should not inadvertently burden a religious minority. In rejecting the applicant’s claim, McLachlin CJ acknowledged the perspective of religious claimants’ rights but, as she went on to explain, “this perspective must be considered in the context of a multicultural, multi-religious society where the duty of State authorities to legislate for the general good inevitably produces conflict with individual beliefs”. laı¨ cite´ . A product of the French Revolution, transferred to Canada and adopted by Quebec, “laïcité” embodies the right to freedom of conscience and religion and 11

12 13

14 15

Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. See also Congrégation des témoins de Jéhovah de St-Jérôme- Lafontaine v. Lafontaine (Village), [2004] S.C.J. No. 45, [2004] 2 S.C.R. 650, per LeBel J, paras. 67–68 and 76. Ibid., para. 49. Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, per LeBel J, para. 67. [1986] 2 S.C.R. 284, pp. 313–314. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.

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at the very least requires the separation of church and state although on a somewhat different basis than the rest of Canada.16 Following the judicial striking of Bill 62, Bill 2117 now represents what laïcité means in Quebec. From June 2019, state neutrality requires those delivering public services to do so without wearing any religious symbols. In practice, it bars publicsector employees in positions of authority – such as schoolteachers and principals, prosecutors and police officers – from wearing religious symbols – such as hijabs, kippas or turbans – while in the workplace. It may well have a particularly onerous effect on Muslim women. This legislation distances Quebec from the rest of Canada while strengthening its affiliation with France. Religion and Contemporary Public Policy Preserving and promoting the multicultural nature of Canadian society, as recognised in section 27 of the charter and by the Multiculturalism Act, is central to contemporary public policy.18 However, that policy must also make room for its Christian cultural heritage, which for many generations has been represented by denominational polarisation underpinned by constitutionally protected pro- and anti-Catholic policies and institutions as illustrated by the range of religion-specific schools and colleges in the public education system, and similarly with religionspecific hospitals and other healthcare facilities within the public healthcare system. The tensions gave rise to the Adler v. Ontario case,19 where the SCC determined that denominational schools had no constitutional right to receive government funding, and therefore that the funding of secular and Catholic schools in Ontario did not breach either section 2(a) or section 15 of the charter. L’Heureux-Dubé J, dissenting, argued that the primary issue was the survival of religious minorities in a larger secular society, which section 27 required the state to facilitate.20

population. Canada, like its neighbour, remains very largely Christian. According to 2011 census data (religious affiliation information is only sought on alternative census surveys), 67 per cent of Canadians were Christian, 24 per cent had no religion, and 3.2 per cent were Muslim. Other major religious groups were Jewish (1 per cent), Buddhist (1.1 per cent) and Hindu (1.5 per cent) and Sikh (1.4 per cent). 16

17 18

19 20

As Richard Moon points out, “Québec became separated from France before the Revolution occurred – and unlike France held on to – nurtured – a deep Catholic identity – with the Church playing a very large role in society and politics until the Quiet Revolution (secularization) in the 1960s. Laïcité has arrived in Québec more recently – borrowed from France because of cultural connections and similar anxieties about identity, immigration, and religion in a post-Catholic society” (note to author: 20.12.2019). Entitled “An Act respecting the laïcité of the State”. See further in B. Ryder, “State Neutrality and Freedom of Conscience and Religion”, Supreme Court Law Review, (2005), pp. 178–194. [1996] 3 SCR 60. Ibid., pp. 680–701.

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Also relevant, nearly 22 per cent of the population are foreign born, and about 60 per cent of new immigrants come from Asia; 4 per cent of the population claims an aboriginal identity, while another 16 per cent belongs to a non-aboriginal visible minority. multiculturalism. Section 27 of the charter declares that “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”. This is seen as embracing religious pluralism, including the beliefs of the First Nations, and being inclusive not just of Christian beliefs but of those of all other beliefs and those of none. As the appellant pointed out in Ishaq v. Canada (Citizenship and Immigration),21 the Multiculturalism Act requires federal officials to “(c) promote policies, programs and practices that enhance the understanding of and respect for the diversity of the members of Canadian society; . . . (f ) generally, carry on their activities in a manner that is sensitive and responsive to the multicultural reality of Canada”.22 In Quebec, however, laïcité strongly suggests that pluralism (or interculturalism, which affirms the idea of a dominant culture) rather than multiculturalism is the preferred social policy: for the Québécois, unlike the rest of Canada, the goal is assimilation rather than integration; minority religious and cultural groups are to be encouraged to look to the unifying authority of the state and not to religious and community leaders who would accentuate differences. The corollary is that manifestations of difference, particularly as regards religious identity, are to be discouraged. religious diversity. In Big M Drug Mart, Dickson J had stated that “the diversity of belief and non‑belief, the diverse socio‑cultural backgrounds of Canadians make it constitutionally incompetent for the federal Parliament to provide legislative preference for any one religion at the expense of those of another religious persuasion”.23 Nowadays it is readily acknowledged that religious diversity,24 integrated into an equally diverse cultural context, is a prominent feature of Canadian society and one which is becoming more so as the immigration rate increases and with it the proportion of those coming from a non-Christian background. In response to this challenge, it has been suggested that the principle of “reasonable accommodation” continues to offer a useful coping mechanism:25 Reasonable accommodation has taken primary place as the framework within which diversity should be managed. Initially limited to a relatively narrow realm 21 22 23 24

25

[2015] 4 FCR 297, 2015 FC 156. Ibid., para. 63. R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, para. 351. See further in R. Moon, “Introduction”, in R. Moon, ed., Law and Religious Pluralism in Canada , UBC Press, Vancouver, 2008. See L. Beaman, “Religious Diversity in the Public Sphere: The Canadian Case”, Religions, (2017), p. 5, religions-08-00259-v2.pdf

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of law, reasonable accommodation has expanded within law,26 but, more importantly, has moved to the public sphere as a socially viable way to talk about diversity and religion in the public sphere.27

state agencies for religious matters. The Office of Religious Freedom was established in February 2013 to monitor religious persecution and protect freedom of religion internationally but ceased operations in March 2016.

contemporary legal framework The church–state relationship in Canada is governed by a modern domestic platform of human rights and equality legislation and by certain international treaties, conventions and protocols with a bearing on the state neutrality principle. International Conventions Canada signed and ratified the Universal Declaration of Human Rights in 1948 and has since played a leading role in endorsing other international treaties, conventions and protocols. The International Covenant on Civil and Political Rights (ICCPR) Having ratified the ICCPR in 1976, Canada subsequently ratified Optional Protocol 1.28 The UN Declaration on the Rights of Indigenous People (UNDRIP) Having refused to sign in 2007, Canada officially adopted and undertook to implement this declaration in 2016. Other Ratification or accession has also been completed in relation to the International Convention on the Elimination of All Forms of Racial Discrimination (1970); the International Covenant on Economic, Social and Cultural Rights (1976); and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1981). 26

27

28

Citing a comparison between the Supreme Court of Canada’s grappling with accommodation and the section 1 balancing test in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 and Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37. Citing: S. Day and G. Brodsky, “The Duty to Accommodate: Who Will Benefit?”, Canadian Bar Review, vol. 75, no. 3 (1996) for a thorough discussion of early reasonable accommodation cases. Also, see J. Woehrling, “The Duty of Reasonable Accommodation and the Adaptation of Society to Religious Diversity”, McGill Law Journal, vol. 43 (1998), pp. 325–401 and C. Jolls, “Antidiscrimination and Accommodation”, Harvard Law Review, vol. 115 (2001–2002), pp. 642–699. See Waldman v. Canada, Communication No. 694/1996.

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International Reports In 1999 the UN Human Rights Committee condemned Canada, particularly Ontario, for exclusively funding Catholic schools in violation of Article 26 of the ICCPR and did so again in 2005 when it published its Concluding Observations regarding Canada’s fifth periodic report and observed that Canada had failed to “adopt steps in order to eliminate discrimination on the basis of religion in the funding of schools in Ontario”. Canada’s human rights record was not subject to further review until the 2015 sixth periodic report.29 The committee then expressed its concern regarding several issues including the human rights of indigenous people and urged Canada to “renew its traditional commitment to the promotion and protection of the exercise of freedom of assembly, association and expression”.30 The Constitution and Domestic Legislation The Constitution Act, 1982, containing the Canadian Charter of Rights and Freedom, is of central importance and, as has been noted, “no individuals or religious communities enjoy any less Charter protection than the major and recognizable religions”.31 The Constitution The Constitution of Canada consists of the Constitution Act, 1982, together with its predecessor, the Constitution Act, 1867 (formerly the British North America Act, 1867), and all other statutes and orders referred to in the schedule and any amendments. Unlike its US counterpart, the Canadian Constitution does not have an antiestablishment clause.

the canadian charter of rights and freedoms. The Canadian Charter of Rights and Freedoms takes priority over all other federal and provincial legislation. The charter, section 2, declares that everyone has the following “fundamental freedoms: (a) freedom of conscience and religion and (b) freedom of thought, belief, opinion and expression”. Under section 1, this is subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” and to a requirement that “freedom” be interpreted in accordance with the “preservation and enhancement of the multicultural heritage of Canada” (section 27).32 The specified freedoms are all subject to Clause 33, the 29

30 31 32

See UN International Covenant on Civil and Political Rights, Concluding Observations on the Sixth Periodic Report of Canada, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/ SessionDetails1.aspx?SessionID=899&Lang=en#sthash.XzzyC1Bz.dpuf Ibid., para. 15. R. v. Laws, (1998) 41 OR (3d) 499 (Ont. CA), per McMurtry CJO, para. 24. See for example, R. v. S. (R.D.), (1997) 118 CCC (3d) 353 (SCC), per Cory J, 385.

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“notwithstanding” caveat, which allows the federal or any provincial government to pass laws that breach charter rights in relation to such matters. Section 15(1), provides a specific guarantee of protection from religious discrimination. The SCC has established that there is no hierarchy of charter rights: all have equal status, no one is more important than the others; and no right is absolute, each is limited by the rights and freedom of others.33 The “Oakes test”, established by the SCC in R. v. Oakes34 for deciding when an infringement of a charter right was reasonable and justifiable, has served that purpose for the past thirty years. Firstly, it requires the purpose of the infringing law to be of sufficient importance to warrant overriding a constitutionally protected right or freedom. Secondly, if that is the case, then there must be a “proportionality test” to establish that the means chosen are reasonable and demonstrably justified: the law must be rationally connected to the objective; the law must impair the right no more than is necessary to accomplish the objective, and the law must not have a disproportionately severe effect on the rights infringed. The “Oakes test” must now be viewed in the light of the Doré framework,35 which is used when an administrative agency involved (e.g. in Loyola36). As Trevor Guy puts it, in Doré the SCC held that administrative discretionary decisions implicating a charter right “should be reviewed using a values-based, administrative law approach focused on proportionality, one that asks whether the decision-maker has properly balanced the relevant Charter values and statutory objectives at issue”.37 There is currently considerable uncertainty as to how the Oakes and Doré tests are to operate in conjunction.38 the employment equity act, 1996. This legislation promotes equity in the workplace for the four designated groups: women, Aboriginal peoples, persons with disabilities, and members of visible minorities. In addition the Canadian government has passed into law a set of regulations, the Federal Contractors Program, 1986, and the Employment Equity Act, 1996, to address employment opportunities and benefits. the canadian multiculturalism act, 1988. This statute gives official recognition to multiculturalism as a fundamental characteristic of Canadian society and requires federal institutions to take this into account when exercising their functions. 33

34 35 36 37

38

Reference re Same-Sex Marriage, [2004] 3 SCR 698; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, p. 877; R. v. Mills, [1999] 3 S.C.R. 668, para. 61. [1986] 1 SCR 103. Doré v. Barreau du Québec, 2012 SCC 12. Loyola High School v. Québec (Attorney General), 2015 SCC 12. See T. R. Guy, “ Opening the Doré to Proportionality: Discretionary Administrative Decisions and the Charter”, LLM thesis, University of Toronto, 2015, p. 1, https://tspace.library.utoronto .ca/bitstream/1807/69099/3/Guy_Trevor_R_201503_LLM_thesis.pdf See Trinity Western University v. Law Society of British Columbia, 2015 BCSC 2326 and Gehl v. Canada (Attorney General), 2017 ONCA 319 (CanLII).

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the international centre for human rights and democratic development act, 1985. As stated in the preliminaries, “the purpose of this Act is to extend the laws in Canada that proscribe discrimination”. the statutes of canada, 1841–1851. Statutes enacted prior to confederation in 1867 continue to have a resonance in some constitutional and contemporary statutory provisions. Included in that legacy is a guarantee given, under section 175 of the Statutes of Canada, 1851, to ensure “the free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference”. Other Legislation The Criminal Code is a relevant federal statute as it prohibits hate offences based on religion. Province-level human rights legislation prohibits, among other things, discrimination on the grounds of race, religion or creed, colour, nationality, ancestry, and place of origin.39

equality and non-discrimination. The Canadian Human Rights Act, 1985, improved and extended the largely ineffective Canadian Bill of Rights, 1960.40 Section 3(1) broadened the law to ensure equal opportunity for individuals, to expressly prohibit discrimination on a federal basis (replicated at province and territory levels) and to prohibit discrimination on grounds that include religion and sexual orientation. Together with the Canadian Charter of Rights and Freedoms, the 1985 act provides the basic federal legislative framework governing issues arising in the context of the church–state relationship. Courts and Tribunals The jurisdictional division between federal and provincial government naturally affects the courts and regulatory machinery for law relating to the church– state relationship. International Canada accepts the jurisdiction of the International Criminal Court and indeed was largely responsible for establishing it. Unlike the USA, it also accepts the International Court of Justice while both accept the Universal Periodic Review process, which provides an international peer monitoring forum for the ongoing 39

40

The Canadian Multiculturalism Act, 1985, and the Canadian Race Relations Foundation Act, 1991, have also set benchmarks for legislation at provincial and territorial level. Richard Moon adds, “The Canadian Bill of Rights and the CHRA [Canadian Human Rights Act] are very different instruments. The CBR called on courts to review federal laws – and was regarded as a quasi-constitutional document – even if hopes for it were not realized because of the courts’ reticence. The CHRA is ordinary human rights law” (note to author, 20.12.2019).

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review of national progress in addressing human rights concerns, including those relating to religion and belief. the domestic judicial and regulatory systems. The system of regulatory tribunals with a right of appeal to a court, and ultimately to a supreme court, is replicated in each province and territory. the supreme court of canada (scc). This final court of appeal has a federal jurisdiction enabling it to adjudicate on, and to formulate governing principles in relation to, cases drawn from all areas of law including those relating to the religion and human rights. States and territories each have their own judicial and regulatory systems. the canadian human rights commission (chrc). The Canadian Human Rights Commission, an independent body established at federal level was created to administer the Canadian Human Rights Act, 1977, and subsequently undertook regulatory responsibility for the Employment Equity Act, 1996. the canadian human rights tribunal. Established under the Canadian Human Rights Act, 1977, the jurisdiction of this tribunal is restricted to federally regulated activities and thus most human rights claims come before the provincial tribunals. It is independent of the Canadian Human Rights Commission, which refers cases to it for adjudication under the act.

International Reports In September 2016, in response to the 2015 report by the Inter-American Commission on Human Rights into the murders and disappearances of indigenous women and girls, the Canadian government launched a two-year national inquiry. In 2019 the US Annual Country Report on Canada also recorded concern on this matter. In September 2017 the UN Committee on the Elimination of Racial Discrimination urged the government to remedy what it found were persistent violations of the rights of indigenous peoples. Human Rights Watch and other groups have expressed concern regarding the detention of immigrant children and families with children.41 The Universal Periodic Review Canada has participated in three review cycles – 2009, 2013 and 2018. In the third review, about 275 recommendations were made including in relation to the situation of indigenous peoples, racism, xenophobia and non-discrimination, gender 41

See also the Canada 2016 Human Rights Report, www.state.gov/documents/organization/ 265782.pdf

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equality and violence against women and girls, and Canada’s accession to international human rights instruments that it has not yet ratified.

case law: the church–state relationship and fundamental human rights Dickson J in Big M42 – when the SCC held that the provisions of the Lord’s Day Act, 1906, violated the freedom of conscience and religion, guaranteed by section 2(a) of the Canadian Charter of Rights and Freedoms in the Constitution Act, 1982, because it compelled a religious observance43 – stated that “the diversity of belief and non‑belief, the diverse socio‑cultural backgrounds of Canadians make it constitutionally incompetent for the federal Parliament to provide legislative preference for any one religion at the expense of those of another religious persuasion”.44 The purpose and possibly also the effect of the Lord’s Day Act, which prohibited business transactions on Sundays, preferenced those of Christian belief over and above those of other beliefs and those of none.

Freedom of Religion Freedom of religion is protected by the charter: section 3 guarantees fundamental freedoms, including freedom of conscience and religion and section 15 prohibits discrimination based on religion; together they provide the basis for the operation of state neutrality in Canada. LeBel J, in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village),45 described freedom of religion as imposing “a duty of State neutrality” a view subsequently endorsed by the SCC when it explicitly adopted a neutrality requirement in Saguenay.46 The role of the state, he wrote, is to act “as an essentially neutral intermediary in relations between the various denominations and between those denominations and civil society”.47 The right to this freedom is infringed, as the SCC stated in Ktunaxa Nation, when a claimant demonstrates48 (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned State conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief. 42 43

44 45 46 47 48

R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295. See further in R. Moon, “Liberty, Neutrality and Inclusion: Freedom of Religion under the Canadian Charter of Rights”, Brandeis Law Review, vol. 41 (2003), pp. 563–573. Ibid., p. 351. [2004] S.C.J. No. 45, [2004] 2 S.C.R. 650. Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16. Ibid., para. 67. Ktunaxa Nation v. British Columbia, [2017] SCC 54, para. 68.

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Adding that “where State conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom”. This interpretation is in keeping with earlier decisions that have similarly emphasised a state duty not to breach the freedom of religion.49 The corollary – whether there exists a state duty or discretion to provide support – has proven contentious. Definitions Only in recent years, as McLachlin CJ noted, have the courts broadened their traditional interpretation of “religion” to accommodate different belief systems: “the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the State to consciously profess a theistic faith”;50 instead it “must be given a generous and expansive interpretation”.

“religion”. Following the Dickson CJ ruling in R. v. Big M Drug Mart,51 the courts moved away from the orthodox institutional interpretation of “religion” to embrace a wider view based on an individual’s human right to choose their beliefs and how to express them:52 The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the rights to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

This view was further developed by Iacobucci J in Syndicat Northcrest v. Amselem:53 Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

In that case the SCC stated that in determining the existence or otherwise of religious belief, a two-pronged test must be satisfied: it must be demonstrated that 49

50

51 52

53

See R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295 and R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, [1986] 2 S.C.R. 284, per McLachlin CJ. [1985] 1 SCR 295. Citing Tarnopolsky J in R. v. Videoflicks Ltd., (1984) 48 O.R. (2d) 395 (C.A.). R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, per Dickson J., p. 336. See also R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713. (2004) 2 SCR 576, para. 39.

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a person is engaged in a practice or a belief that has a nexus with religion and the person has to be sincere in their belief. “beliefs”. The reference in section 2(a) of the charter to “freedom of conscience and religion” clearly implies that the addition of “conscience” is intended to add something to section 2(a): an inference that constitutional protection is available for non-religious beliefs. In Morgentaler54 Wilson J advised that the freedom to hold and exercise beliefs was not restricted to beliefs of a religious nature: “in a free and democratic society ‘freedom of conscience and religion’ should be broadly construed to extend to conscientiously held beliefs, whether grounded in religion or in a secular morality”.55 Again, in Maurice v. Canada (Attorney General),56 Campbell J was satisfied that vegetarianism, based on a belief that the consumption of animals is morally wrong, qualified for protection under section 2(a) of the charter as a conscientious belief – the only case in which a successful conscience claim has been made.57 As acknowledged by Iacobucci J in Amselem, this interpretation has permitted recognition of groups such as Falun Gong58 and Wiccas,59 (also, more recently, atheists60) and has now become a settled characteristic of the Canadian judicial approach to religion and belief.61 That the judiciary are prepared to set limits on further liberal extensions was indicated by the decision in Church of Atheism of Central Canada v. Canada (National Revenue)62 when the Court of Appeal upheld the dismissal of a body set up “to preach Atheism through charitable activities”. However, all individuals and religious/belief organisations enjoy equal charter protection and as the SCC confirmed in Mouvement laïque québécois v. Saguenay (City),63 for the purposes of charter protection, the concepts of “belief” and “religion” encompass non-belief, atheism and agnosticism.64 worship. For Dickson CJ in Big M, section 2(a) of the charter conferred the rights to both hold and to practice their religious beliefs: “the essence of the concept of religion” includes “the right to manifest religious belief by worship”.65

54 55 56 57 58 59 60 61 62 63 64 65

See Morgentaler v. R, [1988] 1 SCR 30 Ibid., para. 251. [2002] F.C.J. No. 72, 210 D.L.R. (4th) 186 (T.D.). As Richard Moon points out (note to author: 20.12.2019). Huang v. 1233065 Ontario, 2011 HRTO 825 (CanLII). Re O.P.S.E.U. and Forer, (1985) 52 O.R. (2d) 705 (CA). In R.C. (Next friend of ) v. District School Board of Niagara, 2013 HRTO 1382. Ibid. 2019 FCA 296 (CanLII). 2015 SCC 16. At para. 70. But there are limits, see Blackmore v. The Queen, 2013 TCC 264 (CanLII). R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, para. 94.

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indigenous beliefs. The indigenous people – the First Nations, Inuit and Metis – originally spread across all of Canada, each tribe with its own distinctive culture and set of beliefs, customs, ceremonies and rituals, usually with strong spiritual references to specific animals and to nature in general. “Religion is a matter of faith intermingled with culture”, as McLachlin J noted in the Hutterite case,66 and for the indigenous people this largely became a matter of their traditional beliefs succumbing to, or fusing with, those of Christianity. The Canadian Human Rights Act, section 35 of the Constitution Act, section 25 of the Charter of Rights and Freedoms, and the United Nations Declaration of the Rights of Indigenous Peoples all include legal protections for the fundamental right of this community to freely practice their religious and spiritual traditions, and to be treated equally and with dignity.67 The SCC has a well-established track record of according locus standi to the beliefs of indigenous people.68 Religious Discrimination As one of the eleven grounds listed in the Canadian Human Rights Act, religious discrimination attracts considerable judicial attention and asperity in this most multicultural jurisdiction. The law – section 15 of the charter – as the SCC stressed in Andrews v. Law Society of British Columbia,69 requires a plaintiff to show differential treatment, an enumerated ground, and discrimination in a substantive sense involving factors such as prejudice, stereotyping, and disadvantage. In Canada Trust case,70 the court found it was “to expatiate the obvious” that a trust premised on notions of racism and religious superiority was obviously discriminatory and therefore void. As with other allegations71 of a breach of rights, claims of religious discrimination must be evidenced, be objectively verifiable and proven in accordance with the balance of probabilities test.72 Protecting the State from Religion “Canada is founded upon principles that recognize the supremacy of God and the rule of law”, proclaims the preamble to the Canadian Charter of Rights and 66 67

68

69 70

71

72

Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, para. 89. Kelly v. British Columbia (Public Safety and Solicitor General) (No.3), 2011 BCHRT 183 (CanLII). Kruger and Manuel v. The Queen, (1977), [1978] 1 SCR 104, 75 DLR (3d) 434; Simon v. The Queen, (1985), [1985] 2 SCR 387, 62 N.R. 366; Arthur Dick v. The Queen, (1985), [1985] 2 SCR 309, 62 N.R. 1, [1986] 1 W.W.R.1; and Jack and Charlie v. The Queen, (1985), [1985] 2 SCR 332, 62 N.R. 14, [1986] 1 W.W.R.21. (1989) 1 SCR 143. See Re Canada Trust Co v. Ontario (Human Rights Commission); Re Leonard Foundation; Canada Trust Co v. Ontario Human Rights Commission, (1990) 69 DLR (4th) 321. See above mentioned Spence v. BMO Trust Company, 2016 ONCA 196. Also see, Royal Trust Corporation of Canada v. The University of Western Ontario et al., 2016 ONSC 1143. Author acknowledges advice from Matt Harrington on this matter (note to author: 06.04.17). S.L. v. Commission scolaire des Chênes, 2012 SCC 7, paras. 22–24.

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Freedoms. Any suggestion that the state is thereby compromised, by being constitutionally affiliated to theism and Christianity, was refuted by McLachlin CJ in Mouvement laïque québécois v. Saguenay (City).73 an “established” church. There has been no “established” church in Canada since 1854. While the Confederation debates at that time reveal the extent to which the parties were determined to avoid any possibility of Canada having a constitutionally protected church, they also disclose a narrow and exclusive preoccupation with Christianity. The state would not be tied to any particular Christian religion but neither would it be formally associated with the beliefs of any non-Christian community, including those of the First Nations. As matters evolved, the Canadian constitution did not acquire any equivalent to the US First Amendment’s anti-establishment clause and, therefore, there is now no “wall” separating the Canadian church and state. a secular state. Despite the preamble to the Canadian Charter of Rights and Freedoms proclaiming that “Canada is founded upon principles that recognize the supremacy of God and the rule of law”, this did not deter Cambell J from asserting in Trinity Western that74 Canada is a “secular society”. The State remains neutral on matters of religion. It does not favour one religion over another. And it does not favour either religion or the absence of it. While the society may be largely secular, in the sense that religion has lost its hold on social mores and individual conduct for many people, the State is not secular in the sense that it promotes the process of secularization. It remains neutral.

Politically and judicially75 contemporary Canada is commonly viewed as secular. The separation of church and state is seen as crucial for a pluralistic, multicultural nation in which religion is treated as a private matter. The Canadian education system, however, does not fit that image. Four provinces, Alberta, Saskatchewan, Ontario and Quebec (making up roughly three-quarter of Canada’s population) have state-funded Catholic schools. accommodating religious law and courts. Faith-based tribunals, established by Catholic, Jewish and Islamic communities, have been operational across Canada for many decades. Their rulings sometimes fall to be considered by the courts. For example, in Bruker v. Marcovitz,76 a breach of contract claim, the SCC 73 74

75 76

[2015] 2 SCR 3, per McLachlin CJ, paras. 39, 43, 46 and 54. Trinity Western University v. Nova Scotia Barristers’ Society, [2015] NSSC 25, para. 19. Also see R. Moon, ed., Law and Religious Pluralism in Canada, UBC Press, Vancouver, 2008, p. 231. Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. (2007) 3 SCR.

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found that a Jewish husband’s fifteen-year long refusal to grant his wife a get, thereby preventing her from divorcing him, was contrary to public policy as “under Canadian law, marriage and divorce are available equally to men and women”.77 The court rejected the husband’s defence that he was protected by the right to freedom of religion. Abella J warned that this well-established Jewish principle, confining the granting of a get exclusively to the discretion of a husband, was incompatible with Canadian law. Moreover, in early 2018 the SCC agreed to hear the case of a Jehovah’s Witness who was expelled from that religious organisation for alleged verbal abuse of his wife and ultimately dismissed his claim. sharia law. In spring 2018 a private members’ motion – M-10378 – was brought before the House calling for an amendment to the Constitution stating that “Sharia Law or separate sharia family courts will never have a place in the Canadian Justice System”. More significantly, the Ontario arbitration legislation was amended to remove the option of religion-based arbitration. Protecting Religion from the State State failure to protect religion and belief was never more apparent than when it authorised and enforced the residential schooling programme with its purpose of facilitating the efforts of Anglican and Catholic religious organisations to erase indigenous beliefs/culture and ensure their assimilation into mainstream Canadian society.79 A right to “the free exercise and enjoyment of Religious Profession and Worship without discrimination or preference”, as initially guaranteed under section 175 of the Statutes of Canada 1851, was continued by section 2(a) of the Charter of Rights and Freedoms; Article 1 of the charter declares that religious freedom may be subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. As Côté and Brown JJ recently pointed out,80 a s. 2(a) Charter infringement is made out where a claimant establishes that impugned State conduct interferes, in a manner that is more than trivial or insubstantial, with their ability to act in accordance with a sincere practice or belief that has a nexus with religion.

77 78

79

80

Ibid., 3. See further in www.ourcommons.ca/Parliamentarians/en/members/Iqra-Khalid(88849)/ Motions?documentId=8661986&sessionId=152 See the Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), www.trc.ca/websites/trcinstitution/index.php?p=890 Law Society of BC v. Trinity Western University, 2018 SCC 32, para. 318, citing in support: Amselem, paras. 56 and 65; Multani, para. 34; Loyola, para. 134; and Ktunaxa, para. 68.

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When Dickson J, in Big M, pronounced on the freedom of religion, he did so in terms that emphasised the positive and protective role of the state:81 Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

Accordingly, in Amselem,82 the SCC ruled that a condominium board had to allow a group of Orthodox Jewish unit-owners to construct sukkahs on their balconies as part of the Jewish festival of Sukkot, despite the prohibition in their condominium contract prohibiting tenants from altering property. The property rights and fire safety concerns of residents would have to give way to the rights of a minority to publicly celebrate their religion in a religious festival, in the same way that Christians would do at Christmas. This right has since been variously iterated in the human rights legislation of the provinces and it is there that much related case law has been generated.83 Again, in Loyola High School v. Quebec (Attorney General),84 the SCC delivered a strong ruling affirming the state’s duty to protect the identity and integrity of religious institutions and commented that secularism includes “respect for religious differences” and that “through this form of neutrality, the State affirms and recognizes the religious freedom of individuals and their communities”.85 More recently, in Ktunaxa Nation,86 the SCC acknowledged that “where State conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom” and that because “in many Indigenous religions . . . land itself can be sacred . . . State action . . . [may then] interfere with the ability to act in accordance with religious beliefs and practices”. In this case the state’s decision to approve planning permission for a ski resort on a site considered by the plaintiffs to be sacred “interferes with the Ktunaxa’s ability to act in accordance with their religious beliefs or practices”. However, the majority found the decision to interfere to be reasonable and that there had been no breach of section 2(a). The SCC drew attention to some parameters on the state’s protective duty when it noted that the State’s duty under section 2(a) is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit. Rather, the State’s duty 81 82 83

84 85 86

R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, para. 95. Syndicat Northcrest v. Amselem, [2004] 2 SCR 551. See, for example, Rosenberg v. Outremont (City), (2001), File No. 500-05-060659-008. Also see Chamberlain v. Surrey School District No. 36, 2002 SCC 86. 2015 SCC 12. Ibid., paras. 43–44. See further in www.carters.ca/pub/seminar/charity/2015/Renderings2015.pdf Ktunaxa Nation v. British Columbia, [2017] SCC 54, para. 71.

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is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.

Again, in the most recent Trinity Western University (TWU) case, the SCC emphasised that on the important issue of the threshold justifying state interference with religious freedom, the proportionality principle can play a critical role:87 in a majority decision the court found that the Law Society of British Columbia (LSBC), a state body, had interfered with the religious freedom of TWU but was justified in doing so because88 it was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means by which the LSBC could pursue its overarching statutory duty.

However, the chief justice – disagreeing with the majority view – was in no doubt that this interference “cannot be characterized as minor . . . it precludes members of the TWU community from engaging in the practice of providing legal education in an environment that conforms to their religious beliefs, deprives them of the ability to express those beliefs in institutional form, and prevents them from associating in the manner they believe their faith requires”.89 This would seem to be a clear warning that the proportionality principle will not always justify state interference. determining the legitimacy of religion and beliefs. Iacobucci J in Amselem explained that if an individual’s asserted religious belief “is in good faith, neither fictitious nor capricious, and that it is not an artifice”90 and he or she sincerely believes that manifesting that belief by way of a certain practice has spiritual significance or connects them with the divine or spiritual realm, then this will be protected under section 2(a) of the charter. It is “the religious or spiritual essence of an action” that attracts protection.91 Compliance with the principle of state neutrality meant that “the State is in no position to be, nor should it become, the arbiter of religious dogma. . .. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion”.92 He was of the opinion that it was unnecessary for the holder of that belief to show that it was “objectively recognized as

87

88 89 90 91

92

Law Society of BC v. Trinity Western University, 2018 SCC 32 and Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. Law Society of BC v. Trinity Western University, 2018 SCC 32, para. 40. Ibid., para. 134. Syndicat Northcrest v. Amselem, [2004] 2 SCR 551, para. 52. Law Society of BC v. Trinity Western University, 2018 SCC 32, per Côté and Brown JJ, para. 317, citing Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, para. 47. Ibid., para. 50.

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valid by other members of the religion”.93 If the person believes that he or she has an obligation to act in accordance with a practice or endorses a belief “having a nexus with religion”, the court is then limited to assessing the sincerity of that belief.94 state protection of beliefs/culture of indigenous people. The failure of both the federal and provincial governments in Tsilhqot’in Nation v. British Columbia95 to establish clear felling forestry rights in respect of land where a First Nations tribe had lived and worshipped for centuries was a significant SCC ruling. By finding that the tribe had acquired Aboriginal title by virtue of historical occupation, and that any intervention affecting it could only be with tribal consent or without such consent in restricted circumstances, the court by implication also seemed to extend state neutrality to accommodate Aboriginal land disputes. This interpretation now needs to be reviewed in the light of the recent SCC decision in the above mentioned Ktunaxa Nation case,96 though this was not a land-claim case. In Ktunaxa, the appellants alleged that a proposed ski resort development would drive the Grizzly Bear Spirit from a First Nation’s traditional territory and thereby infringe their right “to exercise spiritual practices which rely on a sacred site and require its protection”. In compliance with state neutrality, the SCC found that the appellants’ belief in the Grizzly Bear Spirit was sincere and equally that they sincerely believed the proposed development would drive that spirit away (matters of religious belief falling to be determined by church, not state). It willingly conceded that section 2(a) of the charter protected the appellants’ freedom to hold and to manifest a religious belief in the Grizzly Bear Spirit but it was unable to share their view that section 2(a) extended to protect the presence of the Grizzly Bear Spirit in Qat’muk. The claim was not one seeking protection for the freedom to believe in the Grizzly Bear Spirit or to pursue practices related to it but one seeking to protect the Grizzly Bear Spirit itself, and the subjective spiritual meaning the claimants derived from it, which was beyond the scope of section 2(a). This aspect of the court’s reasoning seems like a step away from state neutrality: the right to a subjective interpretation of belief would generally find recognition and protection in law; such an approach would be unlikely to be adopted in relation to an adherent’s interpretation of their Christian, Muslim or Hindu beliefs. However, in a majority decision, the SCC found that the Ktunaxa’s claim was not protected by section 2(a) of the charter because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs was infringed by the minister’s decision to approve the project.97 93 94 95 96

97

Ibid., para. 43. Also see S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235. Ibid. 2014 SCC 44. See also Delgamuukw v. British Columbia, [1997] 3 SCR 1010. Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54. Ibid., para. 8.

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State Treatment of Religions For Dickson CJ “the notion of the centrality of individual conscience and the inappropriateness of governmental intervention to compel or constrain its manifestation”98 was central to section 2(a) of the charter and epitomised the Canadian commitment to state neutrality.99 Evidence relating to this proposition, however, is at best mixed.

equal treatment by the state. The fact that state neutrality is compromised by constitutional arrangements and by the many Canadian laws giving preference to Christianity has long been judicially acknowledged.100 Nonetheless, as Dickson CJ stated in Big M, safeguarding minority interests “from the threat of ‘the tyranny of the majority’”101 lies at the heart of the charter, while “[t]he protection of one religion and the concomitant non-protection of others imports disparate impact destructive of the religious freedom of the collectivity”.102 This would seem to fairly represent the current judicial approach, which is to ensure equal treatment between religions, insofar as is possible within constitutional and legislative constraints. state prejudicial intervention. Beginning with the residential schools scandal and continuing through to Bill 21, the principle of state neutrality has at times been abandoned as government intervention is directed towards the prohibition of specific religious beliefs or related practices. That prejudicial intervention is permitted was confirmed by Wilson J, in R. v. Jones103 and in the Hutterite case.104 Government non-intervention has also had a prejudicial effect: generally as regards government recognition and protection of indigenous beliefs and culture, and particularly when the federal government voted against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 and only ultimately did so subject to significant reservations. state-supportive intervention. The Canadian state has a duty under section 2(a) to accommodate a religious practice if this can be done with minor cost to public policy: it is not precluded from supporting religion provided it does so in an 98 99

100

101 102 103 104

R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, para. 346. Richard Moon comments, “Dickson CJ did not formally adopt a neutrality requirement (even if he used some language suggesting something like that). He defined freedom of a religion as a liberty that precluded the State from engaging in coercion in matters of religion” (note to author: 20.12.2019). See R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295; Zylberberg v. Sudbury Board of Education, (1988) 65 OR and Canadian Civil Liberties Association v. Ontario (Minister of Education), (1990) 71 O.R. (2d) 341. R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, per Dickson CJ, para. 98. Ibid., para. 337. [1986] 2 S.C.R. 284, pp. 313–314. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.

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even-handed way. This was evident, for example, in Amselem,105 Loyola106 and in Trinity Western.107 However, this is a discretionary power, not a duty. The courts have stopped short of interpreting section 2(a) of the charter as imposing a positive obligation on government to facilitate the exercise of religious freedoms. “Never”, wrote McLachlin J (as she then was) in the Adler case, “has it been suggested that freedom of religion entitles one to State support for one’s religion”.108 affirmative action. The equality provision in the Canadian Charter of Rights and Freedoms, section 15(1), is subject to the section 15(2) exception that it “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. In keeping with the Canadian interpretation of state neutrality, government has a duty to both monitor policy and legislation and make such adjustments as may be necessary to ensure religious freedom is not unduly burdened and also to intervene with supportive assistance for disadvantaged religious entities. So, in University of Victoria v. British Columbia (A.G.),109 scholarships were used to positively discriminate in favour of Roman Catholics. Far from having a “hands off” approach, the State may promote religion, provided it does so in an even-handed manner. As Dickson CJ put it in Big M:110 [t]he equality necessary to support religious freedom does not require identical treatment of all religions. In fact the interests of true equality may well require differentiation in treatment.

In Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village),111 the SCC considered the relationship between affirmative action and state neutrality before finding that the municipality had violated its duty of procedural fairness owed to the congregation by refusing to provide reasons to justify its decisions to deny two of the applications for rezoning. In relying upon grounds of procedural unfairness for its decision, the SCC was able to sidestep any examination of how this relationship should or could work. However, LeBel J seemed to invoke state neutrality and dismiss affirmative action when he commented that112 105 106 107

108 109 110 111 112

Syndicat Northcrest v. Amselem, [2004] 2 SCR 551. 2015 SCC 12. Law Society of BC v. Trinity Western University, 2018 SCC 32 and Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. Adler v. Ontario, [1996] 3 RCS 609, para. 200. [2000] B.C.J. No. 520. R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, per Dickson J., para. 124. 2004 SCC 48, [2004] 2 S.C.R. 650. Ibid., paras. 67–68. Note also, “The principle of State neutrality discussed above means that the State must even refrain from implementing measures that could favour one religion over another or that might simply have the effect of imposing one particular religion”, para. 76.

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the State acts as an essentially neutral intermediary in relations between the various denominations and between those denominations and civil society. . .. It is no longer the State’s place to give active support to any one particular religion, if only to avoid interfering in the religious practices of the religion’s members. The State must respect a variety of faiths whose values are not easily reconciled.

He suggests that Canadian state neutrality is not about a duty of even-handedness in its dealings with religions, rather it requires the state to remain neutral about the value of religion generally, that there should be a “dissociation of the functions of Church and State”.113 Clearly, the views of LeBel J and Dickson CJ are also not easily reconciled. If the relative weighting of the principles of state neutrality and affirmative action is to be understood and if they are to be applied appropriately, separately or jointly, then the SCC will need to return to examine this relationship in the near future. religious symbols and prayers in state facilities. Religion has been constitutionally presumed to refer to Christianity and duly accorded special state recognition in various ways, which include reference to the “supremacy of God” in the charter’s preamble; the statutory recognition of Christian religious holidays; Christian inscriptions on coinage; and in the tax exemptions granted to what were initially Christian religious organisations. Nonetheless the courts have assiduously sought to restrain what had become a customary inclusion of Christian prayers on ceremonial occasions in government facilities such as state schools. Such judicial stringency reached an apogee of sorts in Mouvement laïque québécois v. Saguenay (City)114 when the SCC, in allowing the appeal, upheld the challenge from an atheist to the presence of a crucifix and to recitation of a prayer by the mayor of Saguenay at council meetings, warning that “[i]f the State adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality”.115 State Protection for Manifestations of Religious Belief Dickson CJ stated in Big M that116 the values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. 113 114 115 116

See also Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. Ibid. Ibid., para. 78. R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, para. 123.

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religion-specific clothing. In Saadi117 the court considered the issue, which presents in many jurisdictions, of a Muslim female employee wearing her hijab at work. It pointedly overruled the tribunal finding that “[t]he Code guarantees not only a woman’s right to wear a religious headdress in the workplace, but also her right to choose the form of religious headdress, subject to any bona fide occupational requirements”. Instead it stated that the issue was whether the employee could have complied with the dress code without compromising her religious beliefs; what was she actually required to wear as part of her religion? Then consideration should be given to whether the employer’s dress code, or the employer’s enforcement or interpretation of it, conflicted with what the employee chose to wear. The issue as to wearing the niqab when testifying in court was resolved in NS118 by applying the following guidance: “If the judge concludes that the wearing of the niqab in all of the circumstances would infringe the accused’s right to make full answer and defence, the right must prevail over the witness’s religious freedoms and the witness must be ordered to remove the niqab”. A very similar approach was recently taken in Australia in relation to the same issue.119 More recently, the wearing of the niqab at a formal legal occasion arose in Ishaq v. Canada (Citizenship and Immigration),120 when the right to do so while swearing an oath at a citizenship ceremony was decided by the Federal Court of Appeal on narrow grounds in administrative law thereby obviating any need to address the larger question of whether a ban on wearing the niqab on such occasions would breach the charter. In the Multani case,121 the SCC ruled that “a total prohibition against wearing a kirpan (a ceremonial dagger) to school undermines the value of the religious symbol and sends students the message that some religious practices do not merit the same protection as others”.122 The SCC considered that the freedom of a Sikh boy to carry his kirpan, which was not viewed as being a weapon, outweighed reasons (e.g. alleged safety concerns) to prohibit him from doing so, unlike an earlier tribunal ruling that held that safety reasons justified a prohibition against wearing it on an aircraft.123 This exercise in balancing the unintentional adverse effects of a neutral rule on a religious/cultural minority, against a general concern to promote the public benefit, can be seen in a considerable number and variety of cases.124 It should not, of course, distract attention from the blunt fact that an item of apparel – such as a turban – which identifies the religion/ethnicity of the wearer is often 117 118 119 120

121 122 123 124

Saadi v. Audmax, 2009 HRTO 1627. R. v. N.S., 2010 ONCA 670 (CanLII). Elzahed v. State of New South Wales, [2018] NSWCA 103. [2015] 4 FCR 297, 2015 FC 156 [Ishaq] aff’d in Canada (Citizenship and Immigration) v. Ishaq, [2016] 1 FCR 686, 2015 FCA 151. Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6. Ibid., 297. Nijjar v. Canada 3000 Airlines Ltd., 1999 CANLII (CHRT). See, for example, Grant v. Canada, [1996] 1 SCR vii, 130 DLR (4th) vii and Peel Board of Education v. Pandori, (1991) 3 OR (3D) 531 (Div. Ct.).

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sufficient to attract discrimination;125 the policy decision permitting Sikh officers of the Royal Canadian Mounted Police (RCMP) to wear turbans was, therefore, a potent political gesture neatly conflating religion and culture with nationalism. religion-specific clothing: state employees. A liberal approach has traditionally prevailed in relation to this issue. Sikh members of the RCMP, for example, have been allowed to wear a uniform-issue turban since 1990. At variance with the general liberal Canadian approach is Quebec’s recent adoption of Bill 62, the Religious Neutrality Law. This became law in October 2017 and now prohibits public workers, as well as those receiving public services, from covering their faces; in effect banning them from wearing the niqab.126 The Canadian Human Rights Commission has commented that “laws should be adopted to end discrimination – not promote it”.127 religion-specific clothing: service users in state facilities. The general rule has been that state neutrality applies for service users in state facilities as the user is not a state representative and is therefore free to express their religious beliefs by wearing religion-specific clothing inside a public building or in dealings with the public authorities. However, Bill 21 has introduced significant change in one Canadian province. Introduced by the Liberal Quebec government in June 2019, the Bill arguably challenges both state neutrality and charter principles, and would seem to fly in the face of the SCC assertion that “a secular State respects religious differences, it does not seek to extinguish them”.128 religion-specific customs, practices and rituals. In the Hutterite case,129 but perhaps more so in Amselem,130 the judiciary have wrestled with the weighting to be given to religious/cultural customs relative to neutral public benefit laws of universal application. In Hutterite and Amselem, it would seem, the SCC resolved the issues by using the proportionality principle to gauge the significance of the custom for the religion/culture concerned, against the overall importance of a neutral public benefit law, in order to determine whether the latter had such a disproportionate adverse effect on the former as to be in breach of their freedom of 125 126

127

128 129 130

Randhawa v. Tequila Bar & Grill Ltd., 2008 AHRC 3 (CanLII). Note also Singh v. Attorney General of Quebec, 2018 QCCA 257 in which the Quebec Court of Appeal held that the National Assembly might ban the wearing of the Sikh kirpan within its precincts as a matter of parliamentary privilege. Marie-Claude Landry, Chief Commissioner, Canadian Human Rights Commission (20 October 2017), www.newswire.ca/news-releases/quebecs-face-covering-law-could-stray-intofederal-human-rights-jurisdiction-651935633.html Loyola High School v. Québec (Attorney General), 2015 SCC 12, para. 43. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, para. 89. Syndicat Northcrest v. Amselem, [2004] 2 SCR 551. See also Rosenberg v. Outremont (City), [2001] R.J.Q. 1556, 84 C.R.R. (2d) 331 (Can.).

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religion. In such cases, including Multani,131 an adherent’s subjective interpretation of the importance of a custom will need to be supported by hard evidence linking it to the religion/belief.132 Adherence to a particular religion or belief does not imply that an adherent is restricted to manifesting their commitment in a preordained manner: it must, however, be more than a nominal gesture (e.g. the formal reciprocal bow of participants in a judo contest is not a manifestation of the Shinto religion/belief 133); otherwise the constraints on choice in the manner of manifesting adherence are only those generally pertaining to nuisance, health/safety and the rights of others in public places.134 state protection of its traditional religious/cultural identity. R. v. Big M Drug Mart Ltd.135 was a landmark judgment in the politics surrounding Canadian religious identity. The case concerned a retail outlet that had been acquitted of violating the Lord’s Day Act by opening for business on Sunday but the issue was brought before the SCC to determine whether section 2 of the Charter of Rights and Freedom had a bearing on the matter. The SCC ruled the Lord’s Day Act unconstitutional because laws must have a secular purpose: a law based on religious reasons and favouring one denomination over others was deemed unconstitutional. As Dickson CJ then explained,136 In proclaiming the standards of the Christian faith, the Act creates a climate hostile to, and gives the appearance of discrimination against, non-Christian Canadians. . .. The theological content of the legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture.

In Mouvement laïque québécois,137 the SCC closely followed the sentiment expressed in R. v. Big M Drug Mart Ltd.138 that “[w]hat may appear good and true to the majoritarian religious group, or to the State acting at their behest, may not for religious reasons, be imposed upon citizens who take the contrary view”. It took issue with Gagnon JA’s reference in the tribunal to “the State’s duty to preserve its history, including its multireligious heritage” and to “the concept of ‘benevolent neutrality’ being more appropriate to define the State’s duty of religious neutrality”.139 Instead, warning against a benign stance favouring Christianity and wary 131 132 133 134 135 136 137 138 139

Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6. See Whitehouse v. Yukon, (2001) 48 C.H.R.R. D/497 (Y.T.Bd.Adj.). Akiyama v. Judo B.C. (No. 2), (2002) 43 C.H.R.R. D/425, 2002 BCHRT 27. R. v. Laws, (1998) 41 OR (3d) 499 (Ont. CA), para. 23. R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295. Ibid., para. 354. Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, para. 337. Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3, paras. 69 and 76.

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of such preferencing being used to preserve cultural dominance, the SCC advised that140 if the State adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality . . . the State’s duty to remain neutral on questions relating to religion cannot be reconciled with a benevolence that would allow it to adhere to a religious belief.

Later, this was somewhat moderated by Gascon J: “I concede that the State’s duty of neutrality does not require it to abstain from celebrating and preserving its religious heritage. But that cannot justify the State engaging in a discriminatory practice for religious purposes”.141 Overall this approach is at variance with some European Court of Human Rights (ECtHR) rulings and with the drift of current judicial rulings and legislative initiatives in the USA. Freedom of Association The charter, section 2(d), entitles individuals to establish, belong to, maintain, or leave any legal organisation. In Mounted Police Association of Ontario v. Canada (AG),142 the SCC agreed that freedom of religion is not merely a right to hold religious opinions but also an individual right to establish communities of faith . . . and there is support for the view that 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 of freedom of religion.

Religious Organisations and the State The principle of state neutrality featured in Lafontaine143 when the SCC examined the nature of the government’s obligations to a religious community. The case concerned a zoning by-law that allegedly infringed the appellants freedom of religion as it made it impossible for them to build a place of worship. This circumstance arguably gave rise to a duty requiring the municipality to make a reasonable effort to accommodate the appellants by amending its zoning by-law to permit the construction somewhere else. The SCC, in a 5–4 ruling, held that the municipality violated its duty of procedural fairness owed to the congregation by refusing to provide reasons to justify its decisions to deny two of the applications for rezoning. Although the court did not pursue the freedom of religion argument, the judgment is significant because of LeBel J’s opinion on the duty of religious 140 141 142 143

Ibid., para. 78. Ibid., para. 116. 2015 SCC 1, para. 64. Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 SCR 650, 2004 SCC 48.

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neutrality and its impact on the question of when governments can take, or must take, positive steps to support religious freedom. His emphasis on the importance of maintaining neutrality between religions144 was reiterated in S.L. v. Commission scolaire des Chênes:145 [S]tate neutrality is assured when the State neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected.

intervention in church disputes. In Lakeside Colony of Hutterian Brethren v. Hofer,146 the SCC ruled that the courts had jurisdiction to determine disputes over membership of religious associations. This was seemingly reinforced by the Alberta Court of Appeal in Wall v. Highwood Congregation et al147 when it concluded that members of a voluntary religious association should be able to ask a court to review decisions taken by that association, so long as the decision in question is determined to be final. However, the latter decision was subsequently reversed by the SCC148 and, as Harrington comments, “there is now some uncertainty as to how the decisions in Lakeside and Wall are to be reconciled”.149 The general rule, as expressed by McLachlin J has been that150 the State refrains from acting in matters relating to religion. It is limited to setting up a social and legal framework in which beliefs are respected and members of the various denominations are able to associate freely in order to exercise their freedom of worship, which is a fundamental, collective aspect of freedom of religion, and to organize their churches or communities.

As was more forcefully expressed in Amselem, “the State is in no position to be, nor should it become, the arbiter of religious dogma. . .. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion”.151 Although reluctant to do so, the courts will adjudicate on church matters including property disputes152 without preference for doctrine but with respect for trust law and for the right of Canadian 144

145 146 147 148 149 150

151 152

Ibid., paras. 67–68. See also para. 76: “The principle of State neutrality discussed above means that the State must even refrain from implementing measures that could favour one religion over another or that might simply have the effect of imposing one particular religion.” [2012] 1 SCR 235, para. 32. [1992] 3 SCR 165. 2016 ABCA 255 (CanLII). Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26. Note to author: 06.08.2018. Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 SCR 650, 2004 SCC 48. Syndicat Northcrest v. Amselem, [2004] 2 SCR 551, per Iacobucci J, para. 50. Bentley v. Anglican Synod of the Diocese of New Westminster, 2009 BCSC 1608 (CanLII).

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religious organisations to manage their own affairs.153 In Diaferia v. Elliott,154 the court drew the line at reviewing decisions taken by members; it had “no intention of getting involved in how the ultimate meeting of the Church members proceeds. . .. This court must circumscribe the extent to which it becomes involved in the internal affairs of a religious organisation”.155Again, in Ktunaxa Nation,156 the SCC ruled that to determine how the plaintiffs’ beliefs could be protected would require the state and its courts to assess the content and merits of religious beliefs, which was outside their remit. With the most recent decision by the SCC in Highwood Congregation v. Wall,157 the general rule would seem to have been reasserted. state preferencing of religious organisations and communities. In recent years the SCC has made it clear that “State sponsorship of one religious tradition” breaches the state’s duty of neutrality, and is both discriminatory and destructive of religious freedom;158 the state has a duty not to “create a preferential public space that favours certain religious groups”.159 A corollary is that the state must not deny to religious organisations the opportunities available to their secular counterparts to acquire public funding. However, it remains the case that the Constitution Act, 1867, section 93, extends protection to denominational schools and permits partisan state funding. This anomaly was judicially acknowledged in Adler v. Ontario,160 when Iacobucci J ruled that government funding of both Roman Catholic and public schools, but not private religious schools, was entitled to special protection161 under that constitutional provision.162 In Mouvement laïque québécois,163 Gascon J acknowledged that “sponsorship of one religious tradition by the State in breach of its duty of neutrality amounts to discrimination against all other such traditions”, and went on to explain that “the State (must) abstain from taking any position and thus avoid adhering to a particular belief. . .. It may not use its powers in such a way as to promote the participation of certain 153 154 155 156

157

158

159 160 161

162

163

Syndicat Northcrest v. Amselem, [2004] 2 SCR 551, per Iacobucci J, para. 67. 2013 ONSC 1363. Ibid., per Edwards J, p. 22J. Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54. 2018 SCC 26. Author thanks Matt Harrington for advice on this case (note to author: 06.08.2018). See, for example, R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, p. 337; S.L. v. Commission scolaire des Chênes, [2012] 1 SCR 235, para. 17; and Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3, paras. 64 and 80. Ibid., para. 64. [1996] SCR 609. Section 93 of the Constitution Act, 1867, was deemed by Iacobucci J to be “immune from Charter scrutiny”. 30 & 31 Victoria, c. 3. Richard Moon adds, “Re Bill 30 is probably the more important judgment on the issue of separate school funding and the non-funding of other religious schools”. Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3, para. 64.

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believers or non-believers in public life to the detriment of others”.164 Nevertheless, the biased protections of the Constitution Act, 1867, section 93, remain in effect.

Freedom of Expression “For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society”, as the SCC pointed out in Trinity Western.165 Freedom of conscience and religion, as guaranteed under section 2(a) of the charter, includes “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination”.166 However, as Iacobucci and Major JJ observed in B. (R.) v. Children’s Aid Society of Metropolitan Toronto:167 Just as there are limits to the ambit of freedom of expression (e.g. s.2(b) does not protect violent acts168), so are there limits to the scope of s.2(a), especially so when this provision is called upon to protect activity that threatens the physical or psychological well-being of others.

Free Speech Conflict between the freedoms of speech and religion – as in “holocaust denial”169 – is as prevalent in Canada as elsewhere. In Ross v. Canada,170 the subject was a former teacher, who in his spare time published books and pamphlets, and made public statements, reflecting his discriminatory views in relation to Jews.171 The Human Rights Board of Inquiry concluded that he had contributed to a “poisoned environment” within the school district and recommended that he be transferred to a non-teaching position. This was endorsed by the SCC and also by the UN Human Rights Committee, which agreed that the disciplinary action did not constitute a violation of the freedom of expression as guaranteed by Article 19 (ICCPR). A conflation of religious belief and sexual orientation has generated considerable litigation.172 So, for example, Boissoin173 concerned a letter, written by the appellant to a newspaper, expressing disparaging comments about homosexuals. In overturning 164 165 166 167 168

169 170 171 172 173

Ibid., para. 88. Law Society of BC v. Trinity Western University, 2018 SCC 32, para. 36. R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, per Dickson CJ. [1995] 1 SCR 315, para. 226. Ibid., citing: R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 SCR 731, pp. 753 and 801; R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 SCR 697, pp. 732 and 830. R. v. Keegstra, [1990] 3 SCR 697. (1996) 25 C.H.R.R. D/175 (SCC). 18 October 2000, Communication No. 736/1997 (UN Human Rights Committee). See further in R. Moon, Putting Faith in Hate, Cambridge University Press, Cambridge, 2018. Boisson v. Lund, 2009 ABQB 592.

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the HRC finding of incitement to hatred and upholding the relative importance of freedom of speech, Wilson J ruled that the language used must disclose a real intention to discriminate or incite others to discriminate: “the need for great care when applying the true meaning of ‘hate and contempt’ to any impugned message cannot be overemphasized. Any potential restriction upon freedom of expression demands no less”.174 The same approach was taken in Saskatchewan (Human Rights Commission) v. Whatcott,175 regarding flyers that denounced gays and lesbians, when the SCC emphasised the need to pursue true hate speech, not just offensive language. Similarly, in Trinity Western,176 the court found no concrete evidence that holding beliefs about homosexuality would result in actions by its graduates that would be discriminatory. blasphemy. The Criminal Code, section 296(1), declared that anyone who publishes a blasphemous libel is guilty of an indictable offence; Bill C-51 removed section 296, repealing the prohibition against blasphemy. proselytism. In Zundel v. Canada,177 which concerned holocaust-denial publications, the SCC considered the limitations imposed on proselytism by section 181 of the Criminal Code. This stated that “[e]very one who willfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment”. The court found that section 181 violated section 2(b) of the Canadian Charter of Rights and Freedoms because the restriction on all expressions “likely to cause injury or mischief to a public interest” was too broad and imprisonment for expression was unreasonable. The parameters for proselytism were subsequently amended and are now set by section 319(2) of the code. Matters of Conscience Section 2(a) of the charter, the basis of protection for the freedom of religion in Canadian law, specifically extends that protection to matters of conscience.

refusal to bear arms. The right to refuse to “bear arms” or otherwise serve in the armed forces, on grounds of religious or moral objection, is protected under section 2(a) and, although not specifically mentioned in the National Defence Act, is probably well established in Canadian law. 174 175 176

177

Ibid., para. 83. [2013] 1 SCR 467. Trinity Western University v. British Columbia College of Teachers, (2001) 39 C.H.R.R. D/357, 2001 SCC 31. [1992] 2 SCR 731.

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public interest and personal conscience. Moore178 concerned a Catholic public service employee who, having objected to abortion and on refusing to work with a client who sought a termination, was disciplined and eventually fired. The Human Rights Tribunal found that because the employer knew of her religiously based objection, an onus rested on the employer to accommodate the employee by transferring the client to other employees. More recently, in C. v. A.179 the HR Tribunal acknowledged that a family medical clinic had accommodated a Christian employee’s pro-life beliefs by not requiring her to refer patients for abortions.180 Abortion referrals were processed by other individuals without compromising patient care. It is highly probable that the same difficulties will arise in relation to the legal right to a medically assisted death. Such matters have a singular weighting in Canadian law, given the pointed constitutional reference to freedom “of conscience” in section 2(a) of the charter, and consequently there is a particular onus on employers to make appropriate accommodation.

case law: the church–state relationship and equality rights The charter, section 15(1), states that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination”. Arguably, however, the protections afforded to religion are themselves discriminatory. Equality and the Church–State Relationship The absence of a constitutional “wall” separating church and state has perhaps left Canadian religious organisations more exposed to the levelling effect of equality legislation than their counterparts in the USA. As elsewhere, however, they have very largely relied on statutory exemptions and case law carve-outs to mitigate its effects. The Religious Exemptions Cambell J pointed out in Trinity Western University v. Nova Scotia Barristers’ Society181 that the plaintiff university, “like churches and other private institutions, does not have to comply with the equality provisions of the Charter”. This is 178

179 180

181

Moore v. British Columbia (Ministry of Social Services), (1992) 17 C.H.R.R. D/426 (B.C.C.H.R). (2002) 43 C.H.R.R. D/395, 2992 BCHRT 23. However, Richard Moon draws attention to a recent decision of the Ontario Court of Appeal that “rejected a claim by some doctors in the province to be exempted by the CPSO (the regulatory body) requiring them to provide a patient with an effective referral if they were unable/unwilling to perform certain procedures” (note to author: 20.12.2019). 2015 NSSC 25, para. 10 and endorsed in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, para. 335.

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problematic in terms of state neutrality: why and to what extent should religious emanations be privileged? tax-exemption privileges. The CRA grants charitable tax exemption to religious organisations in general and, unlike its UK regulatory counterpart, it continues the traditional legal presumption that they are for the public benefit.182 testamentary privileges. From at least Laurence v. McQuarrie,183 with its forfeiture condition in the event of the beneficiary “embracing the doctrines of the church of Rome”, until the introduction of the Charter of Rights and Freedoms, testamentary conditions in favour of religion had precedence over public policy considerations and went virtually unchallenged by the judiciary. It had seemed that the 1982 act would inaugurate a new era, but this was not immediately forthcoming. Canada Trust,184 the best known Canadian case on the issue of a religious trust being in breach of public policy, was determined in 1990 by the Ontario Court of Appeal which ruled that limiting scholarships to white, Protestant, British subjects constituted racial discrimination. Tranopolsky J then stated that racial discrimination “is patently at variance with the democratic principles governing our pluralistic society in which equality rights are constitutionally guaranteed and in which the multicultural heritage of Canadians is to be preserved and enhanced”.185 However, the majority seemed to distance themselves somewhat from the Tranopolsky J dicta and found as follows:186 I think it inappropriate and indeed unwise to decide in the context of the present case and in the absence of any proper factual basis whether these other scholarships are contrary to public policy or what approach is to be adopted in determining their validity should the issue arise. The Court’s intervention on public policy grounds in this case is mandated by the, hopefully, unique provisions in the trust document establishing the Leonard Foundation.

Shortly afterwards, in Ramsden Estate,187 the court found that a testamentary gift to a university for scholarships for Protestant students presented “no ground of 182

183 184 185

186

187

See CRA, “Religious Charities – Exemption”, Policy Commentary, CPC – O16 (17 October 2003). (1894) 26 N.S.R. 164, 166. Canada Trust Co. v. Ontario Human Rights Commission, (1990) 69 DLR (4th) 321. Ibid. Harrington comments, “The majority did not go as far as Tranopolsky. He argued that discrimination is illegal. That is not what the majority said. On the contrary, it said that this trust was illegal. It limited the decision to the facts of the case and refused to draw any larger conclusion” (note to author: 06.08.2018). Canada Trust Co. v. Ontario Human Rights Commission, (1990) 69 DLR (4th) 321, para. 2. The majority view approach in Canada Trust was subsequently endorsed in Estate of FG McConnell, 2000 BCSC 0445. Author acknowledges advice from Matt Harrington on this matter; note to author: 12.03.2020. (1996) 139 DLR (4th) 746.

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public policy which would serve as an impediment to the trust proceeding”.188 At much the same time, Galligan J, in Fox v. Fox Estate,189 held that a trustee’s use of a power of encroachment to punish the remainder beneficiary for marrying a person not of the Jewish faith was invalid. Most recently, in Spence v. BMO Trust Company,190 the court firmly reiterated its support for testamentary freedom when it upheld the right of a testator to disinherit his adult child on grounds that were blatantly discriminatory. employment law exemptions. In addition to the right to discriminate when employing staff in accordance with the “bona fide occupational requirements” (BFOR)191 rule, the Constitution Act 1867, section 93(1), protects denominational school privileges from the anti-discrimination strictures of modern human rights law and the Canadian Charter of Rights and Freedoms. When the Civil Marriage Act192 was introduced, which extended the meaning of marriage to include same-sex relationships under Canadian federal law and inserted section 149.1 into the Income Tax Act,193 it provided that religious organisations would not have their charitable registration revoked solely because they or any of their members exercised freedom of conscience and religion in relation to the meaning of marriage. The SCC had also ruled to similar effect in Reference Re Same Sex Marriage.194 All of this was in keeping with an established acceptance, clearly evident in testamentary dispositions, that religious beliefs conferred a degree of immunity from otherwise universally applicable laws. regulatory exemptions. In general, religious organisations are self-regulating. If they are incorporated and have charitable status, this renders them subject only to the compliance requirements of the Corporation Act and the Canadian Revenue Agency (CRA). Equality, Family, Life, Death and the Church–State Relationship The multifaceted challenge to the traditional binary gender model of family life in Canada is as bewildering, legally confused, and unsettling for those of religious belief, as it is elsewhere and is becoming more so as religion conflates with a myriad of trans issues. 188 189 190

191

192 193 194

Ibid., para. 13, per MacDonald C.J.T.D. [1996] O.J. No. 375 (Ont. C.A.). 2016 ONCA 196. Author acknowledges advice from Matt Harrington on this matter (note to author: 06.04.17). See, for example, Canada Trust Co. v. Ontario Human Rights Commission, (1990) 69 DLR (4th) 321, per Tarnopolsky J, para. 98. SC 2005, c. 33. RSC 1985 (5th Supp.), c. 1, as amended. [2004] 3 SCR 698.

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The Marital Family The model family unit as traditionally known to Canadian law, and as long supported by the well-established religious institutions, has been Christian. Consequently, the issues arising in recent years have tended to be in relation to: homosexuality, same-sex marriages, abortion services, and as regards a range of gay,195 lesbian and transgender196 matters or the consequences thereof.197

spouses. The SCC decision in M. v. H.198 paved the way for recognition of the rights of same-sex couples to equal treatment under the Constitution but not until Halpern199 did the judiciary conclude that the common law definition of marriage as “the voluntary union for life of one man and one woman to the exclusion of all others” infringed the equality rights of same-sex couples under section 15 of the charter. It then rejected the claims of a Christian church that to redefine marriage would infringe its freedom of religion, contrary to section 2(a), and its equality rights as a religious institution. This was followed immediately by Reference Re Same Sex Marriage,200 where the SCC found that the meaning of marriage is not frozen in time, in accordance with its definition under section 91(26) of the Constitution Act, 1867, but must be allowed to evolve with Canadian society, which currently represents a plurality of groups, an SCC principle with a capacity for limitless transferred application, and a corresponding capacity for generating concern among those who uphold traditional religious values, particularly Muslims. parenting. The courts have explored the respective rights of unmarried parents to determine the religious upbringing of their children in a number of cases201 including Young v. Young202 when the non-custodial parent – a Jehovah’s Witness – protested that his freedom of religion, including his right to develop the children’s religious beliefs, was being obstructed by the mother. The SCC took the view that the welfare of the child was the overriding principle and, therefore, the authority of the custodial parent to make decisions relating to religious activities must be secured in order to protect the children from any harmful stress. The same 195

196

197

198 199 200 201

202

See Egan v. Canada, (1995) 2 SCR 513 where a statutory definition of “spouse”, which excluded homosexual partners, was deemed to discriminate against a homosexual couple. See, for example, Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601. In 2017 Bill C-16 received royal assent amending the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and creating a non-binary gender option on passports. See P. (S.E.) v. P. (D.D.), 2005 BCSC 1290 where the British Columbia Supreme Court ruled that the definition of adultery should include affairs between two people of the same gender. [1999] 2 SCR 3. Halpern v. Canada (Attorney General), [2003] O.J. No. 2268. [2004] 3 SCR 698. Hockey v. Hockey, (1989) 60 D.L.R. (4th) 765 (Ont. Div. Ct.). P.(D.) v. S.(C.), [1993] 4 S.C.R. 141 and Young v. Young, [1993] 4 SCR 3. [1993] 4 SCR 3.

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approach was evident in B. (R.) v. Children’s Aid Society of Metropolitan Toronto203 and in A.C. v. Manitoba Director of Child and Family Services204 when in both cases the SCC gave greater weighting to the welfare interests of a child than to the freedom of religion rights of Jehovah’s Witness parents. sogi issues. Canada has a well-deserved reputation for being at the vanguard of state-sponsored recognition of SOGI issues. It has led the way in permitting selfidentification of gender identity without the necessity for medical or surgical corroboration, legislating to prohibit a refusal of services, employment, accommodation and similar benefits to individuals based on their gender identity or gender expression, and providing official recognition for non-binary status. Judicial firmness in containing the potential of religion to undermine equality principles has been demonstrated in Loyola,205 Wall206 and in the most recent of the SCC Trinity Western207 decisions, while legislators and policy makers have demonstrated equal resolve in the Bill C-16208 and the summer Jobs program initiatives.209 suicide and medically assisted death. Suicide has been legal in Canada since 1972 and for some years it has been a leading cause of Canadian deaths. The SCC has found that a person over the age of majority and able to give or withhold informed consent “has the right to refuse treatment, even if that treatment is, from a medical perspective, in his or her best interest. . .. The right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy”.210 In the 2015 landmark case of Carter v. Canada,211 the SCC found that section 241 and 14 of the Criminal Code – prohibiting physician-assisted suicide, or euthanasia – violated section 7 of the charter, and ruled that mentally competent adults, suffering intolerably and enduringly, had a right to a medically assisted death. In mid-June 2016, Parliament passed Bill C-14, which narrows the scope of the Carter decision by declaring that to qualify for a medically assisted death, a person must be in an 203 204 205 206 207 208

209

210 211

[1994] SCJ No. 24. [2009] SCJ No. 30. Loyola High School v. Québec (Attorney General), 2015 SCC 12. Wall v. Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2018 SCC 26. Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. Bill C-16, which took effect in June 2017, amends the 1985 act to specifically prohibit discrimination based on gender identity and gender expression in relation to goods, services, facilities or accommodation within a federal regulated industry. This programme, providing summer job opportunities for students and young persons throughout Canada, requires employers wishing to receive government funding to attest that they will respect charter rights including “comprehensive sexuality education, family planning, prevention and response to sexual and gender-based violence, safe and legal abortion, and postabortion care”. Starson v. Swayze, 2003 SCC 32. 2015 SCC 5.

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advanced state of irreversible decline and their natural death must be “reasonably foreseeable”. Equality, Healthcare and the Church–State Relationship Public healthcare services have a particular significance for the church–state relationship due, in part, to the legacy of hospitals established and run by religious organisations. The history of “Well Woman” centres represents the struggle to achieve independence from the religious constraints that prevailed in some aspects of Canadian health service provision. Healthcare Services The SCC ruled in Ciarlariello v. Schacter212 that patients have a “clear legal right” to autonomy and self-determination in health care.

the services. Clashes between religious entities and state service providers have been particularly evident in the many lengthy court battles involving anti-abortion groups,213 an anti-pornography group,214 campaigning pro-life groups,215 and abortion clinics,216 addressing the uncertain status of the foetus in Canadian law.217 The long history of Morgentaler prosecutions218 records the changing legal status of abortion clinics in Canada. Abortion is now a wholly legal procedure and government-funded “Well Woman” services, with “safe zones” restricting protester harassment, are widely available throughout most of Canada. professional exemption from healthcare service provision on religious grounds. The duty to accommodate – under section 2 and 15 of the Canadian Human Rights Act – requires an employer to relieve an employee from service provision responsibilities on request, to facilitate an employee’s religious beliefs, if to do so would not cause the employer undue hardship. This rule was applied in Moore v. British Columbia (Ministry of Social Services)219 when the court found that a public sector employee who objected to abortion on religious grounds 212 213

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[1993] 2 SCR 119. E.g. Human Life International in Canada Inc. v. Canada (Minister of National Revenue) FCJ No. 365, 18 March 1998 and Alliance for Life v. Canada (MNR), 1999 FCJ No. 658, 5 May 1999. See Positive Action Against Pornography v. MNR, [1988] 1 CTC 232. See Interfaith Development Education Association, Burlington v. MNR, 97 DTC 5424. Everywoman’s Health Centre Society (1988) v. Canada (MNR), [1991] 136 NR 380. Tremblay v. Daigle, [1989] 2 SCR 530, p. 533. Including R. v. Morgentaler, [1988] 1 SCR 30 and R. v. Morgentaler, 1993 CanLII 74, [1993] 3 SCR 463. Also see Borowski v. Canada (Attorney General), [1989] 1 SCR 342 and Tremblay v. Daigle, [1989] 2 SCR 530. [1992] B.C.C.H.R.D. No. 15.

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could not be compelled to process a claim for abortion-related benefits, since the government failed to demonstrate efforts to accommodate her beliefs up to the point of undue hardship.220 A Canadian public healthcare professional, unlike their US counterpart, does not have a legal right – short of the reasonable accommodation rule – to refuse to provide services on grounds of religious belief.

Equality, Education and the Church–State Relationship State neutrality in the context of the Canadian public school system is unquestionably compromised. The extent of this was not mitigated by the SCC comment in Loyola that221 “in a multicultural society, it is not a breach of anyone’s freedom of religion to be required to learn (or teach) about the doctrines and ethics of other world religions in a neutral and respectful way”.222 State funding of certain denominational schools but not others, in some provinces, means to that extent state neutrality is a total misnomer. This archaic anomaly has often given rise to cases alleging religiously biased preferential treatment.223 State Schools and Religion The Constitution Act, 1867, section 93 – as preserved by section 29 of the charter – explicitly guarantees the rights of denominational schools and thereby preferences Catholic and Protestant schools. These “denominational privileges” continue in the constitutional obligation to fund Catholic schools in the provinces of Ontario, Alberta and Saskatchewan.224 This situation prompted the UNHRC in 1999 to declare that Ontario’s policy of fully funding Roman Catholic schools, while denying full funding to other religious schools, was discriminatory. It was of the view that if the state “chooses to provide public funding to religious schools, it should make this funding available without discrimination”. Only then would state neutrality in Canadian public education begin to become achievable.

220

221 222

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See also Jones v. Eisler, [2001] B.C.H.R.T.D. No. 1 (employee complainant objected to working on Christmas display at drug store and again it was found that the employer had failed to demonstrate attempted accommodation to the point of undue hardship). Loyola High School v. Québec (Attorney General), 2015 SCC 12. Ibid., per Deschamps J, citing S.L. v. Commission scolaire des Chênes, [2012] 1 SCR 235, para. 40. See, for example, Tiny Township Catholic Separate Schools Trustees v. The Queen, (1928) A. C. 363; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 SCR 575; Reference Re Bill 30 [1987] 1 SCR 1148; Adler v. Ontario, [1996] SCR 609; and Waldman v. Canada, Comm. No. 694/1996. Note also that many Canadian universities, including St Francis Xavier University, Queen’s University, McGill University and Concordia University College of Alberta, have long been religiously affiliated.

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educational facilities. The recent chain of Trinity Western225 cases are indicative of the problems involved in trying to reconcile rights to equality and to freedom of religion in a Canadian educational context. Trinity Western University (TWU) – an emanation of the Evangelical Free Church of Canada – chose to manifest its beliefs in a community standards contract, stating its evangelical Christian values including abstinence from sex outside marriage and rejection of homosexual relationships, that all students were required to sign. The British Columbia College of Teachers (BCCT) refused TWU accreditation on the basis that graduates of this private institution would be inadequately prepared to provide educational services without discrimination in British Columbia’s diverse public school classrooms. Ultimately, the SCC in a majority ruling held in favour of TWU. It found that the existence of the community standards contract, signed by the students, was insufficient to support the BCCT conclusion that TWU graduates would behave in a discriminatory manner towards future homosexual students and there was no evidence that this, in fact, had ever occurred. Most recently, and perhaps finally, the SCC ruled in 2018 that the regulatory body was justified in its accreditation refusal. In a ratio decidendi that seemed to rely upon state neutrality, the SCC declared itself satisfied that the regulator’s decision represented a proportionate balance between the limitation on freedom of religion guaranteed by section 2(a) of the charter and the statutory objectives pursued by the regulating authority and was therefore reasonable; any interference with religious freedom was minor and the regulators were entitled to take the view that the contract imposed “harm” on LGBTQ law students.226 educational content and instruction. In Chamberlain227 the SCC considered the refusal of the Surrey School Board to approve three controversial books depicting same-sex parented families, which had been promoted as supplementary learning resources, as teaching aids in the family-life education curriculum. The court found that “children cannot learn unless they are exposed to views that differ from those they are taught at home” and held that board members, by refusing to permit the use of such books, were imposing their own religious values and seeking to deny children an important learning opportunity. McLachlin CJ relied on state neutrality when she advised that the board “cannot prefer the religious views of some people in its district to the views of other segments of the community”. In S.L. v. Commission scolaire des Chênes,228 the SCC dismissed the appeal of Catholic 225

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Trinity Western University v. British Columbia College of Teachers, (2001) 39 C.H.R.R. D/357, 2001 SCC 31. Law Society of BC v. Trinity Western University, 2018 SCC 32 and Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. Chamberlain v. Surrey School Board District 36, (2002), 221 D.L.R. (4th) 156 (SCC), para. 19. Also see Hall v. Powers, 2002. [2012] 1 SCR 235.

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parents who requested exemption for their children from the mandatory Program on Ethics and Religious Freedom (ERC) course because its content was considered incompatible with their family beliefs and added that “the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society”. These judicial views are interesting and would seem to rebut the ICCPR presumption – Canada being a signatory state – that the parental right trumps that of the state when it comes to religious teaching.229 The Loyola case230 again concerned the ERC in respect of which Loyola, a Catholic high school, sought permission to teach from a Catholic rather than a neutral perspective. Ultimately, the SCC unanimously found that the refusal to release Loyola in any way from the requirement of strict neutrality in the teaching of the ERC disproportionately interfered with the religious freedom of the Loyola community. It reasoned that “requiring Loyola’s teachers to take a neutral posture even about Catholicism means that State is telling them how to teach the very religion that animates Loyola’s identity”, which amounts to “requiring a Catholic institution to speak about Catholicism in terms defined by the State rather than by its own understanding of Catholicism”.231 Unlike the SL case, in Loyola the SCC found that the parents were able to demonstrate state interference with the “observance of a religious practice” contrary to the state’s obligation to remain neutral. religious prayers and symbols. It is now a well-established rule that public institutions cannot engage in religious indoctrination by compelling participation in prayers or religious instruction dominated by the perspective of a single denomination.232 Cases such as Zylberberg v. Sudbury Board of Education (Director)233 and Russow v. BC (AG)234 have emphasised that the compulsory recitation of the Lord’s Prayer in public schools – to the exclusion of prayers from any other religion – constitutes an impermissible infringement of religious freedom. In Erazo v. Dufferin-Peel Catholic District School Board,235 the court held that non-Catholic children could be exempted from retreats and Catholic mass in a state-funded Catholic school as “no Catholic school system that is required by law to admit 229 230 231 232

233 234 235

ICCPR, Article 2 of Protocol 1. Loyola High School v. Québec (Attorney General), 2015 SCC 12. Ibid., para. 63. Canadian Civil Liberties Assn. v. Ontario (Minister of Education), [1990] O.J. No. 104, 65 D.L.R. (4th) 1 (C.A.); Russow v. British Columbia (Attorney-General), [1989] B.C.J. No. 611, 62 D.L.R. (4th) 98 (B.C.); Manitoba Assn. for Rights and Liberties Inc. v. Manitoba, [1992] M.J. No. 391, 94. D.L.R. (4th) 678 (Q.B.); Zylberberg v. Sudbury Board of Education (Director), [1988] O.J. No. 1488, 52 D.L.R. (4th) 577 (C.A.). Ibid. (1989) 35 B.C.L.R. (2d) 29. Also see Freitag v. Penetanguishene (Town), (1999) 47 O.R. (3d) 301. 2014 ONSC 2072. See also Sorgini v. Simcoe Muskoka Catholic District School Board, 2017 HRTO 471.

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non-Catholic students should have the right to require such participation from their students”.236 Faith Schools Under section 2(a) of the charter, parents are said to have the right to oversee the spiritual welfare of their children and many now do so by enrolling them in faith schools. In Loyola,237 the SCC was clear that such a school – in this case a Catholic private school – needed to be assured of state protection in order to safeguard “the liberty of the members of its community who have chosen to give effect to the collective dimension of their religious beliefs by participating in a denominational school”.238 This decision has clear implications for other religion-specific schools. The Adler case239 provides authority for the view that while the charter creates no constitutional obligation to fund religious schools, neither does it impede state discretion to do so: Iacobucci J stating that the provinces are free to provide funding; the dissenting L’Heureux-Dubé J adding that public funding would “promote the value of religious tolerance in this context where some religious communities cannot be accommodated in the secular system”.240 Roman Catholic schools are by definition faith schools but, rather than forming part of the private sector, they are a wholly incorporated and fully funded component of the public school system.241

state involvement. State neutrality was totally absent in relation to the Indian residential schools debacle. This involved Catholic and Anglican schools, funded by the federal government, which were responsible for grave violations of human rights in the name of religion. In a policy of “cultural genocide” authorised by the state under the Indian Act, 1876, some 150,000 Aboriginal children were removed from their homes, communities and culture to residential educational institutions: the first such residential school being established in 1620 and the last closing in 1986, triggering what is now recognised as “the beginning of an intergenerational cycle of neglect and abuse”.242

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Erazo v. Dufferin-Peel Catholic District School Board, 2014 ONSC 2072, para 27. Loyola High School v. Québec (Attorney General), 2015 SCC 12. Ibid., para. 62. Adler v. Ontario, [1996] 3 RCS 609. Ibid., para. 10. Matt Harrington adds, “Québec is a bit of an exception. Most of the province’s Catholic schools were assimilated into the public system and function as public schools with religious names. However, the identifiable Catholic schools remain (Loyola, Marymount, Villa Maria, etc.). These remain separate, private Catholic schools, but they still receive a large public subsidy” (note to author: 06.08.2018). See Saskatchewan Child Welfare Review Panel Report, “For the Good of Our Children and Youth: A New Vision, a New Direction”, p. 18. See further in http://saskchildwelfarereview.ca/ CWR-panel-report.pdf

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Equality, the Workplace and the Church–State Relationship The state, in the Canadian Human Rights Act, 1985, has listed seven prohibited types of discriminatory practice in relation to religion in the workplace, including refusing to employ or continue to employ someone, or treating them unfairly in the workplace; following policies or practices that deprive people of employment opportunities; paying men and women differently when they are doing work of the same value; retaliating against a person who has filed a complaint with the commission or against someone who has filed a complaint for them; and harassment. Hiring and Firing Staff Religious discrimination can occur in the recruitment process. In Qureshi v. G4S Security Services,243 for example, an employer was found to have religiously discriminated against an applicant when the recruitment process was terminated on learning of his need for time off for Friday prayers. Again, in Widdis v. Desjardins Group,244 the tribunal determined that a Seventh-Day Adventist applicant had suffered religious discrimination during an interview process when, after revealing her unavailability for work on Saturdays as that day was her Sabbath, she was not called for an additional interview.

religious organisations. Many provincial cases have concerned religious schools and the hiring and firing of teachers and other staff in accordance with religious rules that were found, as in the USA, to be bona fide occupational requirements (BFOR). This was the case in Caldwell v. St. Thomas Aquinas High School,245 for example, where the dismissal of a teacher from a Catholic school was upheld as she had knowingly disobeyed fundamental Catholic rules, including marrying a divorcee – a rationale subsequently echoed in Schroen v. Steinbach Bible College246 when the right of a Mennonite College to dismiss a secretary who had converted to become a Mormon was upheld. In Daly v. Ontario (Attorney General),247 the court acknowledged that restricting the recruitment of teachers to those of the Catholic faith was a valid consideration. However, the exemption privilege must be exercised reasonably and will not be available in circumstances of peripheral religious significance.248

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246 247 248

2009 HRTO 409 (CanLII). 2013 HRTO 1367. (1984) 6 C.H.R.R. D/2643. See also Sahota and Shergill v. Shri Gur Ravidass Sabha Temple, 2008 BCHRT 269, which concerned the exclusion of members of a caste from a religious organisation representing a different caste. (1999) 35 C.H.R.R. D/1 (Man. Bd. Adj.). 44 O.R. (3d) 349, [1999] O.J. No. 1383. Hall (Litigation guardian of ) v. Powers, (2002) 59 O.R. (3d) 423.

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Heintz v. Christian Horizons,249 a landmark case, concerned a complaint of discrimination by a support worker employed by Christian Horizons who resigned after commencing a same-sex relationship as she felt she could no longer honour her employer’s beliefs, but subsequently commenced proceedings alleging discrimination. Ultimately the court found for the employers and, in an important ruling for all religious organisations in Canada, declared that such organisations have an entitlement to exemption, from the law barring discriminatory hiring, “if they are primarily engaged in serving the interests of their religious community, where the restriction is reasonable and bona fide because of the nature of the employment”. secular organisations. The onus on employers to provide reasonable accommodation for the religious beliefs of employees, short of undue hardship, has come to be applied with greater strictness in Canada than in the USA. In O’Malley v. Simpson Sears,250 an early SCC human rights case, it was determined that a neutral rule requiring employees to work on Saturdays inadvertently discriminated against an employee because of her religious beliefs. This employee was negatively affected by the rule as she could not, based on her religious beliefs as a Seventh-Day Adventist, work on a Saturday and the decision gave rise to the rule that service providers have a legal duty to accommodate people’s sincerely held beliefs and practices to the point of undue hardship, where these have been adversely affected by a requirement, rule or standard. Subsequently, in a number of cases it has been similarly decided that not to accommodate the religious holiday requirements of workers constitutes a form of religious discrimination.251 In Dairy Pool252 the SCC found that undue hardship to an employer could take the form of anticipated poor staff morale that would result from having to make the workplace adjustments necessary to accommodate an employee’s religious beliefs, while in McGill University Health Centre253 the court stressed the employer’s obligation to customise the accommodation to fit the needs of an employee in the light of particular circumstances. proselytism in the workplace. In Friesen254 the tribunal found that an employee had suffered religious discrimination when sacked because he refused to stop preaching in the workplace but his sacking was justified because other employees had a right to work in an environment where they were not subject to 249 250 251

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2008 HRTO 22, 2010 ONSC 2105 (Div. Ct.). [1985] 2 SCR 536. For example, Chambly (Commission scholaire régionale) v. Bergevin, [1994] 2 R.C.S. 525 and HT v. ES Holdings Inc. o/a Country Herbs, 2015 HRTO 1067. Central Alberta Dairy Pool v. Alberta (Human Rights Comm.), (1990) 12 CHRR D/417 (SCC). McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161. Friesen v. Fisher Bay Seafood, (2008) 65 C.H.R.R. D/400, 2009 BCHRT 1.

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religious preaching; the requirement not to preach was BFOR compatible; and the employer’s duty to accommodate an employee’s beliefs did not extend to licensing such activity in the workplace. Equality, Service Provision and the Church–State Relationship The Canadian Human Rights Act lists seven types of discriminatory service provision that are prohibited in relation to religion, including denying goods, services, facilities or accommodation; providing goods, services, facilities or accommodation in a way that treats someone adversely and differently; retaliating against a person who has filed a complaint with the commission or against someone who has filed a complaint for them; and harassment. Service Provision: Public and Private Any religious bias or perceived bias in the nature of the public services available, or of access to them, is imputed to the state and may be socially destabilising. Private or commercial service provision is fully subject to equality and anti-discrimination laws unless the religious exemption applies.

service provision by religious organisations. Canadian history reveals a shameful record of church–state collusion in the provision of services abusive to children: the religious residential schools were implementing a state-enforced and state-funded assimilation policy from at least the introduction of the Indian Act 1876255 and continued to do so for the next century. State non-involvement also resulted in abuse: records of child sexual abuse by Catholic Church clergy across Canada date back to the 1980s in Newfoundland and continued well into this century. State neutrality was among the issues in the recent Hall256 case, which concerned a Roman Catholic school board that had refused permission for a same-sex couple to attend a school graduation dance on the grounds that homosexuality is incompatible with Roman Catholic teaching. The board argued that any state interference with that decision would amount to denying the school its religious freedom. MacKinnon J, noting that “the Board is, in law, a religiously oriented State actor”,257 issued an interlocutory order requiring the school to admit the couple. In Knights of Columbus,258 a same-sex couple alleged religious discrimination when their rental application for a facility they wished to use to celebrate their 255

256 257 258

Not until 2008 did Parliament amend the Canadian Human Rights Act to give full human rights protection to those subject to the Indian Act. Hall v. Durham Catholic School Board, [2002] OJ No. 1803. Ibid., para. 57. Smith and Chymyshyn v. Knights of Columbus and Others, 2005 BCHRT 544 (CanLII). See also Whiteley v. Osprey Media Publishing, 2010 HRTO 2152 (CanLII).

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marriage was rejected by the Catholic organisation that owned it. The tribunal concluded that renting out the hall for the purpose for which it was required would have forced the organisation to act against its religious beliefs and violate its rights under section 2(a) of the charter. Nevertheless the organisation was fined as it had failed in its duty of reasonable accommodation, as no consideration had been given to the consequences for the couple, and no attempt had been made to meet with them and explain the reasons for rejection. public sector service provision. Bill C-16, prohibiting discrimination based on gender identity and gender expression throughout Canada, became law in June 2017 and makes it illegal to deny services, employment, accommodation and similar benefits to individuals based on their gender identity or gender expression within a federal regulated industry. For some, this initiative is likely to conflate with their religious beliefs and lead to an extension of service denial issues. The legislation is significant as it gives gender identity the status of a separate and distinct human right. It also marks a clear line of departure from the US “liberty laws”. Bill 21 prohibits public service staff from wearing religious symbols. Although the legislative intent is, purportedly, to foster adherence to the state’s religious neutrality, as some provisions negatively impact upon particular religious groups but less so on others, it may well be open to challenge on grounds of equality and discrimination. private service provision. The cases of Brockie259 and Eadie260 are among the many instances where service refusal by individual providers (printing and accommodation, respectively) on the grounds of their conscientious objection to the values represented by prospective service users, have resulted in the former being found to have violated the human rights of the latter: generic laws of universal application held to disallow exceptions that negate legislative intent. Taken together with the SCC decision in the latest slew of TWU cases,261 this would seem to show a case law trend that points to a firming up of state neutrality at least in respect of private service provision. Loyola262 and Mouvement laïque québécois,263 however, lean somewhat in the opposite direction indicating a judicial willingness to accommodate institutional pockets of beliefs that run counter to legislative intent. Overall, there continues to be a strong judicial resistance to the “liberty laws” that now make allowances for individuals in the USA to claim exemption from universal laws on grounds of religion, belief or conscientious objection. 259 260 261 262 263

Brillinger v. Brockie (No. 3), (2000) 37 C.H.R.R. D/15). Eadie and Thomas v. Riverbend Bed and Breakfast and Others (No. 2), 2012 BCHRT 247. Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33. Loyola High School v. Québec (Attorney General), 2015 SCC 12. Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. See also Congrégation des témoins de Jéhovah de St-Jérôme- Lafontaine v. Lafontaine (Village), [2004] S.C.J. No. 45, [2004] 2 S.C.R. 650, per LeBel J, paras. 67–68 and 76.

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broadcasting services. There have been a number of provincial cases involving individuals placing advertisements in newspapers protesting about LGBT issues. One such was the above mentioned Boissoin,264 which concerned a letter written by Boissoin on behalf of the Concerned Christian Coalition and which, at the hearing, was linked to a subsequent and serious assault on a gay teenager. Wilson J ruled that he was bound by the decision in Taylor265 and was not persuaded that the added dimension in this case of the freedom of the press was a matter of any additional significance. He “acknowledge[d] the vital public role of the media in gathering and disseminating news and the value of letters to the editor in particular” but was “not satisfied that the appellant can properly claim some type of super-added right” by relying on the right of the newspaper to publish.266 In Owens,267 which concerned the publishing of the same type of material, the court noted that the charter protects “freedom of thought, belief, opinion and expression including freedom of the press and other media of communication”. It also noted that the federal regulatory body was required to ensure that the state broadcasting service was not used by any religious entity for proselytising purposes and that broadcasting through other media was compliant with equality and non-discrimination legislation.

Equality, National Security, the Migrant Crisis and the Church–State Relationship The Québécois independence movement introduced Canada and the federal government to domestic terrorism. The threat to civil society emerged with the Front de Liberation Québécois in the 1970s, which resorted to bombings, kidnaps and other terrorist activities in their efforts to gain recognition and a measure of independence for a distinct culture (based on the French language and Catholicism). This persisted with intermittent surges of violence until the 2014 local elections, which probably ended the separatists aspirations. In the meantime Canada had become reluctantly embroiled in international terrorism. The 9/11 attack on the twin towers caused the death of about 300 Canadians and ended Canada’s policy of state neutrality towards Islamic fundamentalism. Since then, while Canada has been fully engaged in domestic and international measures directed against the threat from Islamic terrorism, it has also led the way in offering refuge to tens of thousands of Muslim migrants.

264 265 266 267

Boissoin v. Lund, 2009 ABQB 592. Canada v. Taylor, [1990] 3 S.C.R. 892. Ibid., para. 121. Owens v. Saskatchewan (Human Rights Commission), 2006.

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State Response to Terrorist Threat Until 2014, when ISIS publicly called for terrorist attacks on Canada, the country had largely avoided being caught up in the wave of Islamic violence directed against Western nations.

anti-terrorism measures. While adopting a policy of neutrality towards religion may place the state in a position to claim that it thereby offers equal recognition to all those who profess adherence to religion or belief or to secularism, it cannot protect the state from domestic attacks by partisan religious zealots. Canada has suffered its share of religiously inspired violence, mostly “lone wolf” Islamist attacks causing relatively few casualties but including in 2014 an attack on Canada’s parliament building; the murder of six Muslim men praying at the Centre culturel islamique de Québec in Quebec City in January 2017; and ten killed by an Islamist terrorist truck driver in Toronto in spring 2018. The Canadian domestic response to the terrorist threat has included the Anti-Terrorism Act, 2001, which was directed towards tracking the flow of funds, surveillance and the detention of suspected terrorists. In 2017, following a comprehensive national security review, the Trudeau government introduced Bill C-59 to address the human rights shortcomings in the country’s Anti-Terrorism Act of 2015 (formerly Bill C-51). Internationally, Canada joined with the USA and other Western nations in the “war against terror” and committed its armed forces to combat in Afghanistan and Iraq. State Response to Migrant Crisis It is not without irony to note that although the subject of fundamentalist Islamic attacks, Canada has been by far the leading common law nation to offer homes to Syrian refugees – necessarily almost exclusively Muslim – during the ongoing migrant crisis that began in 2015. The welcoming approach adopted by the Canadian government contrasts sharply with that of the USA and many European countries.

religious/cultural differences. The Migration Integration Policy Index ranks Canada as third out of the thirty-one countries that welcome immigrants with only Sweden and Portugal being more successful. Given its size, and taking into account that 20 per cent of its current population was born elsewhere, together with the challenge of relating to its communities of First Nation citizens, it is perhaps unsurprising that Canada has learned to make a virtue out of multiculturalism. Nonetheless a 2017 internal government report notes that “religious and cultural accommodation continues to be an issue regarding practices that are deemed in conflict with Canada’s institutions”, and identifies “forced marriages” and “family violence issues” as significant areas of cultural conflict.268 268

See further in https://vancouversun.com/opinion/columnists/douglas-todd-canada-strugglingto-absorb-immigrants-internal-report-says

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revival of “nation state” ideology. The size, disparity, bijuralism and bilingualism of Canada, its First Nations, the loose federal and provincial governance arrangements, the national pride in its multiculturalism, its general lack of homogeneity and its openness to the outside world, all militate against it conjuring up anything resembling an exclusive sense of identity. Paradoxically, however, Canada contains within it a geographical and cultural entity that does have many nation state characteristics. Quebec and the Québécois are now established as a powerful and unified community with a strong sense of independent identity.269 It remains to be seen whether the process of addressing the challenge presented by the Québécois results in Canada itself acquiring a more robust sense of nationhood and, if so, whether that translates into a retreat from its present willingness to embrace multiculturalism and the many more migrants that constitute a growing Muslim diaspora.

conclusion The preamble to the charter, by affirming that Canada “is founded upon principles that recognize the supremacy of God” – when read in conjunction with the charter’s commitments to religious freedom, religious equality and multiculturalism – suggests that the charter should be interpreted in a manner that permits the state to foster a religiously positive pluralism. Indeed, there are those who believe that it does more: that it imputes an obligation on the state to actively promote religion. Either way the preamble establishes the basis for what has become the distinctive Canadian interpretation of state neutrality. As provided for by constitutional guarantees of freedom of religion and amplified by legislation and case law, state neutrality imposes different obligations on government in Canada than it does in the USA. The most obvious difference is that it is compromised in Canada by the constitutional requirement to maintain state denominational support that privileges Catholic schools in certain provinces. More generally, government in Canada, but not in the USA, has a constitutional obligation to positively intervene to adjust or remove any laws or policies that impose burdens on religious freedom that cannot be reasonably and demonstrably justified. Further, and again unlike its neighbour, Canadian government may at least choose – if not required – to be supportive and facilitative of religion, provided it does so in an even-handed manner. In this difference lies the genesis of the “religious accommodation” principle, which in Canada, unlike in the USA, is seen as compliant with state neutrality.

269

C. Blad and P. Couton, “The Rise of an Intercultural Nation: Immigration, Diversity and Nationhood in Quebec”, Journal of Ethnic and Migration Studies, vol. 35, no. 4 (2009), pp. 645–667.

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The case law indicates that in general the Canadian interpretation of state neutrality is hardening. In Quebec, however, due to its singular constitutional standing, the associated complications of laïcité, and to the political momentum carried over from the Québécois movement in the late twentieth century, this process is now much more advanced. It remains to be seen whether external pressures – from convention sources and/or from international religious extremism – will induce a future convergence in the differing interpretations between Quebec and the rest of Canada and between the latter and the USA.

6 England: The Established Church

introduction This chapter follows the approach adopted by its predecessors. It begins with an overview of policy development in relation to religion and the church–state relationship, giving specific attention to the disjunctive concepts of “state neutrality” and an “established church” and to policies for promoting civil society. It then outlines the relevant legal framework before exploring the nature of the current church–state relationship, explaining definitional matters and focusing on the core freedoms of religion, association and expression. This leads into the heart of the chapter, which considers the impact of equality legislation on the church–state relationship, as illustrated in evolving case law, by examining in turn the consequences for family and life, healthcare, education, employment, service provision and national security. While this chapter is entitled “England”, to a very large extent the law outlined in the following pages may be taken as broadly representative of the three jurisdictions that comprise the UK. Where this is clearly not the case, as for example in relation to the locus standi of the Church of England, abortion in Northern Ireland, or blasphemy in Scotland, every effort is made to draw attention to that fact.

policy overview In the aftermath of bombings by Islamic fundamentalists and in the looming shadow of Brexit, something of a chill has been cast over policies relating to the church–state relationship. This is possibly not the best time to gather evidence for an impartial, measured assessment of how neutral the state is in its dealings with religion and religious organisations in England.

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Background The cultural heritage of Britain continues to structure contemporary society and it is a moot point as to whether the remnants of near feudal arrangements that define and link its key institutions are now more form than substance. Religious Neutrality: A Principle That Permits State Support for an Established Church The Church of England, much more so than any other religion, has always enjoyed a strong relationship with government: all twenty-six Anglican bishops (the Lords Spiritual) sit as of right in the House of Lords on the government benches,1 a right exclusive to that religion and one that confers an entitlement to contribute to the shaping of government policy and legislation. Other formal ties exclusively binding that church to the state include the absorption of its ecclesiastical law into national law; its representation on the Privy Council, a body that still wields considerable power, such as that of declaring war; and its monopoly on organising formal state ceremonies, such as coronations and requiems. All its “measures”, when accepted by the General Synod must then be confirmed by Parliament;2 Church of England chaplains are attached to all branches of the armed forces and to state prisons and hospitals, and the monarch appoints the archbishop and all 111 bishops on the recommendation of the prime minister. However, as its name suggests, the locus standi of the Church of England is confined to England (the church was “disestablished” in Wales in 1920).

interpreting the principle. Laws LJ, in McFarlane below, when delivering his peroration against religious preferencing advised thus:3 We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy.

The state neutrality principle, however, has to coexist with the fact of an “established church” and on the face of it these would appear to be mutually incompatible social constructs. The Church of England has, since its inception, prevailed over all other religions under constitutional arrangements, which preclude a non-Protestant from becoming an heir to the throne and provide for the monarch to be both its 1

2 3

The Bishopric of Manchester Act of 1847 limited the number of places for Lords Spiritual to twenty-six. The Church Assembly (Powers) Act 1919 gives statutory force to the Synod’s “Measures”. McFarlane v. Relate Avon Ltd., [2010] EWCA Civ. BI, para. 24.

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supreme governor and head of state.4 The symbiotic nature of this relationship is confirmed from the moment of ascendancy when, in the coronation ceremony, the monarch takes office as head of state in a distinctly religious ritual during the course of which he or she is anointed by the archbishop, the head of the Church of England. The coronation oaths require the head of state as “Defender of the Faith”5 to preserve the laws of God, the Protestant religion, the doctrine of the church, and the rights and privileges of the church and its clergy. Taken together with the above formal institutional ties, there can be no doubt that the relationship of the state to this particular religion is closer to one of partnership than of neutrality. Religion and Contemporary Public Policy In recent years there has been considerable government rhetoric, led by ministers in the Department Ministry of Communities and Local Government, regarding the need to support the position of religion and religious organisations in society. The Department of Education’s investment of new funding to expedite a policy of expanding the number of faith schools provides some evidence of a willingness to translate rhetoric into practice as does the commitment of funds to finance interfaith dialogue and to assist Muslim community groups to address Islamic fundamentalism. Policies, variously framed around a perceived need to advance equality and diversity, are being constantly proposed, debated and at times operationalised, though to little effect on the diminishing numbers of religious adherents.

population. This progenitor common law nation, responsible for transmitting a Christian culture throughout the countries that once constituted the British empire, is currently leading the retreat from Christianity and from religion in general. According to the British Social Attitudes Survey6 for 2018, approximately half the UK population now has no religion. It might be reasonable to assume that this development would be accompanied by clear evidence of government commitment to state neutrality but, paradoxically, the evidence is to the contrary. While each year more of its citizens abandon religion, the state remains resolutely tied to its established church. multiculturalism. An incidental aspect of the British experience as a trading nation and empire builder was the resulting familiarity of its citizens with other nationalities. Britain had centuries to become accustomed to interacting and sharing space with foreigners. Its reputation for providing a welcoming place of 4

5

6

Under the Act of Union 1707, Article 2, the monarch is required to belong to the Church of England. The title – Fidei Defensor – initially bestowed upon King Henry VIII by Pope Leo X, has ever since been a required “oath of office” to be proclaimed on the coronation of every English monarch. See further in www.bsa.natcen.ac.uk/latest-report/british-social-attitudes-28/religion.aspx

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refuge, partly earned by its response to Jews, Huguenots and others fleeing religious persecution in Europe, was boosted in the aftermath of World War II when Britain encouraged immigration from the Commonwealth nations (the “Windrush” generation, etc.). In more recent years, however, as socio-economic conditions became more stressful, it would seem that British society as a whole has grown fractious and less coherent, perhaps related to the divisiveness of devolved government, an inwardlooking insularity exemplified and exacerbated by Brexit. The 2017 report “Multicultural Britain in the 21st Century”7 notes a 41 per cent increase in religious and racial offences in the period from 2015 to 2016 and suggests that “Britons of all races are more disconnected with each other”.8 Consequently,9 our findings indicate the long process of Britain coming to terms with its increasing ethnic diversity has been disrupted. Where previously we saw tentative signs of steady progress, we now see Britain heavily divided.

Whether as cause or effect, the report draws attention to the fact that contemporary multiculturalism largely takes the form of a clustering of minority ethnic groups in separate enclaves. It points out that half of Britain’s black population live in nineteen English boroughs, seventeen of them in London; and despite the fact that 13 per cent of Britain is not white, half of the white population live in a district where less than one in twenty are an ethnic minority. In short, multiculturalism currently provides few opportunities for cultural interaction. Needless to say, the several murderous acts of Islamic terrorism have heightened insecurity, increased the visibility and perceived vulnerability of Muslims and sharpened an awareness of religious differences. religious diversity. The above mentioned British Social Attitudes Survey chronicles a strengthening secularist trend in the UK10 that has seen the “no religion” respondents increase from 31 per cent in 1983 to 43 per cent in 2004 and to reach more than 50 per cent in 2017, of whom less than 42 per cent self-identify as Christian. In particular, the proportion of the population belonging to the “established” Church of England now stands at just 17 per cent (falling from 21 per cent in 2012 and 29 per cent in 2004). Of those subscribing to a religious belief, most were Christians with Anglicanism being the most widely practised and declared religion; Islam, Hinduism and Sikhism were numerically the next most popular; while the Jewish population, which fifty years ago was the largest non-Christian community, has slipped to fourth. Although the religious have declined in number, they have increased in diversity. This has been largely due to immigration and demographic change: EU 7 8 9 10

www.opinium.co.uk/wp-content/uploads/2017/07/Multicultural-Britain-2017-v6.pdf Ibid., p. 4. Ibid., p. 18. See, for example, P. Weller, Religious Diversity in the UK: Contours and Issues, Bloomsbury Collections, London, 2008.

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membership, with its freedom of movement rule, has resulted in many more immigrants; some religious groups have higher birth rates than others; and increasing life expectancy means that the more religious older generation are religious for longer, while their children are less likely to be religious. Diversity is also a result of the schisms and fragmentation of traditional religions, particularly within Christianity (Protestantism alone comprises some 33,000 different denominations11); the emergence of many new religions and beliefs and “mixed” marriages have also become much more common. Consequently, religious and cultural coherence have been weakened, resulting in a tendency towards social instability, a situation worsened by the fear of Islamic fundamentalism. state agencies for religious matters. The office of Minister of State for Faith and Communities was established in 2012. From 2014 to 2015, it was held by the secretary of state for communities and local government as the “minister for faith”. This office funded the “Near Neighbours” programme, launched in 2011 and expanded in 2014 and 2016, which saw massive funding extended to the Church of England in order to strengthen local faith initiatives and promote neighbourliness among faith groups. In addition, in 2015 it funded a “new programme to strengthen and support faith institutions” and for several years it has funded Inter Faith Week, which promotes faith per se as well as promoting inter-faith relations.

contemporary legal framework As a member of the EU, the legal framework of this state is very much shaped by European legislative instruments and related rulings of the European Court of Human Rights (ECtHR) and to a lesser extent those of the European Court of Justice (ECJ). This is unlikely to change significantly following Brexit. International Conventions The main components of the international legal framework as it relates to religion and to the church–state relationship are the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the EU Council Directive 2000/78/E. The European Convention on Human Rights (ECHR) This was ratified in 1951 and has since exercised a formative influence on the state’s evolving legislation and case law. The main provisions with relevance for religion 11

D. B. Barrett, G. T. Kurian and T. M. Johnson, World Christian Encyclopedia: A Comparative Survey of Churches and Religions in the Modern World, 2nd ed., Oxford University Press, New York, 2001.

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are Articles 9 and 14, though the broadening remit of Article 8 is becoming increasingly significant (see further in Chapter 3). The International Covenant on Civil and Political Rights (ICCPR) This covenant was ratified by the government in 1976, with certain reservations and declarations, but it has not adopted Optional Protocol 1.12 Article 18 is of particular importance (see further in Chapter 3). Other The International Covenant on Economic, Social and Cultural Rights (ICESCR) was ratified in 1976. The UK is a signatory nation to the International Convention on the Elimination of Race Discrimination (ICERD) and to the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) with its Optional Protocol, which it ratified in 1986. It has also ratified the Convention on the Rights of Persons with Disabilities (CRPD) in 2009 and the International Convention on the Rights of the Child (ICRC) in 1991. The European Community (EC) series of Directives are also relevant, particularly the Employment Equality Directive 2000/78/EC (the “framework” directive), which was given effect in England and Wales by the Employment Equality (Religion or Belief ) Regulations 2003, as is the EU Charter of Rights and Freedoms.

Domestic Legislation While the right to freedom of religion may be traced back to Magna Carta in 1215,13 contemporary authority is derived from the Equality Act, 2010, the Employment Equality (Religion or Belief ) Regulations, 2003, and the Human Rights Act, 1998. The Equality Act, 2010 This statute prohibits unfair treatment on any of nine “protected grounds”, which include religion or belief, whether occurring in the workplace, when providing goods, facilities and services, when exercising public functions, in the disposal and management of premises, or in education and by associations (such as private clubs); and whether it takes the form of direct or indirect discrimination or harassment or victimisation. Schedule 9, paragraph 2 (giving effect to Article 4 of the Framework Equality Directive 2000/78/EC), deals with employment “for the purposes of an

12

13

See G. Moon, “Complying with Its International Human Rights Obligations: The United Kingdom and Article 26 of the International Covenant on Civil and Political Rights”, European Human Rights Law Review, vol. 8, no. 3 (2003), pp. 283–307. Magna Carta, signed by the King of England as head of state, contained the clause “that the English Church is to be free and to have all its rights fully and its liberties entirely”.

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organised religion”14 and provides that if certain criteria are met, it will not be unlawful to apply to employees or applicants any of the following:  a requirement to be of a particular sex; a requirement not to be a transsexual person;  a requirement not to be married or a civil partner; a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;  a requirement relating to circumstances in which a marriage or civil partnership came to an end; or,  a requirement related to sexual orientation. Religion is treated the same as any other “protected characteristic”, a fact that causes considerable disquiet among religious adherents who claim that legislators, by adopting such a reductionist approach, have wholly failed to take into account religion’s inherent transcendental quality. This legislation also introduced a general public sector equality duty (PSED), which applies to specified “public authorities”15 and to private organisations carrying out “public functions”.16 Part 2 of the act makes provision for the “advancement of equality” and section 149 requires public authorities, or private bodies carrying out public functions, when dealing with those the subject of a protected characteristic, to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the act, advance equality of opportunity between persons who share a relevant characteristic and persons who do not share it, and foster good relations between such persons. The Human Rights Act, 1998 The European Convention on Human Rights was applied in this jurisdiction by the Human Rights Act, 1998. Article 9 of the convention, applied by sections 9 and 13 of the 1998 act, provides for freedom of thought, conscience and religion, including the right to change religion or belief; to exercise religion or belief publicly or privately, alone or with others; to exercise religion or belief in worship, teaching, practice and observance; and it also provides for the right to have no religion and to have non-religious beliefs protected. It is a qualified right and as such the freedom to manifest a religion or belief can be limited, or subject to “interference”, so long as that limitation is prescribed by law; is necessary and proportionate; and pursues a legitimate aim (viz. the interests of public safety, the protection of public order, health or morals or 14

15 16

See also Equality Act, 2010, Sch. 12, para. 5; (Designation of Institutions with a Religious Ethos) (England and Wales) Order 2010, SI 2010/1915. Equality Act, 2010, Sch. 19. Equality Act, 2010, s.149(2).

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the protection of the rights and freedoms of others). It is limited by being restricted to public authorities or those acting on behalf of a public body. The act allows the provision of services or “benefits” to a certain section of society – affirmative action – if this constitutes a proportionate means of achieving a legitimate aim, such as improving health or the protection of children. It is also a group right. Other Legislation As in other jurisdictions, contemporary religious discrimination legislation has links with earlier civil rights statutes, particularly those dealing with racial discrimination.

the racial and religious hatred act, 2006. This prohibits “incitement to religious hatred”17 but does not define religion or what constitutes a religious belief. The Public Order Act, 1986, as amended by the 2006 act, created new offences: section 29B(i) provided that “a person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred”, subject to the caveat in section 29J that this does not prohibit or restrict discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions, beliefs or practices of adherents, or proselytising. the employment equality (religion or belief ) regulations, 2003. Following the introduction of the 1998 act, further domestic provision took the form of the Employment Equality (Religion or Belief ) Regulations, introduced on 2 December 2003, which made it unlawful for employers to discriminate on the grounds of religion or belief and enacted in UK law the religion or belief provisions of the Framework Equal Treatment Directive (2000/78/EC). They were subsequently consolidated in the Equality Act, 2010, Schedule 2. the crime and disorder act, 1998. As amended,18 this statute created specific offences of racially and religiously aggravated crime based on the offences of wounding, assault, damage, harassment, threatening or abusive behaviour and stalking. Those convicted of “religiously aggravated offences” (where there is evidence of religious hostility in connection with a crime) face higher maximum penalties. Courts and Tribunals National sovereignty, if somewhat fragmented by a devolution of powers from national to local government and compromised to some extent by membership of 17 18

See also Abrahams v. Cavey, [1968] 1 QB 479, pp. 481–482. As amended by the Anti-Terrorism, Crime and Security Act, 2001, and the Protection of Freedoms Act, 2012.

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the EU, ensures that jurisdiction to adjudicate on legal issues arising from domestic legislation lies, at least in the first instance, to the UK system of courts and tribunals. International EU membership brought with it a requirement that the UK accept the superior jurisdiction of the ECtHR and the ECJ. The UK will continue to be subject to the jurisdiction of the ECtHR after its withdrawal from the EU and will remain accountable to other international committees via established monitoring mechanisms.

the european court of human rights (ecthr). The ECtHR hears complaints alleging that any one of the forty-seven member states has violated rights enshrined in the convention and its protocols. In making its determinations, the court is guided by principles such as “proportionality” and “compatibility with democracy”.19 Its decisions are reached in the light of “a margin of appreciation”, which permits states a degree of latitude in their interpretation of human rights obligations20 (see further in Chapter 3). the human rights committee (hrc). This body monitors progress made on promoting human rights and provides a four-yearly update on achievements and agrees further goals (see further in Chapter 3). other fora. The European Court of Justice (ECJ), and various other committees established by their respective international conventions to monitor implementation, may also be relevant (see further in Chapter 3). The Domestic Judicial and Regulatory Systems Issues are usually resolved by regulators but many are adjudicated in the county court and High Court and some go on appeal to the Court of Appeal and possibly on to the Supreme Court (UKSC, formerly the House of Lords).

the equality and human rights commission (ehrc). Established by the Equality Act, 2006, this body consolidates the functions of its predecessors (the Equal Opportunities Commission, the Commission for Racial Equality, and the Disability Rights Commission) and acts as the regulator in respect of matters arising under the Equality Act, 2010, including enforcement of the Public Sector

19

20

See Refah Partisi v. Turkey, (2003) 37 EHRR 1, [2003] ECHR 87 when the ECtHR ruled that sharia law is not consistent with democracy and therefore the Turkish government was justified in banning a political party seeking to introduce such law. See, for example, Lithgow v. United Kingdom, (1986) 8 EHRR 329, Fredin v. Sweden, (1991) 13 EHRR 784, Abdulaziz, Cabales and Balkandali v. United Kingdom, (1985) 7 EHRR 471.

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Equality Duty (PSED). To date, the ERHC has published three important reports on the law relating to religion and belief.21 the employment appeal tribunal (eat). This body hears appeals against decisions made by the Employment Tribunal. A further right of appeal may lie to the High Court. the employment tribunal. Allegations of discriminatory practices in the workplace are heard by this tribunal, the decisions of which have effect throughout Great Britain – excepting Northern Ireland. International Reports The UK participates in certain international peer review monitoring mechanisms that consider progress on human rights matters and make recommendations accordingly. The Universal Periodic Review In September 2017 the HRC issued its third Universal Periodic Review report on UK’s progress in respect of its human rights record.22 This contained 227 recommendations for improvements, which mainly addressed perceived shortcomings in the statutory protection available to children, migrants, ethnic and religious minority groups and as regards people trafficking, hate crimes and discrimination. The UN Committee on the Rights of the Child In its 2016 report, this UN committee called for an end to compulsory worship in UK schools (paragraphs 34 and 35). The US Annual Government Report on International Human Rights In its 2016 report on human rights in the UK, concern was noted in regard to “an increase in hate crimes based on ethnicity, disability, anti-Semitism, and religion”.23

case law: the church–state relationship and fundamental human rights Partnership has for centuries been the leading characteristic of the church–state relationship in this jurisdiction. Indeed many aspects of the public-benefit role that have come to be borne by the state were initiated by the church, then transferred 21 22

23

See, most recently, “Religion or belief: is the law working?” (December 2016). See further in https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/192/15/PDF/G1719215 .pdf?OpenElement See further in “Executive Summary”, p. 1, www.state.gov/documents/organization/265700.pdf

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relatively recently to the state and are now in the process of being incrementally passed back for delivery by religious organisations. The extent of church–state entanglement is complex and though seemingly largely symbolic and ceremonial, the relationship continues in law and practice to have real depth and functionality. Freedom of Religion The right to freedom of thought, conscience and religion is guaranteed under international law by Article 18 of the Universal Declaration of Human Rights (UDHR), Article 9 of the ECHR, in conjunction with Article 18 of the ICCPR and under domestic law by the Human Rights Act, 1998, section 9, as supplemented by the Equality Act, 2010. Definitions The law relating to “religion” and “belief” suffers considerably if understandably from definitional deficit: international and domestic legislators have neither defined such terms nor agreed parameters for their interpretation; however, although the judiciary have yet to subscribe to a finite set of definitions, the case law reveals their efforts to do so.

“religion”. In R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages,24 Toulson LJ explained that25 religion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today’s society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism.

Acknowledging that “there has never been a universal legal definition of religion in English law”,26 he then offered the following guidance:27 I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is 24 25 26 27

[2013] UKSC 77. Ibid., para. 51. Ibid., para. 34. Ibid., para. 57.

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more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science.

Accordingly, belief in a “supreme being”, the practice of worship and adherence to a specific body of doctrines, tenets and such are no longer essential to the definition of “religion”. More recently, the Equality Act broadly declares that it includes any religion; any religious or philosophical belief; a lack of religion; and a lack of belief. As regards the latter, Dyson PSC has emphasised that “the right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and . . . the Convention too. There is nothing marginal about it”.28 Druids are now included (though the Jedi29 are not) among the range of recognised religions in this jurisdiction and in 2013 the Employment Tribunal extended recognition to the beliefs of the Wiccas.30 “beliefs”. Beliefs must amount to more than just mere opinions or deeply held feelings; they must involve a holding of spiritual or philosophical convictions that have an identifiable formal content. In Campbell and Cosans v. United Kingdom,31 the ECtHR affirmed the validity of beliefs grounded in cultural values when it ruled in favour of complainants who alleged that the system of corporal punishment in Scottish state schools offended their philosophical convictions under Article 2 of Protocol 1 of the ECHR. Some twenty years later, in the similar case of Williamson,32 Walker LJ asserted that “pacifism, vegetarianism and total abstinence from alcohol are uncontroversial examples of beliefs which would fall within Article 9 (of course pacifism or any comparable belief may be based on religious convictions, equally it may be based on ethical convictions which are not religious but humanist)”.33 As Nicholls LJ explained,34 Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom.

In the same year, however, membership of the British National Party was found not to be a religion or belief 35 while a non-belief in Christianity was deemed to be a “similar philosophical belief” for the purposes of the definition.36 A decade later, in 28 29

30 31 32 33 34 35 36

RT (Zimbabwe) & Ors v. Secretary of State for the Home Department, [2012] UKSC 38, para. 42. They have also been denied religious status in New Zealand but have acquired it in some jurisdictions such as Texas and Canada. Holland v. Angel Supermarket Ltd. & Anor, [2013] Employment Tribunal 3301005-2013. [1982] 4 EHRR 293. R (Williamson) v. Secretary of State for Education and Employment, [2005] 2 AC 246. Ibid., para. 55. Ibid., para. 24. Baggs v. Fudge, ET 1400114/05. Nicholson v. The Aspire Trust, ET 2601009/04 (4865/142) March 2005.

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United Grand Lodge of England v. Commissioners of HM Revenue and Customs,37 the “canons” of the Freemasons were dismissed as they were not “adopted to give effect to the belief”. The latter ruling was subsequently reinforced by an EAT decision38 that found that Freemasonry was not a protected belief for the purposes of employment law because, although members were required to have a religious belief, it did not matter what that belief was so long as it included a belief in a supreme being and was compatible with the three “Grand Principles” of Freemasonry: brotherly love, relief of those in distress and truth. It did not itself offer a core belief or set of beliefs. In McClintock v. Department of Constitutional Affairs,39 Elias P reiterated the established view of the ECtHR that “the test for determining whether views can properly be considered to fall into the category of a philosophical belief is whether they have sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society”.40 In Grainger v. Nicholson,41 the Employment Appeal Tribunal declared that the appellant’s strongly held philosophical belief about climate change and the alleged morality thereof were capable of constituting a philosophical belief within the meaning of the Employment Equality (Religion or Belief ) Regulations, 2003, which made provision for such a belief to have a similar weight and significance as a religious belief in the context of human rights jurisprudence.42 On appeal, Burton J and Nicholls LJ were clear that determining what constituted a “belief” required a threshold test, comprising certain requirements implicit in Article 9 of the European Convention, and comparable guarantees in other human rights instruments. Burton J suggested the following criteria:43 (i) The belief must be genuinely held. (ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available. (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. (iv) It must attain a certain level of cogency, seriousness, cohesion and importance. (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell and paragraph 23 of Williamson).

37 38 39 40 41 42

43

[2014] UKFTT 164. See Conway v. Secretary of State for the Home Department, [2015] ET 2205162/2013. [2008] IRLR 29. Ibid., para. 41. [2009] UKEAT 0219 09 0311 (EAT). Paragraph 2(1) of the 2003 regulations stated that “‘belief’ means any religious or philosophical belief”. [2010] IRLR 4 (EAT), para. 24.

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The court duly found that “the claimant has settled views about climate change, and acts upon those views in the way in which he leads his life. . .. His belief goes beyond mere opinion”.44 Within a year other tribunals had applied this test to extend recognition to a range of belief systems each with their own cultural constituency, such as anti-fox hunting45 and a belief in the higher purpose of public service broadcasting.46 Naturalism was subsequently recognised as a philosophical belief, followed in 2020 by the Postle J ruling in an Employment Tribunal hearing that ethical veganism also satisfied the tests required for it to be a philosophical belief protected under the Equality Act, 2010. Even a lack of consistency will not prove fatal, provided the beliefs (humanist) are sincerely held.47 Whereas in the past a person could be construed as having a religious belief by the mere fact of their belonging to a church, which carried an implied commitment to its doctrines, now it is the demonstrable sincerity of an individual’s beliefs that is the crucial legal determinant.48Although, due regard must be given to the judicial warning regarding the inherent contradictions and dangers for legal objectivity in attaching undue weight to subjectively perceived “truths”.49 worship. The UKSC, in the Hodkin case unanimously decided that a Scientologist chapel was “a place of meeting for religious worship” (as referred to in section 2 of the Places of Worship Registration Act, 1855). The judicial rationale adopted is of fundamental and broad significance for the church–state relationship: the UKSC then declared that the term (worship) “has to be interpreted in accordance with contemporary understanding of religion and not by reference to the culture of 1855”.50 This needs to be read alongside the 1983 the European Commission of Human Rights finding, in C v. K.,51 that Article 9 protection was restricted to “acts of worship or devotion which are aspects of the religion or belief in a generally recognised form”. In short, not all forms of “worship” will satisfy the current legal understanding of the term. Religious Discrimination Paul Weller, seemingly sharing views expressed by Frederick Geddicks regarding corresponding developments in the USA, summarises that “the emphasis over the 44 45 46 47 48

49

50

51

Grainger v. Nicholson, [2010] IRLR 4 (EAT), para. 13. See Hashman v. Milton Park (Dorset) Ltd. (t/a Orchard Park), ET/3105555/09. See Maistry v. BBC, ET/1313142/10. Streatfield v. London Philharmonic Orchestra, [2012] ET 2390772/2011. See Christian Institute and Others v. Office of First Minister and Deputy First Minister Neutral Citation No. [2007] NIQB 66, per Weatherup J, para. 48. McFarlane v. Relate Avon Ltd., [2010] EWCA Civ. 880; [2010] IRLR 872, per Laws LJ, paras. 23–24. R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages, [2013] UKSC 77, per Toulson LJ, para. 34. Application No. 10358/83, 37 D&R 142 (1983).

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past decade in England and Wales has shifted legal attention from freedom of religion or belief in itself to addressing anti-discrimination through a wider equalities agenda.”52 The Equality Act, 2010, in keeping with the Employment Equality Directive 2000/78/EC, identifies four types of religious discrimination: direct, indirect, harassment or victimisation. The first takes the form of unequal treatment whereby some are directly treated less favourably than others because of their religious beliefs.53 The second incidentally disadvantages a certain religious group as when a service provider’s provision, criterion or practice imposes restrictions that affect their ability to access services available to others.54 The third results from “whistle-blower” circumstances involving a complaint about religious discrimination, while the fourth is behaviour that may range from physical attack, verbal abuse, to causing discomfort because of a religious or racial difference. The Equality Act, 2010, Schedule 9, provides exemptions and exceptions from the general prohibition against discrimination. These are variable in nature and differ in application depending on the “protected characteristic” to which the discrimination relates. This inconsistency could be circumvented by an alternative model based on the theory of religious autonomy, a concept recognised by human rights law.55 Protecting the State from Religion Church and state have long been bound together by strong institutional ties. Although these have loosened to the point of being, perhaps, more symbolic than functional, there have been no initiatives to remove the many official indicators of Christian influence on the state, let alone those explicitly attributable to the Church of England, such as “God Save the Queen” as the national anthem; “Dieu mon droit” on the royal coat of arms; and the coronation, which presumes that the head of state will be actively engaged not just in religious matters but specifically in championing the interests of Protestantism. Also noteworthy is the statutory duty of the Ecclesiastical Committee of Parliament to consider “the constitutional duties of all her Majesty’s subjects”. Nicolls LJ acknowledged the continuing linkage in his comment that the Church of England “still has special links with central

52

53

54

55

See P. Weller, et al., Religion or Belief, Discrimination and Equality, Bloomsbury Academic, London, 2013, p. 42. See, for example, Showboat Entertainment Centre Ltd. v. Owens, [1984] IRLR 7 (EAT) and Weathersfield Ltd. v. Sargent, [1999] IRLR 94 (CA). See, for example, Eweida v. British Airways, (2010) EWCA Civ. 80, para. 6. Also see Azmi v. Kirkless M.C., [2007] ICR 1154. See, for example, Hasan and Chaush v. Bulgaria, app. 30985/96; Svyato-Mykhaylivska Parafiya v. Ukraine, Application No. 77703/01; and Sindicatul “Pastorul cel Bun” v. Romania, Application No. 3220/09.

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government” though he qualified this by adding “but the Church of England remains essentially a religious organisation”.56 an “established” church. For 800 years Lambeth Palace in London has signified the political leverage of the church as a counterweight to the government of the day, exercising an influence on issues of state, a role assisted by the fact that the three most prominent leaders of that church sit as members of the Privy Council to advise the sovereign on such issues. Further, Anglican canon law has been assimilated into national law, which gives it, and Protestantism more broadly, a favoured legal status relative to all other religions. As noted earlier, specific constitutional arrangements have long granted an exclusive role to the Church of England. In short, the concepts of “established church” and “state neutrality” would seem, on the face of it, to be irreconcilable. a secular state. As Munby J explained in X v. X,57 “although historically this country is part of the Christian West, and although it has an established church that is Christian, I sit as a secular judge serving a multi-cultural community”. In McFarlane v. Relate Avon Ltd.,58 Laws LJ was very alert to the need to separate the interests of church and state and to protect the latter from church interference when Lord Carey, the former Archbishop of Canterbury, sought to make suggestions as to the desired composition of the court (suggestions deemed by Laws LJ to be “deeply inimical to the public interest”59) and the need to address what he perceived to be an alleged “lack of sensitivity to religious belief”60 by the judiciary when dealing with such cases. In response, Laws LJ drew attention to two principles generally considered to be central to liberal democracy: that the state should remain neutral in relation to religion and that public policy should be rigorously secular. He pointed out,61 In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society. 56 57 58 59 60 61

Aston Cantlow Parochial Church Council v. Wallbank, [2004] 1 AC 546, per Nicolls LJ, p. 555. [2002] 1 FLR 508, para. 12. [2010] IRLR 872; 29 BHRC 249. Ibid., para. 26. Ibid., para. 20. Ibid., para. 22.

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He added “the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled”.62 Nonetheless, the existence of an implicit assumption to that effect may, perhaps, help to explain why the Church of England recently felt it necessary to publish a long considered, policy proclamation that it had come to view fracking as “a morally acceptable practice”.63 accommodating religious law and courts. For the equitable functioning of a democratic society, a neutral state must ensure that all its citizens are equally amenable to the same system of justice. The existence of parallel systems clearly gives rise to problems, particularly – as in family law matters – when traditional patriarchal values governing religious systems inhibit female access to statutorily defined legal rights. The role of religious minority tribunals can be controversial due to the tension between their religion-specific governing principles and the provisions of British statute law: the rights of women can be jeopardised.64 The Church of England, for example, has always had its own internal consistory courts for settling disputes affecting members. For centuries the Beth Din network of private tribunals have sought to resolve civil disputes arising among Jews while sharia law is attracting a growing constituency as a resource for resolving issues arising in an Islamic cultural context: both offer mediation on marital disputes, family matters and finance.65 The legal system has, to some degree, adapted to accommodate sharia law: Muslim marriages can be recognised and registered with state-approved Muslim authorities; specialist Muslim-compliant mortgage companies have been established; and adoption law has been broadened to accommodate “special guardianship” as an alternative to sharia, which forbids adoption. The legal authority of religious tribunals lies in the Arbitration Act, 1996; the veracity of their decisions on family matters is subject to their being compatible with statute law;66 a religious marriage, for example, in itself is not recognised under national statute law.67 The state secular courts may review tribunal decisions if they impinge on public policy;68 and can

62 63 64

65

66 67 68

Ibid., para. 23. See Church Commissioners, Shale Gas and Fracking, Church of England, December 2016. See S. Bano, Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and Law, Palgrave Macmillan, Basingstoke, 2012. G. Douglas, et al., “Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts”, Cardiff Law School, 2011, www.law.cf.ac.uk/clr/Social%20Cohesion%20and%20Civil%20Law %20Full%20Report.pdf Arbitration Act, 1996, s.81. R v. Bham, [1966] 1 Q.B. 159. R v. London Beth Din ex parte Bloom (18/11/1997 CO-2495–2496).

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enforce any arbitration award made by a religious tribunal.69 It is difficult to square state neutrality with state enforcement of rulings made by religious courts. sharia law. The Islamic Sharia Council, established in the 1980s,70 has at least sixteen Islamic tribunals operating in the country, offering a mediatory role in several hundred cases of marriage and divorce per month, most often focusing on bridging the gap between Islamic and statutory law, and many involving Muslim women who have been divorced in accordance with statutory law but now wish to have this recognised within their community by the issue of a talaq, which would free them to marry again in Islamic law and to secure repayment of the mahr (dower). The Casey report71 highlighted concerns regarding the role of these bodies: “there have been claims that some Sharia Councils have been supporting the values of extremists, condoning wife-beating, ignoring marital rape and allowing forced marriage”. Female genital mutilation (FGM), for example, though not an exclusively Islamic practice, has been illegal in this jurisdiction since 1985 but as yet – despite some 9,000 recorded cases in 2017 alone and an estimated 137,000 cases in total72 – there has only been one successful prosecution.73 This strongly suggests that state neutrality, as indicated by official intervention in relation to non-Christian cultural practices such as FGM, has given way to deferential respect for the religion/ culture of minority groups. The case of Akhter v. Khan74 concerned Ms Akhter’s divorce petition about twenty years after her Islamic marriage (nikah) to Mr Khan. The fact-specific nature of the case included the welfare interests of their four children, the duration of their “lived marriage”, the bearing of Article 8 of the ECHR and the non-registration of their marriage, despite repeated requests to her husband that they complete a civil marriage ceremony in a registry office. Nonetheless, the importance of the Court of Appeal’s ruling in 2020 that their UK unregistered nikah marriage was invalid in English law – thus giving her no entitlement to a decree of nullity under section 11

69

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Kohn v. Wagschal & Ors, [2007] EWCA Civ. 1022. Author acknowledges advice from Frank Cranmer on this matter (note to author: 18.07.2018). The first sharia court in the UK, known as the Muslim Arbitration Tribunal, was established in Warwickshire in December 2007, since expanded to include sharia courts in London, Birmingham, Bradford and Manchester. See the Casey report A Review into Opportunity and Integration, HMSO, 2016, www.gov.uk/ government/uploads/system/uploads/attachment_data/file/575973/The_Casey_Review_Report .pdf See A. Macfarlane and E. Dorkenoo, “Prevalence of Female Genital Mutilation in England and Wales: National and Local Estimates”, 2015, http://openaccess.city.ac.uk/12382/9/FGM% 20statistics%20final%20report%2021%2007%2015%20released%20text%20corrected%20Jan% 202016%2020%2001%2016.pdf See further in www.theguardian.com/society/2019/feb/01/fgm-mother-of-three-year-old-firstperson-convicted-in-uk [2018] EWFC 54.

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of the Matrimonial Causes Act, 1973, and no right to a financial settlement – should not be underestimated.75 This rejection of religious marriages as recognisable under English law will be of critical importance to the many thousands of Muslim women in this jurisdiction who, having married in accordance with sharia law, did not follow up with a civil registered marriage ceremony. They will now have no alternative but to remain in an abusive or otherwise unsatisfactory relationship as they will have no right to any entitlement under statutory divorce proceedings. Protecting Religion from the State The principle that the law must treat all religions equally has been established since at least Re Pinion (deceased)76 when it was held that “the court cannot discriminate between religions”. It was reiterated more recently by Laws J, in McFarlane below, when continuing his peroration against religious preferencing he advised thus:77 We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy.

Nonetheless, as outlined above, the Church of England has been singled out among the religions of this jurisdiction as having a distinct and superior status, one which formally binds it to the state, but which also leaves it open to state intervention. After all, the fact that Church of England bishops and others are appointed by the monarch on the advice of the prime minister gives the government of the day a significant role in determining church governance arrangements. Moreover, parliament has a continuing power in relation to worship and doctrine (illustrated by its rejection of the proposed new Prayer book in 1927–1928) and its approval would still be needed for any change to the status of the Book of Common Prayer. Further, under the Marriage (Same Sex Couples) Act, 2013, accompanied by amendments to the Equalities Act, 2010, the Church of England alone is relieved of any duty to conduct same-sex marriages (as was the Church in Wales) which, on the face of it, adds further caveats to the neutrality of the state.78 determining the legitimacy of religion and beliefs. Courts and regulators have not only moved away from examining institutional structures and 75

76 77 78

A government review of sharia law in 2017 recommended that Muslim couples should be required to take part in registered civil marriages in addition to Muslim ceremonies to bring Islamic marriage legally into line with Christian and Jewish marriage. [1965] Ch 85. Also see Nelan v. Downes, (1917) 23 CLR 546. McFarlane v. Relate Avon Ltd., [2010] EWCA Civ. 880; [2010] IRLR 872, para. 24. The Church of England will be able of its own accord, under the Church of England Assembly (Powers) Act, 1919, to bring legislation before Parliament to rescind its exemptions and “opt in”.

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referencing doctrines and tenets, which were the customary indicators for determining what constituted an “organised religion”, but have also shifted their focus from religion as an institution to the authenticity of an individual’s subjective interpretation and experience of it.79 Subject to the above parameters of what constitutes a religion or belief, the judiciary have been clear that determining the legitimacy of such is outside their brief: it is the veracity of the believer, not the belief, that is at issue. The views expressed above by Nicholls LJ in Williamson80 were echoed by EAT in Eweida81 that “it is not necessary for a belief to be shared by others in order for it to be a religious belief”,82 by Bingham LJ in Begum83 and by the comment of Baroness Hale for the Court of Appeal in Ghai84 that “it matters not for present purposes whether it is a universal, orthodox or unusual belief”. Moreover, “all beliefs are equally protected”,85 including a belief in “democratic socialism”.86 State Treatment of Religions Arguably, although there is evidence that the state leans towards a policy of broadly supporting religion and religious communities in recognition of their assumed contribution to public benefit, this policy is one that is now moderated by the increased weighting given to secularist interests.

equal treatment by the state. Given the above mentioned “constitutional arrangements” that require the state to extend preferential treatment to Protestantism, particularly to the Church of England, it is not possible to claim that it treats all religions equally. There are other indications of inequality: the exemption from legislation requiring motorcyclists to wear crash helmets applies to Sikhs but not to Rastafarians;87 the exemption available to Jews enabling them to trade on the Sabbath is denied to Muslims and is qualified for Christians.88

79

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81

82 83

84 85 86 87 88

See Saggers v. British Railways Board, [1977] IRLR 266 for an early ruling to that effect. See further P. W. Edge, “Determining Religion in English Courts”, Oxford Journal of Law and Religion, Oxford University Press, January 2012. [2005] UKHL 15, [2005] 2 AC 246 (HL), para. 75. An approach very much in keeping with the views expressed by Lord Greene MR in Re Samuel, [1942] 1 Ch 1, CA, p. 17. [2010] EWCA Civ. 80 (12 February 2010). Edge, “Determining Religion in English Courts,” p. 14. Eweida v. British Airways, [2008] UKEAT 0123, 08, 2011 (EAT), para. 29. R (On the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School, [2006] UKHL 15 (HL), para. 18. Ghai, R (on the application of ) v. Newcastle City Council & Ors, [2010] EWCA Civ. 59. GMB v. Henderson EAT 73/14/DM, 13 March 2015, para. 62. Ibid., and also Olivier v. Department for Work and Pensions ET/1701407/2013. Road Traffic Act, 1988, s.16. Sunday Trading Act, 1994, s.8.

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state prejudicial intervention. Notwithstanding the above assurances given by Laws LJ, the following comment offered by Bielefeldt seems apt: “It seems difficult, if not impossible, to conceive of an official ‘State religion’ that in practice does not have adverse effects on religious minorities, thus discriminating against their members”.89 state-supportive intervention. As Bradney notes, “there is no proscription on the State supporting either religions in general or a particular religion”90 and state funding has been directed, for example, towards Islamic community organisations and various interfaith groups. Such direct funding, exemptions from tax and equality legislation, and other privileges leave little doubt as to state readiness to lend its support to religion, to religious organisations and to do so with some specificity. In recent decades the provision and delivery of many public services have transferred to other sectors, much to religious organisations as they have a unique nationwide institutional network. Education services, for example, rely heavily on state funding: faith schools most often receive government grants of up to 90 per cent of capital costs of the buildings and 100 per cent of running costs (including teachers’ salaries). The majority of state funding for faith schools goes to the Church of England; although probably proportionately representative, this does question the neutral role of the state. In National Union of Teachers v. Governing Body of St Mary’s Church of England (Aided) Junior School,91 the Court of Appeal found that the Church of England school was part of the state school system, the governors were a body charged by the state with the running of the school and were exercising their functions with a view to securing provision by the school of the national curriculum. In these circumstances the governors were to be regarded as an emanation of the state for the purposes of the doctrine of direct effect.92 affirmative action. Introduced by the Equality Act, 2010, section 158, by strengthening the public service equality duties (PSED), affirmative action provides specific opportunities for intervention in circumstances that would otherwise constitute unlawful discrimination;93 compliance with PSED may involve treating some people more favourably than others. Such action is permitted if it is a proportionate

89

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91 92 93

See H. Bielefeldt, “Report of the Special Rapporteur on Freedom of Religion or Belief”, presented to the UN General Assembly, Human Rights Council Nineteenth session, 22 December 2011. A. Bradney, “Religion and the Secular State in the United Kingdom”, p. 743, www.iclrs.org/ content/blurb/files/United%20Kingdom.1.pdf. [1997] 3 CMLR 630. See Cali & Figli SrL v. SEPG, [1997] ECR I-1547, [1997] 5 CMLR 484, para. 23. See also the Employment Equality Directive 2000/78/EC, Art 2(2)(b).

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means of addressing the disadvantages of a group with shared protected characteristics94 and if it serves to encourage a more proportionate take up in activities or services by members of such a protected group. It may come into play where a group identified by one or more of the protected characteristics (e.g. Muslim women, AfroCaribbean schoolboys) are perceived to be socially or economically disadvantaged, or to be subject to systemic discrimination.95 Affirmative action is only lawful if the statutory criteria are met: it must be “reasonably thought” that one of the conditions applies, such as disadvantage or disproportionately low participation. It permits, for example, targeted bursaries and scholarships where the potential recipients share a particular religious faith or belief. religious symbols/prayers in state facilities. In February 2012, the High Court in NSS v. Bideford Town Council96 ruled against Bideford Town Council, holding that it was unconstitutional to continue with the long-standing practice of holding prayers at the beginning of their meetings. Prayer, Ouseley J ruled, is a private matter that has no place in the formal proceedings of a legal assembly. This judgment attracted the comment from Britain’s first Muslim cabinet minister “that a militant secularisation is taking hold of our societies”.97 In response to the ruling, the government promptly introduced amending legislation with the effect that councils wanting to continue holding formal prayers may now do so. Three years later the Commission on Religion and Belief in British Public Life advised that “the legal requirement for schools to hold acts of collective worship should be repealed”.98 These skirmishes indicate that settled and familiar Christian prayers and rituals continue in some state facilities with state endorsement, creating tensions with secularists, which can only be perceived by non-Christians as a questionable interpretation of neutrality. State Protection for Manifestations of Religious Belief As the Equality and Human Rights Commission has explained,99 Manifestations of a religion or belief could include treating certain days as days for worship or rest; following a certain dress code; following a particular diet; or carrying out or avoiding certain practices. There is not always a clear line between

94

95 96 97

98

99

The “protected characteristics” being age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. See R (Kaur and Shah) v. Ealing LBC, [2008] EWHC 2062 (Admin). [2012] EWHC 175 (Admin). See Baroness Warsi, then minister without portfolio and chair of the Conservative Party, who used the term in response to the ruling of Ouseley J. Commission on Religion and Belief in British Public Life, Living with Difference: Community, Diversity and the Common Good, the Woolf Institute, Cambridge, 2015, p. 8. See EHRC, “Code of Practice on Employment”, 2011, para. 2.61.

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holding a religion or belief and the manifestation of that religion or belief. Placing limitations on a person’s right to manifest their religion or belief may amount to unlawful discrimination; this would usually amount to indirect discrimination.

This right, to hold and to manifest a religion or belief, is qualified by Article 9(2), which requires that any such manifestation be subject to such limitations as are “prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”. It requires a clear link between conduct and belief, although in Eweida the ECtHR would seem to have established that the conduct need not be mandated by the belief, it is sufficient that the manifestation is a sincere reflection of an adherent’s commitment:100 but that manifestation must have a meaningful relationship to the belief, as in Begum. In Playfoot (a minor), R (on the application of ) v. Millais School,101 however, the court found that an item of jewellery (a “purity ring”) was “representative of a moral stance and not a necessary symbol of Christian faith”. Weatherup J in Christian Institute remarked that “in exercising his freedom to manifest his religion, an applicant may need to take his specific situation into account”.102 This rationale would seem to have been in play in Cherfi,103 Chaplin104 and Playfoot105 – where in each case the claimant had knowingly placed themselves in positions that could potentially compromise their beliefs – but has been blunted somewhat by the ECtHR ruling in Eweida that “the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate”.106 religion-specific clothing. In this jurisdiction there has never been any legal prohibition preventing the wearing of clothing – including turbans or burqas – denoting religious affiliation. Although, as Lady Hale comments, “It is unlikely that a ban on all or any items of religious dress or symbols will be considered direct discrimination on religious grounds for the purpose of the Equality Act, 2010, provided that the rule is not aimed at a particular religion as opposed to a particular

100

101 102 103 104

105 106

Eweida and Others v. UK, Application No. 4820/10 (2013), para. 84. However, note the EHRC Code 2011, para. 2.61, which indicates that there is no clear dividing line between holding and manifesting a religious belief. [2007] EWHC 1698. Citing Kalac v. Turkey, [1997] EHRR 552, para. 27. Cherfi v. G4S Security Services Ltd., [2011] UKEAT 0379 10 2405 (24 May 2011). Chaplin v. Royal Devon & Exeter Hospital NHS Foundation Trust, [2010] ET 1702886/2009. Similarly in X v. UK, No. 7992/77, 14 DR 234 (1978). Playfoot (a minor), R (on the application of ) v. Millais School, [2007] EWHC 1698. Eweida and Others v. UK, Application No. 4820/10 (2013), para. 83. Author acknowledges advice from Frank Cranmer on this matter (email comments: 27.01.2017).

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type of dress or symbol.”107However, as she goes on to say, “Such a ban could be indirect discrimination for the purpose of the 2010 Act, because it places adherents of a particular faith at a disadvantage when compared with people who do not share that faith.”108 The wearing of religious clothing in public has become a potent test of state neutrality elsewhere. Where problems do arise, such as in the workplace, there is an onus on the wearer to show a sincere conviction that the particular item is a necessary and appropriate manifestation of their belief, necessitated by their sincere, if wholly subjective, interpretation. Any imposed restriction, in terms of uniform and dress codes, does require good reason – such as health and safety requirements. In Noah v. Sarah Desrosiers (trading as Wedge),109 a Muslim applying for a hairdressing position was held to have suffered indirect discrimination when her employer warned that she would be required to remove her hijab while at work if appointed. The employment tribunal found that there was an onus on the employer to produce evidence that the wearing of the headscarf would have an adverse effect on the business. In the absence of any such evidence, the requirement was found not to be justified. Some years later, in the not dissimilar case of Begum v. Barley Lane Montessori Day Nursery,110 a Muslim claimed that she had suffered religious discrimination at a job interview when told that she would not be permitted to wear a jilbab of appropriate length and therefore had been unable to accept the post. The EAT concluded that the prospective employer was justified in considering that the particular length of the jilbab might constitute a tripping hazard to staff or to the children in their care: no requirement had been placed on the claimant not to wear a jilbab, only that her particular jilbab should not constitute a tripping hazard. This approach was not indirectly discriminatory to Muslim women: it applied equally to staff of all religions and if it did put some Muslim women at a particular disadvantage, any indirect discrimination was justified as being a proportionate means of achieving a legitimate aim, i.e. protecting the health and safety of staff and children. religion-specific clothing: state employees. The relaxed approach generally taken in law and public policy towards religion-specific clothing is maintained in relation to state employees and facilities: absent some additional specific detriment, the wearing of such clothing is accommodated. The court in Azmi111 upheld the earlier Employment Tribunal finding that the beliefs of the claimant – a classroom-based bilingual support worker – concerning 107

108 109 110 111

Lady Hale, President of the Supreme Court, “Religious Dress”, lecture at the Woolf Institute, Cambridge (28 February 2019). See further in www.supremecourt.uk/docs/speech-190228.pdf Ibid., p. 11. ET 2201867/2007. UKEAT/0309/13/RN, 2015. Azmi v. Kirkless Metropolitan Borough Council, [2007] UKEAT/009/07.

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the veil were “genuine and held by a sizeable minority of Muslim women”.112 It found that the restriction on wearing the niqab was a neutral rule that put the claimant at a disadvantage, but was justified as it was a proportionate measure given the interests of the children in having the best possible education. The school had examined the effects of teaching with the niqab in place and had evidence to show that, in those circumstances, the indirect discrimination was justified. religion-specific clothing: service users in state facilities. In Begum,113 the House of Lords considered the wish of a schoolgirl to wear the jilbab in keeping with the professed religious beliefs of herself and family, despite the prohibition on doing so in the school dress code. The court heard evidence that the wearing of the jilbab was not considered necessary by a considerable proportion of those who shared the plaintiff’s religious beliefs, but nonetheless upheld her right to consider it to be so. Lord Bingham of Cornhill added that “it was not the less a religious belief because her belief may have changed, as it probably did, or because it was a belief shared by a small minority of people”.114 Nonetheless there had been no interference with her right to manifest her belief in practice or observance. In choosing to attend Denbigh High School, Ms Begum found limitations imposed on the manifestation of her religious belief, but was otherwise uninhibited in that regard. However, as in the USA, if a law or rule is ostensibly neutral but disproportionately burdens the religion or beliefs of a minority, then it must be justified. This was evident in R (Watkins-Singh) v. Aberdale Girls’ High School115 where the school ban on wearing jewellery was held to impose a particular constraint on Sikh pupils. That there are limits to judicial tolerance of dress as a manifestation of belief was apparent at London’s Blackfriars Crown Court when Murphy J, commenting that “the niqab has become the elephant in the courtroom”, ruled that a Muslim woman defendant should remove her niqab when giving evidence. religion-specific customs, practices and rituals. In Ghai,116 the Court of Appeal considered a request from Ghai, a Hindu, that the council make available some land outside the city precincts to allow the practice of open-air cremation as his religion required that cremation take place by traditional fire, in direct sunlight and away from man-made structures. The court held that Mr Ghai’s wishes as to how, after his death, his remains were to be cremated should be accommodated. Of particular significance is the fact that the Master of the Rolls, following the approach 112 113

114 115 116

Ibid., para. 101. R (On the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School, [2006] UKHL 15 (HL). Ibid., para. 18. [2008] EWHC 1865, [2008] 3 FCR 203. Ghai, R (on the application of ) v. Newcastle City Council & Ors, [2010] EWCA Civ. 59.

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taken earlier by Baroness Hale in Williamson,117 emphasised the importance of the individual’s belief: “What we are concerned with in this case is, of course, what Mr Ghai’s belief involves when it comes to cremation, and it matters not for present purposes whether it is a universal, orthodox or unusual belief for a Hindu”.118 This accords with the views expressed earlier by Elias P in Eweida:119 It is not necessary for a belief to be shared by others in order for it to be a religious belief, nor need a specific belief be a mandatory requirement of an established religion for it to qualify as a religious belief. A person could, for example, be part of the mainstream Christian religion but hold additional beliefs which are not widely shared by other Christians, or indeed shared at all by anyone.

In relation to the tension between animal welfare and the freedom of religion, it is important to note that the slaughter of animals without pre-stunning, to satisfy the demands of observant Jewish and Muslim consumers, is a permitted exception to Article 9 of the ECHR, despite the provisions of Directive 93/104/EC on animal welfare. It was Eweida v. British Airways PLC120 that most clearly marked a turning point. This case concerned Ms Eweida, a committed Christian working for British Airways (BA) in a customer service area, who wanted to display a small cross around her neck contrary to BA policy that no jewellery was to be visible. She claimed that BA’s refusal to allow this was indirect discrimination, as a general policy was applied to all visible jewellery (though exceptions were allowed for apparel that could not be worn discretely such as a hijab, a turban and a skullcap worn by other staff ). It was rejected by the Employment Tribunal and again on appeal to EAT and by the Court of Appeal. However, on appeal to the ECtHR,121 it was held that British Airways had breached Ms Eweida’s human rights, in particular her right to freedom of thought, conscience and religion. Noting that religious freedom “is primarily a matter of individual thought and conscience”, the court took the view that her desire to wear a cross openly was a sincere manifestation of her religious beliefs and “there was no evidence that the wearing of other, previously authorised items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image”.122 The importance of the latter caveat was demonstrated in Chaplin v. Royal Devon and Exeter Hospital NHS Foundation Trust,123 which concerned a nurse who refused 117 118

119

120 121 122 123

R (Williamson) v. Secretary of State for Education and Employment, [2005] 2 AC 246. Ghai, R (on the application of ) v. Newcastle City Council & Ors, [2010] EWCA Civ. 59, para. 19. Eweida v. British Airways PLC, [2008] UKEAT 0123 08_2011 (20 November 2008), para. 29. Also see Kelly and Others v. Unison, (2010) Case No. 2203854/08, ET. [2010] EWCA Civ. 80. Eweida v. United Kingdom, [2013] ECHR 37. Ibid., para. 94. [2010] ET 1702886/2009.

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on religious grounds to stop wearing a crucifix with her uniform, contrary to the trust’s health and safety policy. The ECtHR upheld the earlier ruling that the nurse had not been subjected to direct or indirect discrimination. It differentiated the ruling from Eweida by reference to the proportionality principle: the health and safety dimension tipped the balance against Ms Chaplin who, unlike Ms Eweida, was in a position where her wish to manifest her religious belief might well adversely impact upon the interests of others. state protection of its traditional religious/cultural identity. This jurisdiction has a pronounced Christian cultural heritage, which is recognised in many ways including by the continuing status of the Church of England. As the “established church”, this Christian institution has been singled out by the state as having a distinct and superior ranking among religions and one that formally binds it to the state. As mentioned, the fact that – under the Marriage (Same Sex Couples) Act, 2013, accompanied by amendments to the Equalities Act, 2010 – it is relieved of any duty to conduct same-sex marriages (as is the Church in Wales) is further evidence of its singular locus standi as representing the nation’s religious/ cultural identity.124 There is evidence of judicial notice being taken that adherents of traditional religious beliefs are as much entitled to court protection as those minority groups wishing to assert their newly established human rights:125 The belief in question is the orthodox Christian belief that the practice of homosexuality is sinful. The manifestation in question is by teaching, practice and observance to maintain the choice not to accept, endorse or encourage homosexuality. Whether the belief is to be accepted or rejected is not the issue. The belief is a long established part of the belief system of the world’s major religions. This is not a belief that is unworthy of recognition. I am satisfied that Article 9 (of the European Convention, sic) is engaged in the present case. The extent to which the manifestation of the belief may be limited is a different issue.

As Warby J noted, in R (Fox & Ors) v. Secretary of State for Education,126 “the Strasbourg jurisprudence shows that the duty of impartiality and neutrality owed by the state does not require equal air-time to be given to all shades of belief or conviction”.127 The state may have regard, in particular, to “the preponderance in its society of particular religious views, and their place in the tradition of the country;

124

125

126 127

The Church of England will be able of its own accord, under the Church of England Assembly (Powers) Act, 1919, to bring legislation before Parliament to rescind its exemptions and “opt in”. See Christian Institute and Others v. Office of First Minister and Deputy First Minister, [2007] NIQB 66, per Weatherup J, para. 50. [2015] EWHC 3404 (Admin). Ibid., para. 74.

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thus, the state may legitimately give priority to imparting knowledge of one religion above others, where that religion is practised or adhered to by a majority in society”.128

Freedom of Association The right of individuals to meet and form associations, for the purposes of worship, religious teaching or for any other religion related reason, was initially confined to members of the Church of England. The persistence of state theocracy rather than neutrality was evident in statutes such as the Bill of Rights 1689, the Act of Settlement, 1701, and the singular legal standing granted to the Church of England. However, since then, associations formed for religious purposes have done so largely without state favouritism or hindrance and, in the main, difficulties now tend to arise mostly when the activities of such an association conflict with equality or nondiscrimination laws.129 Religious Organisations and the State In this jurisdiction a religious organisation gained official recognition in law when it applied for registration as a charity for tax exemption purposes. The Charity Commission, established by the Charitable Trusts Act, 1853, was the first government body anywhere to be charged with the responsibility of determining whether an association could be defined as being organised for religious purposes and, if so, to register them as such. Thereafter, almost all were exempted from the commission’s regulatory responsibilities.

intervention in church disputes. A century ago, in Re Pinion (deceased),130 it was held that “the court cannot discriminate between religions”, and this was reaffirmed by Scrutton LJ, who proclaimed “[i]t is, I hope, unnecessary to say that the Court is perfectly neutral in matters of religion” in Re Carroll.131 That little has changed in the intervening generations is clear from the warning sounded in Johns and Anor, R (on the application of ) v. Derby City Council and Anor132 that “a secular judge must be wary of straying across the well-recognised divide between Church and State”. The principle that in a democracy, the judiciary, like the state, should not intervene in the affairs of the church is well established, though perhaps less well understood. 128 129

130 131 132

Ibid., para. 39. See, for example, Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales, [2011] EqLR 597. [1965] Ch 85. Also see Nelan v. Downes, (1917) 23 CLR 546. [1931] 1 K.B. 317, p. 336. [2011] EWHC 375 (Admin), p. 41.

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In Wachmann133 the judiciary adopted the traditional approach when they drew the line at examining Jewish doctrines: they “would never be prepared to rule on questions of Jewish law” and “must inevitably be wary of entering so self-evidently sensitive an area, straying across the well recognised divide between Church and State”. More recently, however, Neuberger LJ explored this area in some detail in Shergill v. Khaira.134 He explained that while the court does not adjudicate on the truth of religious beliefs or on the validity of particular rites, it will, in response to an application to enforce private rights and obligations that depend on religious issues, determine such of those issues as are capable of objective ascertainment to the extent necessary to resolve the presenting dispute. As he put it, “The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust.” Consequently, as regards the present dispute, he warned that unless the parties were able to resolve their differences, “the court may have to adjudicate upon matters of religious doctrine and practice in order to determine who are the trustees entitled to administer the trusts”.135 Such a forthright declaration of judicial preparedness to intervene and adjudicate on matters of religious doctrine is distinctly different from the traditional approach and from that currently adopted in other jurisdictions. state preferencing of religious organisations and communities. Historically the state exclusively preferenced a specific religion, Catholicism before the Reformation, the Church of England after it. Thereafter, for many generations, Catholics and members of the dissenting Protestant churches – Baptists, Methodists, the United Reform Church, Quakers and others – were denied the right to associate for the purposes of worship. Now, while state preferencing of the Church of England continues (in the many ways mentioned earlier), it also extends privileges to religious organisations in general, mainly in the form of exemptions from tax and equality legislation.

Freedom of Expression The neutrality of the state in relation to freedom of speech is of fundamental importance to a democratic society – unattainable in any other – and never more so than when a climate of tension prevails in relation to religious matters. 133

134 135

R (Wachmann) v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, [1992] 2 All ER 249, pp. 255–256. Also see R (E) v. The Governing Body of JFS, [2008] EWHC 1535 (QB). [2014] UKSC 33, paras. 45–59. Ibid., para. 59.

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Free Speech A manifestation of religion or belief is impermissible if it is likely to cause alarm or distress, as with posters stating “Islam out of Britain”136 or as when a Christian preacher displayed signs reading “Stop Immorality”, “Stop Homosexuality” and “Stop Lesbianism”.137 However, an exercise of free speech, such as publication of The Satanic Verses,138 is permissible even if it incites lethal religious hatred outside the jurisdiction. More recently, charges against a preacher who had berated Islam in a sermon on the internet were dismissed on the grounds that such conduct was not so grossly offensive that it forfeited the protection given to the freedoms of speech and religion under the ECHR.139 While there is an argument that prohibiting incitement to religious hatred, through the Racial and Religious Hatred Act, 2009, is open to abuse as offering a means to censor genuine debate, this is countered by some with the view that not outlawing such behaviour may permit the reckless insulting of the religious and incite lethal responses. In Smith v. Trafford Housing Trust,140 Briggs J considered whether an employer was entitled to discipline an employee, a Christian manager, for posting on Facebook his view that holding civil partnership ceremonies in churches was “an equality too far”. Expressing his opinion that the posting was not “viewed objectively, judgmental, disrespectful or liable to cause upset or offence”, Briggs J accepted that the complainant could have considered this as homophobic and have been offended but “her interpretation was not in my view objectively reasonable”.141 The judge advised that142 the frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech.

Similarly, “a reasonable person” would be expected to understand that religiously offensive language used by an irritable employer under the stress of tight publishing deadlines was thoughtless but did not constitute religious discrimination.143 This, as Underhill J explained in Dhaliwal,144 with a weary reasonableness that could be 136 137 138

139 140 141 142 143 144

Norwood v. DPP, [2003] EWHC 1564. Hammond v. DPP, [2004] EWHC 69 (Admin). S. Rushdie, The Satanic Verses, St Martin’s Press, Picador, USA, 2002 (1988, 1st ed.). Also see the more recent controversy relating to S. Corso, The Jewel of Medina, Beaufort Books, New York, 2008. DPP v. McConnell, [2016] NIMag 1. [2012] EWHC 3221. Ibid., para. 85. Ibid., para. 82. Hadfield v. Times Newspaper Ltd. (Religion or Belief Discrimination), [2013] UKEAT 1305/12/170. Richmond Pharmaceuticals v. Dhaliwal, [2009] ICR 724; though one cannot help wondering if the same view would have been taken had the derisory expletive referred to Mohammed and been directed towards a Muslim employee. See also Land Registry v. Grant, [2011] ICR 1390.

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applied to many similar situations, is because “dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. . .. It is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase”.145 The sensible person, however, does not express negative views towards LGBT people in conversation with colleagues.146 blasphemy. The Criminal Justice and Immigration Act, 2008, abolished the common law offences of blasphemy and blasphemous libel. proselytism. Extolling the merits of one religion to the detriment of all others has, curiously, always been an activity readily recognised as being for the public good.147 In Redmond-Bate v. DPP,148 the provocative views of three fundamentalist Christian preachers, which had generated a heated response from a crowd and threatened to “disturb the peace”, were found to be permissible. As Sedley LJ commented: Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.

This approach was in keeping with that adopted much earlier by the ECtHR in Christians against Racism and Fascism v. the United Kingdom.149 Matters of Conscience The Militia Ballot Act, 1757, allowed Quakers to be exempt from military service and since then the principle of freedom of conscience has been recognised by the law in this jurisdiction.

refusal to bear arms. Although conscientious objection was not specifically mentioned in the Military Service Act of 1916, which introduced compulsory conscription, acknowledgment was given to those whose “objection genuinely rests on religious or moral convictions”. The Human Rights Act, 1998, gave the principle explicit recognition in the declaration that “everyone has the right to freedom of thought, conscience and religion”. public interest and personal conscience. Cases concerning professional participation in abortion procedures, are, as Lady Dorrian pointed out, “a matter on 145 146

147 148 149

Richmond Pharmaceuticals v. Dhaliwal, [2009] ICR 724, para. 22. Mbuyi v. Newpark Childcare, [2015] Case No. 3300656/2014 and Wasteney v. East London NHS Foundation Trust, [2015] Case No. 3200658/2014. Commissioners for Special Purposes of the Income Tax Act v. Pemsel, [1891] AC 531 (H.L.). [2000] HRLR 249. Application No. 8440/78 (1980).

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which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason”.150 In the earlier mentioned Eweida case,151 the court noted that religious freedom “is primarily a matter of individual thought and conscience” and took the view that the appellant’s desire to wear a cross openly was a sincere manifestation of her religious beliefs. In addition to that particular context, the law of this jurisdiction also recognises a professional right to object on grounds of conscience as regards public health service provision in areas such as IVF treatment.

case law: the church–state relationship and equality rights As the special rapporteur has noted, “privileged religions also exist under the auspices of ‘secular’ States”.152 This is clearly true for the “established” Church of England, which for centuries has been and continues to be granted a role under constitutional arrangements that differentiates its status from all other religions, beliefs and non-beliefs. The resulting implications for that specific religion, but also for religion and belief more generally, can be seen in the compromised application of equality legislation, which favours their interests, and in the consequent complications for state neutrality. Equality and the Church–State Relationship Vestiges of the traditionally strong church–state partnership remain very evident in this jurisdiction. Collectively they significantly qualify the scope for state neutrality. The Religious Exemptions The Equality Act, 2010, Schedule 9, provides exemptions and exceptions that are variable in nature and differ in their application.

tax-exemption privileges. Religious organisations and their outworkings – schools, hospitals and social care facilities – have traditionally enjoyed charitable status, accompanied by automatic tax exemption (though not from VAT). Being exempt from the tax burden, solely on grounds of religious status, is viewed by many of those on whom the obligation rests to make up the resulting deficit in tax revenues as an outdated concession to the right to religious freedom. There is an argument that, given the evidence of sexual abuse perpetrated by such organisations, this should 150

151 152

Doogan & Anor v. NHS Greater Glasgow & Clyde Health Board, [2013] ScotCS CSIH 36, para. 38. Eweida v. British Airways PLC, [2008] UKEAT 0123 08_2011. See Report of the UN Special Rapporteur on Freedom of Religion or Belief, A/HRC/34/50, 2017, para. 28.

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negate an automatic entitlement to privileges denied to their secular counterparts. Coincidentally, perhaps, alone among the common law jurisdictions, the UK has recently made their continued right to tax exemption dependent upon proof of satisfying a public benefit test.153 Tax exemption entitlement is a matter of not inconsiderable interest to the established church as owner of most of the nation’s architectural heritage, a significant proportion of its inner city property, 100,000 acres of its farmland and recipient of most of its citizens Gift Aid donations. Section 193 of the Equality Act, 2010, also exempts any charity which, prior to 18 May 2005, made acceptance of a particular religion or belief a condition of membership with an entitlement to the benefit, service or facility provided by that charity, and has since continued to impose that condition, from being in contravention of the act. Certain schools and associations also benefit from exemptions. This exemption is important as in 2014 there were 32,735 faith-based charities, representing nearly one in five of all registered charities. testamentary privileges. The long tradition of state preferencing of religion continues to be evident in the practice of permitting gifts and trusts, most usually created by testators but occasionally by donors, to be made subject to a religiously discriminating condition: usually requiring a prospective beneficiary to commit to or renounce a specified religion, and often set in the context of marriage and/or the upbringing of children.154 This approach permitted many instances where donorimposed religious constraints were respected155 and conditions that restrained religion (either requiring or prohibiting the practice of a particular religion) or marriage (either requiring or prohibiting marriage to a person of a particular religious persuasion, ethnicity or class) were, and continue to be, almost always judicially endorsed. employment law exemptions. The Equality Act, 2010,156 paragraph 2 of Schedule 9, permits a body representing an “organised religion” to impose explicitly

153

154

155 156

See the Charities Act, 2011, which narrows the range of religious organisations that may qualify for exemption privileges as it removed the previous legal presumption that such an organisation de facto satisfied the public benefit test and was entitled to charitable status. See further in S. Grattan and H. Conway, “Testamentary Conditions in Restraint of Religion in the Twenty-First Century: An Anglo-Canadian Perspective”, McGill Law Journal, vol. 50 (2005), p. 50, McGill L.J., 511. Re Lysaght, [1966] Ch. 191 and Re Dominion Students Trust, [1947] 1 Ch 183. Interestingly, this legislation was opposed by Pope Benedict XVI, who told a gathering of English and Welsh Catholic bishops in Rome that it would “impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs” and added “it actually violates the natural law upon which the equality of all human beings is grounded and by which it is guaranteed”. Papal opposition may have been grounded on the predicted legislative impact upon religious organisations employing people in secular jobs.

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discriminatory restrictions on employment opportunities in relation to gender, marital status and sexual orientation.157 Paragraph 3 of Schedule 9 – giving effect to Employment Equality Directive 2000/ 78/EC, Article 4 and 4(2)) – states that an employer with an ethos based on religion or belief is permitted to discriminate on the grounds of religion or belief 158 if it is an occupational requirement for the particular post, is genuine and determining, and having regard to that ethos, and the nature or context of the work, the application of the requirement is a proportionate means of achieving a legitimate aim. Because of the narrowing effect of the “determining” requirement, this exemption was virtually restricted to employing religious organisations.159 So, for example, in Muhammed v. The Leprosy Mission International,160 a small Christian charity was allowed to refuse applications from non-Christians, because Christianity permeated the organisation. Despite this judicial confirmation of its narrowness, in November 2009 the European Commission issued a Reasoned Opinion to the United Kingdom expressing its view that the exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers were broader than that permitted by the directive.161 Schedule 23, paragraph 2 of the same act, allows “organisations relating to a religion or belief” – but without a commercial sole or main purpose (unlike in the USA following the Hobby Lobby ruling) – to discriminate on the grounds of religion or belief or sexual orientation in the way they operate. Their purpose must be to practise, advance or teach, or enable adherents to receive a benefit, or engage in an activity “within the framework of that religion or belief”; or to foster or maintain good relations between persons of different religions or belief. Such organisations may exercise religious discrimination when determining membership of the organisation, participation in its activities, use of its premises, or “the provision of goods, facilities or services in the course of activities undertaken by the organisation”. Such a restriction may be imposed either because of the purposes of the organisation, or to avoid causing offence on grounds of its religion or belief to adherents. However, it must be exercised reasonably. Additionally, the sexual orientation provisions of the Equality Act, 2010, allow a religious organisation to restrict provision of a service to persons of one sex or to 157

158

159

160 161

See the Equality Act, 2010, Sch. 9. Also, see the School Standards Framework Act, 1998, s.60, which provides that foundation or voluntary-aided schools with a religious character can give preference in employment, remuneration and promotion to teachers whose beliefs are in accordance with the tenets of that religion. See further in R. Sandberg and N. Doe, “Religious Exemptions in Discrimination Law”, Cambridge Law Journal, vol. 66, no. 2 (2007). See R (on the application of Amicus) v. Secretary of State for Trade and Industry, [2004] IRLR 430 QBD, [2004] EWHC 860 (Admin). ET 2303459/0989, 16 December 2009. See Reasoned Opinion to the UK, 2009, http://europa.eu/rapid/press-release_IP-09-1778_en .htm?locale=en

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separate services for persons of each sex – but only if this is necessary to comply with the doctrines of the religion, or be for the purpose of avoiding conflict with the strongly held religious convictions of a significant number of the religion’s followers.162 An organisation cannot lawfully discriminate in the provision of goods and services on the grounds of sexual orientation, where such provision is undertaken on behalf of a public body. regulatory exemptions. Religious entities have traditionally been very largely left to be self-regulating. Until the early twenty-first century, this was the only Part II jurisdiction with a charity-specific regulator and, as virtually all churches and religious organisations had charitable status, it fell to that regulator – the Charity Commission for England and Wales – to assume responsibility for such entities. However, there was an established practice of treating them as “excepted” from the standard requirements applied to all other charities.163 This designation of “excepted” is now set to continue until at least 2021 as will, therefore, the current lax regulatory regime.

Equality, Family, Life, Death and the Church–State Relationship UK law has, in the main, long since adjusted to accommodate a definition of “family” that includes unmarried couples, non-marital children and, more recently, same-sex relationships.164 For some UK citizens, however, religious beliefs prevent an acceptance of this definition, which, in turn, presents a challenge for state neutrality. The Marital Family The definition of “family” in the ECtHR and UK courts is not restricted to one based on heterosexual marriage, but the latitude permitted in law has resulted in difficulties for UK Islamic communities as illustrated by persistent “honour” crimes in which the victims are almost always Muslim women. There were 11,000 such cases recorded in this jurisdiction between 2010 and 2014 as were many other indicators of resistance to state-sanctioned standards for family life, including forced marriages, underage overseas marriages, desertion of abusive husbands, female genital mutilations (FGM), abductions, beatings and murders.165 162 163

164

165

Equality Act, 2010, Sch. 23, s.2(7) and s.2(9). Under the Charities (Exception from Registration) Regulations, 1996 (author acknowledges advice from Frank Cranmer on this matter; note to author: 18.07.2018). See, for example, Smith and Grady v. United Kingdom, (2000) 29 EHRR 548 and Goodwin v. United Kingdom, (2002) 35 EHRR 447. The Forced Marriage Protection Act, 2007, providing that those being coerced into marriage could apply for an order of protection against the insistent party, resulted in over 1,500 cases being processed in the period January to November 2008, of which 65 per cent involved immigrants or citizens of Pakistani origin. There is concern that British Muslims of South

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State neutrality was, arguably, in play over the sixteen-year period in which gangs of Asian men abused some 1,400 young Caucasian girls in Rotherham: the perpetrators were Muslim males; Muslim girls were not among their victims.166 The downside to state bodies and officials – social workers, police – resolutely treating all religions and their adherents with equal impartiality, resulted, in this instance, in a “culture blindness”, which prevented effective state intervention. spouses. Centuries of church–state agreement as to the legal definition of “spouse” dissolved with the introduction of civil partnerships and same-sex marriages in the early years of the twenty-first century.167 The Human Rights Act, 1998, Schedule 1, Article 12, guarantees the right to marry to men and women of marriageable age and the right to found a family – a right extended to same-gender couples who contract civil partnerships in accordance with the Gender Recognition Act, 2004, and the Marriage (Same Sex Couples) Act, 2013. One interesting indicator of government commitment to the established church rather than to state neutrality lies in the fact that the Church of England, alone, was statutorily exempted by the 2013 act as reinforced by amendments to the Equalities Act, 2010, from conducting same-sex marriages.168 The distance between church and state on this matter increased considerably in 2020 when the Church of England issued a pastoral statement in response to the introduction of the Civil Partnerships, Marriages and Deaths (Registration Etc.) Act, 2019.169 In that statement the church reiterated its view that “sexual intercourse, as an expression of faithful intimacy, properly belongs within marriage exclusively . . . sexual relationships outside heterosexual marriage are regarded as falling short of God’s purposes for human beings”.170 For an “established” church to reject the legislative purpose and effect of recent state legislation, and use its pastoral platform to convince others to do so, seems untenable and incompatible with its role, but is perhaps illustrative of how state neutrality works in this jurisdiction.

166

167 168

169

170

Asian origin are being used by their families as marriage partners in order to provide potential spouses with British citizenship. See “Child Sexual Exploitation in Rotherham”, www.rotherham.gov.uk/downloads/file/1407/ independent_inquiry_cse_in_rotherham The Marriage (Same Sex Couples) Act, 2013. In O’Donoghue and others v. UK, [2010] ECHR Application No. 34848/07, the ECtHR identified government exemption of Church of England marriages, from legislative provisions with a general application (the Asylum and Immigration (Treatment of Claimants etc.) Act, 2004), as being in breach of the Article 14 guarantee of freedom from discrimination. This would also have compromised government adherence to State neutrality. See “Civil Partnerships – For Same Sex and Opposite Sex Couples: A Pastoral Statement from the House of Bishops of the Church of England”, www.churchofengland.org/sites/default/files/ 2020-01/Civil%20Partnerships%20-%20Pastoral%20Guidance%202019%20%282%29.pdf Ibid., para. 9.

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parenting. By the mid-twentieth century, in most developed nations, parenting was yet another aspect of family law on which church and state no longer shared a joint approach. Regulating but otherwise remaining resolutely impartial, in the face of considerable pressure from religious groups, with regard to matters such as IVF, surrogacy, gene editing and use of embryos for research, has become a significant indicator of state neutrality in the context of contemporary advances in medicine and available treatment options. The introduction of IVF treatment, as governed by the Human Fertilisation and Embryology Act, 1990 (amended in 2008), has made possible the creation of an embryo without the need for fertilisation by using cell nuclear replacement in unfertilised eggs resulting in “cloned embryos” (Dolly the sheep being an early product of such cloning). Since 2016 science has moved on to embryo augmentation (mixing genetic material to correct an embryo deficit) permitting “three-parent” babies and gene editing (removing links in a gene chain to delete a probable cause of future harm). These developments have generated religious resistance. Whether the law should permit the patenting of inventions that directly use hES (human embryonic stem) cells, or have used them in their development, was at issue in Eli Lilly,171 which upheld the validity of a patent for an aspect of gene sequencing. This ruling, significant in state neutrality terms, is at variance with comparable decisions in other developed nations and is likely to distance the state yet further from those who for religious reasons believe that human genes should not be patentable. sogi issues. In the Christine Goodwin case,172 the ECtHR ruled in favour of a trans person who sought legal recognition of her new gender identity because of “the changing conditions within the respondent State and within Contracting States generally” and “evolving convergence as to the standards to be achieved” in the context of official recognition of post-operative transsexual gender identity.173 This prompted the introduction of the Gender Recognition Act, 2004, which enables trans persons to acquire official documentary evidence – e.g. an amended birth certificate – of their changed genetic identity and since 2010 gender reassignment has been included as a protected characteristic in the Equality Act. A notable feature of the 2004 act – unlike comparable legislative provisions elsewhere – is that a record of a gender identity change is not conditional upon proof of completed surgical procedures, though accessing a gender reassignment process still requires a diagnosis of “gender dysphoria” and acceptance of associated mental health labelling.

171

172 173

Eli Lilly v. Human Genome Sciences (HGS), [2011] UKSC 51, on appeal from [2010] EWCA Civ. 33. Christine Goodwin v. United Kingdom, Application No. 28957/95 (2002). Ibid., para. 74.

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suicide and medically assisted death. Suicide has always been controversial and often treated as a taboo subject. The religious dimension was noted by Hoffmann LJ in Bland:174 “those who adhere to religious faiths which believe in the sanctity of all God’s creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life.” A view later echoed by Steyn LJ in Pretty v. DPP:175 There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions.

Currently, the Human Rights Act, 1998, Article 2, guarantees that everyone’s life will be protected by law and consequently a medically assisted death is illegal; in fact the offence of assisting someone to commit suicide was continued under section 2(1) of the Suicide Act, 1961. Nor does any law permit the withholding of life-saving treatment from someone without a legal capacity for decision-making. More than a century has passed since R v. Senior176 when a member of the Peculiar People sect was convicted of the manslaughter of his baby by neglect as he had refused to provide the child with medical aid or medicine, believing that to do so would show insufficient faith in God and the power of prayer. In the meantime a considerable weight of case law has accumulated in this jurisdiction testifying to the principle that there can be no justification for denying life-saving medical assistance to those unable to decide for themselves. Most often such cases concern Jehovah Witnesses and blood products.177 In Nicklinson and Anor R (on the application of ) (Rev 1),178 it was found that section 2(1) of the Suicide Act, 1961, could not be aligned with section 3(1) of the Human Rights Act, 1998, in such a way as to remove the culpability of those who assist others to commit suicide. However it also found that the law was incompatible with Article 8 of the ECHR which, in the light of Haas v. Switzerland,179 must be regarded as recognising a positive legal right to commit suicide. Acknowledging that its hands were tied by the existing fifty-year-old legislation, the UKSC referred the matter for remedial action to Parliament.

174 175 176 177

178 179

Ibid., p. 826C-E. R (Pretty) v. Director of Public Prosecutions, [2002] 1 AC 800, para. 54. [1899] 1 QB 283. See, for example, Birmingham Children’s NHS Trust v. B & C, [2014] EWHC 531 (Fam); Re S (A Minor) (Medical Treatment), [1993] 1 FLR 376 and Re R (A Minor) (Blood Transfusion), [1993] 2 FCR 544. [2014] UKSC 38 on appeal from [2013] EWCA Civ. 961. (2014) 58 EHRR 7, para. 51 and also Koch v. Germany, (2013) 56 EHRR 6, paras. 46 and 51, and Gross v. Switzerland, (2014) 58 EHRR 7, para. 60.

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Equality, Healthcare and the Church–State Relationship The increasing sophistication of contemporary healthcare services has introduced a growing uncertainty as to the possible ramifications for the state–religion relationship. Of particular significance is the pivotal role of the healthcare professional. Where such a person employed in public healthcare finds their religious beliefs compromised by the nature of the service they are required to provide, then state neutrality may also be compromised by the leverage exercised under the banners of religious exemption or conscientious objection to excuse the professional from complying with equality legislation. Healthcare Services The equitable provision of public healthcare services is in the throes of considerable change and uncertainty as state neutrality makes room for an increasing range of statutory carve-outs on religious grounds from equality and non-discrimination legislation. This is particularly apparent as regards matters such as abortion, use of embryonic stem cells, birth control methods, IVF and transgender procedures.

the services. Abortion has long been a test of state neutrality. Diplock LJ’s comment, nearly forty years ago, remains accurate: “the legalisation of abortion, at any rate in circumstances in which the termination of the pregnancy is not essential in order to save the mother’s life, [is] a subject on which strong moral and religious convictions are held”.180 Any attendant legal issues rarely come before the courts because the governing Abortion Act, 1967 (revised 1990), despite sustained challenges from religious groups, is quite permissive in scope, permitting abortions to be carried out up to the twenty-fourth week of pregnancy, subject to certain requirements, but if medically necessitated they may be carried out at any stage; the mother’s physical health and mental health may be taken into account when estimating that risk.181 The neutrality of the UK state in relation to religious objections to abortion continues to be a live issue as regards the terms on which abortion is legally available in Northern Ireland. The UKSC, in the Matter of an Application for Judicial Review by the NI Human Rights Commission,182 recently considered a claim that the relevant current law – as provided for in the Abortion Act, 1967, and the Offences Against the Person Act, 1861 – was non-human-rights compliant. The effect of this legislation is that medical staff carrying out abortions could be jailed unless the life 180

181

182

Royal College of Nursing of the United Kingdom v. Department of Health and Social Security, [1981] AC 800, 824G-H. But not so permissive in Northern Ireland, where the Abortion Act, 1967, does not apply and abortion is legally permitted only if a woman’s life is in danger, or if there is a permanent risk to her mental or physical health. [2015] NIQB 96.

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of the woman concerned is directly threatened or if there would be lasting, longterm negative effects on her mental or physical health from continuing with her pregnancy. It also has the effect of discriminating against women in Northern Ireland by denying them access to the abortion services available to other female UK citizens. On appeal to the Supreme Court, the case was dismissed for lack of standing but a majority did consider that the current law was disproportionate and incompatible with Article 8 of the ECHR.183 This long-standing disparity between the citizens rights of women in Northern Ireland and women elsewhere in the UK, on a basic reproductive rights issue, is directly attributable to a religious veto that has succeeded in stonewalling the neutrality of the UK state. Surrogacy can also be contentious. This is particularly onerous for Muslims for whom the Qur’an injunction that “their mothers are only those who conceived them and gave birth to them (waladna hum)”184 denies the distinction between genetic gestational and other mothers, which can result in family and community rejection on religious grounds of anyone participating whether as donor or recipient in such procedures. professional exemption from healthcare service provision on religious grounds. Greater Glasgow Health Board v. Doogan and Anor185 concerned two Catholic midwives who had refused, on religious grounds, to work as required by their employing hospital in its abortion clinic: a refusal not accepted by their managers. The UKSC upheld the appellants right to direct the involvement of midwives in abortion procedures. However, by relying on a narrow interpretation of what constituted “participate” for the purpose of the conscientious objection provisions of section 4(1) of the Abortion Act, 1967, and bearing in mind that contractual arrangements between the National Health Service (NHS) and hospital staff do in practice allow the latter to avoid involvement in procedures leading to the termination of pregnancy, it concluded that “it may be reasonable to expect an employer to accommodate an employee’s objections”. Lady Hale acknowledged that “refusing for religious reasons to perform some of the duties of a job is likely186 to be held to be a manifestation of a religious belief” although “there would remain difficult questions of whether the restrictions placed by the employers upon the exercise of that right were a proportionate means of pursuing a legitimate aim . . . and the Equality Act, 2010, requires that any employer refrain from direct or unjustified indirect discrimination against his employees on the ground of their religion or belief.”187 The Conscientious Objection (Medical Activities) Bill, 2017, was introduced in Parliament as a private peer’s bill to clarify the rights of conscientious objection for 183 184 185 186 187

Human Rights Commission for Judicial Review, [2018] UKSC 27. See the Qur’an, ayah in Surah al-Mujadalah (58: 2). [2014] UKSC 68. Also see R v. Salford Health Authority; Ex p Janaway, [1989] AC 537. Citing Eweida v. United Kingdom, [2013] ECHR 285, 36516/10, 51671/10. Ibid., paras. 23–24.

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medical professionals, protecting them from participating in medical procedures – such as IVF or abortion – to which their beliefs are opposed. Equality, Education and the Church–State Relationship State neutrality, crucial to a transparent, impartial national educational system in a democratic society, is demonstrably compromised in this jurisdiction. In short this is mainly because religious education is mandatory for all pupils of all ages throughout the state education system, regardless of the pupils’ beliefs or lack of them. State Schools and Religion The Education Act, 1944, as amended by the Education Reform Act, 1988, and the School Standards and Framework Act, 1998, accompanied by the 1994 Act, requires religious education to be provided for all children between the ages of three and nineteen in state-funded schools, which must provide opportunities for pupils to engage in daily acts of collective worship.188 It further requires that in schools without a religious character, the collective worship be “wholly or mainly of a broadly Christian character”;189 and in schools with such character, worship should be in keeping with it.190 Syllabi must be non-denominational. All parents have the legal right to withdraw their children from participation in religious education.191 These provisions fail to give effect to state neutrality because the mandatory religious education requirement excludes the needs of secularists; daily acts of worship marginalise those who do not feel part of a collective that is explicitly “wholly or mainly of a broadly Christian character”; and the state is funding religious education throughout the national school system. It is noteworthy that homeschooling is a legally available parental option and there is no requirement to follow the national educational curriculum nor to participate in national examinations. It has been estimated that the number of children now being educated at home has increased by 40 per cent in the period 2015–2018.192 There is good reason to suspect that this increase is due to growing parental objection, on religious grounds, to SOGI-related teaching content in the school curriculum.

educational facilities. The Schools Standards and Framework Act, 1998,193 distinguishes between voluntary-aided and voluntary-controlled schools, community 188

189 190 191 192 193

See further in AHRC Network report, Collective Worship and Religious Observance in Schools: An Evaluation of Law and Policy in the UK, 2015, http://collectiveschoolworship.com/documents/ CollectiveWorshipReligiousObservanceAHRCNetworkReport13November2015.pdf Schools Standards and Framework Act, 1998, Sch. 20, para. 3(2). Schools Standards and Framework Act, 1998, Sch. 20, para. 5. Schools Standards and Framework Act, 1998, s. 71, 71A. See further in www.bbc.co.uk/news/uk-england-42624220 As amended by the Education and Inspections Act, 2006, and subject to the provisions of the Equality Act, 2010.

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schools, foundation schools and academies, a distinction based on funding arrangements and responsibility for employing staff. In voluntary-controlled or foundation schools with a religious character, religion can be taken into account in appointing the head teacher, and up to a fifth of its teaching staff can be “selected for their fitness and competence” to give religious education in accordance with the tenets of the faith of the school. Voluntary-aided schools can impose religious requirements on all teaching staff. Faith schools, which now constitute a third of all schools, receive financial support of up to 90 per cent of capital costs and 100 per cent of running costs, including salaries; a large proportion of these belong to the “established” church. Staffing and religion was the focus of contention in the Glasgow City Council v. McNab194 when the EAT upheld a tribunal’s decision that an atheist teacher employed by a state-funded Catholic school had suffered direct discrimination. Pupil admission or rejection, on religious grounds, can be a test of state neutrality. In Mandla (Sewa Singh) and another v. Dowell Lee and Others,195 a Sikh boy was denied admittance to a private school because he refused to comply with the school uniform requirement to cut his hair and remove his turban: a turban being emblematic of his religious/cultural identity, he could not remove it without sacrificing that identity. The House of Lords held that it was unlawful indirect discrimination for a headmaster of an independent school to impose a universal uniform requirement of short hair and caps for boys, thus unfairly burdening a religious group, Sikhs, a ruling subsequently echoed in R (Watkins-Singh).196 The seminal JFS case197 is now the most important in this field. It concerned the rules of admission to a Jewish school that had, for fifty-two years, required a child – in accordance with Orthodox Jewish doctrine – to have a mother who was either born Jewish or whose conversion was accepted as valid by the Office of the Chief Rabbi. The High Court ruled that a school that accepts state funding must not discriminate in its admission policy on the basis of ethnicity. Subsequently, the UKSC, in a majority ruling, found that what in the High Court had been characterised as religious grounds were, in fact, racial grounds, notwithstanding their theological motivation, and no faith school could be excused from the prohibition on race discrimination. The observations of Mance LJ, on the underlying policy of the prohibition on racial discrimination in the act, would seem to point up the importance of neutrality:198 The policy is that individuals should be treated as individuals and not assumed to be like other members of a group.199 To treat individual applicants to a school less 194 195 196 197

198 199

Ibid. [1983] 2 AC 548. R (Watkins-Singh) v. Aberdale Girls’ High School, [2008] EWHC 1865, [2008] 3 FCR 203. R(E) v. Governing Body of JFS, [2010] IRLR 136; [2009] UKSC 15 on appeal from [2009] EWCA Civ. 626. Ibid., para. 90. Citing R (European Roma Rights Centre) v. Immigration Officer of Prague Airport, [2005] 2AC 1, paras. 82 and 90, per Baroness Hale of Richmond; and R (Gillan) v. Commissioner of Police of

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favourably than others, because of the happenstance of their respective ancestries, is not to treat them as individuals, but as members in a group defined in a manner unrelated to their individual attributes. . .. To treat as determinative the view of others which an applicant may not share that a child is not Jewish by reason of his ancestry is to give effect not to the individuality of the interests of the applicant, but to the viewpoint religiously and deeply held though it be, of the school applying the less favourable treatment. That does not seem to me either consistent with the scheme or appropriate in the context of legislation designed to protect individuals from discrimination.

These observations failed to impress the court in the more recent case of (R) The British Humanist Association v. LB of Richmond upon Thames200 when it considered and dismissed a claim that the opening of new Catholic primary and secondary schools would mean operating admissions policies focused predominantly on children who are Catholic, rather than being more widely available to children resident in the area. educational content and instruction. In R (Fox & Ors) v. Secretary of State for Education,201 the plaintiffs successfully contended that the school education syllabus in effect gave priority to religion at the expense of other systems of belief and non-belief. In a vigorous exposition of state neutrality, Warby J declared:202 The State must accord equal respect to different religious convictions, and to nonreligious beliefs; it is not entitled to discriminate between religions and beliefs on a qualitative basis; its duties must be performed from a standpoint of neutrality and impartiality as regards the quality and validity of parents’ convictions.

Pointing out that the ECtHR jurisprudence clearly requires religious education in non-faith schools to be “objective, critical and pluralistic”203 and while “a fair balance allows the state to accord appropriate weight to majority views, but does not permit it to treat the views of minorities in a way that is significantly different at the qualitative level”,204 he concluded that such education must, therefore, also include humanism and other non-religious beliefs.205

200 201 202 203

204

205

the Metropolis, [2006] 2 AC 307, paras. 44 and 90, per Lord Hope of Craighead and Lord Brown and Eton under Haywood. [2012] EWHC 3622 (Admin). [2015] EWHC 3404 (Admin). Ibid., para. 39. Kjeldsen, Busk Madsen and Pedersen v. Denmark, (1976) 1 EHRR 711, 53, citing Folgerø v. Norway, [2007] ECHR 546. R (Fox & Ors) v. Secretary of State for Education, [2015] EWHC 3404 (Admin), per Warby J, para. 33. See further in D. Pollock, “Objective, Critical and Pluralistic? Religious Education in NonFaith Schools”, Law & Religion UK, 17 June 2016, www.lawandreligionuk.com/2016/

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religious prayers and symbols. In relation to the requirement that schools engage in daily acts of collective prayer or worship of “a wholly or mainly . . . Christian character”, the Commission on Religion and Belief in British Public Life comments that206 the arguments in favour of retaining compulsory Christian worship in UK schools are no longer convincing207. . .. Religious practices should not be required in publicly funded schools, but also they should not be prohibited. . .. If the curriculum is objective, fair and balanced, and does not contain elements of confessional instruction or indoctrination, then this teaching should be required in all schools and there is no reason for a legal right to withdraw from learning about religion and belief 208. . .. Governments across the UK should repeal requirements for schools to hold acts of collective worship or religious observance . . . recognise the negative practical consequences of selection by religion in schools, and that most religious schools can further their aims without selecting on grounds of religion in their admissions and employment practices; require bodies responsible for school admissions and the employment of staff to take measures to reduce such selection.209

Faith Schools Although two-thirds of schools in England remain secular, there has been a recent and rapid spread of faith schools. Nearly all the approximately 7,000 faith schools are associated with Christian denominations – mainly Church of England – although there are also Islamic, Sikh, and one Hindu school. Jewish and Muslim schools are on the increase (there are some twenty Jewish schools in Manchester alone). As a general rule, voluntary-aided and voluntary-controlled schools are faith schools, foundation schools and academies may or may not be faith based, and community schools are rarely faith based. As regards academies, which are rapidly growing in number, government policy has been that academy faith schools should allow 50 per cent of school places to be reserved for children of the relevant faith and 50 per cent to be allocated without reference to faith. In 2018 government announced the retention of the 50 per cent cap on the proportion of religionspecific pupils new faith schools may recruit but also declared that faith voluntaryaided schools may have 100 per cent faith-based oversubscription criteria in their admissions – measures that clearly preference religious schools over secular. The same preferencing is continued by the Equality Act, which permits exceptions to the prohibition on discrimination on grounds of religion or belief in faith schools.210 It is noteworthy that the Education and Inspections Act, 2006, section 37, removed a restriction that had previously prevented faith schools from applying religious 206 207 208 209 210

Commission on Religion and Belief in British Public Life, Living with Difference, p. 8. Ibid., p. 34. Ibid., p. 36. Ibid., p. 37. Equality Act, 2010, Sch. 11, pt. 2.

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criteria in connection with the employment of non-teaching staff though they continue to be ineligible for state-subsidised transport.211 state involvement. State funding of faith schools can compromise state neutrality: generally, when it offers an inducement to establish such schools and subsequently when special funding is channelled for their maintenance; in particular, the state faces difficulties with Islamic schools. Controversy arose in 2006 regarding more than 100 Islamic schools when an Office of Standards in Education (Ofsted) evaluation of these schools showed many were “little more than places where the Qur’an was recited”. As of October 2009, reports from the Mosques and Imams National Advisory Board (MINAB) indicated there were approximately 2,000 official madrasas. The Al-Hijrah School case212 concerned a voluntary-aided Islamic, mixed-sex, state school, which Ofsted had ruled was breaching the 2010 Equalities Act by strictly segregating pupils from the age of nine, teaching them in different classrooms, making them use separate corridors and play areas and applying this policy also to clubs and school trips. The Court of Appeal found the school’s defence of its policy on the grounds of Islamic teaching to be irrelevant, as was the fact that it had parental approval: each child had a statutory right under the 2010 act to be educated in a non-discriminatory manner. This important ruling gave clear precedence to rights of equality rather than to religious privilege and explicitly recognises and gives some salience to the rights of children in an educational context. It may presage further constraints upon the exemptions enjoyed by religious organisations. It prompted Ofsted to declare an intention to scrutinise other schools with similar policies, including several Orthodox Jewish and Christian faith schools. Further initiatives include mandatory registration for all madrasas and for all children who are being homeschooled. All of this could be construed as an assertion of state interventionism rather than of neutrality in relation to faith schools in general and Islamic schools in particular. The Commission on Religion and Belief in British Public Life, in its 2015 report, has been critical of the lack of state neutrality and registered its concern regarding evidence of a contrary policy – to support the religious rather than schools – urging that faith schools “should take measures to reduce selection of pupils and staff on grounds of religion”.213 It has warned:214

211

212

213 214

Diocese of Menevia & Others v. City & County of Swansea Council, [2015] EWHC 1436 (Admin). HM Chief Inspector of Education, Children’s Services and Skills v. The Interim Executive Board of Al-Hijrah School, [2017] EWCA Civ. 1426. Commission on Religion and Belief in British Public Life, Living with Difference, p. 8. Ibid., p. 33.

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In England successive governments have claimed in recent years that faith schools and free schools create and promote social inclusion which leads to cohesion and integration. However, in our view it is not clear that segregation of young people into faith schools has promoted greater cohesion or that it has not in fact been socially divisive and led rather to greater misunderstanding and tension. Selection by religion segregates children not only according to religious heritage but also, frequently and in effect, by ethnicity and socio-economic background. . .. Bodies responsible for school admissions should take measures to reduce selection on grounds of religion in state-funded schools.

Equality, the Workplace and the Church–State Relationship The extent to which the state can neutralise the workplace, creating a safe place for employers and employees to manifest their diverse religious and secularists views without causing harm to each other, to work processes or to marketability, can be a serious stress test for a democratic society. Hiring and Firing Staff The right to employment, including the bearing that religious or other beliefs may have on the hiring and firing of staff, are matters largely governed by the Equality Act, 2010.215

religious organisations. The Equality Act, 2010, contains an exemption from laws prohibiting discrimination on grounds of sex, marriage and sexual orientation in circumstances where employment is “for the purposes of an organised religion”, a term which is undefined.216 The exemption, interpreted generously, is most obviously demonstrated in the appointment or otherwise of female bishops and non-celibate gay clergy.217 It permits employers in religious organisations and in those with an “ethos based on religion or belief” to discriminate on the grounds of religion or belief in their hiring, remuneration, promotion and firing of staff.218 Hender and Sheridan219 concerned Prospects, a Christian organisation providing housing and day care for people with learning disabilities. It introduced a policy based on its Christian ethos whereby it would recruit only practising Christians for the vast majority of roles (except cooking, cleaning, gardening, maintenance), as 215 216 217

218 219

See also the Code of Practice on Employment 2011, paras. 2.50–2.61. Equality Act, 2010, Sch. 9, para. 2 In 2009, the European Commission sent a Reasoned Opinion to the UK stating that exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the relevant EU directive, in part because they fail to specify that the objective must be legitimate and the requirement proportionate. Equality Act, 2010, Sch. 9, para. 3. Hender & Sheridan v. Prospects for People with Learning Disabilities, [2008] ET 2902090/2006 & 2901366/2008.

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those in post might have to lead prayers or give spiritual guidance,220 and told existing non-Christian employees that they were no longer eligible for promotion. The tribunal found that it was insufficient to assume that, as a matter of principle, every job in a Christian organisation should be done by Christians. In order to comply with the provisions of the 2003 regulations, it was necessary to carry out a job evaluation for every post. In a decision that sent a clear message to faith-based organisations regarding blanket policies that discriminate on this protected characteristic, the tribunal held that Prospects had unlawfully discriminated against one of its managers by requiring him to only employ Christians and not to promote its existing non-Christian employees. In Reaney v. Hereford Diocesan Board of Finance.221 the plaintiff acknowledged on his application form for a job as a youth worker with the diocese that he had been in a same-sex relationship until recently. An interview panel decided that he was the best candidate but his appointment was vetoed by the Bishop of Hereford, even though Reaney had undertaken to remain celibate for the time he was employed. The tribunal noted that the job was to represent the diocese in youth work and therefore could be said to be closely bound up with the bishop as the head of the diocese and it did fall within that small number of posts outside of the clergy that are for the purposes of organised religion. Requiring Reaney to be celibate was a requirement that could be said to be in compliance with the doctrines of the religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers. Given, however, that Reaney met the requirement (celibacy), it was unreasonable to refuse to employ him. The religious exemption was also explored in McNab v. Glasgow City Council,222 which concerned an atheist maths teacher in a Roman Catholic High School who had never been promoted, failed in his head of department application and then decided to apply for a post of Acting Principal Teacher of Pastoral Care but was not interviewed. Both the tribunal and the EAT concluded that a Catholic teacher would have been interviewed for the job but, considering the nature and context of the post, non-Catholics such as Mr McNab, who had acted as pastoral care teachers, would also be entitled to an interview. Therefore, being a Catholic could not be a “genuine and determining” occupational requirement for the post. The EAT upheld the tribunal’s finding that there was no such genuine occupational requirement and that the plaintiff had suffered direct religious discrimination – due to his atheism – under the Employment Equality (Religion or Belief ) Regulations, 2003. In Muhammad v. The Leprosy Mission International,223 the Muslim plaintiff 220

221 222

223

Thereby ostensibly complying with the “genuine occupational requirement” of the Employment Equality (Religion or Belief ) Regulations, 2003. ET/1602844/2006. UKEATS/0037/06/MT; [2007] IRLR 476. Also see Mayuuf v. The Governing Body of Bishop Challoner Catholic Collegiate School, ET 3202398/04, (December 2005). ET 2303459/09.

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had applied for the position of finance administrator in an organisation that required an applicant incumbent to be “a practising Christian committed to the objectives and the values” of the organisation. After failing to obtain the post, Mr Muhammad claimed discrimination on the ground of religion but the tribunal found that being a practising Christian was a genuine occupational requirement and held that employing a non-Christian would have a very significant adverse effect on the maintenance of the respondent organisation’s religious ethos. secular organisations. In both Bodi v. Teletext Ltd.224 and Shah v. Harish Finance Ltd.,225 the complainants were Muslims. The first had not been shortlisted for a job: none of the shortlisted candidates were Asian, and no Asian duty editor had been appointed by the company in ten years, which the tribunal found “surprising” as the catchment area, Greater London, was multiracial. The second was employed in a workshop where the owners and most of the workers were Hindus but was dismissed following alleged abuse and mistreatment by his colleagues. In both cases the tribunal examined the racial and religious make-up of the workforces, took into account the absence of any equal opportunities policy and found that the complainants had suffered, among other things, religious discrimination. Again, in Holland v. Angel Supermarket Ltd. and Another,226 the tribunal upheld the appeal of a “Wiccan” who claimed that she was mocked and later dismissed after switching her shifts to celebrate All Hallows’ Eve. State neutrality, however, operates when employees claim exemption from contractual duties on grounds of their religious beliefs. Generally, regardless of the religion or belief, the universality of contractual obligations prevail over all such claims, even when they emerge post contract, if the exemption would disproportionately affect the rights of others. So, in Ahmad v. Inner London Education Authority,227 the Court of Appeal held that the right to freedom of thought, conscience and religion established by Article 9 of the European Convention did not entitle an employee to be absent from work for the purpose of religious worship in breach of contract. This decision was subsequently upheld by the ECtHR,228 which reiterated that Article 9(1) rights must necessarily be subject to Article 9(2) limitations: the court held that freedom of religion “may, as regards the modality of 224 225 226 227

228

ET 3300497/05 (4961/85) (November 2005). ET 3302110/2004 (4887/26) (July 2005). ET/3301005/2013. Also see Khaira & Ors v. Shergill & Ors, [2014] UKSC 33. [1978] QB 36, CA. A decision seemingly followed in Safouane and Bouterfas v. Joseph Ltd. and Hannah, [1996] Case No. 12506/95/LS & 12569/95 when the appeal of two Muslims dismissed for praying during breaks was rejected. However, both seem at variance with JH Walker Ltd. v. Hussain, [1996] IRLR 11 EAT when it was decided that actions taken by an employer causing detriment to Muslims as a class, such as refusal to allow time off for religious holidays, might be held to constitute indirect racial discrimination against those from an ethnic or national origin that is predominantly Muslim. (1982) 4 E.H.R.R. 126.

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a particular religious manifestation, be influenced by the situation of the person claiming that freedom”.229 Again, in Stedman v. UK,230 a dismissal for refusal to work on a Sunday was held not to constitute a breach of the right to freedom of religion: the employee’s freedom to resign in effect guaranteed her convention rights, which, it has to be said, is not much of a right. In Esson v. London Transport Executive,231 the appeal of a Seventh-Day Adventist, dismissed after trying to take Saturdays off for religious reasons, was rejected with the court ruling that it was his duty to reconcile the “insurmountable conflict” between his religious beliefs and his contractual obligations. The same claim from an adherent of the same religion similarly failed in James v. MSC Cruises Limited.232 The claimant had neglected to mention her need for Saturdays off during her job interview and then claimed religious discrimination when the job offer was withdrawn following disclosure. The tribunal concluded that the business needs of MSC outweighed the discriminatory effects on the complainant and dismissed the claim. Proportionality has come to play an important role in employment disputes. For example, Thompson v. Luke Delaney George Stobbart Ltd.233 concerned a Jehovah’s Witness who had been refused permission for time off work on Sundays. Her discrimination claim was upheld: the refusal was not proportionate because there were other employees who could have covered the Sunday shift without difficulty. In contrast, a plaintiff of the same religion with the same complaint failed in Patrick v. IH Sterile Services Ltd.234 to establish religious discrimination. The tribunal considered that the employer could justify interference with the plaintiff’s right to manifest his religious beliefs as its contractual obligation to provide sterile laboratory services to its customers on Sundays was a legitimate aim, and sharing out the obligation to work on Sundays equally across the workforce was a proportionate means of achieving it. Similarly in Cherfi v. G4S Security Services Ltd.,235 the refusal of a security guard’s request that his working hours be adjusted to facilitate attendance at a mosque for prayer on Fridays was found to be justified and his indirect discrimination claim was unsuccessful. The employer required a certain number of security staff to be on site during operating hours, and so his request was turned down. The employer offered a number of alternative options but these were refused. proselytism in the workplace. The courts have shown a sympathetic understanding of the detrimental effects on working relationships caused by those who 229 230

231 232 233 234 235

Ibid., p. 11. UK, (1997) 23 EHRR CD168, following Ahmad v. UK, (1981) 4 EHRR 126. Also see Cherfi v. G4S Security Services Ltd., [2011] UKEAT 0379 10 2405 (24 May 2011); and MBA v. London Borough of Merton, [2013] EWCA Civ. 1562. [1975] IRLR 48. No. 2203173/05 (April 2006). [2011] NIFET 00007 11FET (15 December 2011). ET 3300983/11. [2011] UKEAT 0379_10_2405 (24 May 2011).

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foist their religious views on colleagues who object to such an imposition. In Mr H Monaghan v. Leicester Young Men’s Christian Association,236 the tribunal considered an instruction from the complainant’s manager that he should not seek to convert those using the YMCA’s services to Christianity. The tribunal upheld the manager’s action. Given the Christian ethos of the organisation, this was a strong decision that strengthens the “neutrality of the working environment” principle. In Drew v. Walsall Healthcare NHS Trust,237 the EAT upheld the dismissal of a consultant paediatrician whose teamwork was heavily influenced by his faith and included circulating a prayer that he described as a personal inspiration and religious references in his professional communications. In both Chondol v. Liverpool CC238 and Grace v. Places for Children,239 the EAT had upheld the firing of staff, who were committed Christians, not because of their beliefs but because they had chosen to manifest them in ways that adversely impacted upon others and were inappropriate in terms of their respective employment responsibilities (delivering a social work service on behalf of a public authority and managing a nursery). Similarly in Apelogun-Gabriels v. London Borough of Lambeth,240 which concerned an employee dismissed for distributing “homophobic material” to co-workers during prayer meetings he had organised for Christian staff. In Haye v. London Borough of Lewisham,241 a Christian administrative assistant was dismissed after posting similar views about LGBT practices on the Lesbian and Gay Christian Movement’s website, and again the employer’s action was found to be justified, albeit on the technicality of having misused her employer’s email facility. Most recently, Kuteh v. Dartford and Gravesham NHS Trust242concerned a nurse, dismissed from her role for gross misconduct as a result of her initiating inappropriate conversations about religion with a patient, who appealed on the basis that the conversations constituted evangelism rather than proselytising. The Court of Appeal disagreed and upheld the dismissal.

Equality, Service Provision and the Church–State Relationship Service provision is a torturous field for state neutrality. Service-delivery religious organisations may avail of their statutory exemption to the general prohibition on inequality and religious discrimination, but not when acting as agents of government and delivering public services as many are now doing. Private individuals registered and licensed to deliver goods and services, together with public officials, 236 237 238 239 240 241 242

(2004) ET Case No. 1901830/04. UKEAT/0378/12/SM, 2013. [2009] UKEAT 0298/08/1102. UKEAT/02/17/13/GE. (2006) ET Case No. 2301976/05. (2010) ET Case No. 2301852/09. [2019] EWCA Civ. 818.

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are statutorily barred from refusing to do so on religious grounds. However, healthcare professionals, who until very recently were unable on religious grounds to resile from service-delivery obligations, are increasingly being granted statutory carve-outs from equality and non-discrimination requirements. Service Provision: Public and Private The Equality Act, 2010, together with case law principles established by the ECtHR, provide the basis for state neutrality in relation to the role of religion in the provision of goods and services, including accommodation.

service provision by religious organisations. The law is clear that when engaged in public service provision, religious organisations will be considered to be acting in a discriminatory and unlawful fashion should they refuse to provide services to a potential service user, alter the terms on which a service is provided, terminate the provision of the service, or subject the service user to any other detriment, on the grounds of religion.243 Allegations of religious discrimination by restricting access to services, formed the basis for rulings by judicial and regulatory authorities in relation to the provision of adoption and fostering services, rulings that exemplified the state neutrality doctrine in operation. The Catholic Care adoption agency argued, unsuccessfully, that its non-compliance with equality legislation was justified because providing adoption services to same-sex cohabiting couples or civil partners would require it to violate the tenets of the Roman Catholic Church; in fact it provided adoption services only to married couples. On appeal to the High Court, Briggs J remitted the case back to the regulatory authority and directed that the issues be reconsidered in the light of certain principles he set out in his judgment,244 which essentially stressed that the services could be restricted on the basis of sexual orientation only if the restriction amounted to a proportionate means of achieving a legitimate aim. Noting that the intended beneficiaries of Catholic Care’s adoption service were children in need of adoption rather than prospective adoptive parents, the authority concluded that this test was not satisfied, reasoning that religious conviction was insufficient to justify the discriminatory provision of the charity’s services. This decision was then appealed to the First-tier Tribunal (Charity),245 where it was dismissed following the tribunal’s finding that the charity had failed to meet the statutory test imposed by section 193 of the Equality Act, 2010, requiring it to demonstrate that the less favourable treatment it proposed to offer same-sex couples would constitute a 243 244

245

Equality Act, 2010, s.29. Catholic Care (Diocese of Leeds) v. the Charity Commission for England and Wales and the Equality and Human Rights Commission, [2010] EWHC 520 (Ch). Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales, [2011] EqLR 597.

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proportionate means of achieving its legitimate aim of providing suitable adoptive parents for a significant number of “hard to place” children.246 public sector service provision. In the earlier mentioned McClintock v. Department of Constitutional Affairs,247 which concerned the request of a Justice of the Peace (JP) member of a statutory panel that he be excused from officiating in cases where he might have to decide whether same-sex partners should adopt children, and who resigned when his request was refused, the EAT found that McClintock had not been disadvantaged because of any religious belief he held and that, even if he had been, such discrimination would have been justified. This was followed shortly afterwards by Ladele v. London Borough of Islington,248 when the Court of Appeal considered the dismissal of Ms Ladele, a Christian marriage registrar, who refused to be involved in registering same-sex “civil partnerships” in accordance with newly introduced statutory procedures. The court took the view that the registration process was a public service, that it had significant human rights implications for the community and that administering the process formed part of Ms Ladele’s contractual duties. It noted: “the effect on Ms Ladele of implementing the policy did not impinge on her religious beliefs: she remained free to hold those beliefs, and free to worship as she wished.”249 It concluded that250 Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; . . . Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.

Similarly, in McFarlane v. Relate Avon Ltd.,251 which concerned a charity that provided relationship support including counselling, Mr M, a relationship counsellor, had been dismissed when he indicated to his employer that he did not approve of same-sex relationships on biblical grounds and did not wish to be involved in counselling such couples. The court, following the approach it had earlier adopted in Ladele,252 ruled that Mr M had not suffered religious discrimination. Both decisions were subsequently upheld on appeal to the ECtHR. 246

247 248 249 250 251

252

See also St Margaret’s Children and Family Care Society v. OSCR, [2014] SCAP App 02/13 which found in favour of the society on very similar facts (as commented by Frank Cranmer by email on 27.01.2017). [2008] IRLR 29. [2009] EWCA (Civ.) 1357 (15 December 2009). Ibid., per Lord Neuberger, para. 51. Ibid., the Master of the Rolls (with whom Dyson and Smith LJJ agreed), para. 52. [2010] EWCA Civ. B1 (29 April 2010). Also see R (Johns) v. Derb City Council, [2011] EWHC 375 (Admin); [2011] 1 FLR 2094. [2009] EWCA Civ. 1357, [2010] IRLR 211.

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R (on the application of Johns) v. Derby City Council253 was not dissimilar to the Catholic Care case but with a reversal of roles. It concerned Derbyshire County Council’s rejection of members of the Pentecostal Church, who had strong religious views against homosexuality, as foster carers. Their claims that their beliefs would not prevent them from offering a foster care service and that their rejection constituted religious discrimination by the council, were dismissed by the court. Munby LJ, following the decisions in Ladele and McFarlane, reasoned that the rejection was due to their stance on sexual orientation, not because of their religious belief, and that the council was entitled, indeed required, to ensure that its public service provision was compliant with equality and non-discrimination legislation, or, in other words, in accordance with state neutrality. However, it may be reasonable to comment that such a differentiation between religious belief and sexual orientation can be spurious as the two are in practice, and probably more often than not, conflated – sexual mores serving as a proxy for religious beliefs. private service provision. The Equality Act, 2010, applies as much to private as to public employers and service providers. In Bull v. Hall and Preddy254 the UKSC confirmed that it was unlawful discrimination for Christian hotel owners to refuse a double-bedded room to a same-sex couple and dismissed their argument that they should not be compelled to run their business in a way that conflicts with their deeply held religious beliefs. Among a number of similar cases, the judgment in Black and Morgan v. Wilkinson255 held that a same-sex couple requesting a double bedroom, who were neither married nor in a civil partnership, had been unlawfully discriminated against on the grounds of their sexual orientation in breach of regulation 4 of the Equality Act (Sexual Orientation) Regulations, 2007. The court then commented, in an analysis that probably reflects sentiments applied in the very many similar cases, “the application of the regulations to the defendant’s bed and breakfast establishment does not prevent her from holding her religious beliefs”. Where the service provider is expected not only to provide a service but, in doing so, to express support for a position with which they disagree, it might be argued that the right to freedom of expression should be weighed alongside the other interests to mean that some form of exception becomes warranted. A case in which such issues arose was Gareth Lee v. Ashers Baking Company Ltd., McArthur and McArthur,256 when the court ruled that it was unlawful direct discrimination on grounds of sexual orientation for a bakery owned by two Christians to refuse to bake a cake that had printed on it a picture of “Bert and Ernie” and the caption “Support Gay Marriage”. 253 254

255 256

(2011) EWHC 375 (Admin). [2013] UKSC 73. Also, see the similar case Black v. Wilkinson, [2013] EWCA Civ. 820, [2013] 1 WLR 2490. [2013] EWCA Civ. 820. Neutral Citation No. [2015] NICty 2. Also see, a US decision to the same effect (Chapter 4).

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Morgan LCJ for the Court of Appeal, in upholding the earlier decision, did so in a ruling that rejected any grounds for religious exemption and emphasised the importance of the state maintaining a position of neutrality in the face of such conflicting claims:257 Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because the legislation treats their religious belief or political opinion less favourably but because that person seeks to distinguish, on a basis that is prohibited, between those who will receive their service and those who will not. The answer is not to have the legislation changed and thereby remove the equality protection concerned. The answer is for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service.

While this is a strong argument, it is not wholly satisfactory in addressing the conflation issue nor does it fit very well with the growing body of jurisprudence on conscientious objection. broadcasting services. The Communications Act, 2003, requires certain broadcasters in the United Kingdom to carry a “suitable quantity and range of programmes” dealing with religion and other beliefs. The BBC, accordingly, broadcasts a number of such programmes, e.g. Songs of Praise. In Sunday Times v. the United Kingdom (no. 1),258 and Handyside v. the United Kingdom,259 the ECtHR took the view that the protection of Article 10 extended to the broadcasting of religious advertisements that “offend, shock or disturb”. Most recently, a sixty-second advertisement based on the Lord’s Prayer, due to be shown immediately before Star Wars: The Force Awakens, was banned by the cinemas concerned on the grounds that it was likely to cause offence. This elicited the following admonition from the Equality and Human Rights Commission:260 Freedom to hold a religion and freedom to express ideas are essential British values. . .. There is no right not to be offended in the UK; what is offensive is very subjective and lies in the eye of the beholder.

Again, a very defensible argument and one reflective of state neutrality. However, it does not sit comfortably with the legal significance now attached to the subjective interpretation of religious and other beliefs, nor with the tensions between beliefs that characterise everyday life in contemporary multicultural Britain. It does seem reminiscent of a somewhat dated and more Christian centred outlook which,

257 258 259 260

Ibid., para. 100. Series A no. 30, (judgment of 26 April 1979). Series A no. 24, (judgment of 7 December 1976). See further in www.lawandreligionuk.com/2015/11/24/that-cinema-advert/

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in the light of Charlie Hebdo and all that ISIS represents, may need to become more nuanced.

Equality, National Security, the Migrant Crisis and the Church–State Relationship This state is no stranger to religion-related national security issues. For thirty years – from 1968 to 1998 – it responded to “the Troubles” in Northern Ireland, which involved conflict between Protestants and Catholics and between the latter and the state’s armed forces, resulting in some 3,500 deaths. Since shortly after the turn of this century, it has been engaged in an ongoing US-led war against Islamic fundamentalists in Muslim countries and terrorist sympathisers within the UK. It is also engaged on an ongoing basis with the not unrelated migrant crisis which, since 2015, has seen the largest mass movement of people since World War II. As a constituent member of the European Union, this state has been engaged with its fellow members in managing the some two million or more mainly Muslim migrants who have so far entered Europe from North Africa and the Middle East. These twin phenomena have severely tested this state’s resources, political system and its capacity to maintain a neutral approach to religious matters. State Response to Terrorist Threat For many years now, state neutrality has to some extent been set aside in order to allow the UK to engage, directly and continuously, in warfare in largely Muslim countries. Consequently, it has suffered domestic Islamic terrorist attacks dating back to the Lockerbie bombing,261 including the London atrocities of 2005 and 2017, and has had to reconfigure domestic policies and anti-terrorism legislation to take account of a perceived security threat from within the Muslim community.

anti-terrorism measures. The Islamist terrorist attack on civilians in London on 7 July 2005, which left fifty-two dead and many hundreds injured, was followed by the introduction of domestic security and anti-terrorism legislation that included provisions for surveillance, accelerated deportation measures for suspects deemed to be at little risk of ill-treatment in their home state, and the indefinite detention of those deemed to be at risk if deported. A review of multicultural policies was undertaken and policies introduced in which state neutrality and non-discrimination principles were compromised by a new government emphasis on preventing the

261

On 21 December 1988, an on-board bomb destroyed Pan Am flight 103 from London to New York over Lockerbie in Scotland resulting in the deaths of 270 people. Muslim terrorists from Libya were held responsible.

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radicalisation of Muslims,262 balanced by counterterrorism legislation.263 The deprivation of citizenship power enhanced by the Immigration Act, 2014, enabled the home secretary to withdraw British citizenship if this was deemed to be for the public benefit. In 2018 this led to a major expansion of the controversial Prevent counterradicalisation programme and the introduction of the Contest counterterrorism strategy, both aimed specifically at the Muslim community. Government initiatives such as the Hate Crime Action Plan and anti-terrorism legislation have had an impact: specifically the Tpims (Terrorism Prevention and Investigation Measures) deployed if a person is suspected of involvement with terrorism, enabling them to be subjected to curfews, have their internet and phone use curtailed and even be forcibly moved to another city, away from their family and friends. The CounterTerrorism Act, 2008, and the Counter-Terrorism and Security Act, 2015 – which created Temporary Exclusion Orders allowing the home secretary to prevent suspected terrorists from returning to the UK – have also played a part. State Response to Migrant Crisis The UK responded defensively to the migrant crisis. Of the nearly 2 million migrants entering thirty European countries during 2014 and 2015, only 35,000 per year were admitted to the UK (compared with Hungary, 143,000; Sweden, 91,000; and Austria, 53,000).264

religious/cultural differences. The 2017 “Interim Report into Integration of Immigrants” found that “immigrant communities and members of the settled population in some parts of modern Britain are leading parallel rather than interconnected lives” and strongly suggested that government “has a duty to address this lack of integration”.265 This concern was also apparent in the governmentbacked Casey review,266 which called on migrants to swear an oath of allegiance to Britain, and reported that fears of being labelled racist have prevented many citizens from challenging sexist, misogynistic and patriarchal behaviour in some minority communities. In response the government in 2018 launched its “Integrated Communities Strategy”, intended to “boost English language skills,

262

263

264

265

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The “Prevent Strategy”, see further in www.gov.uk/government/publications/counter-terrorismstrategy-contest For example, the Protection of Freedoms Act, 2012 and the Terrorism Prevention and Investigations Measures Act, 2011. See, for example, H. Lambert, The Independent, 19 January 2016, www.independent.co.uk/ news/world/politics/the-government-s-shameful-response-to-the-refugee-crisis-in-four-chartsa6814391.html See further in http://d3n8a8pro7vhmx.cloudfront.net/themes/570513f1b504f500db000001/ attachments/original/1483958173/TC0012_AAPG_Interim_Report_Screen.pdf?1483958173 The Casey Review: a review into opportunity and integration, www.gov.uk/government/publi cations/the-casey-review-a-review-into-opportunity-and-integration

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increase opportunities for more women to enter the workplace, and promote British values”.267 There can be little doubt that this initiative, like the rebooted Prevent strategy, will be aimed primarily towards the Muslim communities – particularly given the results of the inquiry into the Rotherham sex abuse scandal268 – and to that extent will necessarily compromise state neutrality. revival of “nation state” ideology. The UK would seem to be undergoing something of an identity crisis, which must affect government motivation and ability to deliver on state neutrality. The devolution of administrative powers to Legislative Assemblies in Scotland, Wales and Northern Ireland has been followed by recent indications that both Scotland and Northern Ireland could, in the foreseeable future, cede their membership of the UK. At the same time, England, with some 85 per cent of the UK population, would seem to be acquiring a stronger sense of a separate identity and one threatened by the “open borders” policy of the EU. Brexit, or “taking back” UK’s national sovereignty, is unlikely to restore a traditional collective sense of national unity but may in fact widen existing divisions and precipitate a UK breakup. Against such a background, it is difficult to envisage any willingness to open doors to more migrants.

conclusion For many centuries it had been axiomatic that to be British was to be Christian. However, as year after year the evidence mounts that British society is becoming more secular and multicultural, it is clear that this assumption is no longer tenable. Moreover, and despite the fading shadow of the “established” church, the levelling effect of equality and anti-discrimination legislation is gradually pushing all religions and beliefs, all pagans and atheists, to share the same platform on which they can be assured that state neutrality will grant them equal treatment from government and leave them equally unable to influence it. On the other hand, there is no denying the fact that the constitutional arrangements, preserving the status of the Church of England as the “established church”, continues the preferential standing of that religion relative to all others and grants it political leverage, funding advantages and partnership opportunities that are not as available to other religions. This jurisdiction’s transition from a mainly Christian nation to one that has become steadily more secularist has not been without its challenges to state neutrality. The promotion of multiculturalism naively overlooked the need to recognise

267

268

See Integrated Communities Strategy green paper, www.gov.uk/government/consultations/ integrated-communities-strategy-green-paper See Independent Inquiry into Child Sexual Exploitation in Rotherham (1997–2013), www .rotherham.gov.uk/downloads/file/1407/independent_inquiry_cse_in_rotherham

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and make appropriate arrangements to accommodate the very different values and beliefs of non-Christian religious groups. The problems, represented only too graphically in the Rotherham scandal and in the non-prosecution of FGM cases, revealed the extent to which policy was blind to the realities of religious/cultural difference. Arguably, the current policy drive to facilitate the opening of more “faith” schools stands a good chance of compounding a problem of already polarised religious/cultural communities.

7 France: Laïcité

introduction Laïcité, together with the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, articulates the unique French church–state relationship and this chapter is primarily concerned to identify and examine the consequences for this distinctive civil law jurisdiction. Structured similarly to all other Part II chapters, it begins with a brief background history of the church–state relationship, noting the beginnings of laïcité in the French Revolution and as proclaimed in Article 10 of the Declaration of the Rights of Man and of the Citizen, 1789, and its continuing significance as embedded in Article 1 of the French Constitution and in the loi du 9 Decembre 1905.1 This leads into a consideration of current government policy towards religion, the modern interpretation of laïcité and its relevance to multiculturalism and diversity. The contemporary relevant legal framework, domestic and international, is then outlined. The first section of the case law study begins with an examination of the fundamental freedoms: the rights to freedom of religion, to freedom of association/ assembly and to freedom of expression. Firstly, it examines the domestic law definitions of concepts such as “religion” and “belief”, before focusing on how the fundamental rights impact upon the church–state relationship. It gives particular attention to the means whereby religion and the state are legally protected from each other and considers the law relating to the manifesting of religion and beliefs. As in other jurisdictions, it is the cross-cutting effects of equality and nondiscrimination legislation on the laws governing everyday life that now generate much litigation and result in this being the main part of the chapter. It starts with what has traditionally been a crucial area of concern for both church and state – the family – and examines the equality-driven related case law. Maintaining the same 1

Loi du 9 Decembre 1905, Articles 1 and 2.

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equality focus, it then trawls through the case law dealing with the interface between the church–state relationship and areas of everyday life including education, employment, healthcare and retail services. As with other Part II chapters, it concludes with a section that addresses a matter which, in recent years, has become a priority concern for all Western nations, security from terrorism and from the destabilising effects of mass migration.

policy overview Established in France in the second century AD, Catholicism for about fifteen hundred years thereafter shared with the state a symbiotic relationship of power and authority: France being regarded as the “eldest daughter of the church” and the state seen as personified by the monarch,2 until the state emerged from revolution unencumbered by both monarchy and church. Since then, the guiding principle of laïcité has been the main policy determinant of the relationship between church and state in France; excepting the period between 1801 and 1880s. Background When the French Revolution ended the ancien regime, religion became subject to state control, the monastic orders were abolished and the seeds of state neutrality were sown by Article 10 of the Declaration of the Rights of Man and of the Citizen, 1789, which announced that “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order”. Although the 1801 Napoleonic Concordat with the Vatican did for a time restore France’s Catholic identity, a century later the separation of church and state had been reasserted following a prolonged programme of transferring responsibility for public benefit service provision from church to state. State stripping of church status and its social role began in 1792 with the legal requirement that marriages become civil rather than religious; registers (recording births, marriages and death) were transferred from the church; and in 1793 the working week was extended to include Sundays. In 1879 priests were removed from the administrative committees of hospitals and boards of charity, followed in 1880 with the substitution of lay women for nuns in hospitals and the introduction of the Jules Ferry laws in 1881–1882, which secularised education and prohibited religious instruction in all schools. In 1886, all teaching posts were secularised. The process of the state assuming the traditional civic responsibilities of the church continued with the introduction of divorce; secularising all schools and hospitals; abolishing prayers at the opening of parliamentary and local government business; removal of religious references in judicial oaths and religious symbols from courtrooms; and 2

Louis XIV the “Sun King”, referring to himself, once reportedly declared “L’État, c’est moi”.

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ending the practice of armed forces accompanying religious processions. The 1901 Law of Associations asserted state control of religious communities and limited the latter’s influence on education. This process culminated in the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, which not only formally separated church and state but also confirmed the 1789 transfer of church property to the state, thereby stripping the former of its ownership of all pre-1905 property. Since then the church–state relationship has returned to its republican roots. As declared in the “explanatory memorandum” to the bill banning the full face veil:3 France is never as much itself, faithful to its history, its destiny, its image, than when it is united around the values of the Republic: liberty, equality, fraternity. Those values form the foundation-stone of our social covenant; they guarantee the cohesion of the Nation; they underpin the principle of respect for the dignity of individuals and for equality between men and women.

It notes that “the defence of public order is not confined to the preservation of tranquillity, public health or safety. It also makes it possible to proscribe conduct which runs directly counter to rules that are essential to the Republican social covenant, on which our society is founded”. France today resolutely retains the principles established at its rebirth as a republic. Religious Neutrality: A Principle That Permits State Support for Religion The French guarantee of religious freedom in the Law of 1905 establishes a broad principle of protection for “liberty of conscience” and the “free exercise of religion”. It then narrows that protection by subordinating it to the state’s interest in maintaining public order and by further specifying that the state will not remunerate or subsidise religious activity.4 In theory, the 1905 law dispenses with any possibility of state support for religion but in practice the state does so by means that include paying for the staffing and running costs of private religious schools (écoles privées). It also maintains churches and other religious buildings and provides tax-exemption privileges for registered places of worship.

interpreting the principle. Despite the early stringency with which the state stripped the Catholic Church of its traditional temporal functions and rigorously separated the institutions of state from church, by the 1920s something resembling a rapprochement was underway. This culminated in the 1926 Briand-Ceretti Agreement with the Holy See whereby the state reclaimed a role in the process of choosing diocesan bishops. The 1959 “Débre Law” marked a significant step on improving church–state relationships by establishing the basis for state funding 3 4

May 2010, as cited in S.A.S. v. France, Application No. 43835/11 (2014), para. 25. Loi du 9 decembre 1905 [Law of 9 December 1905] Articles 1 and 2, www.legifrance.gouv.fr/ texteconsolide/MCEBW.htm; see also Declaration of the Rights of Man and of the Citizen Article 10, 26 August 1789, www.yale.edu/lawweb/avalon/rightsof.htm

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of private schools, including Catholic schools. Not until 1965, however, when the Vatican II Council issued the Declaration on Human Dignity (Dignitatis humane) did the Catholic Church formally accept the principle of religious freedom and with it accept that the state could protect that principle and do so by way of adopting a position of neutrality. Thereafter, Stéphanie Hennette-Vauchez argues, the state for most of the twentieth century interpreted laïcité as a principle binding public authorities in respect of duties owed to citizens and one which, while guaranteeing the latter the right to freedom of religion, required strict religious neutrality from the former.5 Undoubtedly, during this period an area of central importance to both church and state was the family. Contraception and abortion, divorce, the opportunities for women to work outside the home, religion and education in schools, were among the more vigorously contested issues as the remapping of boundaries between church, state, and family got underway in the latter half of the twentieth century. Some of these issues continue unresolved and have been joined by others – e.g. same-sex marriage, IVF, gender identity and assisted death – which are similarly loaded with values that test the principles of laïcité and state neutrality. For Muslims, in particular, these issues are compromising. As Hennette-Vauchez points out, For at least a decade, the legal principle of laïcité has increasingly been interpreted as generating obligations of religious neutrality for individuals and, whereas it once encompassed religious freedom, it now increasingly serves as a legal ground for curtailing it. . .. Contemporary French laïcité has illiberal dimensions, as it is increasingly defined as the antonym of religious freedom – as a potentially valid legal ground for various restrictions to religious freedom.

She is, presumably, alluding to the tightening constraints over any overt manifestation of religious identity in public which, while purportedly of universal application, in practice disproportionately affects Muslims.6 She implies that this is contrary to both laïcité and to the previously accepted interpretation of how the state was expected to exercise its neutrality towards religion. She suggests that directing a succession of laws the effects of which will be felt by those of one specific religion, and seen to be so by all others, is not compliant with any interpretation of state neutrality. laı¨ cite´ . A product of the French Revolution, laïcité7 – loosely, secularism – embodies the right to freedom of conscience and religion and, at the very least, 5

6

7

S. F. Vauchez, “Is French Laïcité Still Liberal? The Republican Project under Pressure (2004–15)”, Human Rights Law Review, vol. 17 (2017), pp. 285–312, 286–287. Though this view is contested by Gwénaële Calvès who asserts that “there is no constraint whatever on overt manifestation of religious identity in public” (note to author: 09.03.2020). “Laïcité” may derive from the Greek “laos” or from the French word “laic”, which comes from the Latin “laicus”, meaning “of the people”. For a fuller explanation, see J. Berlinerbleau, ed., Secularism on the Edge. Rethinking Church State Relations in the United States, France, and Israel, Palgrave Macmillan, New York, 2014, pp. 103–112.

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requires the separation of church and state, meaning that government, and public life more broadly, should remain apart from religion and any form of influence from religion or religious organisations. It acquired its present locus standi with the introduction of the 1905 law, which formally separated church and state, prohibiting the latter from recognising or funding any religion. However, laïcité goes further than signifying a neutral demarcation between the spheres of influence of church and state, such as is adopted in the USA; it suggests a firmer renunciation of religion in public affairs – all religion and all forms of ideology – than would be tolerated in most other developed nations. This is, perhaps, due to a revolutionary and constitutional emphasis on the importance of egalitarianism, which requires all its citizens to be equally loyal to the state without any blurring caused by status or conflicting loyalties. Religion and Contemporary Public Policy Contemporary policy relating to the church–state relationship can probably be safely dated from the time of the Stasi Commission8 set up by President Jacques Chirac in July 2003, to examine how the principle of laïcité should apply in practice. This initiative was a response to l’affaire du foulard, which began in 1989 with the exclusion from school of three Muslim girls for refusing to remove their headscarves, and continued for fifteen years with occasional similar expulsions, generating vociferous public controversy and media interest as to how to reconcile the need for some to publicly manifest their religious/cultural identity with the need for most to cleave to the fundamental principle of laïcité. This nationwide period of intense and anxious debate led to the Stasi Commission report, published in December 2003, which recommended a legal prohibition against pupils wearing “conspicuous” signs of belonging to a religion, meaning any visible symbol meant to be easily noticed by others, including headscarves for Muslim girls, yarmulkes for Jewish boys and turbans for Sikh boys. The commission recommended allowing the wearing of discreet symbols of faith.

population. The population of France very largely self-identifies as Christian (according to the CIA World Factbook for 2014).9 Christians then accounted for between 63 per cent and 66 per cent of the total population: 83 per cent of whom were Roman Catholics; 14 per cent were Protestants and the remainder were Jews, Lutherans and Reformed Catholics. Of the remainder 23–28 per cent were of no religion; and 7–9 per cent were Muslims. An alternative view is put forward by Gwénaële Calvès: “Quite to the contrary, the French were among the first European 8

9

Government of France, Commission de Réflexion sur L’application du Principe de Laïcité dans la Republique: Rapport au Président de la République (December 2003). See further in www.worldatlas.com/articles/religious-demographics-of-france.html

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people to undergo a process of secularization. Today, it ranks among the top five of atheist countries”.10 Religion in France can be contentious. multiculturalism. France has a well-founded reputation for welcoming and valuing a mix of different cultures and religions – Jews, Berbers and so on – which at different times have all found a home there, but perhaps the modern French experience of managing cultural tensions can be traced to the influx of immigrants in the 1960s and 1970s from its colonies in Algeria and elsewhere in North Africa. That experience was very largely Muslim in character and has led to France now having one of the largest Islamic populations in Europe and some of the worst urban problems, compounded by the growing influence of the Muslim Brotherhood operating under the umbrella of the Union of Islamic Organisations of France (UOIF). This movement presented the state with an issue that resonated with its pre-revolution dilemma: it encouraged Islam and its adherents – as its counterpart Opus Dei and other such organisations had done for Catholicism centuries earlier – to orientate allegiance to their religion, its leadership and to its foreign headquarters rather than to France. The state sought to counter this by fostering a sense of French Muslim identity. To further that end, it established the French Council of the Muslim Faith in 2003, which assimilated the UIOF to become part of an emerging institutionalised, official structure of French Islam. Arguably, this strategy has so far failed. The alienation of many Muslims in Parisian banlieues and elsewhere has resulted in serious ongoing social unrest, most notably illustrated by the Parisian riots of 2005. Multiculturalism (see further in Chapter 2) may well be non-compliant with French republican ideals. For multiculturalism the goal is to protect and nurture the distinctive cultural identity of minority groups, ensure they are not overshadowed by a host nation’s traditional culture and to balance their respective interests as harmoniously as possible. For the republic the goal is a “peuple français” – welded together as a fraternité and an egalité – in which all are united in a common, shared sense of civic allegiance to the state. In a step towards the latter, the French Council of Islam – Conseil Français du Culte Musulman – announced, in 2016, its intention to issue certificates to imams who acknowledge French values and demonstrate their non-radical credentials. Further steps will probably need to be directed towards consolidating pluralism rather than multiculturalism (see further in Chapter 2). religious diversity. In the years following World War II, France became an increasingly ethnically diverse country; approximately 5 per cent of the population is now non-European and non-white. Accurate details regarding the population are 10

Citing www.lemonde.fr/les-decodeurs/article/2015/05/07/une-grande-majorite-de-francais-ne-sereclament-d-aucune-religion_4629612_4355770.html

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hard to come by as the government declines on principle to collect data about its citizens’ race and religion as, in keeping with the earlier mentioned republican ideals, it views population composition as a distraction from citizenship. The Stasi report recommendation favouring a legal prohibition against pupils wearing “conspicuous” signs of belonging to a religion, and the more recent bans on Islamic female clothing, emanate from a concern that these symbolise the repression of women by fundamentalist Islam and other culturally conservative faiths, which challenge republican ideals. As is stated in the preamble to the law introduced to ban face veils, “the wearing of the full veil is the sectarian manifestation of a rejection of the values of the Republic”.11 The Constitutional Council then took the view that women who concealed their face, voluntarily or otherwise, were placed in a situation of exclusion and inferiority that was patently incompatible with the constitutional principles of liberty and equality. An ironic and wholly positive outcome – in terms of promoting multiculturalism – if unforeseeable, of the state’s repressive laws towards Islamic clothing, has been an influx of Muslim girls into private Catholic girl schools. Otherwise, while presenting Muslim females with the forced choice of loyalty to their religion or to the ideals of the Republic may be in keeping with the principles of laïcité and state neutrality, it is unlikely to facilitate religious diversity. state agencies for religious matters. The point of laïcité and the 1905 law is to ensure that religion does not influence the state, the policies and offices of government and vice versa. However, a degree of mutual permeability has always existed, if only to facilitate understanding of boundaries and for reciprocal briefings on developments, and this would seem to be increasing as the state becomes more aware of and responsive to the growing significance of religion in French society. France has not established a designated government department with responsibility for religious affairs. Instead it has Le Bureau Central des Cultes (the Central Bureau of Worship), established in 1911 to replace the Department of Worship, which is located within the Ministry of the Interior and which essentially liaises with registered legal entities or associations that represent different religions. It functions as a bridge between state and church, in which capacity it has helped establish representative associations such as the Conseil français du culte musulman (Council of the Muslim Faith, CFCM). The council is an independent body that negotiates with state officials on matters such as the construction of mosques, the availability of halal food, the training of imams, and on the presence of Muslim “chaplains” in prisons and in the armed forces. The Buddhist Union of France (UBF), another national religious body, was founded in 1986, has a liaison role with Buddhist Associations and represents the interests of religious adherents in

11

Law No. 2010-1192 of 11 October 2010.

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negotiations with local authorities. In 2004 the Haute autorité de lutte contre les discriminations et pour l’égalité (HALDE) was established, to monitor application of equality and non-discrimination.

contemporary legal framework France is a committed member of the EU. As such its legal framework is very much shaped by European legislative instruments and by rulings of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ).

International Conventions France is a signatory of all major international treaties, conventions and protocols, including the Universal Declaration of Human Rights (UDHR); the European Convention on Human Rights (ECHR), which it ratified in 1974, and the Charter of Human Rights of the European Union; the International Covenant on Civil and Political Rights (ICCPR); and the UN Convention on the Rights of the Child (UNCRC) (see further in Chapter 3). Other Other international instruments to which France is a signatory nation, and which have a bearing upon religion in general and on the church–state relationship in particular, include the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 1979, and the UN Resolutions on the Elimination of All Forms of Religious Intolerance, 1981 and 1993, which designate related responsibilities to a special rapporteur. Other, more ancillary international instruments include the International Labour Organisation Discrimination (Employment and Occupation) Convention; the International Convention on the Elimination of Race Discrimination (ICERD), 1969, which guarantees the freedom of religion in Article 5; the Universal Declaration on the Human Genome and Human Rights, 1997; and the International Convention on the Rights of Persons with Disabilities, 2006.

The Constitution and Domestic Legislation France, of course, has the distinction of being the nation that established the founding proclamation of human rights – the Declaration of the Rights of Man and of the Citizen in 1789 – which subsequently inspired not dissimilar documents in many countries. Currently, the cornerstone of its domestic human rights provisions is the Preamble to the Constitution of the French Fifth Republic.

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The Declaration of the Rights of Man and of the Citizen in 1789 Article 4 proclaims, “Liberty consists in being able to do anything which does not harm others: thus the exercise of the natural rights of every man has no bounds other than those which ensure to other members of society the enjoyment of these same rights. These bounds shall be determined solely by the law”. Article 5 says, “The law shall prohibit solely those actions which are harmful to society. Nothing which is not prohibited by law shall be impeded and no one shall be compelled to do that which the law does not prescribe”. Article 10 says, “No one shall be harassed on account of his opinions and beliefs, even religious, on condition that their manifestation does not disturb public order as determined by law”. The Constitution The Constitution of the French Fifth Republic, 1958, established laïcité as a principle of central importance. Paragraph 3 of the Preamble provides, “The law shall guarantee women equal rights to those of men in all spheres”. Article 1 declares that France is a secular republic – La France est une République indivisible, laïque, démocratique et sociale. The Constitution retained laïcité as a constitutional principle in Article 1.

le code civil des franc¸ ais (the civil code). The Civil Code, or Napoleonic Code, a consolidated and cohesive body of laws, took effect from 21 March 1804 and continues to provide the framework for civil law throughout France and its territories. le code pe´ nal (the criminal code). The 1801 Napoleonic Criminal Code replaced the Penal Code of 1791. Like its predecessor, the 1801 code omitted any reference to the traditional religious offences of blasphemy, heresy, sacrilege, witchcraft and homosexuality. The provisions governing the contemporary obligation to undertake a citizenship course can be found in Articles R. 131-35 to R. 131-44 of the Criminal Code. le code de la se´ curite´ sociale (the social security code). This Social Security Code deals with matters such as benefits for employees on sickness, maternity or paternity leave. code de travail (the labour code). Made up of laws, regulations and decrees, the Labour Code determines nearly every aspect of French employment law. loi n  2016-1088 du 8 aouˆ t 2016 relative au travail, a` la modernisation du dialogue social et a` la se´ curisation des parcours professionnels . Also known as the El Khomri law or the loi travail, this allows employers to

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introduce new measures into its le règlement intérieur (internal rules and procedures) restricting employees’ terms and conditions of employment, including restrictions on religious behaviour in the workplace.

loi 2016-87 du 2 fe´ vrier 2016 cre´ ant de nouveaux droits en faveur des malades et des personnes en fin de vie . Though not quite granting legal permission for medically assisted death, this legislation does allow doctors to withdraw life-sustaining treatment – knowing that death will be the outcome – in certain circumstances. loi n  2014-1353 du 13 novembre 2014 renforc¸ ant les dispositions relatives a` la lutte contre le terrorisme (1) . This amended the 1881 act to prohibit speech advocating or justifying terrorism. loi n  2013-404 du 17 mai 2013 . Same-sex marriage was legalised by this statute, which also granted such couples the right to jointly adopt children. loi n  2010-1192 du 11 octobre 2010 . This statute prohibits “the concealment of one’s face in public places”, the so-called burqa ban. On conviction for breaching the ban, an obligation to follow a citizenship course may be imposed in addition to or instead of the payment of a fine. loi no 2004-228 du 15 mars 2004 . This statute, which came into effect in September 2004, prohibits the wearing of ostentatious religious symbols or clothes in state primary and secondary schools. loi no 2001-504 du 12 jun 2001 . Also known as the About-Picard law, this authorises state action against movements deemed to be cults (mouvements sectaires) that “undermine human rights and fundamental freedoms”. Other Legislation

loi du 1er juillet 1972 . Known as the “Pleven law”, this statute reformed and supplemented certain provisions of the 1881 act on the freedom of the press. It created specific offences relating to provoking discrimination, hatred and racial violence. loi du 9 de´ cembre 1905 concernant la se´ paration des e´ glises et de l’e´ tat . A foundation stone of French secularism, this statute formally established the separation of church and state. It was based on three principles: the neutrality of the state, the freedom of religious exercise and public powers related to the church. Article 1 defined the legislative intent as to ensure “freedom of conscience” and to guarantee “the free exercise of religion under the provisos

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enacted hereafter in the interest of public order”. Article 2, stating that “the Republic does not recognise, pay, or subsidise any religious sect”, provided for the ending of state funding for religious groups except for “schools, colleges, hospitals, asylums and prisons” so as “to ensure the free exercise of religion in public institutions”. The act vested ownership of all religious buildings in the state. It was substantially amended in the 1920s.

association loi de 1901 . This law forced the closure of most religious organisations, confiscated their property and imposed a regulatory regime on the remainder. loi sur la liberte´ de la presse du 29 juillet 1881 . This particular law defines the freedoms and responsibilities of the media and publishers, and though amended several times, it remains in effect. les lois jules ferry 1881–1882 . Pioneered by Jules Ferry,12 this set of laws effectively reformed the parallel systems of church and state schools into a single state system. By providing free education in 1881, then mandatory and secular education in 1882, with a programme of specified subjects for study, these laws laid the foundations for modern primary and secondary schooling in France.

Courts and Tribunals The Republic of France, a sovereign state, has an independent adjudicative structure that functions at three levels: administrative tribunals, administrative courts of appeal and the Conseil d’État. International EU membership requires that France accept the superior jurisdiction of the ECtHR and the ECJ which, ultimately, retain the power to review the decisions of its domestic courts.

the european court of human rights (ecthr). The ECtHR hears complaints alleging that any one of the forty-seven member states has violated rights enshrined in the convention and its protocols. In making its determinations, the court is guided by principles such as: “proportionality” and “compatibility with democracy”.13 Its decisions are reached in the light of “a margin of appreciation”, 12 13

Jules Ferry was a lawyer who held the office of minister of public instruction in the 1880s. See Refah Partisi v. Turkey, (2003) 37 EHRR 1, [2003] ECHR 87 when the ECtHR ruled that sharia law is not consistent with democracy and therefore the Turkish government was justified in banning a political party seeking to introduce such law.

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which permits states a degree of latitude in their interpretation of human rights obligations14 (see further in Chapter 3). the human rights committee (hrc). This body monitors progress made on promoting human rights and provides a four-yearly update on achievements and agrees further goals (see further in Chapter 3). other fora. The European Court of Justice (ECJ), and various other committees established by their respective international conventions to monitor implementation, may also be relevant (see further in Chapter 3). The Domestic Judicial and Regulatory Systems The 1804 Civil Code provides the basis for France’s legal system, which essentially divides domestic law into private law (droit privé) and public law (droit public). The latter governs relationships between the state and the citizen and is largely subject to the administrative courts, for which the Conseil d’État is the court of last resort. The main administrative courts are the tribunaux administratifs and their appeal courts.

le cour de cassation . This, France’s highest court, is the final court of appeal for difficult points of law. the conseil d’e´ tat . The Council of State is France’s highest administrative tribunal. On 14 March 1994, it ruled that a school regulation prohibiting any headgear was excessive; in fact it then took the view that the 1880 statutes on secularism did not apply to pupils, only to schools, curriculum and teaching staff. However, on 10 March 1995, it upheld the expulsion of three students for wearing headgear in a physical education class. In 2010 it completed a “study on the possible legal grounds for banning the full veil”, which questioned the legal and practical viability of prohibiting the wearing of the full veil in public places, having regard to the rights and freedoms guaranteed by the Constitution, the convention and European Union law but considered that a ban on wearing any garment or accessory that had the effect of hiding the face in such a way as to preclude identification in public would be feasible.15 In 2013 it published Etude demand ’ee par le D ’efenseur des droits, which addressed the extent to which “public services” can impose religious neutrality on those it deals or works with. commission nationale consultative des droits de l’homme (cncdh). Established in 1947, the National Advisory Commission on Human 14

15

See, for example, Lithgow v. United Kingdom, (1986) 8 EHRR 329; Fredin v. Sweden, (1991) 13 EHRR 784; Abdulaziz, Cabales and Balkandali v. United Kingdom, (1985) 7 EHRR 471. As cited in S.A.S. v. France, Application No. 43835/11 (2014), paras. 22 and 23.

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Rights monitors human rights practice throughout France, advises the government accordingly and may propose legislation. In 2010 it issued an “opinion on the wearing of the full-face veil”, stating that it was not in favour of a law introducing a general and absolute ban. It took the view that the principle of secularism alone could not serve as a basis for such a general measure, since it was not for the state to determine whether or not a given matter fell within the realm of religion. It also emphasised the risk of stigmatising Muslims.16

le de´ fenseur des droits (ddd). Established in 2011, this agency replaced Haute autorité de lutte contre les discriminations et pour l’égalité (HALDE, the Equality Body). Under Article 71-1 of the Constitution, “the Defender of Rights shall ensure the respect of rights and freedoms by State administrations, local authorities, public institutions, as well as by any body entrusted with a mission of public service”. It provides a mediation service, seeking to resolve issues nonjudicially by conducting investigations, obtaining information and explanations from employers and recommending solutions. le conseil de prud’hommes . This employment tribunal is the court of first instance for employment disputes and considers allegations of unlawful discrimination, on grounds such as religious belief (including harassment). International Reports As might perhaps be expected, it has been the ban on wearing overtly religious clothing in public that has attracted most international attention. Human Rights Watch This NGO has stated that the 2004 ban “is an unwarranted infringement on the right to religious practice. For many Muslims, wearing a headscarf is not only about religious expression, it is about religious obligation”. The United States Commission on International Religious Freedom In February 2004 the commission issued a public statement expressing concern over the proposed new law, stating that the proposed restrictions may violate France’s international human rights commitments. The commission also stated that though increased immigration in France in recent years has created new challenges for the French government, including integration of these immigrants into French society, as well as problems of public order, these challenges should be addressed directly, and not by inappropriately limiting the right to freedom of thought, conscience, religion and belief. The 2018 US Annual Country Report on France expressed 16

Ibid., para. 18.

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concern regarding acts of violence against Jews, the LGBT community, migrants, minorities, and Muslims. The Universal Periodic Review The UN HR Committee, in its concluding observations on the fourth periodic report of France, when referring to loi no 2004-228 du 15 mars 2004, commented that “respect for a public culture of secularism would not seem to require forbidding wearing such common religious symbols (Articles 18 and 26)”. It recommended that the state should re-examine the law “in light of the guarantees of article 18 of the Covenant concerning freedom of conscience and religion, including the right to manifest one’s religion in public as well as private, as well as the guarantee of equality under article 26”.17

case law: the church–state relationship and fundamental human rights Laïcité, together with the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, articulates the unique French church–state relationship.

Freedom of Religion In recent years, there have been suggestions, from President Macron among others, that laïcité might be interpreted with more elasticity to allow religion and religious organisations to take their place – among other bodies such as trade unions – as representatives of the interests of a significant proportion of the population, and assume a more prominent role in public and political life. Definitions Religion and its emanations are in law treated strictly the same as any other entity. Generally speaking, and unlike the law and practice in other countries, no exceptions are permitted – on grounds of religion or belief – from laws of universal application. The policy has attracted criticism from the UN HR Committee: “even if the law is applied to everyone, the right to equal treatment is also violated when, without an objective and reasonable justification, States fail to provide different treatment for persons whose circumstances are substantially different”.18 In fact, there is some degree of religious exemption in the context of taxation.

17 18

CCPR/C/FRA/CO/4, 31 July 2008, para. 23. Bikramjit Singh v. France, Communication No. 1852/2008 (2008), para. 3.14.

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“religion”. There is no legal definition of what constitutes a “religion”. Adherence to a religious faith, a belief, a philosophy or to secularism is treated as an aspect of freedom of conscience, the birth right of every French citizen. “beliefs”. Similarly, the French State is not in a position to define “beliefs” or to differentiate between them. Its interest is limited to identifying and dissolving “dangerous cults”, under the provisions of the 1901 Law of Association. worship. For religious organisations the legal significance of “worship” is that, under the 1905 act, it grants preferential tax privileges to those exclusively dedicated to such activity. Religious Discrimination The loi no 2004-228 du 15 mars 2004, prohibiting the wearing of ostentatious religious symbols or clothes in state primary and secondary schools – the “headscarf ban” – has been viewed by many in France and elsewhere as discriminatory. The UN HR Committee has taken the same view as regards the 2010 burqa ban. Both bans disproportionately affect Muslim, Sikh and Jewish communities as their religiously indicative clothing and accessories are not as discreet as those of Christians and are therefore much more likely to be caught by the ban. Protecting the State from Religion Essentially, the aim of laïcité emerged from a perceived need to protect the authority of the state from religious influence: the sacred and the secular should be securely compartmentalised. The concept is not entirely neutral and is not operationalised in a disinterested and wholly unbiased manner. From a state perspective, religion is viewed as having a history that demonstrates its potential to undermine the integrity of the state, indicating that its institutions should now be required to assume a more deferential civic role, requiring its doctrines to be entirely a matter for its adherents, and strongly suggesting that its presence be contained and restrained from contaminating the public arena of politics, education, healthcare, employment and suchlike. Essentially, religion should take its place as just another civil society entity. For the contemporary French State, the presence within it of some six million Muslims constitutes a challenge both to its laïcité policy and possibly to its security. As regards the former, the Muslim community – adhering to principles and practices often at variance with those of the democratic republic – are, to an extent, selfdefined as outside the political and secular ideology that grounds the constitutional relationship between citizen and state.19 The dangers the latter may present to the 19

Gwénaële Calvès, quite rightly, questions any suggestion that the Muslim community can be characterised as a homogenous cultural group: “Muslims are more religious than the rest of the

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state have been only too graphically demonstrated in the terrorist atrocities perpetrated by a few home-grown but deeply alienated Muslims from the banlieues. an “established” church. Until 1791, the Catholic Church had for centuries been the “established” church in France. Its status was revived, as one of four official religions, under the 1801 Napoleonic Concordat until the 1905 act stripped the Catholic Church of its involvement in temporal matters and returned it to its spiritual role. Since then it has had no involvement in state education: religion is not taught and religious clerics do not teach; pupils are prohibited from wearing religious symbols or religious clothing in school; and religious icons and ornaments are banned from the classroom. Nor does it have a role in the formalities of marriage. Indeed, such is the state’s concern to distance itself from religion and the religious that it avoids seeking any information on religious adherents in its national census. a secular state. The “laïcisation” of education, given effect by les lois Jules Ferry 1881–1882 and the introduction of free but mandatory public education, was promptly followed by a similar transfer from church to state of other public benefit facilities such as hospitals. In a brief few years, “les grandes lois de laïcisation des années 1880” witnessed the emergence of a secular state that had assumed responsibility for providing a national range of public benefit services previously left to the discretion of a patchwork of Catholic churches. Not until 1965, however, with the Declaration on Human Dignity passed by the Vatican II Council did the Catholic Church accept the principle of religious freedom as a matter to be determined by the state. Curiously, while France is in many ways uniquely positioned in law and practice as the exemplar state for the principle of state neutrality, it also became uniquely compromised in that respect when it asserted the power of the state to appoint all bishops of the Catholic Church. As Gwénaële Calvès explains:20 “under the Napoleonic system of ‘recognized religions’ (four), all clerics were appointed and paid by the State. They still are (priests, rabbis and pastors) in Alsace and Moselle, two ‘Départements’ that were part of the German Empire when the 1905 Statute was passed (their local laws remained in force when they were reunited to France, in 1918)”. As bishops are, in effect, the cadre of officials responsible for managing the church’s affairs, the state in exercising that power – and having a veto on who was and was not appointed – thereby determined the governance arrangements and strongly influenced the consequent tenor of the Catholic Church’s local church–council relationships throughout France, though this now much-restricted power is exercised only in Strasbourg and Metz.

20

population, but bitterly divided over religious, cultural and other issues. All the more so for Muslim foreigners living in France” (note to author: 09.03.2020). Ibid.

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Moreover, the scrupulous concern for a secular state – prohibiting any indication of religious adherence from any state employee – does not extend to politicians. The representatives of the people are not considered to be agents of the state and are therefore unconstrained by secularity rules. accommodating religious law and courts. Laïcité, together with the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, does not preclude the possibility of religious courts – Jewish or Muslim – from operating within or alongside the state legal system. sharia law. In France, it would seem, that rather than there being any suggestion of a parallel sharia court system functioning alongside the national legal system, the latter has to some extent assimilated a sharia awareness. Muslim parties bringing religion-related issues to court can rely on the judiciary to take into account sharia principles when assessing their actions and when reaching a decision. Protecting Religion from the State The concept of laïcité, as formally established in the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, provides a guarantee of state protection: the guarantee is to the effect that it will respect the integrity and autonomy of the various forms of religion, their institutions and other emanations; it will treat them all equally and as it would any other legal entity. However, in some respects the state continues its preferential treatment of the Catholic Church while also relatively disadvantaging other religions, particularly by way of laws such as loi n 2010-1192 du 11 octobre 2010 and loi no 2004-228 du 15 mars 2004.

determining the legitimacy of religion and beliefs. The state has no brief for arbitrating on doctrinal disputes nor for engaging more generally with matters of religion or belief. Its interest is limited to identifying and dissolving “dangerous cults”, under the provisions of the 1901 Law of Association. State Treatment of Religions Laïcité requires the state to treat all religions equally and as it would treat secular entities. They are funded by the state and the municipalities (General Local Authorities Code, Articles L2541-14 and L2543-3). Other religious groups, registered with the local administrative office, are governed by private law.

equal treatment by the state. One consequence of laïcité is that the state does not directly fund any religious institutions though, through its local council administration, it does own and maintain religious buildings. The state maintains regulatory oversight in relation to religious organisations but only to the same extent as to all secular entities: in effect this takes the form of negative monitoring; unless

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the activities of a religious organisation breach the law, the state will not intervene in its affairs. Equality of treatment also means that state funding will be directed towards supporting public benefit service provision regardless of whether the provider is religious – such as the Catholic Juvenile Assistance Organisation – or secular. In practice, however, the state does not treat all religions equally: Muslims are treated relatively less well than other religions. state prejudicial intervention. The French State, at best, offers weak protection for religion in general. For Muslims, state intervention is experienced as prejudicial. The fact that in 1789 the state confiscated all places of worship and ancillary buildings and has ever since retained ownership of them was itself clearly prejudicial to the interests of the religious organisations concerned and intimidating for all others, as was the abolition of all monastic orders and stripping the Catholic Church of its traditional temporal responsibilities and social role. Under the terms of the Briand-Ceretti Agreement 1926, the state took responsibility for the appointment of Catholic diocesan bishops, following their nomination by the Vatican (a power now exercised only in Metz and Strasbourg), while under the 1905 law as reinforced by the 1946 Constitution all religious buildings passed into state ownership, although maintenance duties thereafter vested in the city councils. Laïcité and the 1905 act prevents the state from using public funds to directly support religious organisations, which includes not funding Muslim communities to build their mosques. This may be counterproductive, in terms of state neutrality, as the evidence shows that foreign governments in countries such as Algeria, Morocco, Turkey and Saudi Arabia have stepped in to fill the gap and by providing such resources are proselytising and binding French Muslims closer to foreign ethnic variants of Islam that may undermine their loyalty to the French State. state-supportive intervention. Given the pre-revolutionary history of centuries of state–Catholic Church entanglement, which has left a deeply embedded cultural legacy for modern day France, it is unsurprising to find that there is evidence of continuing state support for that religion. One such area of preferential treatment is the state assumption of responsibility for the maintenance of Church buildings, which clearly greatly benefits the Catholic Church while it equally clearly disadvantages Muslims whose presence in the state a century ago was barely perceptible but who now, as the second largest religious group in the country, have a correspondingly increased need for the state’s financial support to maintain their places of worship. State subsidies for the running costs of private schools and payment of the salaries of teachers in those schools – the great majority of which are Catholic – clearly benefits adherents of that religion. Another such area is the anomalous arrangements with Strasbourg and Metz whereby their Catholic bishops are appointed – and the clergy of three other religions, excluding

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Islam, are paid for – by the state. Again, in France’s overseas territories, there are similar arrangements in place that benefit only Catholic clergy. Then there is the fact that the state pays for the upkeep of five Catholic churches in Rome. There is some evidence, arguably, of state willingness to support Muslim communities: the fact that imams are permitted to enter France from countries such as Turkey (which has sent at least 150), Algeria and Morocco for the purpose of teaching and supporting Muslim communities, and that extensive funding from other states, such as Saudi Arabia, is allowed for the purpose of building mosques. affirmative action. State-funded imam training programmes on French culture and on the importance of laïcité indicate affirmative action intended to facilitate the further integration of Muslim communities. This might be seen as building on the 2003 initiative of the then interior minister Nicolas Sarkozy, when he established the French Council of the Muslim Faith. religious symbols/prayers in state facilities. The substantive provisions of the 1905 act formally restructured the church–state relationship while section 28 also introduced measures to remove the more symbolic trappings traditionally associated with it. The latter, preceding equivalent initiatives in many common law countries by a century or more, included abolishing the law ordaining public prayers at the beginning of each parliamentary session and of the assizes; removing references to religion from the judicial oath and removing religious symbols from courtrooms, from public monuments or any public place, except for buildings used for worship, burial grounds in cemeteries, monuments and museums or exhibitions; and ending the practice of the armed forces accompanying religious processions. State Protection for Manifestations of Religious Belief A discreet indicator of religious affiliation is generally not problematic but an overt, intrusive manifestation is viewed differently. However, there is no escaping the fact that in France the public manifestation of religious belief has proven to be deeply divisive.

religion-specific clothing. The wearing of the full-face veil is a relatively recent phenomenon in France, almost no women wore it before 2000,21 but from the 11 April 2011, when the 2010 ban came into effect preventing anyone from concealing their face in a public place, they were thereafter prohibited from doing so. It has provoked a variety of reactions. There are feminists who view hijabs or burqas not as religious symbols but as oppressive symbols of female alienation. For others it is problematic that fellow citizens should wish to publicly display their 21

According to testimony received by the ECtHR, in S.A.S. v. France, Application No. 43835/11 (2014), para. 16.

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allegiance to a foreign culture and this can be compounded by a racist dimension, as most Muslims in France come from former French colonies. Some, more simply, regard the wearing of headscarves as no different from other discretionary feminine choices relating to clothing. Officially, however, as is explained in the preamble to the 2010 legislation, the full-face veil “clearly contravenes the principle of respect for the dignity of the person. In addition, it is not only about the dignity of the individual who is confined in this manner, but also the dignity of others who share the same public space and who are thus treated as individuals from whom one must be protected by the refusal of any exchange, even if only visual”. It is regarded as “a conspicuous denial of equality between men and women”. In 2013 the Cour de Cassation heard and rejected an appeal against the conviction of a woman for wearing the full-face veil in protest against the 2010 ban22 but the following year saw a more formidable challenge being brought before the ECtHR. S.A.S. v. France23 was a landmark case that concerned a devout Muslim who wore the burqa and niqab in accordance with her religious faith, culture and personal convictions but not systematically: the court heard that she might not wear it, for example, when visiting the doctor, when meeting friends in a public place, or when she wanted to socialise in public; but she wished to be able to wear it when she chose to do so, depending on her spiritual feelings. She stressed that neither her husband nor any other member of her family put pressure on her to dress in this manner. She complained that being prevented from wearing in public places clothing that she was required to wear by her religion constituted a breach of her rights under Articles 8 and 9 of the ECHR. The court found that the ban had indeed caused a “continuing interference” with the exercise of her rights under Articles 8 and 9, but that this had been for the purpose of pursuing two of the legitimate aims listed in Articles 8 and 9: “public safety” and the “protection of the rights and freedoms of others”. As regards “public safety”, it considered that the ban was not “necessary in a democratic society” to fulfil that aim. A blanket ban on the wearing in public places of clothing designed to conceal one’s face could be regarded as proportionate only in a context where there was a general threat to public safety and the government had not shown that the ban fell into such a context. Indeed, the court warned that a state that entered into a legislative process of this kind took the risk of contributing to the consolidation of the stereotypes that affected specific groups of people and of encouraging the expression of intolerance, when it had a duty, on the contrary, to promote tolerance. As to the “protection of the rights and freedoms of others”, the government referred to the need to ensure “respect for the minimum set of values of an open democratic society”, listing three values in that connection: respect for gender equality, respect for human dignity and respect for the minimum requirements of life in society (or of “living together”). While 22 23

No. 12-808091 (5 March 2013). Application No. 43835/11 (2014).

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dismissing the arguments relating to the first two, the court accepted that, given the wide margin of appreciation that France enjoyed in this matter, the barrier raised against others by a veil concealing the face in public could undermine the notion of “living together” and the ban could therefore be regarded as proportionate to the aim of preserving the conditions necessary for “living together”. It dismissed the claim that the ban breached Articles 8 and 9 of the ECHR. The 2016 burkini ban, when thirty-one seaside municipalities adopted by-laws forbidding women to wear Islamic clothing on the beach, reignited the issue of female Islamic clothes in public.24 This issue was considered by the Conseil d’Etat, which found no evidence that risks to public order would have resulted from the way some persons had dressed.25 It held that the by-laws constituted a grave violation of fundamental freedoms of worship, of movement and personal freedom, and were therefore manifestly illegal. This decision was viewed by many as a repudiation of state religious neutrality, which is considered integral to French identity. Then in 2018 the UN HR Committee issued two decisions – consistent with its earlier rulings and consistent in its opposition to the ECtHR on the same subject – finding that France had violated the human rights of two women by fining them for wearing the niqab in public.26 The concept of “living together” relied upon by France was not seen as a fundamental right – it had not established a connection between any fundamental rights of others and the ability to see a veiled woman’s face in public. The state had not demonstrated how the full veil presented such a threat for public security to justify an absolute ban, nor had it explained why hiding one’s face is forbidden for religious reasons, while it is authorised in other contexts such as sports, or artistic settings. The committee was of the view that the ban, rather than protecting fully veiled women, could have the effect of confining them to their homes, impeding their access to public services and marginalising them. The ban was also discriminatory, distinguishing between Muslim women and others who were allowed to cover their faces under the 2010 law. The decisions reflected the committee’s position that a general criminal ban did not allow for a reasonable balance between public interests and individual rights. This matter seems destined to continue generating controversy and legal uncertainty. religion-specific clothing: state employees. The wearing of religious clothing, accoutrements or symbols by civil servants is prohibited by law, regardless of their role or responsibilities and whether or not they are in contact with the public.27 This applies to those people who, though they are not civil servants, work for public institutions and have a work contract that is regulated by administrative 24

25 26 27

See further in www.lemonde.fr/religions/article/2016/08/17/les-arretes-municipaux-contre-leburkini-se-multiplient_4983873_1653130.html Conseil d’Etat, 26 August 2016, Nos. 402742, 402777 (8 September 2016). CCPR/C/123/D/2807/2016 (2018). See Conseil d’Etat, Case No. 217017, Demoiselle Marteaux Advisory Opinion, 3 May 2000.

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law rather than by the Labour Code. In Ebrahiminan v. France,28 the ECtHR considered the decision of the French courts to not renew the contract of a hospital social worker because of her refusal to stop wearing the Muslim veil and upheld that decision, concluding that there had been no breach of Article 9. More recently, the Administrative Court of Appeal of Versailles ruled that the training of a medical student, on placement in a public hospital, had been lawfully terminated on his refusal to cease wearing a pronounced beard, which was perceived as being Islamic.29 This was overturned by the Conseil d’Etat in February 2020.30 religion-specific clothing: service users in state facilities. French law requires people to appear bareheaded on their passport and other identity photographs which, in Mann Singh v. France,31 was an issue for the Sikh complainant for whom the wearing of a turban at all times was a manifestation of his religion. The ECtHR found that the requirement did amount to an interference with the freedom to manifest the Sikh religion but it was prescribed by law and pursued the legitimate aim of ensuring public safety by enabling drivers to be identified with the maximum degree of certainty and verifying that they were authorised to drive the vehicle concerned. Similarly, in El Morsli v. France,32 it was found that the requirement for a female Muslim applicant to remove her veil for an identity check when applying for an entry visa was a legitimate restriction within the meaning of Article 9(2) of the ECHR: to guarantee public safety or the protection of order. religion-specific customs, practices and rituals. The state’s Catholic cultural heritage is evident in the social ceremonies that attend the important events traditionally noted in the Catholic liturgical calendar. However, these are not given formal recognition by the state and a strict secularist policy ensures that no prayers accompany the state occasions or the opening of business meetings in government or judicial offices. In 2017 the Cour de Cassation considered the complaint of an employee, recruited to work for the public transportation service, who refused on religious to pronounce the words “I do swear” when taking the oath routinely required of those being appointed to a public service.33 Instead she offered to complete the oath by 28 29

30

31 32 33

Application No. 64846/11 (2015). Decision of the Administrative Court of Appeal of Versailles, 19 December 2017, No. 15VE03582 (2018). Author acknowledges advice from Gwénaële Calvès on this matter (note to author: 09.03.2020). Application No. 24479/07 (2008). Application No. 15585/06 (2008). Cour de Cassation, civile, Chambre sociale, 1 février 2017, 16-10.459. See further in www. legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000034003117& fastReqId=1756251887&fastPos=1

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substituting the words “I make the commitment/I undertake”. This was refused and she was dismissed for serious misconduct. The Cour de Cassation ruled that the dismissal was discriminatory as it was based on the employee’s religious beliefs. In 2018 the Dijon Administrative Appeal Court34 overturned a decision by the mayor of Chalon-sur-Saône to end the policy of providing Muslim school children with substitute-for-pork meals, which had been maintained since 1984, on the grounds that the policy was illegal and contrary to the principles of neutrality and secularity in the public service. The Dijon court ruled that these principles did not prevent the provision of alternative meals: indicating to all public authorities that state neutrality is not a legal ground that can support a mayor’s decision to maintain or not an existing service to the population. state protection of its traditional religious/cultural identity. There is no escaping the cultural legacy left by many centuries of Christianity, specifically Catholicism, which has always had a loyal following within some of the population. Arguably, the increased public presence of Islam is now prompting a corresponding assertiveness from the adherents of both laïcité and Catholicism. The resulting social tensions have been evident, for example, during the winter of 2014 when several municipalities installed nativity scenes in the halls of municipal and departmental buildings claiming that this was in keeping with a cultural rather than a religious tradition and thereby escaping the prohibition in Article 28 of the 1905 law on manifesting religious beliefs in public places. Some administrative courts upheld this view35 but others did not.36

Freedom of Association Freedom of association was guaranteed domestically by the Association loi de 1901 and the 1946 Constitution. Subsequently, it was reinforced by international instruments such as the UDHR, Article 20; the ECHR, Article 11; the ICCPR, Article 22; the International Labour Organization Convention (ILOC), and the EC Charter of Human Rights, Article 12 (see further in Chapter 3). Religious Organisations and the State In the closing years of the nineteenth century, as republicanism became more entrenched, domestic politics turned firmly towards bolstering the secular authority of the state and shrinking the traditional hold of the Catholic Church on its congregations. By the beginning of the twentieth century, state authorities were 34

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See further in www.equalitylaw.eu/downloads/4712-france-dijon-administrative-appeal-court-23october-2018-n-17ly03323-town-of-chalon-sur-saone-pdf-124-kb TA Montpellier, No. 1405626, Ligue des droits de l’Homme, 19 December 2014. TA Nantes, No. 1211647, 14 November 2014.

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focusing on the network of religious associations that had become influential mediators in family, education and community life.37 The Association loi de 1901 legalised voluntary secular associations but authorised state control of religious communities and required that they seek formal state approval which, by 1903, had led to more than 10,000 congregation schools run by unauthorised religious organisations being closed. In 1904, another law forbade members of any congregation, authorised or not, from teaching. Then, in 1905, the government enacted the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, formally separating church and state and ending the 100-year-old concordat between Napoleon and the Holy See. The 1905 act confirmed state ownership of church property (this had been sequestered by the state on 2 November 1789: the cathedrals remained the property of the state while responsibility for the smaller churches was assumed by the local municipal government. All buildings were then entrusted to associations cultuelles, or associations of laymen, which were independent legal entities having rights and responsibilities for all matters relating to the money and properties formerly owned by organised religions. These associations were authorised by the 1905 act to function as administrators of church property: to regulate and collect all alms and legacies donated for religious purposes worship; to manage resources designated for the maintenance of schools; and to assume responsibility for the various charitable associations connected with religion. Gwénaële Calvès points out that Catholics were denied association cultuelle status as “their functioning was deemed too ‘democratic’ by the Pope in 1905” and were instead designated associations diocésaines.38 A religious association cannot receive subsidies from public funds, but individual donations benefit from a privileged tax regime. A century later, the loi n 2001-504 du 12 jun 2001 – or the About-Picard law – conferred on the government a power, under judicial review, to dissolve any association construed to be a cult if it was deemed to have violated French law. In 2002, the Council of Europe passed a resolution critical of this law and, although it remains in force, its provisions have never been applied. Religious organisations, as in other Part II jurisdictions, are often the favoured partner when the state has to delegate public benefit service delivery. intervention in church disputes. Laïcité, together with the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, combine to deter state intervention in church disputes and in religious affairs more generally. As the ECtHR declared in S.A.S. v. France,39 provided a complainant’s views attain a certain level of cogency, seriousness, cohesion and importance, “the State’s duty 37

38 39

See further in K. J. Morgan, “Forging the Frontiers between State, Church, and Family: Religious Cleavages and the Origins of Early Childhood Education and Care Policies in France, Sweden, and Germany”, Politics & Society, vol. 30, no. 1 (March 2002), pp. 113–148. Note to author: 09.03.2020. (2015) 60 EHRR 244.

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of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed”.40 The training of imams to appreciate the subtleties of laïcité illustrates the significance of this deterrent: the Salafi imams are more fundamentalist and also most resistant to such training; however, there are limits in how far the state can go in insisting on mandatory training or dismissal without breaching the neutrality mandated by the 1905 law. state preferencing of religious organisations and communities. The fact that the state retains financial responsibility only for all pre-1905 places of worship means in practice that those of the Catholic church are highly subsidised while those of all other religions – particularly Muslim mosques – receive very little state subvention. It must also be noted that in France, as in other countries with a strong Christian cultural history, it is the Christian cycle of liturgical seasons recording traditional feast days, celebrations of saints and such that continue to determine national holidays as observed by schools and employers.

Freedom of Expression This fundamental freedom is both a constitutional and an ECHR right (see further in Chapter 3). Entrenched in Articles 10 and 11 of the 1789 declaration, it was reinforced a century later by the loi sur la liberté de la presse du 29 juillet 1881, which made no distinction between press freedom and freedom of expression. Although subsequently amended several times, most notably by the Pleven Law of 1972 that made it an offence to “provoke discrimination, hatred, or violence toward a person or group of persons because of their origin or belonging to a particular ethnicity, nation, race, or religion”, the 1881 act remains in effect. Most recently it has been further amended to prohibit “Holocaust denial” in 1990 (the “Gayssot law”) and insult, defamation, or provocation based on sex, sexual orientation, or handicap in 2004. In practice, however, it is now applied subject to Article 10 of the ECHR, which has become the primary source of reference for the Cour de Cassation (see further in Chapter 3) and it must be sufficiently broadly interpreted to take account of such other forms of non-verbal and non-published expression as the wearing of conspicuously religious clothing and the prominence of religious places of worship such as cathedrals and mosques with minarets and the chanting of public calls to prayer. The aspect of freedom of expression generating most controversy in France has been the ongoing l’affaire du foulard. Having first been trailed through the French 40

Ibid., para. 55. See also Eweida v. United Kingdom, (2013) 57 EHRR 213, para. 81.

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court system for ten years, this matter finally reached the ECtHR in the cases of Dogru v. France41 and Kervanci v. France,42 which concerned two Muslim pupils, aged eleven and twelve, who had been expelled from school in 1998–1999 for refusing to remove their headscarves. The Stasi Commission, set up in response to the associated public concern, considered that state neutrality required the state to ensure that the expression of an individual’s religion was laïcité compliant: all citizens were equally obliged to comply with the basic rules regarding the secular nature of the state; in particular there had to be compliance with equality and nondiscrimination requirements between the sexes; and the rights of minors should be protected. Free Speech Francesco Alicino has commented that “the practical exercise of freedom of expression remains strictly linked with the principle of laïcité” and goes on to explain that this “implies an accentuation of individual freedom of expression, which normally takes precedence over the protection of religions, sometimes justifying caricature of divinities, rules, rites and symbols”.43 Certainly there does seem to be considerable legal latitude given to insult and caricature – as illustrated by the Charlie Hebdo and Muhammad affair – but a good deal less to incitement to hatred – as in Dieudonné M’bala M’bala and his “Je me sens Charlie Coulibaly”. Much of the legal differentiation between permissible insulting expression and impermissible incitement to hatred has played out in cases concerning visual forms of expression such as in films, advertising posters and satirical cartoons. Over several decades the French legal system, including the Cour de Cassation, has sought to balance the right to freedom of expression against the provisions dealing with discrimination, hatred, or violence in the above 1881 loi sur la presse. The issues, concerning state respect for religion, have presented through different expressive mediums.44 In 1988, allegations that the film La Dernière Tentation du Christ by Martin Scorsese – which supposedly narrates the life of Christ including his efforts to resist the temptations of lust – provoked discrimination, hatred, or violence towards Catholicism were dismissed by the court. This followed the same judicial approach taken in 1985 towards a not dissimilar film on the same theme Je 41 42 43

44

Application No. 27058/05 (2008). Application No. 31645/04 (2008). F. Alicino, “Freedom of Expression, Laïcité and Islam in France: The Tension between Two Different (Universal) Perspectives”, Islam and Christian-Muslim Relations, vol. 27, no. 1 (2015), pp. 51–75: “Abstract”, www.tandfonline.com/doi/abs/10.1080/09596410.2015.1090105?scroll= top&needAccess=true&journalCode=cicm20 For further information see E. Janssen, “Limits to Expression on Religion in France”, Jurnal Kajian Wilayah Eropa, vol. 5, no. 1 (2009), pp. 22–45. Also https://pure.uva.nl/ws/files/ 759337/79462_Limits_to_expression_on_religion_in_France.pdf and www.legifrance.gouv .fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000017634942&fastReqId= 831873254&fastPos=1

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vous salue Marie by Jean-Luc Godard. By the turn of the century, several posters using sexually provocative and religiously insensitive imagery to advertise films were judged to be permissible.45 Much the same permissive approach prevailed when the same issues came before the court in the form of print. In 1994, for example, the newspaper Le quotidien de Paris published the article “L’obscurité de l’erreur” by Giniewski in which he criticises the position of the Pope and states that the Catholic doctrine made way for the conception and the realisation of Auschwitz. The General Alliance against Racism and for Respect for French and Christian Identity (AGRIF)46 considered the article defamatory and initiated criminal proceedings. Le tribunal agreed with AGRIF, but in appeal Giniewski was discharged as la cour d’appel took the view that the article aimed to contribute to the ongoing public debate on the possible causes of the Holocaust. The Cour de Cassation then annulled the decision of la cour d’appel and held the article to be defamatory. The ECtHR,47 however, in rejecting that decision explained that “the Court considers it essential in a democratic society that a debate on the causes of acts of particular gravity amounting to crimes against humanity should be able to take place freely”. Furthermore, it has already had occasion to note that “it is an integral part of freedom of expression to seek historical truth”, and that “it is not its role to arbitrate the underlying historical issues”. It repeated the principle established in its settled case law that expressions must be allowed to “shock, offend and disturb”. In June 2002, Le Monde published an article entitled Israel–Palestine: the Cancer by three French intellectuals who accused Israeli Jews of “ghettoising” and “persecuting” Palestinians. This gave rise to debate as to whether it was anti-Semitic to criticise Israeli government policies. The cour d’appel concluded that the article constituted “racial defamation” but this was overturned by the Cour de Cassation, which ultimately determined that it was merely the expression of an opinion.48 In 2005, the Girbaud case, which attracted a lot of media attention, concerned a 400 square metre clothes’ advertisement based on Leonardo da Vinci’s “Christ’s Last Supper”. The court at first instance found the display to be “a gratuitous and aggressive act of intrusion on people’s innermost beliefs” and prohibited the placement of the poster in all public spaces, a decision upheld on appeal. However, the Cour de Cassation, reversing the appeals court’s ruling, found that the parody of the “Last Supper” “did not aim to offend the Catholic faithful . . . does not constitute an insult, a personal or direct attack against a person or group of persons because of 45

46

47 48

Including The people vs. Larry Flint (the actor playing the role of a porn tycoon was depicted in the position of the crucified Christ, covered by a loincloth of the American flag, against the background of the lap of a woman in bikini shorts); Amen (depicting the Christian cross and the swastika, a catholic clergyman and a Nazi officer); and Ave Maria (depicting a young woman, only covered by a blouse around the hips, with her arms and feet tied to a cross). L’Association Générale contre le Rascisme et pour le respect de l’Identité Française et chrétienne (AGRIF) is an activist NGO that pursues a French Christian agenda. Giniewski v. France, Application No. 64016/00 (2006), para. 51. Cour de Cassation, Civil Chamber 1, 12 July 2006, 05-17.704.

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their religious belonging”. The poster did not constitute an insult, because it was not a personal and direct attack on a group of people on the grounds of their religion.49 In 2007, it considered the remark “Les juifs, c’est une secte, une escroquerie. C’est une des plus graves parce que c’est la première”, made by the French comedian Dieudonné in an interview published in the French journal Lyon Capitale, to be unacceptable. According to the court, the remark was not a reasonable criticism of a religion such as would be acceptable in a public debate, but rather it insulted a group of people on the basis of their place of origin. Its repression was a necessary restriction on free speech in a democratic society.50 The decisions in some cases have been somewhat inconsistent: as in the 2012 BDS decision – where it ruled that publicly calling for a boycott of Israeli products constituted incitement and discrimination based on nationality and breached the right to freedom of expression – when compared with the 2012 rulings in Khimoun51 and in Zémor in 2013.52 It is perhaps worth bearing in mind the warning of the ECtHR, in cases such as S.A.S. v. France,53 that the ECHR protects not only those opinions “that are favourably received or regarded as inoffensive or as a matter of indifference, but also . . . those that offend, shock or disturb”, pointing out that “[s]uch are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” (see further in Chapter 3). blasphemy. The 2015 Charlie Hebdo atrocity,54 allegedly triggered by a perceived blasphemy but itself similarly perceived, raised an acute awareness in France and elsewhere of the dangers associated with satirical publications aimed at religious subjects. Blasphemy laws in France were substantively abolished in 1791. proselytism. While not illegal in France, proselytism is legally constrained in its potential application to those in a situation of dependency, particularly school children. The principle of laïcité has always ensured that government employees – such as teachers – have been prohibited from demonstrating any form of religious adherence whether through choices made in clothes, ornaments or conversation, and have thus been effectively prevented from proselytising while on duty. In relation to school children, the concern (articulated by President Chirac and noted in the Stasi report) that pupils wearing religious clothing or other such signifiers 49 50 51

52

53 54

Cour de Cassation, 14 November 2006, Légipresse No. 238 January/February 2007, p. 11. See further in Janssen, “Limits to Expression on Religion”. No B 10-88.315 F-P+B No 2890. See further in www.france-palestine.org/IMG/pdf/cassation_ 22_mai_2012.pdf Cour de Cassation, criminelle, Chambre criminelle, 19 novembre 2013, 12-84.083. See further in www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000028228021 Application No. 43835/11 (2014). In Paris on 7 January 2015, two Islamist brothers, Saïd and Chérif Kouachi, forced their way into the offices of the French satirical weekly newspaper Charlie Hebdo, killed eight staff and injured others.

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could have a proselytising effect on their classmates, prompted the introduction of the 2004 ban on wearing ostentatious religious clothing or symbols in state primary and secondary schools. This was subsequently reinforced by the 2010 law (in conjunction with Article L. 141-5-1 of the National Education Code) and extended to curb such proselytising effects in any and all public places. However, in 2014 the UN HR Committee ruled in the Baby Loup case55 that wearing the Islamic veil does not constitute a proselytising act and requiring its removal was not a measure proportionate to the objective pursued. Matters of Conscience Article 1 of the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, a law that fails to mention religion, but instead ensures “freedom of conscience”.56 This is no coincidence: the emphasis on an individual citizen’s conscience, rather than on the collective adherence to a religion, is deeply rooted in the French Revolution and in the ideology of “the republic”. Matters of conscience are also to the fore in the UDHR and the ICCPR, to both of which France is a signatory nation.

refusal to bear arms. L’objection de conscience only really became known in France in the 1920s and 1930s. The status of “conscientious objector” acquired public salience as a consequence of the trials of Jacques Martin, Philippe Vernier and Camille Rombault in 1932–1933 but not until 1963 did it gain recognition in law following the hunger strike of Louis Lecoinin. public interest and personal conscience. The extent to which the French State may require a citizen to fulfil statutory obligations, despite their conscientious objection to doing so, has been considered by the ECtHR in relation to lawyers57 and pharmacists.58 In the latter case, the pharmacists, who refused to sell contraceptives, were denied the protection of Article 9. The ECtHR explained that “as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products”. However, the Cour de Cassation had earlier ruled that59 55

56

57 58 59

See further in https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?sym bolno=CCPR%2FC%2F123%2FD%2F2662%2F2015&Lang=en J. Baubérot, “Laïcité and Freedom of Conscience in Pluricultural France”, in J. Berlinerblau et al., eds., Secularism on the Edge, Palgrave Macmillan, New York, 2014, p. 103. Mignot v. France, Application No. 37489/97 (1998). Pichon and Sajous v. France, Application No. 49853/99 (2001). Cour de Cassation, chambre criminelle, 16 June 1981, No. 80-93.379. The cour d’appel of Paris has also stated, in terms of IUDs, “that no obligation relies on a pharmacist to hold such a product in his stock” (Paris, 8 December 1993, No. 93/03941).

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the pharmacist can manage his stock as he sees fit. No standard requires pharmacists to hold certain products in stock. In terms of contraceptive, the Court of Cassation has also recognized that the refusal to sell a contraceptive is not punishable if the pharmacist does not have the product requested: “no legal text requires a pharmacist to take the initiative to propose to a customer to order a merchandise that he does not have in stock”.

So, the answer for the conscientious objector would appear fairly obvious. In Lambert and Others v. France,60 the ECtHR found that the judgment of the French Conseil d’État, declaring lawful a decision by the doctor in charge to discontinue artificial nutrition and hydration for a tetraplegic patient, resulting in his death, did not breach the right to life as guaranteed under Article 2 of the ECHR. This ruling would seem to condone the doctor’s decision, presumably motivated by a conscientious objection, to any positive intervention that would prolong his patient’s suffering.

case law: the church–state relationship and equality rights La France est une République indivisible, laïque, démocratique et sociale.61 Given this “nailing of colours to the mast”, it might be expected that France would now be a powerhouse for egalitarianism. The assertiveness that articulated the equality rights, which inspired national revolution, the Declaration of the Rights of Man and international social upheaval would perhaps be a continuing force for ensuring an equitable balancing of the interests of church and state and of those in society more generally. There is not much evidence that this is the case.

Equality and the Church–State Relationship Laïcité and the 1905 act, together with the earlier mentioned domestic and international equality and non-discrimination directives and provisions and a sequence of fairly recent laws directed against overt displays of religious affiliation, form the legal framework for the contemporary church–state relationship. This is being incrementally reinforced by anti-terrorism and surveillance legislation. The Religious Exemptions The religious exemption privileges vary across Europe but religious organisations in France share, with a number of western European member states, exemptions from certain tax and other constraints that burden ordinary citizens. 60 61

Application No. 46043/14 (2015). Constitution de 1946, IVe République, Article 1.

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tax-exemption privileges. France does not have a church tax and as all pre1905 church buildings are owned by the state – including by far the majority of Catholic churches and ancillary buildings, no taxes are payable on them (in fact, quite the reverse as the state pays for their maintenance). Although places of worship are in general subject to property tax, Article 24 of that law did specifically exempt buildings used for religious purposes from certain property taxes. Where groups form for purposes of collective worship, then they may register as an association cultuelle, though any public subsidy to an association cultuelle is strictly prohibited. As nonprofits, however, religious organisations are entitled to certain tax privileges in respect of donations, grants and other contributions they may receive. This has occasionally given rise to legal issues. Three religious organisations were initially found by the French courts to be in breach of relevant tax requirements, due to their receiving direct donations, which had resulted in loss of exemption status and the imposition of harsh financial penalties. Their appeal to the ECtHR rested on the argument that requiring them to pay tax on direct donations infringed their right to manifest and exercise their freedom of religion, contrary to Article 9. The ECtHR upheld their appeal ruling that direct donations were a major source of funding of a religious body and that taxing them might have an impact on its ability to conduct its religious activities.62 This decision was in keeping with an earlier ruling63 in which the court had held that the amount of money demanded from the Jehovah’s Witnesses by the French tax authorities had constituted an interference with their right to manifest under Article 9 because it had the effect of reducing the vital resources of the association. testamentary privileges. Unlike the position in most common law nations, but in keeping with those belonging to the civil code tradition – such as Germany – testamentary dispositions are treated in law as private matters – to which laïcité does not apply – and thus seldom give rise to litigious disputes. So, there is a general absence of case law. Article 900 of the Civil Code, however, specifically states that “conditions which are impossible or those which are contrary to legislation or good morals, shall be deemed to be not written”. This would seem to ensure that a testator is not free to make a gift that breaches equality and non-discrimination law or that in anyway contravenes the principles given effect by the 1905 act. employment law exemptions. In France, the operative legal provisions are those of the EU Equal Treatment Directive 2000/78 of 27 November 2000, which prohibits employment discrimination on grounds that include religion or belief 62

63

Association Cultuelle du Temple Pyramide v. France, Application No. 50471/07 (2013); Association des Chevaliers du Lotus D’Or v. France, Application No. 50615/07 (2013) and Eglise Evangelique Missionnaire and Salaûn v. France, Application No. 25502/07 (2013). Fédération chrétienne des Témoins de Jéhovah de France v. France, [2001] Application No. 53430/99 (2001).

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subject to the general exception in Article 2(5), the exception for genuine occupational requirements in Article 4 and the exception in Article 7 for positive action. Article 4(2) provides an occupational requirement exception: organisations with a religious ethos may treat a person’s religion or belief as an occupational requirement where this is justified by the nature or the context of the activities. In the Bougnaoui case,64 the Cour de Cassation, and subsequently the ECJ, considered the issue of what constituted a “genuine occupational requirement” in a religious context. Religious organisations, when making staff appointments, are exempted from discriminatory constraints if “by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos”. Article 4(2), more broadly and with even less certainty, allows organisations with a religious ethos to require individuals working for them to act in good faith and with loyalty to that ethos. In the Baby Loup case,65 the Paris Court of Appeal considered that a privately run day care centre for underprivileged children could be considered as an organisation with an ethos based on the “belief” of secularity. It should be noted that while the ECtHR and the ECJ can apply Article 4(2), French courts cannot as the state has not assimilated this provision into domestic law. regulatory exemptions. State neutrality is arguably a misnomer when it comes to regulating religious organisations: they are denied regulatory exemption. Unlike other modern democratic states, France subjects religious organisations to an ostensibly rigorous regulatory regime. Articles 25–36 of the 1905 act provide for state supervision of religious activities in all of their dimensions – worship, observance, practice and teaching – in order to protect the rights of others, the public order, health and morals. This regulatory oversight applies not just to religious organisations, but equally to any kind of association or organised group in France.

Equality, Family, Life, Death and the Church–State Relationship The legal status of the family, and the role reciprocation traditionally expected of its members, have always been matters of primary concern to societies with their foundations embedded in Catholicism. They are also of great importance to Muslims and to those of other faiths. Given that a large proportion of the French population are adherents of these two religions, family-based issues of equality and non-discrimination were bound to arise for the state.

64 65

Cour de Cassation, Chambre sociale, du 22 novembre 2017 (13-19.855), Arrêt No. 2484. Appeal Court of Paris, Baby Loup Case no.13/02981, 27 November 2013.

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The Marital Family The social construct of “family” as defined in French law is quite singular.66 For legal purposes the rules and proceedings governing family matters are to be found in the Civil Code, as amended, but the code itself is a product of the Napoleonic era and is conceptually rooted in the revolutionary ideology that gripped France at the turn of the eighteenth century. Consequently, the concept of “filiation” came to be central to the meaning attached to “family”: matters of individual and cultural identity, the role of the family unit in society and the acquisition of status-based relationships, are more socially ascribed than acquired by birth.67 The marital family unit was the norm in France until the mid-1970s. Thereafter the relevance of religion to family life can be seen in the rapid fall in the rate of marriages: from a rate of 7.5 per cent to less than 5 per cent over a period of fifteen years or so; and a rise in the divorce rate, from one in ten in the mid-nineteenth century to one in three by the end of it. The corresponding rise in single people and in single parents – those choosing not to marry – had became a feature of urban France by the turn of the century. This was accompanied by a trend for greater numbers of children to be in single-parent families: with serial father figures, other half-sisters and brothers and often a grandparent carer in the background; and resulting in an increase in children being admitted to long-term state care.68 The rise and fall of the French marital family unit reflects a decline in the relevance of religious values in the face of secular pressures.

spouses. In keeping with laïcité and the 1905 act, marriage and civil partnerships are in law matters for the state rather than religion:69 they are solemnised before council officials and duly registered in council offices. Loi n 2013-404 du 17 mai 2013 legalised same-sex marriage and provided parity of legal status with heterosexual marriage.70 Nonetheless, the number of couples opting to become spouses – whether heterosexual or same sex – continues to fall. parenting. French law, reflecting the position of both Catholicism and Islam, defines “mother” as the person who gives birth to the child: mater semper certa est. Pressure from both religions has induced state restraint in the development of, and public access to, forms of medically assisted procreation and substitute parenting. The Cour de Cassation has also played a constraining role with rulings: in 1991, 66

67

68 69

70

See, for example, R. G. Fuchs, Contested Paternity: Constructing Families in Modern France, Johns Hopkins University Press, Baltimore, 2008. See further H. Fulchiron, “Egalite, Verite, Stabilite: The New French Filiation Law after the Ordonnance of 4th July 2005”, in The International Survey of Family Law, Jordan Publishing, Bristol, 2006, pp. 203–216. See further in www.statista.com/statistics/512989/number-families-by-type-france/ Article 433-21 of the Penal Code prohibits ministers from conducting religious marriage ceremonies, unless the marriage has first been registered by a council official. Following the ruling of the ECtHR in E.B. v. France, Application No. 43546/02 (2008).

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condemning surrogacy on the basis that “only merchandise can be the object of contracts”; and in 1994 that “any contract concerning procreation or gestation on behalf of a third party is void”. The ECtHR in two rulings – Mennesson v. France71 and Labassee v. France72 – brought pressure to bear on the state to modernise its surrogacy laws. Both cases concerned French couples who had acquired children by way of surrogacy overseas and were refused official recognition of parenthood when they returned home. The court found that while France had the right to ban surrogate parenthood within its boundaries, it did not have the right to deny legal status to the parent–child relationships of children and their parents just because a surrogate carried and delivered the children: “refusal to do so undermines children’s identity”; and consequently meant that their inheritance rights were less favourable than those of other children. The Cour de Cassation responded by granting recognition of paternity to the commissioning male but continues to equivocate regarding the legal status of his female partner.73 Arguably, if the French State was to grant full recognition of surrogacy arrangements, this would compromise the central importance of filiation in family law. sogi issues. Again, the high proportion of Catholics and Muslims in the population would suggest that the state might find it problematic to introduce laws and practices that run counter to social norms long established by those religions. Official recognition of gender identity is not on the basis of self-declaration (as in countries such as Ireland, Malta, Canada and Norway) but instead requires supporting evidence to be produced before a court. However, a law introduced in 2016 allows a trans person to do so without having to include evidence of surgery. France, again unlike some other countries, has yet to provide any official recognition for those of non-binary or intersex status. suicide and medically assisted death. Church and state in France have moved from their traditional repudiation of suicide as sinful and criminal, respectively, to a very recent acceptance of the limited circumstances in which a terminally ill person’s wish to die may be honoured, if not actively assisted. While France continues to prohibit medically assisted death, in 2016 new legislation took effect – loi 2016-87 du 2 février 2016 créant de nouveaux droits en faveur des malades et des personnes en fin de vie – which allows patients to request “deep, continuous sedation altering consciousness until death” but only when their condition is likely to lead to a quick death. In that situation, doctors will then be 71 72 73

Application No. 65192/11. Application No. 65941/11 (2014). See, for example, Braun v. France, No. 1462/18; Saenz et Saenz Cortes v. France, No. 11288/18 and Maillard v. France, No. 17348/18.

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permitted to withdraw life-sustaining treatments, including artificial hydration and nutrition “even if they may shorten the person’s life”. This compromise was as far as the state could go in the face of considerable opposition from religious organisations and others. Equality, Healthcare and the Church–State Relationship As elsewhere, the services with most relevance for state neutrality are those loaded with a moral imperative that act as a magnet or proxy for religious belief. The extent to which services such as abortion and IVF are equally available to all, on a needs of the user basis with costs borne by the provider, has become an indicator of the national church–state relationship. Healthcare Services The issues that arise at the state–religion intersect are either inherently problematic, because by their nature they are closely associated with religious values, or are problematic only because the providers or users are so associated. Abortion, IVF, embryo research, genetic editing and assisted death are among those that fall into the first category. Chaplains, members of religious organisations and other serviceprovider individuals with strong religious beliefs are in the second, which may also include such service users as members of the LGBT community, prostitutes, Jehovah’s Witnesses and of course the terminally ill.

the services. Undoubtedly the most significant – for longest and in most countries – is abortion. Access to this service, and the terms on which it is available, provide a convenient measure of state religious neutrality within and between counties at any point in time. In France since 2001, abortion has been legal on demand up to twelve weeks after conception and later if two physicians certify that special circumstances warrant it; most costs are borne by the state. In 1988, this country became the first to legalise the abortifacient RU-486. A further indication of relative liberalism is that it is available to those under the age of eighteen, without parental consent or knowledge, if they are accompanied by an adult who is bound by terms of confidentiality. Other healthcare services indicative of state neutrality towards religion are the availability, for same-sex couples and single women, of IVF treatment, surrogacy and adoption from state care. All these services have been tightly regulated. Thus, fertility treatment continues to be restricted to heterosexual couples due to pressure from the Catholic Church while surrogacy arrangements continue to be illegal under Article 16-7 and 16-9 of the Code Civil. professional exemption from healthcare service provision on religious grounds. As stated in the Consumer Code, “it is prohibited to refuse

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to sell a product or provide a service to a customer for no legitimate reason”. Article 53 adds that this applies “to all production, distribution, and service activities, including those that are carried out by public bodies”.74 In France, in marked contrast to the USA, the state has taken a firm stand on this issue and so far has not conceded that healthcare professionals per se have a legal right to exemption from service-provision duties on religious grounds. As a corollary, women are not allowed to refuse to be treated by male doctors in public hospitals. Doctors who object to abortion on grounds of religion, belief or conscience have a strict legal duty to refer patients to other providers willing to perform the procedure.75 Pichon and Sajous v. France is of interest in its own right but also because of the light it shines on this issue more broadly and with application throughout the forty-seven signatory states to the ECHR. The ECtHR then rejected two pharmacists’ claims that the right to freedom of thought, conscience and religion as enshrined in Article 9(1) of the ECHR required French authorities to allow them to refuse to sell oral contraceptives on grounds of their religious beliefs. The court took the view that any such right must be construed very narrowly: The Court would point out that the main sphere protected by Article 9 is that of personal convictions and religious beliefs, in other words what are sometimes referred to as matters of individual conscience. It also protects acts that are closely linked to these matters such as acts of worship or devotion forming part of the practice of a religion or a belief in a generally accepted form.

Moreover: The word “practice” used in Article 9(1) does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief.

It concluded with a ratio decidendi clearly intended to have a wide application: As long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.

Also noteworthy is the ruling of the French Constitutional Council that a department head’s personal right to object “cannot be exerted at the expense of that of other doctors and medical staff working in his service”.76

74 75 76

Articles L 122-1 and L 113-2 respectively. Code de la Sante Publique (Fr.), Articles L2212-8. Constitutional Court decision No. 2001-446 DC, 27 June 2001, Rec. 74, 11 (Fr.)

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Equality, Education and the Church–State Relationship Article 34 of the Constitution vests power in Parliament to legislate on the “fundamental principles of teaching”, leaving the application of these principles to the executive branch, which it may do by issuing a décret or an arrêté ministerial. There is an argument that when, following the Stasi report, Parliament chose to proceed in 2004 by legislating to proscribe the wearing of ostentatious religious symbols or clothing in schools – instead of leaving this matter to be regulated by the administrative authority – Parliament exceeded its domaine de la loi. State Schools and Religion Following the introduction of les lois Jules Ferry 1881–1882, establishing free, mandatory and secular public education, the state school system thereafter prohibited the endorsement of any particular religion, religion more generally, secularism and any form of philosophy. The loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, which formally separated church and state, also placed a secular seal on the national public education system. All schools funded totally by the state have since had to remain equally accessible to children of any, or no, faith. Other, private schools, are free to establish religion as a determinant of pupil enrolment, staff appointment and school ethos. The ecole laique ethos, a signature hallmark of the respect accorded to the freedom of expression in French society, was reinforced (undermined, some would say) by the mandatory introduction of the “Charter for Secularity in School”, displayed in poster form in every state-funded school. In fifteen points, this spells out the meaning and significance of laïcité and state neutrality, a message which Muslim pupils, their parents and their community perceive as targeted specifically, and therefore non-neutrally, at them.

educational facilities. There are three types of schools: those, the majority, that are fully within the state education system; others that are private but receive state subsidies; and a small minority that are private but manage without any state subsidy. Only those in the last category are not required to deliver the national curriculum, though basic skill development is necessary. In addition, preschool services – écoles maternelles – providing child care for three- to six-year-olds on a free and universally available basis have been part of the national education system since the late nineteenth century.77 At the other end of the age spectrum are the universities, five of which are private Catholic institutions. The French government highly subsidises private elementary and secondary schools, paying the salaries of teachers even if their schools are affiliated with religious organisations, as long as they apply the same curriculum as the public schools, with the same academic standards, and that they do not discriminate 77

See Morgan, “Forging the Frontiers between State, Church, and Family”.

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on grounds of religious affiliation nor make religious education compulsory. In practice 90 per cent of the private faith schools that benefit from such state subsidy are Catholic.78 educational content and instruction. Teachers in state schools are legally prohibited from endorsing or commenting on any political or religious point of view; they may also face sanctions for wearing overt religious symbols. Since the 2015 terrorist attacks, the French education system has placed an emphasis on moral and civic education (Enseignement Moral et Civique) – including teaching on LGBT matters – in a bid to promote republican values and respect for freedom of speech and opinion. In 2019 this approach was intensified when the Ministry for Education and Youth launched the campaign “All Equal, All Allies”, in which all state schools were required to display posters and provide a guide regarding LGBTrelated issues. This would seem to reflect a typical state policy of ensuring that required civic behaviour trumps any religious sensitivity. religious prayers and symbols. State schools are required to be religiously neutral: neutral between religions; and neutral between religion and secularism. No indications of religious affiliation are permitted. This extends to a prohibition on communal prayers, religious assemblies and to the display of Christian crosses on classroom walls. Religious proselytising and political activism are similarly prohibited on school premises. A ban on the wearing of religion-specific garments in state schools – the Islamic hijab, Sikh turban (large), Christian crosses and Jewish Stars of David and kippa – came into effect in France in 2004 and was subsequently reinforced by the 2010 law (in conjunction with Article L. 141-5-1 of the National Education Code). The prohibition is seen by some as disproportionately affecting Muslims, as Christians rarely wear conspicuous religious symbols and the ban has little effect on Jewish pupils because they are largely enrolled in private Jewish religious schools where they are free to wear their religion-specific clothing. This perceived disparity was examined by the ECtHR in Dogru v. France79 and Kervanci v. France,80 which concerned two Muslim pupils, aged eleven and twelve, who had been expelled from school in 1998–1999 for refusing to remove their headscarves in physical education and sports classes, despite repeated requests to do so from their teacher who explained that wearing a headscarf was incompatible with such activity. 78

79 80

J. M. Piret, “De verhouding van godsdienst en staat (in het onderwijs): historisch-nationale verschillen en Europese convergentie” [The Relationship between Religion and State (in the Field of Education): Historic-National Differences and European Convergence], in P. de Hert and K. Meerschaut, eds., Scheiding van Kerk en Staat of actief pluralisme? [Church-State Separation or Active Pluralism?], 2007, p. 136. Application No. 27058/05 (2008). Application No. 31645/04 (2008).

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Eventually the applicants brought the matter to the ECtHR claiming an infringement of their right to practise their religion under Article 9 and of being deprived of their right to education within the meaning of Article 2 of Protocol 1. The court rejected their claims on the basis that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises should not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion. In this instance it accepted that the penalty imposed was merely the consequence of the applicants’ refusal to comply with the rules applicable on the school premises – of which they had been properly informed – and not of their religious convictions, and it considered that the penalty of expulsion did not appear disproportionate. Shortly afterwards the ECtHR considered the similar case of Aktas v. France, et al.,81 which concerned six students, enrolled in various state schools for the year 2004–2005, who were expelled for wearing overtly religious symbols, in the form of Islamic headscarves or male Sikh keskis, contrary to the Education Code. The six students relied on Article 9 of the convention to assert their right to religious freedoms. When the matter came before the ECtHR, the court declared the application “manifestly ill-founded”: prohibiting the pupils from wearing conspicuous signs of their religious beliefs in class was a restriction on their freedom to manifest their religion, but this was in accordance with the law and pursued the legitimate aim of protecting the rights and freedoms of others and public order.82 The law was intended to protect the state’s constitutional principle of secularity, an aim in keeping with the values underlying the ECHR and established ECtHR case law. The UN HR Committee, however, seemed to be of a different view when, at much the same time in Bikramjit Singh v. France,83 it concluded that the expulsion of a Sikh pupil from the school for wearing the keski constituted a clear and unjustifiable infringement of his right to freedom of religion, and in particular of his right to manifest his religion. In a decision at marked variance with the contemporaneous rulings of the ECtHR, the committee commented that the expulsion “amounted to a substantial and indiscriminate prohibition of religious symbols that was both disproportionate and unnecessary”.84 There was a similar disparity of views

81

82

83

84

Aktas v. France, Application No. 43563/08 (2009), Bayrak v. France, Application No. 14308/08 (2009), Gamaleddyn v. France, Application No. 18527/08 (2009), Ghazal v. France, Application No. 29134/08 (2009), J. Singh v. France, Application No. 25463/08 (2009) and R. Singh v. France, Application No. 27561/08 (2009). Similarly in Ranjit Singh v. France, Application No. 27561/08 (2009) when the court held the complaint to be inadmissible. Communication No. 1852/2008 (2008). See also “Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights (106th session)”. Ibid., para. 3.11.

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between the ECtHR and the UN HR Committee in Mann Singh v. France,85 which again concerned a Sikh, his turban, a legal requirement to be bareheaded and his right to manifest his religion. This ongoing contention regarding religious symbols in schools was further exacerbated by disputes about Islamic clothing worn by mothers accompanying children on school trips. A 2013 decision by a regulatory body86 overturning a directive87 to schools in the Amiens district, that veiled mothers were to be prohibited from accompanying pupils on school trips, was followed by decision of a court in Nice on the same issue and to the same effect. Essentially, as this is a public service, it would seem that the schools are compelled to strictly abide by the state neutrality principle, which seems to conflict with the 2004 and 2010 laws. Any suggestion that such disputes would be laid to rest by the 2014 ECtHR decision in S.A.S. v. France,88 which declared that the “French ban on the wearing in public of clothing designed to conceal one’s face does not breach the Convention”, was dissipated by two decisions of the UN HR Committee to the contrary.89 If anything, matters became more contentious when the government declared that 9 December (the date of the 1905 law) is henceforth to be treated as a national “Day of Laïcité” and introduced a new edict reinforcing the teaching of laïcité in public schools. The edict was inspired, in large part, by the refusal of many children to participate in a national minute of silence for the Charlie Hebdo victims, who they believe insulted the Prophet Muhammad. Parents and children must now sign a “charter of laïcité” demonstrating their understanding and respect for the principle. Faith Schools As a consequence of the 2004 law, the years following the ban have seen an increasing number of Islamic secondary schools being established; some Muslim female students choose to study at home, others choose to enrol in Catholic schools which, being “private”, are outside the state system. Denominational schooling is a growing phenomenon. Private schools and universities are exempt from the ban on ostentatious religious clothing and symbolism in classrooms. Inevitably, this is facilitating a tendency for increased sectionalism in French society: the forming of separate religious/cultural communities, with associated interface tensions.

85 86 87

88 89

Application No. 24479/07 (2008). Amiens Administrative Tribunal, 15 December 2015, No. 1401803. Administrative tribunal decision quashing the Instruction of 4 December 2013 of the academic director of the Amiens district excluding the participation to field trips of veiled mothers (29 January 2016). (2015) 60 EHRR 244. CCPR/C/123/D/2807/2016 (2018).

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state involvement. The highly centralised French education system is very largely paid for, staffed and supervised by the state, which also determines curricula content at all levels. As Gwénaële Calvès explains,90 the teachers of “religious schools (écoles privées) are approved, paid and controlled by the State. They are not allowed to get involved in religious matters: they teach the regular public curriculum, nothing more. Religious classes (if any . . .) are attended on a voluntary basis by the pupils, no public money may be used”. The state subsidises “private schools under contract”, which receive approximately 20 per cent of school pupils including Muslim high schools established under contract with the French State. It has been said that in setting up such schools, the state is narrowing the boundaries of laïcité: “for the State to expand the boundaries of identity-specific, Muslim public institutions and private schooling constitutes a reorganization of the public sphere in France which qualifies as a move towards multiculturalism”.91 Equality, the Workplace and the Church–State Relationship French employment law as it relates to religion is to be found largely in the Preamble to the French Constitution of 27 October 1946 and 4 October 1958, together with Articles L.1121-1 and L.1321-3 of the French Labour Code. The law of 14 June 2016 to fight against discrimination based on social precariousness – adding particulière vulnérabilité résultant de [l]a situation économique, apparente ou connue de son auteur92 to the list of prohibited grounds of discrimination – may effect state neutrality towards religion as a very large proportion of those within that definition will be Muslims. This new ground is added to the Penal Code, the Labour Code and Article 2(2) of the law of 27 May 2008. It will, therefore, be applicable to public and private employment, to independent occupation or employment and to penal prohibition of direct discrimination in employment and goods and services covered by Articles 225-1 et seq. of the Penal Code. International provisions also have a bearing, mainly the UDHR, the ECHR, the United Nations Convention and Covenant and the EU Equal Treatment Directive 2000/78 of 27 November 2000. Hiring and Firing Staff Discrimination, on grounds that include religion, is prohibited under Article L.11321 of the Labour Code and L.225-1 to L.225-4 of the Criminal Code. Article L.1321-1 of the former provides that an employer’s rules and procedures – le règlement 90 91

92

Note to author: 09.03.2020. M. Akan, “Laïcité and Multiculturalism: The Stasi Report in Context”, British Journal of Sociology, vol. 60, no. 2 (2009), pp. 237–256. Meaning, as Gwénaële Calvès explains, “the author of a discrimination must be aware that a given person is specially vulnerable, because of his or her economic situation” (note to author: 09.03.2020).

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intérieur93 – governing the hiring and firing of staff must include a prohibition against doing so on the grounds listed in anti-discrimination legislation, among which are specified “religious beliefs”, except where this is justified by the nature of the job as a “genuine and determining occupational requirement[s]”.94 So, for example, a butcher who claimed that his Muslim faith prevented him from handling pork had his contract justifiably terminated for that reason.95 Public sector employers are required under employment law to enforce a policy of strict neutrality towards religion. In private sector companies, a balance must be maintained between the principle of secularism and the prohibition of discrimination based on religious beliefs. The Stasi commission sought to define more clearly the application of laïcité in the workplace. It called for the incorporation of “accomodements raisonables”, or reasonable accommodation, into the principles of laïcité for problems not covered by the 1905 law. religious organisations. As the ECtHR has often emphasised, the autonomous existence of religious communities is indispensable for pluralism in a democratic society. Article 9 of the ECHR, together with Article 11, provides international legal safeguards against unjustified state interference in the affairs of religious organisations. In France, where such safeguards are embodied in the principle of laïcité and the 1905 law, state neutrality and the autonomy of religious organisations is perhaps nowhere more firmly in place than in the context of employment. An important aspect of their legal autonomy is the freedom of religious organisations to select employees according to organisational need, in compliance with religious beliefs and free of equality and non-discrimination legal constraints. As elsewhere, this applies most stringently in relation to the appointment of religious clergy but extends also to permit the employment of secular staff – caretakers, housekeepers, gardeners – on the basis of discriminatory criteria that favour adherents of a particular religion. Given that the Catholic Church is a significant provider of educational services, it is in the appointment of teachers and ancillary staff in its many private schools, though largely funded by the state, that the principles of state neutrality and the autonomy of religious organisations most frequently intersect. An employer in such a context may impose specific duties of loyalty on employees and expect their private life not to bring the public standing of the organisation into disrepute. However, the duty not to compromise the religious values of the employing organisation will weigh heavier on those occupying a more prominent role: a teacher being more representative of those values than, for example, kitchen staff. The employer is then required to bring the principle of proportionality into 93

94 95

The règlement intérieur is a specific document, mandatory for all companies employing twenty or more employees, which sets out the main rules regarding health and safety, discipline, discrimination and harassment. Directive 78/2000/EC. Cass. Soc., No. 95-44738, 24 October 1998.

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play when balancing the damage done to the particular beliefs of the organisation and its reputation against the requirements of employment law. secular organisations. The Labour Code provided the relevant legal framework for the Cour de Cassation when it considered the “Baby Loup” case, which concerned Ms Afif’s claim that she was unlawfully dismissed when, on return from maternity leave to her position as deputy director of a day care centre for underprivileged children, she was fired for wearing an Islamic veil to work in violation of internal regulations. She alleged that the dismissal was null and void as it violated the principle of non-discrimination on the ground of religion protected by articles L1121-1 and 1132-1 of the Labour Code. The initial finding of the Cour de Cassation96 – that the principle of state neutrality did not apply to private employment and that the dismissal was discriminatory – was overturned by the Court of Appeal of Paris, which concluded that the prohibition of the Islamic veil could be an occupational requirement based on the secular ethos of the child care centre.97 In the light of that finding, the Cour de Cassation’s reconsideration of Ms Afif’s claim focused on the legitimate restrictions to rights and freedoms that could be imposed by an employer on the basis of Article L1121-1 and L1321-3, through the adaptation of its le règlement intérieur. It considered that Baby Loup was a private commercial facility but one with a community development role, which claimed a “mission of public service” and, therefore, the constitutional principle of laïcité applied to employment contracts between the crèche and its employees. Accordingly, religious neutrality could be imposed on its non-government employees and, as this limitation was proportionate to the legitimate objective pursued, the employer’s decision was justifiable. The UN HR Committee then examined the matter and found that the state did not explain how wearing the Islamic veil was incompatible with the mission of the crèche to ensure social stability, kinship and the rights of the children and their parents, to “develop an action toward early childhood in disadvantaged area while working on the social and professional insertion of women in those areas”. It was also not clear how wearing the Islamic veil interfered with fundamental rights and freedoms of children and parents in the child care centre. It concluded that the dismissal was unjustified: it breached Article 18(3) of the ICCPR and constituted discrimination on the grounds of gender and religion in violation of Article 26. Shortly afterwards, the Cour de Cassation was faced with a similar case when it considered the claim of Ms Asma Bougnaoui,98 a Muslim design engineer sacked for refusing to remove her hijab when visiting the firm’s customers, that she had 96

97 98

Social Chamber of the Court of Cassation, Baby-Loup Case No. 536 of 19 March 2013 (11-28.845). Appeal Court of Paris, Baby Loup Case No. 13/02981 of 27 November 2013. Cour de Cassation, Chambre sociale, du 22 novembre 2017 (13-19.855), Arrêt No. 2484.

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been discriminated against. The Cour de Cassation referred to the ECJ for guidance as to whether wearing an Islamic headscarf could be considered a genuine and determining occupational requirement given the context of the employee’s duties. The ECJ advised that the willingness of an employer to take account of the wishes of a customer not to have services provided by a worker wearing an Islamic headscarf could not be considered a genuine and determining occupational requirement.99 Consequently, the Cour de Cassation ruled that restrictions on religious freedom should be justified by the nature of the task to be undertaken and should arise from a genuine and determining occupational requirement, subject to the proviso that the objective be legitimate and the requirement proportionate. The wearing of the Islamic headscarf by an employee of a private undertaking when in contact with customers did not prejudice the rights or beliefs of others, and the embarrassment or sensitivity of the customers of a commercial company, at the mere sight, allegedly, of a sign of religious affiliation, was neither a relevant nor legitimate criterion, free from any discrimination, that might justify the company’s economic or commercial interests being allowed to prevail over the fundamental freedom of religion of an employee. It held that Ms Bougnaoui had been unlawfully dismissed. proselytism in the workplace. Article L.1321-1 of the French Labour Code governs the rules and procedures – le règlement intérieur – for workplace relationships, while Article L. 1121-1 states that “no one may limit personal rights or individual or collective liberties by any restriction which is not justified by the nature of the task to be performed and proportionate to the aim sought”. Effectively this means that private employers must respect the religious freedom of their employees and allow them to manifest their beliefs in the workplace unless this interferes with work processes. Employers are expressly not expected to tolerate proselytising or permit their employees to be exposed to any other form of such pressure. The ruling in Baby Loup clearly established that wearing an Islamic veil in the workplace cannot be considered to be proselytism. The 2016 El Khomri law created a new principle under which employers can impose restrictions on religious behaviour in the company’s le règlement intérieur. Essentially, employers can restrict such behaviour in the workplace if this is justified by the nature of the tasks to be performed by the employees; is in response to a determining and essential professional requirement; and is proportionate to the goal to be achieved. Equality, Service Provision and the Church–State Relationship Laïcité and the 1905 law have ensured that the Catholic Church and religion more generally are kept at arm’s length from the French State, while a leaning 99

[2017] EUECJ C-188/15.

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towards socialism has ensured that the state remains a centralising force in France. The consequences are evident in the relative sizes of the public, private and “third” sectors. Service Provision: Public and Private Public benefit service provision (state schools, municipal services, public health facilities, etc.) falls to government bodies and is governed by administrative law and ancillary regulations. Private or commercial entities undertaking public service delivery on behalf of government bodies are also subject to administrative law. Generally, employment-contract issues involving private legal entities associated with the public service remain private in nature, are governed by the Labour Code and issues are settled before judicial courts rather than administrative tribunals. EU law refers to “public or private organizations the ethos of which is based on religion or belief”, and grants them some exemptions from anti-discrimination law: in particular Article 4(1) of EU Directive 2000/78 establishes a general framework for equal treatment in employment and occupation. There would seem to be a dearth of related case law.

service provision by religious organisations. The claim that “the French non-profit sector is secular, except for religious schools”100 is arguably a bit wide of the mark. That exception – the many private religious schools owned and staffed by religious organisations even if heavily subsidised by the state – certainly constitutes a prominent part of the sector but there are now also quite a number of Catholic associations diocésaines, providing localised community-support welfare services, not to mention their, admittedly few, Muslim and Jewish counterparts. Because of their deep links of trust and pastoral care with disadvantaged communities, religious organisations are often contracted by government to undertake service-delivery responsibilities in France as elsewhere, a trend accelerated by the lois de décentralisation (devolution laws) of 1983 and 2003. Although a century of legally mandated state resistance to Catholic Church involvement in schools continues to keep religious organisations out of public education, they have now developed a prominent role in relation to social care services such as residential facilities and day care; home care for the elderly and the disabled; emergency support and refuges; crèches and other facilities for children and adolescents, as well as family counselling and back-to-work services. Nonetheless, the rigorous exclusion of religious organisations from the national public education system is a particularly stark indicator of state neutrality towards religion in France. 100

E. Archamboult, “French Civil Society: Historical Background, Present Position and Major Issues”, HAL, 2018, p. 3. See further in https://halshs.archives-ouvertes.fr/halshs-01956757/ document

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public sector service provision. A pronounced leaning towards socialism has resulted in the French public sector and its institutions retaining much of the responsibility, facilities and funding for direct public benefit service provision particularly in the field of education. Nevertheless, the government practice of delegating and funding some service provision – particularly in health and social care – to third sector bodies is well established. private service provision. In the ECtHR case of Pichon and Sajous v. France,101 the joint owners of a pharmacy, submitted that their religious beliefs justified a refusal to sell contraceptive pills in their dispensary. The court, however, in a strong and unequivocal ruling, was quite certain that the pharmacists were not legally entitled to give precedence to their private religious beliefs rather than comply with state equality laws. They could not impose their beliefs on others as justification for a refusal to sell products that they had available for sale. Their discretion as to how they manifested their religion was excluded from the professional sphere by the terms of the equality legislation; many other opportunities to do so were available to them broadcasting services. State-funded religious television programmes in France102 would seem to be a curious anomaly given laïcité and the 1905 law. However, as Turner points out, modern French society is simply making room for religion to be expressed in this medium as one of many aspects of contemporary culture.103 With the ending of the state monopoly on broadcasting in 1982, the emergence of a range of competing private companies opened up opportunities to cultivate new audiences. The pluralism that had become the hallmark of that society was reflected in the requirement of Article 3 of the loi n 86-1067 du 30 septembre 1986 (or loi Léotard) “that the diversity of French society is represented in the programs of audiovisual communication services and that this representation is free from prejudice.”104 It has to be said, however, that the religious/cultural programmes tend to lean heavily towards Christianity, specifically Catholicism, with some inclusion of Muslim and Judaism content. Turner argues, convincingly, that “it is precisely because France 2 is a public service station that it is required to promote religious pluralism and diversity”105 and 101 102

103

104 105

Application No. 49853/99 (2001). See, for example, the programmes Le Jour du Seigneur, which commenced in 1950 and includes the Catholic mass; Présence protestante, aimed at Protestant viewers and started in 1955; La Source de vie, launched in 1963 and focused on Judaism. All form part of Les Chemins de la foi, which is broadcast on the largely state-funded public service station France 2. E. Turner, “Laïcité in Contemporary France: Analyzing the Implementation and Retention of Religious Programming on Publically Supported Television”, M.A. thesis, Columbia University, 2017, pp. 1–55, https://pdfs.semanticscholar.org/f55d/ee578ebefb81f84ce05fa59fce08a6ecb85b.pdf Loi n 86-1067 du 30 septembre 1986 relative à la liberté de communication, Article 3-1. Ibid., p. 48.

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that in so doing the state is ensuring that the principle of laïcité accommodates the cultural diversity of modern French society. Equality, National Security, the Migrant Crisis and the Church–State Relationship State neutrality towards religion has been severely tested in France as it has in other countries by the twin and contemporaneous phenomena of Islamic terrorism and the migrant crisis. State Response to Terrorist Threat In the wake of the worst attacks by Islamic militants in Europe, killing some 241 people since January 2015, France has had to devise strategic counterterrorist plans focusing on the twin characteristics of the attackers: all were Muslim and all were French nationals.106 Given that Europe’s largest contingent of ISIS recruits to the war in Syria and Iraq came from France – some 2,000 – and that approximately one-quarter have returned, there are serious security issues as to why and what now. For a nation that places such a high value on laïcité, pluralism and the republican civic ideal, the realisation that some of its citizens have felt so alienated as to randomly murder many innocent fellow citizens, in the name of religion, is a matter that presents a profound challenge for France and the principle of state neutrality.

anti-terrorism measures. France is engaged in anti-terrorist programmes at home and overseas. In the latter case, it has been combatting Islamic fundamentalists in Mali, a former French colony, for the past seven years while also participating in the US-led war against ISIS in Iraq and Syria. Domestically, it has constructed an extensive set of national security laws over several decades and in 2017 introduced a new anti-terrorism law that formally ended the state of emergency imposed after the 2015 Paris attacks. The new law – Strengthening Internal Security and the Fight Against Terrorism (SILT) – includes powers for discretionary home searches and for confining individuals to their hometowns, on the authority of government officials acting without the necessity for a court order. The unmistakable and specifically targeted dimension to these laws is open to criticism on human rights grounds. The UN special rapporteur on the protection of human rights in the context of countering terrorism pointed out, in May 2018, that “the French Muslim community have been the community primarily subject to exceptional measures both during the state of emergency and the new law in tandem with other counter-terrorism measures”, highlighting, as an example, the closure of mosques as an encroachment on the enjoyment of religious freedom. In her view the counterterrorism measures “engage profound, sustained and 106

Excepting the Belgian ringleader, Abdelhamid Abaaoud.

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potentially disproportionate effects on the enjoyment of fundamental human rights and civil liberties”.107 Amnesty International and Human Rights Watch have also voiced their concerns. France’s director for the latter agency warned that France had been progressively “weakening” judicial oversight in its counterterrorism efforts, and “the normalisation of emergency powers crosses a new line”. State Response to Migrant Crisis Since 2012, France has granted asylum to 5,000 Syrian and 4,500 Iraqi refugees.108 The considerable pressure to offer refuge is apparent in the fact that in 2017 some 100,000 people requested asylum, a “historic” number and an increase of 17 per cent on the previous year; though, it must be added, France’s acceptance of applications is particularly low.109

religious/cultural differences. The French response to the migrant crisis was compromised for at least two reasons. Firstly, it already had a level of social instability – especially in the banlieues – due in part to the number of firstgeneration Muslim refugees from France’s colonial wars in Algeria. Secondly, the migrant crisis began in 2015, coinciding with what for France was its worst terrorist atrocity and one perpetrated by Muslims. These two factors combined to restrain the national response to the plight of many tens of thousands of largely Muslim migrants seeking asylum. revival of “nation state” ideology. La République française would seem to have a stronger, more coherent sense of national identity than most of the twentyeight member states that are presently cooperatively nested within the European Union and for which privilege they have all willingly shed a degree of sovereignty. While all, to a greater or lesser extent, have experienced a political backlash against the migrant crisis and a shared concern regarding Islamic terrorism, they have varied in their readiness to adopt the reflexive response of reviving a “nation state” ideology as the preferred coping mechanism. France is currently struggling to accommodate the Muslim religion and culture but is not retreating behind harder borders in the same manner as Poland, the Czech Republic, Slovenia and others. While the continued ban on the Islamic veil, the 2016 birkini ban and the 2017 anti-terrorism law are certainly indicative of a more aggressive iteration of laïcité, this falls short of nationalistic isolationalism and may prove enough to keep la République de France anchored on its founding principles of liberté, égalité et fraternité. 107

108

109

See further in www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23130& LangID=E Note that some European countries – such as Hungary, Poland and the Czech Republic – oppose the EU relocation scheme for asylum seekers. See further in www.gouvernement.fr/en/france-opposes-introduction-of-migrant-quotas

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conclusion The French Revolution and the Declaration of the Rights of Man and of the Citizen, 1789, grounded the French interpretation and application of state neutrality. Subsequently, laïcité, together with the loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, articulated the unique church–state relationship and ensured that republican principles became ingrained and deeply rooted hallmarks of French culture, to be staunchly defended in all aspects of public life. France, today, resolutely retains the principles established at its rebirth as a republic and continues its renunciation of religion in public affairs – all religion and all forms of ideology – thereby guaranteeing that equality and egalitarianism tip the balance in favour of the secular rather than the sacred. However, contemporary France is now confronted with an increase in religious diversity. Although pluralistic approaches have been taken, in line with laïcité, to maintain secularity, it is inevitable that this diversity will continue to rise due to immigration and globalisation factors. The hoped-for social homogeneity, resulting from an overriding commitment to citizenship and facilitated by laïcité, is now threatening to unravel as tensions associated with far-right political parties generate increasing divisiveness.

8 Germany: The Vaterland

introduction This chapter begins by considering the principle of state neutrality, briefly sketching its history and contemporary policy context with particular reference to multiculturalism and diversity. The first section of the case law study examines state neutrality in relation to the fundamental freedoms: the rights to freedom of religion, association/assembly and to expression, giving particular attention to the concepts of “religion” and “belief”; and to the intersect between fundamental rights and the church–state relationship. The second stage then studies the effects of equality and non-discrimination legislation on the laws relating to family matters and reviews the associated case law. Maintaining the same equality focus, the third stage traces case law developments at the interface between church–state and areas of everyday life including education, employment, healthcare and retail services. The chapter concludes with a section that considers the role of state neutrality in relation to the religious dimension undeniably present in the current twin issues of terrorism and the migrant crisis.

policy overview The Peace of Augsburg in 1555 provided a legal basis for the peaceful coexistence of Catholicism and Lutheranism. In keeping with the principle cuius regio, eius religio (whose realm, his religion), as it was retrospectively designated, the Augsburg settlement formally recognised the right of each area of the Holy Roman Empire to establish its own religion. Thereafter, in the area now known as Germany, there developed a patchwork of relatively independent states, each with its own dominant religion – Reformed, United, Lutheran or Roman Catholic – which was maintained throughout the era of the Weimar Republic and continues to stamp the religious identity of individual Länder, even though the 1949 Constitution – Grundgesetz – 357

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continued the disestablishment of any legal basis for that church–state relationship.1 The different religious traditions of the Länder are a factor in interpreting the principle of state neutrality in contemporary Germany. Background Germany’s rehabilitation as a member of international civil society has been predicated on the nation’s reconciliation with the effects of considerable twentieth-century trauma, much of which impacted the church–state relationship. Most obviously this has centred on dealing with the damage inflicted by the Nazi State on religion, religious organisations and specifically on the Jewish people. This was followed by the challenge to the state represented by the Baader–Meinhof gang and the Red Army Faction with their nihilistic ideology, both of which confronted the state with a total rejection of religion. More recently, a religion-adverse ideology again presented a challenge when national reunification in 1989 brought with it a need to come to terms with the after-effects of Communism on millions of German citizens. Religion varies in type and significance across modern Germany. This has been readily apparent in regional variations in education, arts, music, customs, festivals, lifestyle and, increasingly, in architecture. In eastern Germany, subjugated by Socialism for generations, religion of any type now has a weak presence and little cultural influence and this is now more generally true of all urban areas in Germany. In rural areas, religion retains a strong but partisan presence and a significant cultural influence. This is particularly the case in Bavaria, and in some areas of BadenWürttemberg and the Siegerland. Religious Neutrality: A Principle That Permits State Support for Religion In Germany, favouritism in respect of any particular religion is prohibited and the autonomy of religious organisations in general must be respected. As the court explained in the second “headscarf case”, state neutrality as provided for in Article 7 of the Grundgesetz does not require strict separation of state and church but rather it suggests an open and respectful relationship, one which encourages freedom of faith equally for all beliefs.2

interpreting the principle. As the state is not permitted to define what constitutes a religion, it must provide official recognition and support to the full range of organisations representing legal forms of belief and ideology: they must not be disadvantaged relative to their secular counterparts; all citizens should be equally free to adhere to such religion, beliefs or non-beliefs as they choose. In practice, however, state interpretation of the neutrality principle allows it to not only provide 1 2

Initially disestablished under the Weimar Constitution, Article 137, s.1. BVerfGE 138, 296 (339); 1 BvR 471/10, para. 110.

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support for religion per se, but also to lean more towards the Christian religion and culture (and towards Judaism in the post-World War II period) when doing so. vaterland. References to “the fatherland” in the national anthem and its deep and lasting association with national politics3 indicate the continuing importance attached to a cohesive, territorially based, German identity. It resonates in the sentiments that surround the concept of a German people – volksdeutsche – those who share the same ethnicity but now, separated by post-war borders, are consigned to Poland, France and elsewhere. In the absence, perhaps, of a unifying adherence to a particular religion – the Protestant–Catholic divide also representing, for many centuries, a significant cultural divide – the appeal of territory, borders and, at times, of the volk – ethnicity and racial affiliation – may have grounded a sense of belonging and provided a basis for construing a distinctive national identity.4 Unarguably, endlessly contested borders have played a major role in defining both Germany and what it means to be German. As the reality of German borders again comes under challenge, this time from ISIS terrorists and the migrant crisis, it is as unsurprising as it is unsettling that calls to protect the integrity of the vaterland are now being heard again in the Bundestag. Religion and Contemporary Public Policy In recent years, public policy in Germany has developed a pronounced emphasis on managing multiculturalism.5 This may be partially a consequence of absorbing both its atheist citizens from the former GDR and the influx of Muslims and a variety of ethnic groups that comprised the migrant crisis. It may also simply reflect a general trend towards secularism and the resigned acceptance of transient work populations now commonly shared by all developed Western nations.

population. Germany has a total population of 82.79 million (July 2018 estimate), which remains largely religious and Christian. Unofficial estimates based on the census and figures provided by religious groups indicate that approximately 50 per cent of the population identifies with Christianity as its religion and culture: 29 per cent Roman Catholic; 27 per cent belonging to the EKD – a confederation of Lutheran, Reformed (Calvinist), and United (Prussian Union and other) Protestant regional churches; other Protestant denominations, including the New Apostolic Church, Baptist communities, and nondenominational Christians, constitute less 3

4

5

The German Fatherland Party (Deutsche Vaterlandspartei) was founded on 2 September 1917 and its dissolution became effective on 1 February 1919. Currently, an appeal to “the fatherland” has become an (Alternative for Germany) AfD rallying cry. See, for example, J. G. Fichte, Addresses to the German Nation, Greenwood Press, Westport, CT, 1979 [1808]. See further Habermas, J., in Multiculturalism and the Politics of Recognition, Princeton University Press, New Jersey, 1994.

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than 1 per cent of the population, while Judaism accounts for 0.1 per cent. Additionally, Germany has the European Union’s second-largest Muslim population after France, according to estimates by Pew Research: approximately 6.1 per cent of the population in 2016. multiculturalism. Germany’s conversion to multiculturalism, if that’s what it is, seemed to occur suddenly and recently.6 This is a nation state with a particularly strong history of territorial awareness, of nationhood and of “a people” belonging to “the fatherland”. Its traditional disregard or persecution of ethnic minorities became genocidal during the Nazi era. One longstanding indicator of the value it placed upon nationality and citizenship lay in its resistance to incomers sharing equal status with the native population.7 Moreover, German citizenship was exclusive; there was no possibility of holding dual citizenship. Currently, the humane welcoming response to the influx of over a million migrants – largely Muslims from Syria, Iraq, Kosovo, Afghanistan and the Balkans – from 2015 onwards, is most usually identified as hard evidence of Germany now being demonstrably more committed to multiculturalism than other Western nations. This seems to ignore the fact that millions of Turkish immigrants – gastarbeiter – together with many transient workers8 who had availed of the EU right to free movement, had been absorbed into Germany’s urban population in the preceding decades. Since reunification in 1990, coupled with economic growth and social stability, Germany had become the destination of choice not just for the majority of overseas migrants but also for the very many impoverished people in eastern and southern Europe seeking employment opportunities, better health and social care, and an improved quality of life. Despite public policy equivocation – Leitkulturdebatte – the controversy over whether or not Germany could be considered a multicultural nation had, even before 2015, been answered by the facts on the ground. In practice, in cities such as Berlin, celebrated as the most multicultural and tolerant city in Germany, there are problematic neighbourhoods where immigrants have established parallel societies – Parallelgesellschaften – which, by virtue of their assertively distinctive cultural autonomy, seem to represent failed integration. This impression is reinforced by the rise in popularity of the anti-immigration Pegida movement, which regularly stages protest demonstrations, as well as the rise of the populist right-wing party Alternative for Germany (AfD). Founded in 2013, the AfD is an anti-immigration and a vociferously anti-Muslim party, which in recent years

6

7 8

See, for example, F. Eckardt, “Multiculturalism in Germany: From Ideology to Pragmatism – and Back?”, National Identities, vol. 9, no. 3 (2007), pp. 235–245. Not until 2000 did citizenship become legally determined by place of birth. D. Klusmeyer, “Aliens, Immigrants, and Citizens: The Politics of Inclusion in the Federal Republic of Germany”, Daedalus, vol. 122, no. 3 (1993), pp. 81–114.

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has managed to enter the European Parliament, the federal parliament and all sixteen Länder parliaments. It may be premature to assume that multiculturalism in Germany has proven to be an unmitigated success. religious diversity. Christianity, the religion and associated culture, has been the dominant social characteristic of Germany for the past 1,300 years. Five hundred years after the birth of Protestantism, this country and its citizens continue to be polarised between the Christian denominations of Lutheran-Protestantism and Calvinism (united with such others as Baptists, Methodists and Mennonites, in an evangelical church fellowship) and the Roman Catholic Church. History records how each denomination became concentrated in a specific region while Judaism was virtually eliminated. Not until the latter half of the twentieth century did the Christian religious/cultural hegemony weaken as secularism took hold, other major traditional religions became more prominent and a disparate array of new religions and beliefs emerged. Largely as a consequence of migration, there are now more than 200 religious communities in some German cities, but it is the rate and volume of growth of the Muslim religion that has become the main focus of attention. For some, Islam is perceived as being more an ideology than a religion and this resonates troublingly with Germany’s experience of ideology in the recent past. state agencies for religious matters. German interpretation of the freedom of religion and of related state neutrality suggests that government should provide formal mechanisms for communicating with religions in general and with particular denominations as needed. Traditionally and currently the main such mechanism is fiscal. The church tax – Kirchensteuer – paid by every adherent enrolled in a church, is collected by the state for distribution directly to the churches. In addition, the state provides annual grants to the Protestant and Catholic churches. This combination of grants, the church tax law and state subsidies for many faith-based social services has made Germany’s Protestant and Catholic churches among the richest in the world. Although, as Gerhard Robbers points out, other religious communities and “world view” communities also receive state funds,9 it remains the case that the Christian churches have benefitted more and for longer than others and this raises questions regarding the reality of state neutrality. By registering as an association, a religious organisation places itself in the public arena and thereafter shares equal status with the established Christian denominations. One example of this process occurred in 2006 when the federal minister of the interior established the German Islam Conference – Deutsche Islam Konferenz – to “indicate the path to a better legal and societal integration of Muslims in

9

Note to author: 15.12.2019.

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Germany and – where possible – to take this path”.10 The following year the four largest Muslim organisations established the Coordination Council of Muslims in Germany – Koordinationsrat der Muslime in Deutschland – though this body is yet to register as an association.11

contemporary legal framework Germany, a leading EU nation and a strong advocate for international human rights, has been at the forefront in constructing the international framework of relevant legislative provisions, courts and regulatory mechanisms. International Conventions Germany has ratified all major international instruments. UN declarations and resolutions – including the Universal Declaration on Human Rights (UDHR) – are assumed to be binding. Those with most relevance for state neutrality are: the European Convention on Human Rights (ECHR), ratified in 1952 and since incorporated into domestic legislation; the International Covenant on Civil and Political Rights (ICCPR), ratified in 1973; the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified in 1973 but with reservations; the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified in 1969; the International Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), ratified in 1985; and the Convention on the Rights of the Child, ratified in 1992 (see, further, Chapter 3 for information on all international instruments). The Constitution and Domestic Legislation The federal republic of Germany comprises sixteen relatively autonomous states, or Länder, which, although subject to the federal authority, retain considerable autonomous legislative powers. The Constitution The Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal Republic of Germany), the Basic Law or Grundgesetz, is the Constitution of Germany and it came into effect in 1949. It guarantees all rights proclaimed in the UDHR and provides in Article 4(1) that “freedom of faith and conscience as well as freedom of creed, religious or ideological, are inviolable”; and in 4(2) that the 10

11

See further in www.deutsche-islam-konferenz.de/DIK/DE/DIK/1UeberDIK/DIK06-09/ Rueckschau/rueckschau-node.html The Grundgesetz, Article 140.

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undisturbed practice of religion shall be guaranteed.12 This is supplemented by Articles 136, 139 and 141 of the Constitution of the Weimar Republic, dating from 1919, which prohibit the establishing of a state religion. the civil code ( bu¨ rgerliches gesetzbuch ). The German Civil Code, the Bürgerliches Gesetzbuch (BGB), provides the basic, over-arching, federal civil law framework, though it makes no express reference to state neutrality. the criminal code ( deutsches strafgesetzbuch ; stgb). This codification of the criminal law in 1871 has since been amended and supplemented many times. Strong anti-hatred provisions were among the post-Nazi era inclusions. Other Legislation Generally, legal provisions relating to religion are to be found in the Grundgesetz, the Constitution of the Weimar Republic, and some in the Civil or Penal Codes, rather than in religion-specific legislation.

the general law on equal treatment ( allgemeines gleichbehandlungsgesetz ), 2006. This 2006 statute incorporated four EU directives into German law.13 It protects people who are discriminated against on the grounds of race or ethnic background, gender, religion or belief, disability, age or sexual orientation. Courts and Tribunals Germany’s legal system includes a modern court system. International As a fully committed member state of the EU, the rulings of German courts are amenable to review by the ECtHR and the ECJ.

the european court of human rights (ecthr). The ECtHR hears complaints alleging that any one of the forty-seven member states has violated rights 12 13

Also, Articles 3(iii), 7(ii) and 33 (iii). Council Directive 2000/43/EC of 29 June 2000 (Racial Equality Directive) implementing the principle of equal treatment irrespective of race or ethnic origin; Council Directive 2000/78/ EC of 27 November 2000 (Framework Directive on Employment) establishing a general framework for equal treatment in employment and occupation; Council Directive 2004/113/ EC of 13 December 2004 (Equal Treatment in Goods and Services Directive) implementing the principle of equal treatment between men and women in the access to and supply of goods and services; and Directive 2006/54/EC of 5 July 2006 (Equal Treatment Directive) on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

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enshrined in the convention and its protocols. In making its determinations, the court is guided by principles such as “proportionality” and “compatibility with democracy”.14 Its decisions are reached in the light of “a margin of appreciation”, which permits states a degree of latitude in their interpretation of human rights obligations15 (see further in Chapter 3). the human rights committee (hrc). This body monitors progress made on promoting human rights and provides a four-yearly update on achievements and agrees further goals (see further in Chapter 3). other fora. The European Court of Justice (ECJ), and certain committees established by their respective international conventions to monitor implementation, may also be relevant (see further in Chapter 3). the federal anti-discrimination agency (antidiskriminieurungsstelle des bundes). Established under Part 5 of the 2006 act, this is a mediation agency that primarily provides a counselling service for those claiming to have experienced discrimination. The Domestic Judicial and Regulatory Systems The Federal Constitutional Court and the Länders’ constitutional courts comprise the top tier of Germany’s judicial system. Below are five different types of court, including the ordinary courts, labour courts and other more specialist courts.

the federal constitutional court ( bundesverfassungsgericht ; bverfg). Established in 1951 and consisting of two Senates, this entity is both a court and an organ of the Constitution. It primarily functions as the guardian of the Grundgesetz, or Basic Law, and its role as interpreter of constitutional provisions is not unlike that of the United States Supreme Court (USSC). the federal supreme court of justice ( bundesgerichtshof ; bgh). This, the Supreme Court (or court of last resort) in all matters of criminal and private law, was founded in 1950. the federal labour court ( bundesarbeitsgericht ; bag). This, the court of the last resort for labour law cases in Germany, has jurisdiction for both individual and collective legal proceedings. 14

15

See Refah Partisi v. Turkey, (2003) 37 EHRR 1, [2003] ECHR 87 when the ECtHR ruled that sharia law is not consistent with democracy and therefore the Turkish government was justified in banning a political party seeking to introduce such law. See, for example, Lithgow v. United Kingdom, (1986) 8 EHRR 329, Fredin v. Sweden, (1991) 13 EHRR 784, Abdulaziz, Cabales and Balkandali v. United Kingdom, (1985) 7 EHRR 471.

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the higher labour court ( landesarbeitsgericht ; lag). Decisions of the Labour Court may be appealed to the LAG on a point of law or a matter of procedure. the labour court ( arbeitsgericht ; arbg). This court of first instance hears and arbitrates on all labour disputes. other. In 2018, the federal government and twelve Länder appointed antiSemitism commissioners.

International Reports Human Rights Watch has reported that the eight Länder with laws restricting the wearing of religious symbols contravene Germany’s international obligations to guarantee individuals the right to freedom of religion and equality before the law. Either explicitly or in their application, these laws discriminate particularly against Muslim women, excluding them from teaching and other public sector employment on the basis of their faith. The UN Human Rights Committee The committee’s 1996 report, giving effect to its ICCPR duties, expressed serious concern regarding police brutality; the inadequate education of children on the evils of anti-Semitism and xenophobic attitudes; the too-narrow definition of “minority”; and infringements of the freedom of religion. It also identified discriminatory efforts to restrict the rights of members of religious minorities, such as the Church of Scientology as a matter of “serious” concern. The Universal Periodic Review The majority of recommendations in the 2013 review were about the need to protect migrants’ rights; others mainly concerned protection required against discrimination in public schooling; the withdrawal of legislation prohibiting the wearing of religious symbols; strengthening the commitment to protect the right to freedom of religion and belief, and measures to combat religious bias and discrimination; and recognising the possibility of dual citizenship for Turks. The US Annual Country Report on International Human Rights The 2018 report drew attention to certain human rights issues including refoulement of those with pending asylum applications; crimes involving violence motivated by anti-Semitism; and crimes involving violence targeting lesbian, gay, bisexual, transgender and intersex (LGBTI) persons and members of other minority groups.

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case law: the church–state relationship and fundamental human rights The church–state relationship in Germany is characterised by a benign partnership, enjoying federal protection under the Grundgesetz and constitutional law but in practice left to be conducted somewhat differently between the Länder and the traditional institutional religions. In comparison with the USA, the cases generated by issues arising at the intersect of that relationship with fundamental human rights are few and far between with a focus more on matters of symbolic, than of constitutional, significance. Freedom of Religion Articles 4(1) and 4(2) of the Grundgesetz guarantee both the freedom of religion and the right of individuals to practice it. As the courts have pointed out, “the principle of state neutrality towards the various religions and denominations (BVerfGE 93, 1 (16)) also follows from the freedom of religion”.16 Definitions There is no definition of what might constitute a “religion” or “belief” in German law, nor is there any right to examine the doctrines and tenets of an organisation in order to determine whether or not it may be legally construed as such. However, the German Federal Constitutional Court has stated that religion and belief are characterised by a sense of certainty with regard to assertions concerning heaven and earth, as well as to the origin and the purpose of human life. As was noted in the Jehovah’s Witnesses case,17 the introduction of substantive definitional criteria would amount to an “inadmissible quality test”.18

“religion”. The standing legal presumption that Christianity and Judaism satisfy any definition of what constitutes a “religion” has permitted their continued registration as public bodies. However, no such presumption applies to the newly emerging forms of religion and belief. As the neutrality principle prohibits state determination of the matter, reliance is instead placed on self-assessment by the entity itself as substantiated by the relevant umbrella body, though state neutrality does not prevent the state from conducting plausibility enquiries. Despite the difficulties many new organisations have been officially recognised as religious.19 16 17 18 19

BVerfG, Order of the Second Senate of 19 December 2000 – 2 BvR 1500/97, para. 57. Ibid. Ibid., para. 38. As pointed out in BVerfG, ibid., para. 3, these include for instance the Alt-Katholische Kirche, the Bund Evangelisch-Freikirchlicher Gemeinden (Baptisten), the Bund freier evangelischer Gemeinden, the Bund freikirchlicher Pfingstgemeinden, the Bund freireligiöser Gemeinden,

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“beliefs”. Article 137(7) of the former Weimar Constitution declares that “associations whose purpose is to foster a philosophical belief in the community shall have the same status as religious societies”. Together with Article 140 of the Grundgesetz, this ensures that the same legal recognition and protection given to religion and belief is extended to accommodate Weltanschauung or matters of ideology or philosophy,20 although the Church of Scientology – despite a finding to the contrary by the ECtHR – has been refused such recognition due to a German judicial finding that it is too commercial.21 In keeping with UK jurisprudence, the German courts have also held that it is the individual’s interpretation of a belief, rather than prescribed doctrine or tenets, that is significant for legal purposes.22 worship. According to the UN Human Rights Committee: “The concept of worship extends to [. . .] the display of symbols. . .. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as . . . the wearing of distinctive clothing or head coverings”.23 This interpretation has a particular relevance for Germany, given the protracted litigation on issues concerning crucifixes and Islamic headscarves. It is hard to see how the approach of certain Länder to the display of such symbols could be compatible with state neutrality. Religious Discrimination Article 3.3 of the Grundgesetz declares that “[n]o person shall be favoured or discriminated because of sex, parentage, race, language, national or social background, faith, or religious or political opinions”. This is amplified in Article 33.3, which states that “neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon

20 21 22 23

the Bund für Geistesfreiheit in Bayern, the Christengemeinschaft, the Christliche Wissenschaft, the Dänische Seemannskirche in Hamburg, the Deutsche Unitarier, the Europäisch-Festländische Brüder-Unität (Herrnhuter Brüdergemeinde), the EvangelischBischöfliche Gemeinde in Hamburg, the Evangelisch-Methodistische Kirche, the Französische Kirche zu Berlin (Hugenottenkirche), the Freigeistige Landesgemeinschaft Nordrhein-Westfalen, the Gemeinschaft der Siebenten-Tags-Adventisten, the Heilsarmee in Deutschland, the Johannische Kirche in Berlin, the Kirche Jesu Christi der Heiligen der letzten Tage (Mormonen), the Neuapostolische Kirche, the Russisch-Orthodoxe Kirche (Moskauer Patriarchat), the Russisch-Orthodoxe Metropolie von Deutschland, the Vereinigung der Mennoniten-Gemeinden or the Wallonisch-Niederländische Gemeinde Hanau. BVerGE 24, 236 (246). Bundesarbeitsgericht, 1996. BVerGE 32, 98 (106). United Nations Human Rights Committee General Comment No. 22, issued to clarify the meaning of Article 18 (forty-eighth session, 1993), adopted on 20 July 1993, Doc. CCPR/C21/ Rev. 1/Add. 4, para 4.

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religious affiliation. No one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed”. Anti-Semitism in Germany, unlike in other countries, is treated as discrimination on the grounds of race – anti-Judaism – rather than religion. Protecting the State from Religion State neutrality has long been a constitutionally established principle in Germany, even if it is not actually mentioned in the Grundgesetz.24 However, the principle has not prevented the state from offering considerable protection and even support to religion.

an “established” church. Article 137(1) of the Constitution of the Weimar Republic prohibits the establishing of a state religion – Es besteht keine Staatskirche (“There is no State Church”) – reinforced by provisions to the same effect in Articles 4 and 140 of the Grundgesetz. a secular state. Article 33 of the Grundgesetz insulates state officialdom from religious influence. It forbids any preferential treatment – based on religious adherence – in politics, in the appointment of public service staff or in the provision of public services. accommodating religious law and courts. As the court acknowledged,25 when considering an appeal by Jehovah’s Witnesses against the rejection of their application for public corporation status, “a religious community which wishes to become a corporate body under public law must be true to the law. It must offer an assurance that it will comply with the valid law, in particular that it will exercise the sovereign powers assigned to it only in compliance with the constitutional and other statutory ties”.26 This would seem to preclude any setting up of an independent system of law and courts that functions contrary to that of the state and may go some way towards explaining the 2011 statement by the then interior minister that “Islam does not belong to Germany”.27 This is qualified by the caveat that such an organisation may “have a reserve benefiting their conscience and their decisions based on their beliefs, and when conflict becomes unavoidable ultimately insist on paying greater heed to the precepts of faith than to the principles of the law”.28 24

25 26 27 28

See J. Gesley, “The Relationship between Church and State in Germany”, The Library of Congress, 2017, https://blogs.loc.gov/law/2017/12/the-relationship-between-church-and-state-ingermany/ BVerfG, Order of the Second Senate of 19 December 2000 – 2 BvR 1500/97. Ibid., para. 77. See further in www.zeit.de/politik/deutschland/2011-03/innenminister-islam-friedrich Ibid., para. 82.

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In practice, the main organised religions with the capacity to operate their own laws and courts are those whose registrations were automatically carried over from the Weimar Republic era, because they were presumed to satisfy relevant constitutional requirements,29 and these are now assumed to be compliant with “valid law” and “sovereign powers”. In relation to newer religions with a potential corresponding capacity, such as Jehovah’s Witnesses, the process of registering as a public corporation may not determine whether they are similarly compliant because the constraints inherent in the principle of state neutrality prohibit intrusion into the affairs of such organisations. So, essentially, the Beth Din courts of Judaism and the canon law of Christianity continue to function – as internal administrative mechanisms – but the newer religions have difficulty in acquiring the same official recognition. sharia law. The German legal system has become accustomed to parties relying on sharia law in the course of statutory proceedings and it takes sharia rules into account. However, no legal recognition is extended to the Islamic judiciary, to Islamic “police”,30 to the jurisdiction of Islamic mufti or to any contractual or other arrangement or decision taken in accordance with sharia law but not also formally processed as required by German law. For example, many Muslim couples in Germany undergo a religious form of marriage in a mosque – nikah – without also undergoing a civil marriage in a registry office and having that marriage officially registered. Such a marriage is not illegal but it is without any civil law effect and this can give rise to serious family law issues: parental rights and responsibilities are difficult to establish; a legal divorce is not possible; and the parties have no claim to the legal rights of a spouse, such as inheritance, tax benefits, and social support. When a nikah breaks down, the relationship can be terminated through one of two sharia law processes: talaq, in which the husband divorces the wife and pays the deferred dower (mahr) and maintenance (nafaqa); or khul, in which the wife renounces her financial rights and pays compensation. Both options are particularly disadvantageous for the wife, leaving matters of child custody and upbringing unresolved, and both are difficult to reconcile with German equality law.31 In 2002, the Central Council of Muslims in Germany declared in Article 13 of its Islamic Charter that “the command of Islamic law to observe the local legal order includes the acceptance of the German statutes governing marriage and inheritance, and civil as well as criminal procedure”. This would seem to constitute a significant concession that indicates a willingness to accept the German interpretation of state neutrality towards all religions. 29

30

31

The Grundgesetz, Article 140, in conjunction with the former Weimar Constitution, Article 137(5). In 2018, the Federal Constitutional Court reversed the 2016 acquittal by the Wuppertal Regional Court of seven men who had dressed in yellow vests marked “Sharia Police” and patrolled Wuppertal to counter “non-Muslim behaviour”. Civil Code, s.138.

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Protecting Religion from the State In several rulings,32 the Bundesverfassungsgericht has upheld the fundamental independence of religion and religious organisations from the state.33 However, under Article 137(5) of the former Weimar Constitution, the state continued its official recognition of those religions that had acquired public body status in the era of the Weimar Republic – almost exclusively Christian – and thereby cultivated a closer and more protective relationship with them than others. This may have had the unintended effect of compromising the independence of some religions – such as Islam – as their adherents have distanced themselves from the state and accepted financial and doctrinal support from sources outside the jurisdiction.

determining the legitimacy of religion and beliefs. State neutrality prohibits the state from defining what constitutes a “religion”: it can neither assess whether traditional religions can be defined as such nor can it avoid granting equal recognition to emerging new forms of religion or belief. state protection of beliefs/culture of ethnic groups. The 2012 legislative initiative taken by the Bundestag to legitimise the circumcision of Muslim and Jewish boys represented an important indication of state willingness to affirm and protect a traditional religious practice. In recent years the records show an increase in the number of anti-Semitic and anti-Muslim public protests and personal attacks against religious adherents across Germany, matched by a corresponding increase in the number of related police investigations and prosecutions. State Treatment of Religions Recognition and respect for religion is evident in the Preamble to the 1948 Constitution – the Grundgesetz – in the declaration that the state is “Aware of its responsibility to God”. Article 140 of the Grundgesetz together with Article 137(5) of the former Weimar Constitution permit religious organisations to apply for registration as public law corporations. By conferring this locus standi, the state formally recognises such organisations as public bodies although, as Robbers points out, “the Federal Constitutional Court clearly holds that there is no incorporation of those religious communities into State structures: separation remains complete and intact”.34 However, the religious organisations that elect to register are thereby opting to move out of the general pool of independent third-sector non-government bodies and opting instead for a closer relationship with the state. For the state to confer a 32 33

34

See BVerfGE 30, 415, 428 and BVerfGE 102, 370. See, for example, the case concerning the possible status as corporation under public law of Jehovah’s Witnesses. Note to author: 15.12.2019.

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discretion to so choose would seem to constitute a significant derogation from neutrality. To acquire public body status an organisation must satisfy the Article 137(5) requirement that “their constitution and the number of their members give assurance of their permanency”. As the German Federal Constitutional Court explained in 2000, in the earlier mentioned Jehovah’s Witnesses case, when it ruled that denying an application for such status violated their rights, the requirement of “permanence” entails matters such as “sufficient funding, a minimum period of existence, and the intensity of religious life”.35 The court stated that36 a religious group that wants to become a religious body under public law must provide the guarantee that its future behaviour will not endanger: (1) the fundamental constitutional principles set forth in Article 79.3 of the Basic Law; (2) the fundamental rights of third parties, which are entrusted to the protection of the State; and (3) the fundamental principles of the liberal law of religious organisations and of the State’s law on churches that are enshrined in the Basic Law.

In 2005 the German Federal Administrative Court held that an Islamic religious umbrella organisation would qualify as a religious community “if it is responsible for implementing the purpose of all united believers of the religion and can exert religious authority on doctrine for all levels of associated groups down to the individual mosques”. The formality of the church–state relationship is also given effect – at federal and Länder levels – through concordats with the Catholic Church and “state treaties” with Protestant Churches and bodies representing other religious communities.37 equal treatment by the state. While the principle of state neutrality is given federal effect by the Grundgesetz rule prohibiting positive or negative discriminatory treatment of anyone on the grounds of religion,38 this is not applied uniformly by all Länder. For example, half of them have, to a varying degree, banned teachers and civil servants from wearing religious clothing or other religious symbols, but at least five have made exceptions where Christianity is the religion being represented. The rationale for such exceptional treatment is usually grounded, ostensibly, on respect for culture rather than religion but perhaps it is assumed that equal treatment by the state should not be interpreted as a requirement that the state treat all religions uniformly.

35 36 37

38

BVerfG, para. 63. Ibid., para. 83. See further in G. Robbers, “Religious Freedom in Germany”, BYU Law Review, no. 2 (2001), pp. 643–668. Grundgesetz, Article 3, para. 3.

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state prejudicial intervention. An underlying prejudicial factor in the way the state relates to religion lies in the necessity for a religion or religious organisation to be granted the status of a public body – Körperschaftsstatus – before it is in a position to claim important tax exemptions. The inability of some ethnic and religious/cultural communities to do so would seem to have a particularly adverse effect on Islamic organisations. The Berlin Neutralitätsgesetz – law of neutrality – 2005, and other such restrictive interventions are overtly prejudicial to religion, its adherents and organisations. state-supportive intervention. Article 4 of the Grundgesetz requires the state to respect the religious freedom of its citizens and ensure protection for the free expression of their beliefs. The “church tax” – Kirchensteuer – however, provides particularly clear evidence that the state goes a step further and gives tangible support to sustain and promote religion. Authorised by Article 140 of the Grundgesetz, in conjunction with Article 137(6) of the former Weimar Constitution, this mandatory tax is levied by churches on their members but is collected by the state for distribution by it to designated churches, religious organisations and their ancillary facilities. The “church tax” has led to the traditional institutional religious communities in Germany being among the richest in Europe and to a consequent widening gap between them and their newer counterparts. Its legitimacy has been upheld by the ECtHR.39 The state also provides annual grant aid to churches, it funds the training of theology students, shares responsibility with clergy for the appointment of university chairs in theology and funds services for Holocaust survivors. It supports Jewish and Muslim communities. This supportive role is further demonstrated by the permissive discretion granted to public schools under Article 7(3) of the Grundgesetz enabling them to include religious instruction as part of the curriculum, a discretion operationalised by teachers approved by their respective religious organisations rather than nominated by the state. affirmative action. State neutrality requires the state to ensure that sacred entities – religion and religious organisations – are not at a disadvantage relative to their secular counterparts. In theory this places an onus on the state to take such affirmative action as may from time to time be necessary to eliminate any such disadvantage or to take preventative measures to ensure that this does not occur. However, while the 2006 act permits such action, it does not require it. Nonetheless, urban development law is obliged to take into account and make appropriate provision for the projected needs of religious adherents.40 The initiative taken by 39

40

Wasmuth v. Germany, Application No. 12884/03 (2011) and Klein and Others v. Germany, Application Nos. 10138/11, 16687/11 (2017). As required under s. 1.5, sentence 2, no. 6 of the Federal Building Code (Baugesetzbuch – BauGB).

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the Lände of Hesse, Hambourg and Bremen to conclude agreements – Staatsvertrag – with their Muslim communities, recognising Muslim holy days as occasions warranting a day off work for employees, might also be considered an example of affirmative action. religious symbols and prayers in state facilities. Article 136(4) of the Weimar Constitution declares the general principle that “[n]o one may be compelled to perform any religious act or ceremony, to participate in religious exercises or to take a religious form of oath”. This is also present in a restricted form in Article 56 of the Grundgesetz, which removes the previous necessity for the oath of office taken by the federal president to include the “religious affirmation” of “so help me God”. In 2018, these measures failed to deter the authorities in Bavaria from extending the established practice of displaying crucifixes in classrooms to include the entrance halls of all government buildings. While this was considered compatible with state neutrality, as the crucifix was viewed not as a Christian symbol but as an artefact that represented the cultural identity of that particular Länder, it is unlikely that it was so perceived by non-Christian residents. State Protection for Manifestations of Religious Belief Article 4 of the Grundgesetz guarantees the “undisturbed practice of religion”. Nonetheless, as noted earlier, legislation has been introduced to restrain public displays of religiosity.

religion-specific clothing. The 2005 Berlin Neutralitätsgesetz imposes an extreme form of state constraint on the freedom to manifest religion. It prohibits the wearing of all religious clothing, accoutrements or symbols by public service employees: teachers in public schools; staff in the judiciary, the police service and in childcare nurseries. Other Länder, such as Baden-Württemberg or Bayern, have introduced similar but lesser restrictions which, by excluding certain emblematic religious indicators such as nuns’ veils and crucifixes on necklaces, must be perceived as compromising state neutrality. While some regard the Berlin initiative as evidence of state determination to ensure that its services and officials maintain a neutrality that makes them more accessible to those of all religions and none, others see such laws as clearly discriminatory – specifically against Muslims, in practice Muslim women – as they restrict employment opportunities for adherents who wish to have their religious identity recognised. In the face of disparate Länder initiatives, the Federal Constitutional Court ruled that a general ban against the wearing of religious symbols – such as the Muslim headscarf – is not reconcilable with the fundamental right to freedom of religion and the equality guarantee established in the Grundgesetz.41 Subsequently, it 41

1 BvR 471/10 (2015).

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followed up with a ruling specifically permitting the wearing of such a headscarf by a state-employed kindergarten teacher.42 Further, in 2018, the same court ruled that the federal government’s prohibition of the wearing of garments that obscure the face while driving was lawful. religion-specific clothing: state employees. Employer-imposed restrictions on wearing religion-specific clothing – most notably the Islamic headscarf – falls to be considered under the protection afforded to religion and belief by international human rights instruments such as the UDHR, the ECHR, CEDAW and the ICCPR and associated case law. Protection from discrimination is similarly available and has been outlined in the Employment Equality Directive and related case law (see further in Chapters 3 and 7). In 2003, after six years of litigation, the Constitutional Court in Ludin v. Land Baden-Württemberg43 found that a public service employee wearing religious clothing did not thereby compromise the right of pupils to an education free of overt religious connotations and so violate the principle of state neutrality. In keeping with the reasoning in previous headscarf cases, which viewed that practice as an aspect of religious manifestation and integral to the freedom of religion, the court confirmed the right of individuals to adjust their lifestyle and public appearance to reflect their beliefs.44 It also reasoned that headscarves cannot always be considered to represent a political symbol, that no legal basis existed for the ban and held that a Muslim teacher in a public school had a right to wear a headscarf while teaching. The Länder promptly remedied the legislative deficiency by introducing a law banning headscarves in schools. However, in 2015, the courts reconfirmed that right in the second headscarf case, ruling that any such prohibition is conditional upon evidence that the wearing of a headscarf would be a threat to “school peace”. Indeed, it is difficult to reconcile the ban with the CEDAW requirements: Article 1, to “eradicate any distinction, exclusion or restriction made on the basis of sex”; Article 2(d), “to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation”; and Article 3, to eliminate discrimination against women in public life. religion-specific clothing: service users in state facilities. The issue of pupils in state schools wearing religion indicative clothing or ornaments – most usually Muslim headscarves but also Christian crucifixes and Jewish yarmulkas – has been contentious in Germany as elsewhere. The Federal Constitutional Court has provided guidance in several recent judgments on the limits of freedom of religion 42 43 44

1 BvR 3237/13 (2016). BVerfGE 282, (283–284). BVerfGE 32, 98 at 106; BVerfGE 93, 1, at 15.

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and on the duty of schools to remain religiously neutral without impeding pupils’ religious beliefs.45 Again, wearing Islamic clothing that obscures facial recognition – particularly in courtrooms, for passport and driving licence applications – has also proved problematic. In Bavaria, where crucifixes are present in all courtrooms, the Constitutional Court of Bavaria was recently called upon to determine the validity of a law prohibiting judges and prosecutors from wearing clothes or symbols that could be perceived as having religious or ideological significance. In the process of its deliberations, the court made a distinction between the significance of crucifixes in the courtroom and of the judiciary or other court officials wearing religious clothing or other such identifying items. It found that the former could be viewed as merely an administrative measure that carried no inference of judicial impartiality, whereas the latter could be perceived as compromising judicial neutrality.46 Nonetheless, the court ruled that the prohibition did not violate the freedom of religion, it protected the neutrality of the state. Arguably, such an interpretation of the supposed difference in significance between the public and private representative influence of religious emblems in a courtroom is at best disingenuous. Otherwise, there are no state laws mandating secular clothing for public service users. religion-specific customs, practices and rituals. There are many, often recurring, issues relating to religious practices that come before the German courts.47 The non-stunning of animals, or shechita, prior to slaughter to ensure meat is halal or kosher compliant, is one such issue of contention. In 2002 the German Federal Constitutional Court overturned a 1995 ruling prohibiting the Islamic practice of non-stunning. It found that the alternative, permitting the importation of ritually slaughtered meat, was an inadequate means of protecting the religious rights of individuals under Articles 4.1 and 4.2 of the Grundgesetz and held that the guarantee of religious freedom prohibited the state from imposing a blanket ban on a practice traditionally maintained by some Muslims. Contention has also accompanied the practice of circumcision for young boys – a traditional practice of central importance to both Jewish and Muslim religions – and, arguably, comparable with the female genital mutilation of young girls. In 2012, the Cologne district court ruled that the religious circumcision of a four-year-old Muslim boy at parental request was unlawful because circumcision causes “illegal bodily harm” to children and that a child’s right to physical integrity supersedes parents’ rights and the freedom 45

46

47

See, for example, 1 BvR 3237/13 (2016) on the participation of a Muslim girl in co-educational swimming classes. The Constitutional Court of Bavaria (2019), Vf. 3-VII-18 (Bayerischer Verfassungsgerichtshof). See further in www.bayern.verfassungsgerichtshof.de/bayverfgh/ See further in U. Willems, V. van Melis and D. Gerster, Religionspolitik heute, Herder, Freiburg, 2018.

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of religion.48 In a somewhat compromised exercise of state neutrality, the Bundestag promptly introduced legislation permitting circumcision procedures in some nonmedical situations, but as a private rather than public service, and subject to it being conducted by a registered medical professional. In 2018, a Muslim police officer in Koblenz was disciplined for refusing to shake hands with a female colleague for religious reasons. state protection of its traditional religious/cultural identity. The cyclical litany of cases dealing with rights to display the religiously emblematic symbols of crucifix and Islamic headscarf demonstrate judicial ambivalence, Länder divisions, and a lack of national coherence in the approach to pluralism and the balance to be struck between defending national Christian culture and maintaining state sovereignty. In the “Second Crucifix Case”, the Federal Constitutional Court rejected the submission of the Bavarian government that the cross was merely a symbol of Western culture. Instead it found that the cross was a specific symbol of Christianity.49 This was in keeping with a case heard by the same court twenty years earlier when it ruled the presence of a crucifix in a courtroom violated the right to freedom of religion: it breached the constitutional requirement for the separation of church and state; if the crucifix was not removed, the individual concerned would be wrongfully forced to conduct an action “under the cross”.50 However, some Länder have legislated to differentiate between different religions and the right of their respective adherents to wear identifying clothing: a differentiation that to many seems indistinguishable from discrimination. State support for its traditional Christian culture – christlich-abendländische Kultur – has become highly contentious in Germany and presents a fundamental challenge to state neutrality.

Freedom of Association This ECHR-protected right, also found in Article 137(2) of the Weimar Constitution, includes the freedom to leave an association. It has traditionally been constrained by the accepted practice of levying a financial fee on those who wished to cease their adherence to a particular religion and sever membership of a church. In 2008, the Federal Constitutional Court held that this amounted to an unconstitutional infringement of religious liberty.51

48 49 50 51

Decision of 7 May 2012, Docket No. Az. 151 Ns 169/11, Landgericht Köln Cologne. BVerfGE 93, 1 (19); 1 BvR 1087/91, para. 42 et seq. Bundesverfassungsgericht (Federal Constitutional Court), 17 July 1973, E 35, 366. BVerfG, 1 BvR 3006/07 vom 2.7.2008

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Religious Organisations and the State State neutrality in Germany, unlike the equivalent position of the French State as governed by laïcité, does not imply any religion-adverse connotation. It is “not a distancing, repellent in the sense of secular non-identification with religions and worldviews, but a respectful, ‘provident’ neutrality”.52 So, for example, the Federal Constitutional Court found that the general association law of Germany must be interpreted in a manner compatible with the specific religious needs of the Baha’i.53 Religious organisations are accorded the status of corporations – Körperschaft des öffentlichen Rechts – under German law and the state is constitutionally required to provide them with support; though, as Robbers comments, this is not confined to those with public law status.54 However, while all organisations with such status as conferred under the Grundgesetz and the Constitution of the Weimar Republic – viz. the traditional institutional religions – have been automatically recognised, not all others have been able to do so; this has proved particularly problematic for Muslims and Jehovah’s Witnesses.55 The ECtHR, in the Obst and Schüth cases56 found that the autonomy of religious communities is an integral part of the right to religious freedom guaranteed by Article 9 of the ECHR.

intervention in church disputes. As the ECtHR has noted, state interference in an inter- or intra-denominational dispute must be distinguished from the mere fact of the national authorities drawing the inevitable secular conclusions from a pre-existing religious dispute that they did not help create and in which they have not taken sides.57 state preferencing of religious organisations and communities. The fundamental rule – under Article 140 of the Grundgesetz and Article 137 of the Constitution of the Weimar Republic – is that the state shall not establish or otherwise favour any particular religion. However, the state confers automatic tax exemption upon the traditional religions, while this is more difficult for new and emerging forms of belief, and the church tax clearly confers benefits on religious organisations that are not available to their secular counterparts. The Weimar Constitution also expressly allows religious organisations to “regulate and administer their affairs independently” provided they do so within “the law that applies to all”. 52 53 54 55

56

57

Ludin v. Land Baden-Württemberg, BVerfGE 282, para. 10. BVerfGE 83, 341. Note to author: 15.12.2019. BVerfG, Order of the Second Senate of 19 December 2000 – 2 BvR 1500/97, paras. 1–109, www .bverfg.de/e/rs20001219_2bvr150097en.html Obst v. Germany, Application No. 425/03 (2010) and Schüth v. Germany, Application No. 1620/ 03 (2010). Griechische Kirchengemeinde München und Bayern e.V. v. Germany (dec.), Application No. 52336/99 (2007).

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Freedom of Expression Article 5 of the Grundgesetz guarantees the freedom of expression, which is also subject to the regulatory provisions of the Criminal Code. Further, as a member state of the EU, Germany is bound to give effect to this right as guaranteed by Article 10 of the ECHR and Article 19 of both the UDHR and the ICCPR58 (see further in Chapter 3). Free Speech As provided for in Article 19(3) of the ICCPR, free speech is subject to the conditions that it be exercised as provided for by law; in pursuit of a legitimate aim; and is necessary in a democratic society. Hate speech legislation is regulated by the Criminal Code and, in accordance with Article 20(2) of the ICCPR, criminalises incitement to violence or hatred and thereby imposes a legislative threshold for free speech in Germany.59 These provisions were reinforced by a “Holocaust denial” amendment introduced to Article 130(3), of the Criminal Code in 1994. The hate speech constraints extend to insulting language directed at ethnic or religious groups and have been described as “arguably the strictest anywhere in the Western world”.60

blasphemy. The freedoms of religion and expression are subject to the provisions in section 166 of the Strafgesetzbuch – the Criminal Code – prohibiting defamation of religious denominations, religious societies and similar associations. In 2006, the application of this article received much media attention when Manfred van H. (also known as “Mahavo”) was successfully prosecuted for defamation under this provision for distributing rolls of toilet paper to mosques with the words “Koran, the Holy Koran” stamped on them. proselytism. The freedom of religion accommodates a right to try and persuade others of the merits of a particular religion and thereby change their beliefs and religious adherence. Contemporary concerns regarding proselytism in Germany have focused on a possible linking of proselytising to the assistance provided to the many thousands of migrants now being resettled.61 In the Ludin62 case, there was a 58

59 60

61

62

See also Article 10 of the ECHR and Article 11 of the Charter of Fundamental Rights of the European Union. See also the Network Enforcement Law (NetzDG) 2017. M. Scott and J. Delcker, “Free Speech vs. Censorship in Germany”, Politico, 1 June 2018, www .politico.eu/article/germany-hate-speech-netzdg-facebook-youtube-google-twitter-free-speech/ See further in https://catholicherald.co.uk/news/2016/02/26/christians-helping-migrants-shouldnot-try-to-convert-them/ Ludin v. Land Baden-Württemberg, BVerfGE 282, (283–284).

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suggestion that a teacher overtly displaying their religious affiliation could have a proselytising effect on some pupils. Matters of Conscience Article 4 of the Grundgesetz specifically states that the freedom of conscience is inviolable.

refusal to bear arms. Article 4, section 3, of the Grundgesetz provides a right to refuse to serve in the national armed forces on the grounds of religious belief or matters of conscience. public interest and personal conscience. The freedom of conscience asserted by the plaintiff in the Ludin case,63 as represented by her wish to wear her Islamic headscarf while teaching, was recognised and endorsed by the constitutional court. This is counterbalanced, to some extent, by the state neutrality requirement in Article 33(2) of the Grundgesetz obliging public officials to fulfil their service duties, which leaves them with less discretion than private sector employees to give precedence to matters of personal conscience.

case law: the church–state relationship and equality rights Given Germany’s history over most of the past century, equality and antidiscrimination was bound to have particular significance for the church–state relationship and the freedom of religion. Equality and the Church–State Relationship The international human right to equality and non-discrimination is provided for under Articles 1, 2, and 7 of the UDHR, as reinforced by Articles 2(1) and 26 of the ICCPR, while the European Directive 2000/78/EC prohibits direct and indirect discrimination or harassment on the grounds of religion or belief in employment and training. Domestically, freedom of religion is guaranteed under Article 4(1) of the Grundgesetz while the guarantee of equality before the law is established by Article 3(1) and reinforced by a prohibition against unequal treatment on the grounds of religion or ideology under the General Equal Treatment Act, 2006. The Religious Exemptions Freedom of religion, as constitutionally guaranteed, has led the state to establish exemption clauses favouring religion and religious organisations. Article 4 of the 63

Ibid.

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Grundgesetz, for example, guarantees the “undisturbed practice of religion” while Article 9 of the General Equal Treatment Act permits a “difference in treatment by religious organisations”. tax-exemption privileges. Religious organisations qualify for the status of Körperschaft des öffentlichen Rechts – a corporate body under public law – which confers an entitlement to a considerable range of tax-exemption privileges and also a right to receive the “church tax”, which has contributed greatly to the financial security and independence of German religious organisations. Moreover, the fiscal benefits have traditionally been reinforced by imposing a service fee on those who choose to leave the church. testamentary privileges. In general, the principle of testamentary freedom prevails in German probate law64 but is subject to section 138(1) of the Civil Code, which provides that a “legal transaction which is against public policy is void”. This clause prevents testamentary dispositions being made subject to a religious condition such as “to X on condition that he become a Catholic”. The concept of undue pressure – Drohung – is also relevant. This is of central importance to German probate law and will invalidate any disposition that places unreasonable pressure upon a beneficiary to do something. Consequently, unlike the common law, German law does not allow testamentary freedom to be exempted from antidiscrimination provisions and thus permit testators to make bequests subject to religious conditions. This is a significant indicator of state neutrality and of jurisdictional difference. employment law exemptions. The right of religious organisations to autonomy and self-determination is recognised to be a fundamental international right under EU treaty law and domestically reinforced in both the Grundgesetz and the General Equal Treatment Act. It was also addressed in the now outdated Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse (basic regulations on employment relationships in the service of the church) 1993. The extent of the resulting degree of exemption permitted to such organisations from equality and non-discrimination in an employment law context was explored by the ECJ in the 2012 Egenberger case.65 This concerned an unsuccessful job applicant, who complained that her rejection was due to the recruiting national development agency treating her differently because of her lack of confessional faith. The agency responded by arguing that it was allowed to treat prospective employees differently because of exceptions allowed in the 2000 directive and the 64 65

Bürgerliches Gesetzbuch, para. 2303. Vera Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, [2018] EUECJ C-414/16.

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EU treaty as regards the treatment of churches and religious organisations. The ECJ, however, found that church-linked facilities such as kindergartens, hospitals, social care associations and charities should not be allowed to automatically exclude nonChristian job applicants. It ruled that religious organisations were entitled to treat prospective employees differently but this exemption was conditional upon the applicants’ faith being a “genuine, legitimate and justified occupational requirement” for the particular job. A final ruling is still pending before the Federal Constitutional Court. regulatory exemptions. Article 137(3) of the former Weimar Constitution expressly permits religious communities to self-regulate their own affairs: “each religious society shall organise and administer its affairs independently”. Religious communities are generally exempted from any form of state regulatory intervention: they are not even required to register as public bodies, but should they do so – with the appropriate Länder authorities – this does not impose any regulatory responsibility on the latter. Where the affairs of a religious organisation extend into matters regulated by public law – banking, insurance – then it must submit to those regulatory requirements. As mentioned elsewhere, religious organisations also enjoy other exemptions from regulatory requirements that are universally binding on others, such as that animals being slaughtered for human consumption must first be stunned. Equality, Family, Life, Death and the Church–State Relationship The mutually reinforcing approach of church and state to the traditional marital family unit has undergone much the same upheaval in Germany as in other modern developed nations. This is likely to have been further complicated by factors such as established strong Länder affiliations to either Protestantism or Roman Catholicism and a recent but numerically significant influx of religious adherents with nonChristian family values. The Marital Family Adoption by same-sex couples has in theory been possible since 2005,66 but not until a ruling of the Federal Constitutional Court in 2013 did it become possible for one member of a civil partnership to adopt their partner’s stepchild or adopted child.67 The decision was in response to a challenge from a woman who was denied permission to adopt a Bulgarian girl whom her partner had adopted. The court found that the provision in Article 6(1) of the Grundgesetz, that “marriage and the family shall enjoy the special protection of the State”, could be used to justify ruling 66 67

See the Registered Partnership Act 2001, s.9(7)(1), as amended. German Constitutional Court, judgment of 19 February 2013, 1 B v. R 3247/09.

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out same-sex partners adopting the other partner’s adopted child. Since 2017, heterosexual couples and LGBT applicants have had much the same adoption rights, though the latter may experience difficulties in pursuing joint adoptions.68 spouses. In 2006, the Federal Constitutional Court ruled that it was lawful to restrict supplementary payments to married civil servants and to exclude those in same-sex registered partnerships.69 Subsequently, in the light of the ECJ judgment in Maruko,70 the German court overturned its 2006 decision and clarified that samesex couples living in a life partnership had an entitlement to be treated equally with married heterosexual spouses as regards social benefits.71 In June 2017 Germany legalised same-sex marriage and any room for equivocation on equality melted away. parenting. A 2014 ruling of the Federal Supreme Court held that the Californian registration of a gay couple, as the legal parents of a surrogate child, should be recognised in German law, in part because one of the parents was genetically related to the child.72 The court took the view that any consideration of whether a foreign court decision is contrary to German public policy (orde public) must take into account the child’s right to respect for his or her private and family life under Article 8 of the ECHR, citing the ECtHR decisions in Mennesson and Labassée.73 In 2018, the ECtHR ruled that the 2013 decision to take the children of the “Twelve Tribes Church” in Bavaria into care, because of reports that church members punished their children by caning, had not violated Article 8 of the ECHR. Religious belief can prevent access to contraception in many countries but the state response in Germany has at times been extreme. This, most obviously, was the case during the Nazi era but was also curiously demonstrated in relation to the Lehmann family from Hesse in the 1990s through to the year 2000 when their seven children were taken into state care while their mother (who was pregnant with the eighth) was committed to an asylum for an alleged “morbid desire for children”.74 sogi issues. The Grundgesetz, section 3, prohibits discrimination on grounds of sex while the 2006 General Equal Treatment Act prohibits unequal or discriminatory treatment on grounds that include sex and sexual orientation. The latter adopts 68

69 70 71 72 73

74

Adoption, as with so many other aspects of civilised society, suffers from the record of its abuse in the Nazi era. In Poland alone, it is estimated that about 20,000 children with Aryan traits were forcefully removed from their families and delivered to German and Austrian couples. BVerwG, 2 C 43.04 (2006). Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, Case C-267/06. 1 BvR 1164/07 (2009). See Federal Supreme Court judgment of 10 December 2014, XII ZB 463/13. See Mennesson and Others v. France and Labassee v. France, Application Nos. 65192/11 and 65941/11, 2014. J. Lerle, “Nürnberger Ketzerprozesse gegen Kindermordgegner: Eine Kette von Rechtsbeugungen”, 2003, www.kindermordgegner.de/Anhang/body_anhang.html

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the term “sexual identity” while the Federal Constitutional Court refers to both sexual identity and sexual orientation as being part of each individual’s autonomous personality. This is understood to go beyond sexual orientation and also encompasses protection against discrimination for trans persons.75 All of this marks a sea change from the policy of persecution adopted in Nazi Germany towards the LGBT community that caused the deaths of many thousands. suicide and medically assisted death. In Germany, the intersect between state, religion and premeditated death remains overshadowed by the record of Nazi era practices. The state then determined the deaths of millions, on the grounds of religion, providing a salutary reference point in any policy debate on legislation for proposed state determination of the circumstances in which others may legally assist individuals who choose to die. Modern Germany, haunted by a history of the medical profession’s involvement in euthanasia, naturally treats initiatives to relax the law regulating medically assisted death with considerable caution. Until spring 2020, a right to assist in the voluntary death of another was neither recognised in state legislation nor permitted to any member of the state health system. While suicide in Germany was not itself a criminal act, the “commercial promotion of suicide” has been prohibited under section 217 of the Criminal Code but since 1996 the courts have refrained from imposing punishments on those found to have passively assisted others to commit suicide – usually by acceding to a request to withdraw medical assistance or by providing access to excessive amounts of painkillers – in the absence of evidence to suggest a criminal act or intent, or breach of a duty of care.76 This accommodating approach was restricted in 2015 when the Bundestag approved the inclusion of paragraph 217 in the Strafgesetzbuch, which states, “Every person who, with intent to facilitate the suicide of another person, businesslike grants, provides or conveys this person the opportunity to do so, is punishable by imprisonment in prison for up to three years or by a restitution fine”. Essentially, this provision penalised anyone who sought to turn assisted suicide into a professional service, with or without payment: so a husband who helps his terminally ill wife to die would not be prosecuted, but an association or a business that repeatedly offered such assistance, or a medical professional who made lethal drugs available, would be liable to prosecution. The German judicial system in recent years has delivered six judgments on assisted suicide and the ECtHR has also considered and ruled on the German approach.77 In 2017 the Federal Administrative Court determined that in extreme cases the authorities could provide life-ending medication to terminally ill patients, 75 76 77

See 1 BvL 3/03 (2005), para. 48 et seq. Strafgesetzbuch (StGB), s.323c. Koch v. Germany, Application No. 497/09 (2012).

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but this judgment failed to gain Bundestag endorsement. In 2019, Germany’s Federal Constitutional Court heard oral arguments on whether the government’s 2015 ban on active assisted suicide violated patients’ personal freedoms and unjustly punishes physicians. In 2020, that court ended five years of equivocation by ruling that “the prohibition of assisted suicide services . . . violates the Basic Law and is void”. Equality, Healthcare and the Church–State Relationship The spectre of the Nazi era and its cynical preoccupation with eugenics – which elevated the public service commitment to promoting the health and well-being of the Aryan race at the expense of all others – remains a stark reminder of the state capacity to pursue racial inequality as a central social policy objective. Healthcare Services Again, Nazism – which used many of those deemed racially inferior for medical experiments and executed 300,000 disabled people – overshadows contemporary state healthcare provision, and restrains the independence of its medical profession. This may also apply in relation to healthcare services at the state–religion intersect dealing with life or death issues.

the services. Abortion in contemporary Germany remains governed by section 218a of the Criminal Code. Although permitted in the first trimester, abortion is essentially discouraged, is conditional upon counselling and, unlike elsewhere in Europe, it is unlawful to advertise the availability of abortion services. The constraints on women’s reproductive rights are also evident in the imposed age limit of twenty years for entitlement to free contraceptives. Moreover, and again unlike most developed nations, surrogacy – whether altruistic or commercial – is illegal. In 2019 this resulted in a federal court ruling, arguably at odds with a 2014 decision on a similar issue, that a German couple had no rights in respect of a child born in Ukraine to a surrogate mother on their behalf. The court advised that the best course of action for the couple would be to commence adoption proceedings. professional exemption from healthcare service provision duties on religious grounds. This issue was examined by the ECtHR in Blumberg v. Germany (dec.),78 which concerned a doctor’s dismissal following his refusal to conduct a medical examination of an apprentice with a view to her being employed by a client health insurance company as he feared a “possible bias” that could lead to difficulties if he had to work with the apprentice in the future. The doctor’s claim, that his dismissal breached his freedom of conscience as guaranteed by Article 9 of 78

Application No. 14618/03 (2008).

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the ECHR, was declared inadmissible. His refusal to examine the apprentice did not constitute an expression of a coherent view on a fundamental problem and could not, therefore, be regarded as a “manifestation of personal beliefs” in the sense protected by Article 9. Equality, Education and the Church–State Relationship German benevolence, in its interpretation of state neutrality, is demonstrated in the positive support provided for religion as a constituent part of the public education system79 and for establishing an Institute for Islamic Theology at the Humboldt University of Berlin for the training of imams and religion teachers. However, certain constraints are also apparent. State Schools and Religion Article 7(3) of the Grundgesetz states that “Religious instruction shall form part of the curriculum in State schools except non-denominational schools. Without prejudice to the State’s right of supervision, religious instruction shall be given in accordance with the doctrine of the religious community concerned”. The latter clause in effect allows state schools to provide denomination-specific religious teaching to appropriate groups of pupils, by teachers of religion, with the accompanying requirement that this be state funded. Article 7 also states that parents and guardians have the right to decide whether children shall receive religious instruction but pupils wishing to be exempted from such teaching are obliged to enrol for alternative modules on ethics. Not only is religious instruction provided throughout the public school system, but the state also funds theological colleges. Unlike equivalent circumstances in other modern developed nations, homeschooling is not a legally available option for parents who object to their children being exposed to state-sponsored teaching on religious or SOGI-related matters. Interestingly, and arguably correctly, the rationale for mandatory school attendance in some countries such as Germany is necessary, as was explained in Konrad, for “integrating minorities and avoiding the formation of religiously or ideologically motivated ‘parallel societies’”.80

educational facilities. Article 7(1) of the Grundgesetz provides the state’s educational mandate: it places the “entire school system . . . under the supervision of the State”. Article 7(3) requires the inclusion of religious instruction within the curriculum of all public schools, which would seem to make religious instruction 79

80

See further in L. E. Alloway, “The Crucifix Case: Germany’s Everson v. Board of Education”, Penn State International Law Review, vol. 15, no. 2, Article 5 (1996–1997), pp. 361–383, https:// elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1408&context=psilr Konrad and Others v. Germany, Application No. 35504/03 (2006), p. 8. Also see Wunderlich v. Germany, Application No. 18925/15 (2019).

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mandatory throughout the public school system. However – in accordance with Article 2, Protocol 1 of the ECHR – parents may withdraw their children, and older children may choose to opt out, from religious classes. In 2010, a court held that Muslims could be prevented from praying on campus if doing so would create conflict among students. It also ruled that schools did not have to provide prayer rooms for Muslim students. educational content and instruction. The challenges faced by state institutions as they responded to the post-2015 migrant crisis, which brought more than a million, mostly Muslims, into Germany have been well documented. They include the stress placed on the state educational system as Muslim girls manifest their religion by wearing headscarfs, and refusing to participate in such activities as mixedgender swimming, sports, biology, sex education and overnight class outings. In an effort to facilitate mutual understanding, many state schools have introduced modules on Muslim religion and culture into the school curriculum. SOGI-related educational content in school curricula has also generated contention. Article 7 of the Grundgesetz provides authority for the mandatory teaching of such material at High School level, with no concession for religious exemption, but many parents have protested that this violates their right under Article 2, Protocol 1, of the ECHR to ensure their children’s education conforms to parental religious beliefs. Dojan v. Germany81 concerned the protests of five sets of such parents regarding the refusal of school authorities to exempt their children from mandatory sex-education classes and other school activities which, they alleged, did not comply with their family values. Holding the complaint inadmissible, the ECtHR found that there was no indication that the classes and activities at issue had put into question the parents’ sexual education of their children based on their religious convictions. Neither had the school authorities manifested a preference for a particular religion or belief within those activities. A landmark ruling in 1993 by the Federal Administrative Court allowed a thirteenyear-old Turkish girl to be exempted from co-ed sport lessons if the school failed to provide gender-segregated sports class. However, in 2013 the same court found that Muslim parents breached the law when they refused to send their daughter to mixed swimming, even though the school permitted her to wear a full-length burkini in the swimming pool.82 The court ruled that “the basic right to religious freedom does not . . . provide for any demand not to be confronted at school with the behavioural habits of third parties – including those pertaining to clothing”. It is doubtful, moreover, if parents have any statutory right under German law to dispute curriculum content. 81 82

Application Nos. 19/08, 2455/08, 7908/10, 8152/10 and 8155/10 (2011). Subsequently reinforced by the ECtHR decision in Osmanogˇ lu and Kocaba¸s v. Switzerland, Application No. 29086/12 (2017).

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Teachers in state schools are excused, under Article 7(3) of the Grundgesetz, from the duty to participate in the provision of religious instruction if to do so would conflict with their conscience. religious prayers and symbols. The presence or otherwise of religious symbols in school premises is a matter that falls to be regulated by Länder authorities rather than the federal government. Article 6(2) of the Grundgesetz, as in Article 2 of Protocol 1 of the ECHR, provides that “[t]he care and upbringing of children are a natural right of parents”. The resulting tension between that right, the mandatory school attendance requirement, and the duty of schools to provide religious instruction has triggered an ongoing series of disputes. These clashes date back to at least the School Prayer Case,83 when the court was asked to determine the constitutionality of voluntary nondenominational school prayers – überkonfessionnel – led by a teacher, despite parental objection. The court found that school prayers were permitted under Article 7(1) of the Grundgesetz as “the incorporation of Christian references is not absolutely forbidden when establishing public schools”. Essentially, the practice of incorporating school prayers as part of school curriculum is, per se, compatible with state neutrality and will only become incompatible if parents withdraw their consent. It was the controversy over the 1968 school regulation in Bavaria, requiring crucifixes to be displayed in all classrooms, that really focused attention on the church–state relationship. A High Court ruling in 1995 quashed the regulation as unduly coercive, as it forced children to “learn under the cross”, which it viewed as not merely a cultural icon but as a religious symbol with a proselytising effect.84 In 2018, the Bavarian legislature introduced legislation providing for the mandatory display of crucifixes not just in schools but in all Bavarian public buildings as an expression of Bavaria’s social and cultural identity: an initiative condemned by a Catholic cardinal as “instrumentalising” a Christian symbol for political purposes and exacerbating social divisions.85 It remains to be seen whether – following the introduction of the 2006 act and the precedent established by the ECtHR in Lautsi v. Italy86 – the courts will again, as it did in 1995, find this practice to be incompatible with state neutrality. The Bundesländer laws, forbidding teachers to wear religious symbols in classrooms, have fuelled much dissension. These, as mentioned above, were 83 84 85

86

See 52 BVerfGE 223 (1979). See BVerfGE 93, 1, 20. Cardinal Reinhard Marx, the Archbishop of Munich and chairman of Germany’s Catholic bishops, www.economist.com/erasmus/2018/05/11/bavaria-is-the-latest-place-where-the-churchand-christian-politicians-are-at-odds Application No. 30814/06 (2011). The court then found that that a publicly displayed cross was “a passive symbol”, not a form of “indoctrination”, which European countries could allow according to their history and tradition.

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unsuccessfully challenged in the “headscarf cases” of 200487 and 2015,88 the first of which – the Ludin case – proved to be a milestone for pluralism in German schools. Following that Constitutional Court’s decision, a number of Länder authorities passed laws amending their School Acts to regulate the wearing of religious clothing by teachers, which the Bundesverwaltungsgericht found acceptable so long as they were applied uniformly to all religions and were thus compliant with the principle of State neutrality.89 The first to do so was Baden-Württemberg which, in 2004, amended section 38(2) of its School Act to ban any “political, religious ideological or similar manifestations that may endanger or disturb the neutrality of the Land towards pupils or parents or political, religious ideological peace of the school”. However, the provision then goes on to specifically exempt “the respective exhibition of Christian and western educational and cultural values or traditions”. Much the same legislative amendments were subsequently introduced to the School Acts of North Rhine-Westphalia, Bavaria, Saarland and Hesse,90 all of which in effect ban Islamic headscarfs but pointedly permit nuns’ habits. The clear legislative intent to suppress any manifestation of Islamic identity by teachers while privileging that of Christian teachers, even if that intent is ostensibly in furtherance of respect for culture, would seem to fatally compromise any interpretation of state neutrality. Faith Schools Article 7(5) of the Grundgesetz recognises the right to establish private, denomination-specific schools. Faith schools, usually classified as “private”, are, in fact, heavily subsidised by the state and do not restrict admissions to adherents of a specific religion, though pupils must show respect for the particular religious ethos. In 2017 the decision of a Catholic school in North Rhine-Westphalia to refuse a parental request that their Muslim child be excused from religious teachings at a publicly funded Catholic school, was upheld by the court, the rationale being, presumably, that the child was free to enrol instead at a Muslim school. Where, as in this case, that option is not readily available, then the fact that the state is in effect denying parents and child the right to access appropriate religious teaching, instead forcing them to submit to teaching that is inappropriate, constitutes a breach of both the right to freedom of religion and of state neutrality.

state involvement. The established state practice of funding non-state faith schools illustrates the generally benevolent and flexible nature of German state neutrality.91 87 88 89 90

91

See Ludin v. Land Baden-Württemberg, BVerfGE 282 (283–284). BVerfGE 138, 296 (302); 1 BvR 471/10. See BVerwGE 121, 140. See s.86(3) of the Hesse School Act, which strongly resembles that of its BadenWürttemberg equivalent. See BVerfGE E 90, 107 (1994).

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Equality, the Workplace and the Church–State Relationship The European Directive 2000/78/EC prohibits direct and indirect discrimination or harassment on the grounds of religion or belief in employment and training. This is augmented domestically by the General Law on Equal Treatment 2006 – Allgemeines Gleichbehandlungsgesetz – in conjunction with Articles 4(1) and 3(1) of the Constitution – Grundgesetz. These form the principal relevant legislative framework governing matters arising at the church–state intersect in an employment context.92 The Federal Employment Court – Bundesarbeitsgericht – provides the main forum for adjudicating on related issues.93 Hiring and Firing Staff Under the 2006 act, an employer is prohibited from hiring, firing, or from treating an employee in a discriminatory manner – on grounds of religion or belief – and must take steps to prevent discrimination occurring in the workplace, which includes a duty to protect employees from discrimination by third parties.94 So, for example, the claim of unequal and unlawful treatment from a dentist assistant, whose job application was rejected solely on the basis of her wish to wear an Islamic headscarf, was upheld95 in keeping with two similar rulings on the same issue, some twenty years earlier.96 Although, arguably, such cases have been determined more on the basis of principles of equality than state neutrality. The Federal Labour Court has held97 that the 2006 act has a broad application.98 However, as illustrated in the above mentioned Egenberger case, the Federal Labour Court (BAG) – following an earlier ruling by the ECJ99 – determined that churches and institutions linked to them may not make religious affiliation a prerequisite for employment.100 Moreover, there is no specific provision in German law imposing a general duty on employers to provide reasonable accommodation for the needs – religious or otherwise – of their employees. Instead, reasonable accommodation is

92

93

94 95 96 97 98 99

100

The Company Constitution Act, 1972 – Betriebsverfassungsgesetz – also provides an assurance for equality of treatment for employees in particular as regards their religious beliefs. A right of appeal will lie from that court to the Federal Administrative Court – Bundesverwaltungsgericht – and perhaps further to the Federal Constitutional Court – Bundesverfassungsgericht – if a matter arises involving the Constitution – Grundgesetz. General Equal Treatment Act, s.12.4. AG Berlin (2012), AZ 55 Ca 2426/12. AG Frankfurt (1992), AZ 17 Ca 141/95. See also the Law on Protection against Dismissal 1969. Federal Labour Court, 6 AZR 190/12 (2013), para. 22. Vera Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, [2018] EUECJ C-414/16. Gerhard Robbers adds: “It is more complicated . . . the only issue is – who decides and how broad is the autonomy of the church” (note to author: 15.12.2019).

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assumed to be implied in the general duty of care that contractually governs that relationship.101 religious organisations. As elsewhere, an implied, if not explicit, contractual term requires an employee to demonstrate loyalty to the ethos and values of their employing religious organisation.102 Consequently, conduct that compromises the organisation’s religious beliefs would be grounds for dismissal. This was illustrated in the outcomes of some cases that were eventually determined by the ECtHR. Two factually similar cases, Obst v. Germany103 and Schüth v. Germany,104 both concerned the dismissal of officials from their posts in religious organisations on the ground of breaches of contract caused by adultery. In the former case, the dismissal was upheld; in the latter it was overturned. In Obst, the European director of the Public Relations Department of the Church of Jesus Christ of Latter-Day Saints had been dismissed without notice for adultery, which was a formal breach of one of the clauses of his employment contract. Because of the significance of adultery in the eyes of the Mormon Church and the important position that the applicant occupied in that church, the ECtHR found that heightened duties of loyalty were placed upon the director and upheld his dismissal because “the special nature of the occupational requirements imposed on the applicant derives from the fact that they were established by an employer whose ethos is based on religion or belief”.105 In the very similar case of Schüth, the applicant, who was an organist and choirmaster at a Catholic church, was dismissed on the same grounds but the ECtHR came to a different conclusion. It considered that such a decision to dismiss could not rest solely on the church’s view as employer that the functions as organist and choirmaster were crucial to its mission. Again, in Rommelfanger v. Germany,106 a doctor employed in a Catholic hospital was dismissed for publishing in the press an opinion on abortion that contradicted Catholic Church teaching. The court dismissed his appeal finding that by accepting employment in a Catholic hospital, the doctor had freely accepted a duty of loyalty towards the church, and that the obligation to refrain from publicly contradicting the church’s position on a matter known to be of great importance to it was not unreasonable. In all three cases, the difference in outcome reflected a difference in the relative importance of the posts and conduct to the respective core religious beliefs of the employing organisation as this determines the extent of reputational damage incurred by the latter. Much turns on the 101 102

103 104 105

106

Civil Code, s.241.2. See also Articles 4 and 5 of the Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse (Basic regulations on employment relationships in the service of the church) 1993. Application No. 425/03 (2010). Application No. 1620/03 (2010). Ibid., para. 51, citing Article 4 of Council Directive 2000/78/EC and Lombardi Vallauri v. Italy, Application No. 39128/05 (2009). Application No. 12242/86 (1989).

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strength of the link between the nature of the offensive conduct, the centrality of the violated belief to the religion concerned and the importance of the offender’s role as a representative of the employing religious organisation.107 A further case, Siebenhaar v. Germany108 concerned a woman, baptised as a Catholic, who had worked as teacher at a Protestant kindergarten while at the same time hiding her active membership of a religious community called “Universal Church-Fraternity of Mankind”. She was dismissed by her employer when it was discovered that she was advertising on behalf of that community. The ECtHR did not find any violation of the applicant’s religious freedom and held that the German courts had correctly appreciated that the applicant had breached her duty of loyalty to her employing religious organisation. The dismissal was a justified measure taken to restore the credibility of the Protestant church in the eyes of its adherents and those of the general public. More recently, JQ v. IR109 concerned a Catholic doctor employed by a religious organisation that summarily dismissed him when it learned that he had divorced and remarried without having had the first marriage annulled. The German Federal Labour Court referred the matter to the ECJ for an opinion as to the lawfulness of JQ’s dismissal, which had been justified by an alleged infringement of the duty of good faith and loyalty to his German employer’s religious ethos. The ECJ advised that the employer’s ethos was unlikely to have been impaired by the doctor’s conduct as the latter had a purely managerial role in the hospital: adherence to the Roman Catholic Church’s teaching on marriage did not appear to be a genuine occupational requirement for that job; that Church required different loyalty obligations from Catholic than from no-Catholic doctors. Essentially, while the law permits employers to require employees to demonstrate support for the religious ethos of an employing religious organisation, that requirement is conditional upon the nature of the employee’s job. secular organisations. In the case of JQ v. IR, the ECJ gave specific attention to the issue of whether a private limited company owned by the Catholic Church fell within the scope of Article 4(2) of Directive 2000/78 and would, therefore, be entitled to require its employees to act in good faith and with loyalty to the ethos of that church. It concluded, reaffirming its ruling in Egenberger,110 that a company would be so entitled but only if “the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief constitutes an occupational requirement that is genuine, legitimate and justified in the light of the ethos of the church or organisation concerned and is consistent with the principle of proportionality”.111 107 108 109 110 111

See Rommelfanger v. Germany, Application No. 12242/86 (1989). Application No. 18136/ 02 (2011). [2018] EUECJ C-68/17. Ibid. Ibid., para. 72.

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proselytism in the workplace. Prior to the 2006 act, incorporating EU directives, the courts considered two cases concerning the proselytising effect of wearing the Muslim headscarf: one regarding a teacher and the other a salesperson.112 In both, the rulings were to the effect that in the particular circumstances the headscarf could not be shown to be proselytising. The “Crucifix” case also arose for consideration during this period and the Federal Constitutional Court then found that such a religious icon did have a proselytising effect. Following the introduction of the 2006 act, the Federal Constitutional Court was required to settle the “Second Headscarf case”, which again concerned Muslim teachers.

Equality, Service Provision and the Church–State Relationship The Equal Treatment in Goods and Services Directive,113 as incorporated into the General Equal Treatment Act, 2006 (along with the other three EU council directives), provides the primary governing legal framework for determining contemporary equality disputes in relation to services provision. Service Provision: Public and Private The “migrant crisis”, characterised by a disproportionate weighting of young Muslim males, has triggered discrimination that cannot be readily typecast: it is often manifested in random conduct that conflates religion, race and misogyny, occurring in the context of goods and service provision, but seemingly not resulting in any significant case law. However, the more deeply embedded arrangements established by the state with religious organisations to facilitate service delivery are also a matter of concern.

service provision by religious organisations. In Germany, state neutrality accommodates well-established, complex and widespread partnership arrangements between the state and religious organisations focused on public benefit service delivery. The two major Christian religions both have nationwide outreach social welfare arms with approximately one million employees: the Catholic Deutscher Caritasverband (German Caritas Association) and the Protestant Diakonisches Werk der Evangelischen Kirche in Deutschland (Diakonie, the Service Agency of the Protestant Church in Germany). The Zentralwohlfahrtsstelle der Juden in Deutschland (Central Welfare Office of the Jews in Germany) is also a significant national service provider. The principle of subsidiarity, central to German governance, permits the state to fund these and other religious bodies to share its responsibility for ensuring service provision to those in need. Rather than being confined to 112 113

Federal Labour Court (2002) 2 AZR 472/01 and Federal Constitutional Court, 2 BvR 1436/02. EU Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

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a service delivery role, these powerful independent religious organisations also work strategically with government to shape the related social policy agenda, which provides a revealing indicator of how state neutrality in Germany can accommodate partnership with religious organisations, and with some specifically rather than with all in general.114 public sector service provision. The Grundgesetz provides protection for citizens against discrimination by and from the state. Section 33 of the General Equal Treatment Act, 2006, establishes a general principle of equality of access to public services and to related employment opportunities, while section 32(2) requires public service employees to fulfil their official duties. Although the 2006 Act has no application to areas governed by public law, section 24 restricts the right of public service officials to obstruct access to public services (interpreted as a constraint on any right to strike). It should also be noted that as a very large proportion of health and social care services are provided by two Christian religious organisations – Caritas and Diakonie – the fact that the discrimination provisions of the 2006 Act provides certain exemptions in relation to religion and belief, under section 9 of the 2006 Act, results in a correspondingly large proportion of public benefit services being delivered by employees whose appointment, continuing employment and workplace conditions are not fully subject to the equality and anti-discrimination provisions of that statute. The case of Vögt v. Germany115 – which concerned a teacher who was dismissed because of political activities – provides a benchmark for the duty of loyalty owed by civil servants to the state, a duty that “does not allow for distinctions between service and private life”.116 The ECtHR then found that while it was reasonable for a democratic society to require civil servants to demonstrate their loyalty to the state, any penalty imposed for conduct that breached that duty must be proportionate to the legitimate aim being pursued. It held that the dismissal was disproportionate and violated the teachers’ rights under Articles 10 and 11 of the ECHR. One effect of this ruling is to provide possible grounds for challenging disciplinary action taken by a state body in respect of an employee whose actions, inactions, or choice of clothing, expresses their religion or belief and thereby compromises state neutrality, though this will be context dependent and much will turn on the role and contractual responsibilities of the employee. private service provision. The Federal Government’s Anti-Discrimination Agency has strongly supported the campaign to correct deficiencies in laws that 114

115 116

T. Becker, “Religious Organisations as Providers of Social Services in Germany”, Religion and Public Policy, pp. 25–29. Application No. 17851/91 (2011). Ibid., para. 59.

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permit discrimination in the provision of and access to goods and services. The agency director Christine Lüders has warned that the deficiencies are such that landlords who refuse to rent out apartments to those of Jewish or Muslim faith would escape prosecution.117 There would seem to be a dearth of related reported cases due to effective mediatory intervention by regulatory bodies. broadcasting services. As with so many other aspects of German culture and social policy, contemporary public broadcasting is encumbered by a legacy of exploitation by the state – Nazi and National Socialism – for propaganda purposes and specifically for generating hate against a particular religion/culture. Consequently, the Interstate Broadcasting Agreement, 1991, Article 3(1), prohibits programs that “arouse hatred against segments of the population or national, racial, religious or ethnic groups, encourage violent or arbitrary action against them or attack the human dignity of others by insulting segments of the population or any of the aforementioned groups or by maliciously degrading or defaming them”. The Thilo Sarrazin debate of 2010118 illustrates the potential for using contemporary media to challenge incendiary views that pillory a scapegoat religion/culture. Essentially, Sarrazin suggested that Muslims were not welcome in Berlin as they did little to contribute to society, but constituted a major burden to the social welfare state and a threat to social stability and cohesion. The failed integration of the Muslim population into German society was attributable to their religion and culture being incompatible with Western values and lifestyle; views that were vigorously opposed by many who considered them to be racist and discriminatory. The possibility of any future such media debates, however questionable the content, receded considerably with the recent introduction of the Network Enforcement Act (NetzDG), which compels social media companies to take down hate speech and other illegal content or face punitive fines.

Equality, National Security, the Migrant Crisis and the Church–State Relationship Germany, like its neighbours and other Part III countries, has suffered Islamic violence and consequently has had to review state security. Again, like some of its neighbours but in stark contrast to those further east, Germany has welcomed an influx of Muslim migrants on a scale that dwarfs that of any other Western nation. The twin concurrent challenges of security and immigration, both religion specific, have stretched the resources of the state. 117

118

www.euractiv.com/section/justice-home-affairs/news/ngos-tell-germany-to-stop-blocking-antidiscrimination-directive/ T. Sarrazin, Deutschland schafft sich ab! (Germany Does away with Itself ), Random House, 2010.

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State Response to Terrorist Threat In 2016 Germany experienced the first in a series of random attacks on its citizens by Muslims. These began, perhaps, with the New Year’s celebrations in 2015/2016, which witnessed a number of incidents when women attending public festivities in German cities, most notably in Cologne, were subject to serious sexual attacks by Muslim youths and men. In July, the Southern German states of Bavaria and BadenWürttemberg experienced a series of violent terrorist attacks and the year ended with the ISIS lorry attack on the Christmas market in Berlin’s Breitscheidplatz, which killed twelve and wounded fifty people. While these and other such attacks served to clearly identify a threat to state security, this has similarly been achieved by the vitriol of an Islamophobic response. Muslim organisations in Germany have recorded a steady increase in anti-immigrant and anti-Muslim violence over at least the past five years, with at least eighty attacks on mosques in January 2016 alone.119 The salience of anti-Muslim political parties (particularly the alt right party, the AfD), racist discourse and attitudes have also grown.120

anti-terrorism measures. Internationally, as a member of the anti-ISIS alliance, Germany has ratified and is implementing the fourteen UN anti-terrorist conventions and is contributing military resources to the ongoing struggle against this terrorist organisation. Domestically, the federal government has boosted its security and anti-terror laws. In addition to increasing its Criminal Police Office (BKA), the Federal Office for the Protection of the Constitution (BfV) and the Federal Intelligence Service (BND), the government has also invested in the development of surveillance, though not without attracting controversy. A new antiterrorism law took effect in 2009, which allows the increased use of surveillance of online communications while in 2017, an unprecedented number of new public surveillance laws were added to the Criminal Code enabling a major increase in the number of CCTV cameras installed across all cities. Concerns have also been expressed regarding new laws permitting increased use of “stop and search” powers, to detain without charge and to tighten border controls. State Response to Migrant Crisis Germany is estimated to have admitted about 1.5 million migrants/refugees/asylum seekers in 2015–2016.121 The challenge to state resources can only be guessed at, but one indicator is that in 2015 alone, the child protection services took into custody over 42,300 unaccompanied refugee children.122 A fuller picture is provided by 119 120

121

122

http://isj.org.uk/atheism-secularism-and-religious-freedom/#footnote-10080-6 See further in A. Lewicki, “Islamophobia in Germany: National Report 2016”, in E. Bayraklı and F. Hafez, eds., European Islamophobia Report 2016, SETA, Istanbul, 2017. www.infomigrants.net/en/post/7882/measures-taken-in-germany-in-response-to-the-refugeecrisis See further in the Federal Statistics Office of Germany.

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a report from the European Migration Network, which examined key developments that took place between 2014 and 2016.123 Among the more significant state initiatives noted in the report were the reintroduction of border controls along the GermanAustrian border, limiting the number of asylum seekers crossing official land borders to fifty per hour; the development of fast and efficient systems for registration, assessment and re-distribution; the introduction of border controls for trains travelling between Austria and Germany; the repeated state-level deployment of riot police to carry out internal border controls; the provision of emergency accommodation, including in empty barracks, warehouses, aircraft hangars, and former department stores; engaging healthcare services, including volunteer physicians; and the involvement of local community volunteers in providing initial care, from clothing to food and toiletries. Measures were also taken to counter radicalisation, such as the introduction of the “Counselling Center Radicalisation” project by the Federal Office for Migration and Refugees (BAMF); strengthening and financing prevention programs against right-wing violence; and establishing victim advice centres against right-wing extremism. In addition, measures were taken to facilitate integration, including language tuition courses; courses to help asylum seekers with job applications; and courses providing an introduction to German society. religious/cultural differences. No country in Western Europe was more welcoming than Germany to the influx of migrants fleeing devastated Muslim countries in 2015 and no country took in so many. However, for the very largely Muslim migrants, the dilemma has been, and continues to be, how to achieve a workable degree of integration into German society without having to pay the price of religious/cultural annihilation. The migrant crisis largely comprised a flow of people, mostly young males, mainly from the Middle East and the Balkans, approximately 73 per cent of whom were Muslims.124 In general, Germany had been the destination of choice; they were relieved to be allowed entry and were well motivated to settle into German society. Germany had the relative wealth to build the additional capacity – in terms of housing, social and healthcare, welfare benefits, education and training – needed to facilitate the integration of so many. It had also recently managed a process of national reconciliation and reintegration that again meant it was perhaps better positioned than its neighbours to respond to the pressures of the migrant crisis. revival of “nation state” ideology. This country, a survivor of the last century’s most devastating ideological experiment and leader of this century’s most 123

124

See further in www.bamf.de/EN/DasBAMF/EMN/Publikationen/AlleEMNPublikationen/ alle-publikationen-node.html?gtp=7500390_Dokumente per cent253D2 See further in www.respondmigration.com/blog-1/2019/2/20/refugee-immigration-and-religiouspluralization-in-germany

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promising one, has consistently been at the forefront in the post-nationalist experiment to build and sustain the European Community. German commitment to pluralism, to building a “Europe of regions”, has been demonstrated in its support of free movement of people within the EU and in the successful reintegration of its fellow citizens from East Germany. No Western European country has been as generous as Germany in opening its borders nor as relatively successful in resettling so many migrants and managing the resulting religious/cultural dissonance. The scale of the migrant crisis was a stress test for pluralism throughout the EU but particularly in Germany. As the northward migrant flow becomes the new norm, there will be more such testing but it would seem probable that the EU, led by Germany, will respond collectively rather than on a nationalist basis.

conclusion State neutrality, as provided for in Article 7 of the Grundgesetz, does not require strict separation of state and church but rather it suggests an open and respectful relationship, one that encourages freedom of faith equally for all beliefs. In practice this has translated into a benign and flexible version of neutrality which, while upholding the independence of religion and religious organisations from the state, permits the latter to support religion per se and has allowed such support to be directed more towards the Christian religion and culture than any other. This is evident, for example, in state recognition of Catholic and Protestant religions and in their associated entitlement to the “Church tax”. However, although state neutrality is given federal effect by the Grundgesetz prohibition on positive or negative discriminatory treatment of anyone on the grounds of religion, this is not applied uniformly by all Länder. The difference in approach is customarily attributed to respect for culture rather than religion but may indicate an assumption that equal treatment by the state does not mean that the state must treat all religions uniformly. This would seem to be borne out by the fact that Länder have legislated differently in relation to religions: for example, some permitting and others prohibiting the wearing of religiously identifying clothing. The shadow of Nazi Germany and its past treatment of Jews will inevitably cloud any assessment of the present state relationship with religion. Against that background it is heartening to note the record of Germany’s recent singularly welcoming response to the influx of so many Muslim migrants. The 2020 murder of nine Turkish Muslims in Hanau is, however, a chastening reminder of the capacity of far-right politics to trigger violence and damage civil society.125

125

See further in www.bbc.co.uk/news/world-europe-51588602

9 Israel: Halakha and Zionism

introduction The nation profiled in this final jurisdiction chapter is the most intriguing, certainly for present purposes. This chapter is structured similarly to its predecessors. It begins with preliminary matters: an opening section dealing with policy context and related guiding principles, and then an outline of the governing legal framework, international and domestic legislation, courts and regulatory bodies, with some references to international reports. This leads into the first of two contemporary case law sections, which examines the state–religion relationship in relation to the most relevant fundamental human rights: the freedoms of religion, assembly/association and expression. The second and largest section considers the church–state relationship as it intersects with equality rights in relation to marriage, family life, divorce and death; healthcare; education; employment; service provision; and security.

policy overview In 1917 the Balfour Declaration established the principle that the Jewish people should have their homeland in the biblical land of Palestine but it was to be “clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish Communities in Palestine”. In due course this was followed – and seemingly endorsed – by the Status Quo Agreement,1 negotiated by Prime Minister Ben-Gurion with various religious parties in 1948, which formed the basic building block that facilitated, and yet constrained, the development of state

1

The origins of the agreement are generally considered to lie in a letter written on 19 June 1947 by Ben-Gurion, then chair of the Jewish Agency Executive, to representatives of Orthodox Judaism in which he sets out the basis for a policy on national unity to be submitted to the UN.

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policy towards religion.2 Arguably, over the intervening decades, the possibility of fulfilling those early promises has steadily faded.

Background Any consideration of state neutrality regarding religion in contemporary Israel would be seriously deficient if it failed to take account of the formative contribution made by the twin concepts of halakha and Zionism. Religious Neutrality: A Principle That Permits State Support for Religion “Jewish” – a term that refers to a religion, an ethnic group, and to a State – could not be expected to be treated neutrally in Israel. The Knesset (Israeli Parliament) and the laws promulgated by it treat Israeli religions differently – offering recognition and support to some but not to others – while placing a resolute priority on safeguarding Jewishness as variously manifested.

interpreting the principle – halakha. Halakha – to go or to walk – is “the totality of laws and ordinances that have evolved since biblical times to regulate religious observances and the daily life and conduct of the Jewish people”.3 Derived over centuries from a compilation of written and oral rules and distilled into that central plank of Judaism teaching, the Talmud, interpretations of halakha are treated as offering guidance – sourced in laws originally formulated at Mount Sinai – for dealing with the problems of modern everyday life. The significance and interpretation of halakha is the subject of much ongoing controversy but for very many Jews, it is the “higher power”, the totemic religious authority governing their place in the world to which both state and citizen remain subject. It is, for example, held to be the source for the Orthodox belief that matrilineal descent is essential to prove Jewish identity. The Pew Research Centre reports4 that by far the majority of Orthodox Jews (Haredim 86 per cent and Datiim 69 per cent) would favour making halakha the law of the land for Jews in Israel while an overwhelming majority of Hiloni (90 per cent) would oppose such a move. Indeed, in 2017 the Knesset took an initiative seemingly endorsing halakha when it passed a law recommending – but not requiring – that judges use Jewish jurisprudence and heritage as a source of legal principles in cases in which there is no relevant legislation or judicial precedents. 2

3

4

See further in S. Z. Abramov, Perpetual Dilemma: Jewish Religion in the Jewish State, Fairleigh Dickinson University Press, Cranbury, NJ, 1977. Also spelt “halacha” or “halakhah”. See Encyclopedia Britannica, www.britannica.com/topic/ Halakhah www.pewforum.org/2016/03/08/israels-religiously-divided-society/

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zionism. Interpretation of this term is also not without controversy. Derived from a social and political movement in the 1880s, particularly the Zionist Congress in 1897, and dedicated to restore the Jewish people to territory with which they were biblically associated5 – the historical homeland of the Jews – this nationalist ideal has in modern times come to refer to an ideological affirmation of Jewish identity that unifies religion, culture and state in a stand against external threats. The association with nationalism has led to some interpreting Zionism as racist6 as it is held to justify the expulsion and exclusion of Palestinians from their homeland. This association is perhaps also responsible for the risk that external criticism of Israeli policies may be perceived as anti-Semitic. While the vast majority of Haredi Jews reject Zionism, for reasons to do with their belief that Jewish political independence would only be acquired at the coming of the Jewish messiah, the more secular Hiloni Jews, together with most Datiim and Masortim, have tended to rally behind it as they view Zionism as more of a political and cultural banner. The political and social stratification of contemporary Israel owes much to the tension caused by the opposing magnetic poles of halakha and Zionism. the status quo understanding. Essentially the Status Quo Agreement was a baseline pact, forged between church (or, perhaps, synagogue) and state at the time of Israeli independence, to maintain the jurisdiction of Judaism together with the rights of Muslims and Christians, as they then were, and which has ever since served as a crucial reference point for both parties. The agreement included the following: the chief rabbinate would have continuing authority over Shabbat and kosher certification; personal status issues such marriage, divorce and burial would be exclusively the responsibility of each religious community as would responsibility for education; certain Haredi community streets would be closed to traffic on the Shabbat; there would be no public transport on Shabbat and businesses would mostly be closed; the exceptional status of Haifa, with its large Arab population, would be respected and public transport would be permitted on Shabbat. Religion and Contemporary Public Policy Overwhelmingly, if simplistically, both Haredi and Dati Jews (both generally considered Orthodox) express the view that Israel’s government should promote religious beliefs and values, while secular Jews strongly favour separation of religion from government policy.7 5

6 7

Note that some would claim that such a retrospective association is insufficient as in some five cities in Palestine there was a continuing practice of reciting Jewish prayers. See the UN resolution 3379 affirming Zionism as racism in 1975; subsequently rescinded. See Pew Research Centre, Israel’s Religiously Divided Society, www.pewforum.org/2016/03/08/ israels-religiously-divided-society/

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population. In 2019 official statistics estimate the total population of this small but densely populated state at approximately nine million, 74 per cent being Jewish (consisting of 12 per cent Haredi, or “ultra-Orthodox”; 10 per cent Dati, or “religious”; 23 per cent Masorti, or “traditional”; and 40 per cent Hiloni, or “secular”), 18 per cent Muslim, 2 per cent Christian, and 2 per cent Druze. The vast majority of non-Jewish citizens are of Arab origin.8 multiculturalism. As the “homeland”, with a global mission to gather in Jews, Israel is inherently multicultural and deliberately designed to be so, but framed within a specific religious context. The suggestion that “the large immigration of Jews from pre-secular Arab lands immediately following the 1948 proclamation of the State augmented the pre-secular character of the population and prevented the achievement of the Western goal of complete Church-State separation”9 seems obfuscating and stretching it a bit as surely this was entirely foreseeable. The slogan “a Jewish State for a Jewish people” seems hard to reconcile with aspirations for authentic religious/cultural diversity10 (see further in Chapter 2). From the outset, the state was dominated by Judaism, its population more a multitude of separate and disparate cultures rather than a coherent entity that attracts and integrates complementary cultural contributions. The cultural differences with their accompanying tensions flow mainly from the deep social and political divide between Arabs and Jews and the further divisions within both. The 22 per cent of the population that are Israeli Arabs are very largely the remnants and descendants of those Palestinians – Bedouin, Christian, Druze and others – who remained after 1948 and were granted citizenship. Many of these harbour bitter resentment over the eviction of family and friends, the displacement of their communities11 and the continuing inequality of their treatment in relation to the ownership of land.12 Those who did not remain are now consigned to the West Bank (2.5 million), Gaza Strip (1.9 million), East Jerusalem (350,000) and to the diaspora; they are marginalised, excluded from full citizenship, and defined as “religious minorities” or “non Jewish” rather than treated as a national minority. Being socially and religiously very different, and with unresolved political grievances,

8 9

10

11

12

www.jewishvirtuallibrary.org/latest-population-statistics-for-israel See M. Berenbaum, review of Abramov, Perpetual Dilemma, in Journal of Church and State, pp. 349–351, 349. Prime Minister Benjamin Netanyahu, in March 2019, declared that Israel is “the national State, not of all its citizens, but only of the Jewish people” thereby dismissing the significance of the one fifth of Israel’s population that are Palestinian Arabs. See further in www.npr.org/2019/03/ 11/702264118/netanyahu-says-israel-is-nation-state-of-the-jewish-people-and-them-alone But see, for example, the Beit El case HCJ 606/78 and Dweikat et al v. State HCJ 390/79 for illustrations of instances where such displacement was challenged in the courts: successfully in the latter. Also see Aminof v. Ministry of Defense, 50(5) PD 449 (1997). Adal Ka’adan v. Israel Lands Authority, (2000) 54(1) P.D. 258.

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most Arabs have found little incentive to build and share a culturally inclusive society with the Jews. The 74 per cent that are Jews, constituting the vast majority of the population and the raison d’être for Israel’s existence, are themselves far from being a homogenous group. They come from all over the world, at least a million coming from Russia, bringing with them very different languages and cultures: the Ashkenazi Jews, largely with European origins, but also from the Americas; and the Mizrachi Jews, largely from North Africa, the Middle East and India. They also bring differences in religious belief: the Haredi are ultra-Orthodox; the Dati are religious; the Masorti, traditional; and the Hiloni are secular. The differences are often accentuated by modes of dress and worship. In recent years an additional strata of migrant workers – some hundreds of thousands from countries such as Thailand, China and Romania – has been added to the mix.13 Within a period of seventy years, people and cultures from many dozens of nations have made their home in a country that continues to grow in terms of population, territory, socio-economics and military power. Clearly there are enormous challenges to be overcome if such a volume of immigrants and a disparate influx of cultures are to be successfully integrated with an indigenous population into a modern pluralistic democratic society. The evidence so far is not auspicious. According to the 2004 US Department of State’s Country Reports on “Human Rights Practices for Israel and the Occupied Territories”, the Israeli government had done “little to reduce institutional, legal, and societal discrimination against the country’s Arab citizens”.14 A 2009 report from the US Department of State’s Bureau of Democracy, Human Rights and Labor states that Israel falls short of being a tolerant or pluralistic society as it discriminates against Muslims, Jehovah’s Witnesses, Reform Jews, Christians, women and Bedouins.15 It also notes that some 310,000 citizens who migrated to Israel under the Law of Return are not considered Jewish by the Orthodox Rabbinate and therefore cannot be married or divorced, or buried in Jewish state cemeteries within the country. Reports in subsequent years identified discrimination against Arab citizens as a continuing problem: emphasised by the 2018 Knesset declaration that the right to exercise self-determination in Israel belongs uniquely to the Jewish people and by its decision to legally downgrade Arabic from an official language to a language with “special status”. Many of Israel’s 230,000 indigenous Bedouin live in towns and villages that are not recognised by the state. Those in unrecognised villages cannot claim social services, are in some cases off the electricity grid, and have no official land rights, and the government routinely demolishes their unlicensed homes. While the 130,000 Ethiopian Jews, airlifted into Israel in 1984 and 1991, have fared much better, there have been reports of 13 14 15

See further in http://worldpopulationreview.com/countries/israel-population/ US Department of State, www.refworld.org/docid/403f57cfe.html See further in https://2009-2017.state.gov/j/drl/rls/hrrpt/2009/nea/136070.htm

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discrimination, including in the criminal justice system, of being forced to convert to Ashkenazi Jewish practices, and of their lagging behind the general population economically despite government integration efforts. During 2018, members of the Ethiopian Israeli community criticised the government for raising obstacles to the immigration of family members still residing in Ethiopia.16 The Pew Research Centre publishes the Social Hostilities Index (SHI), which measures acts of religious hostility by individuals, organisations and social groups. In 2007, Israel was one of ten countries with a score over 7.1 on a scale of 10; in 2010, Israel and the Palestinian territories were two of the fifteen areas with the highest SHI scores.17 In 2016, the centre reported deep divisions in Israeli society, not only between Israeli Jews and the country’s Arab minority, but also among the religious subgroups of Judaism.18 religious diversity. The birthplace of both Judaism and Christianity, and a place sacred to other faiths such as Islam, Israel is home to many religions. It has also long provided a home for the holy sites most venerated by adherents of the three monotheistic faiths – Judaism, Christianity and Islam – and their offshoots, Samaritans, Druze and Bahai. Since the birth of the state, in testimony to the relative success of government policies aimed at promoting religious diversity, it is the only country in the Middle East where the Christian population has grown. For Israeli Jews, definitional matters raise a preliminary difficulty: seven out of ten Haredi (70 per cent) and roughly half of Dati (52 per cent) say being Jewish is mainly a matter of religion, while 3 per cent of Haredi and 16 per cent of Dati say being Jewish is mainly a matter of ancestry and/or culture. Among Hiloni, by contrast, only 4 per cent see being Jewish as primarily a matter of religion, while 83 per cent say Jewish identity is mainly a matter of ancestry and/or culture. However, at least some members of all of these groups see their Jewish identity as bound up with both religion and ancestry/culture.19 Even though Judaism is the overwhelmingly dominant religion, according to Israeli census data20 the country’s religious landscape has been gradually changing, with a falling share of the population identifying as Jews and a rising share identifying as Muslim or choosing not to identify with any of the four main religious groups (Jews, Muslims, Christians and Druze). The fact that 43 per cent of the Jewish population now self-identify as “secular” (a contentious statistic and, in Israel, an ill-defined term) is possibly the most significant factor and the one with the most potential to promote real change in Israeli society.21 While the 16 17

18

19 20 21

See further in https://freedomhouse.org/report/freedom-world/2019/israel Pew Research Centre, Social Hostilities Index, www.pewresearch.org/wp-content/uploads/sites/ 7/2018/06/APPENDIX-B-1.pdf Pew Research Centre, Israel Survey Full Report, www.pewforum.org/2016/03/08/israelsreligiously-divided-society/israel-survey-full-report/ Ibid. See further in www.jewishvirtuallibrary.org/latest-population-statistics-for-israel In a 2010 report the Central Bureau of Statistics estimated the secular proportion of the Jewish population to be 42 per cent. See further in www.cbs.gov.il/EN/pages/default.aspx

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ultra-Orthodox and the Muslim proportion of the population are also growing, the numbers favour the secularists and may well indicate the probability of increased religious tensions between them and the fundamentalists. Religious diversity is complicated by a non-alignment of religious identity and citizenship, which can generate a considerable sense of grievance. As has been noted, most of the immigrants coming to Israel from Russia and Ukraine in recent years under the Law of Return did not qualify as Jewish under halakha even if they were eligible for citizenship.22 This non-alignment, with accompanying disadvantages perceived as discriminatory, applies also to the religions that are denied official recognition or, even if so recognised, are frozen into an ongoing inequitable relationship with others due to the increasingly anachronistic ties imposed by the Status Quo Agreement. State initiatives intended to recognise and protect religious/cultural identity may also serve to reinforce separateness: the Adoption of Children Law, for example, requires adopters to be of the same religion as the adoptee.23 There are deep divisions not only between Israeli Jews and the country’s Arab minority, but also among the religious subgroups that make up Judaism. The resulting tensions are often acutely present in the vicinity of the many holy sites. state agencies for religious matters. The State of Israel and the machinery of government has been established, and continues to be maintained, primarily to safeguard Jews and further the promotion of Judaism; any assessment of state agencies for religious matters has to be made against that governing reality. Since the birth of the state, Israel has had in place a designated government department – the Ministry of Religious Services – to take responsibility for managing its domestic religious affairs. The fact that a minister of the cabinet is vested with responsibility for religious affairs has become not that unusual – this is also the case in England and Wales – in modern democracies, but must raise questions about state neutrality in the countries concerned. In practice the ministry deals mainly with financial support for various Jewish (but also Muslim and Christian24) institutions, facilities and activities rather than with providing support on an explicitly equitable basis for religions in general. It has jurisdiction over the country’s 133 Jewish religious councils, which oversee the provision of religious services for Jewish communities. The government finances approximately 40 per cent of the religious councils’ budgets.

22 23

24

See R. Weiner, “Judaism: Who Is a Jew?”, www.jewishvirtuallibrary.org/who-is-a-jew See further in https://en.hhlaw.org.il/adopting-children-in-israel-what-are-the-rules-andconditions/ Author acknowledges advice from Michael Berenbaum on this matter (note to author: 03.03.2020).

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contemporary legal framework Israel’s legal system, mainly drawn from the common law tradition with assimilated aspects of civil law, while in many ways typical of other modern developed nations, is also systemically compromised by political concessions made to religious organisations at the founding of the state. International Conventions Israel has long acknowledged that it is bound by international human rights law (see further in Chapter 3). As Justice Haim Cohn put it,25 It is decided law that rules of International law constitute part of the law prevailing in Israel insofar as they have been accepted by the majority of the nations of the world and are not inconsistent with any enactment of the Knesset (Parliament). The principles of freedom of religion are similar to the other rights of man, as these have been laid down in the Universal Declaration of Human Rights, 1948, and in the Covenant on Political and Civil Rights, 1965.

The International Covenant on Civil and Political Rights (ICCPR) Israel is a party to the ICCPR, ratified in 1992, with a reservation stating that matters of personal status are governed by the religious law of the parties concerned. The country reserves the right to apply that religious law when inconsistent with its obligations under the covenant and has frequently done so. The International Covenant on Economic, Social and Cultural Rights (ICESCR) Signed in 1966 and ratified in 1991, this convention commits Israel to working for the promotion of economic, social and cultural rights – including rights to health, education and an adequate standard of living – of all those living within its jurisdiction. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Adopted and opened for signature by the UN General Assembly in 1965, the convention took effect in 1968 and was ratified by Israel in 1979. The UN Convention on the Rights of the Child (UNCRC) Ratified in 1991, Israel is obligated to respect the health and welfare of children resident within its jurisdiction. 25

H.C. 103/67, American Orphan Beth El Mission v. Minister of Social Welfare, 21(2) Piskei Din 325.

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The UN Declaration on the Rights of Indigenous People (UNDRIP) Israel has failed to sign this declaration and has also failed to abide by its provisions. In particular, Israeli treatment of the Bedouin has attracted international criticism. Other Israel is also a member state to the Convention on the Elimination of All Forms of Discrimination against Women (with reservations); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; the International Convention against Discrimination in Education; the American Convention on Human Rights; the European Social Charter and the African Charter on Human and Peoples’ Rights.

The Constitution and Domestic Legislation Israel has no constitution but some of its most crucial foundational legislation dates from or before the birth of the state. The Constitution Israel does have a series of Basic Laws, enumerating fundamental rights, which are regarded as providing a constitutional foundation.

the law of return, 1950. This declares the right of all Jews and people of Jewish descent to immigrate – make aliyah – to Israel and in conjunction with the Nationality Law, 1951–1952,26 grants them a right to citizenship. It has given rise to much debate and judicial consideration as to who qualifies as a Jew: the traditional qualification – one who was born to a Jewish mother or who had converted to Judaism – is viewed by some as too narrow and gender biased. It has attracted the criticism that it may be discriminatory and possibly racist as no equivalent right is available to the Palestinian refugees. the declaration of independence, 1948. This proclaims that “[Israel] will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture”. the palestine mandate, 1922. The mandate, together with the Palestine Order in Council, 1922, provides the basis for state protection of religion. The order declares that “all persons . . . shall enjoy full liberty of conscience and the free exercise of their forms of worship, subject only to the maintenance of public order 26

5712-1952, 6 LSI 50.

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and morals” and adds that “no ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship”.27 the balfour declaration, 1917. This foundation stone for the creation of Israel occurred in the context of the partition of the Ottoman Empire when the Balfour Declaration, a secret treaty, declared British support for the establishment of a “national home for the Jewish people” in Palestine. Other Legislation The introduction of human rights into domestic law has been blocked by ultraOrthodox parties in the Knesset insisting that principles prevailing at the time of the Status Quo Agreement be respected – principles that, for example, did not allow for gender equality.

the basic law: israel – the nation state of the jewish people 2018. The legislative intent being, as explained by the government, to establish in law “that the Land of Israel is the historical homeland of the Jewish people; the state of Israel is the nation state of the Jewish People, in which it realizes its natural, cultural, religious and historical right to self-determination; and exercising the right to national self-determination in the State of Israel is unique to the Jewish People”. It relegated the Arabic language to a lesser status. the law of citizenship and entry, 2003. This law prohibits the granting of residency or citizenship status to Palestinians from the 1967 Occupied Palestinian Territories who are married to Israeli citizens. It has since been revised and extended several times, most recently in 2016. the basic law: freedom of occupation, 1994. The declared purpose of this law is “to protect freedom of occupation, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic State”. It repeats the recognition of basic human rights as stated in the 1992 Basic Law: “Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free”. the basic law: human dignity and liberty, 1992. This declares that the right to human dignity can only be infringed in accordance with the conditions established by the limitations clause of the Basic Law: that the infringement be expressly set out in a statute; that it accord with the values of Israel as a Jewish and democratic state; and that it does not infringe the protected right more than necessary. 27

Articles 2, 13-18 of the Mandate for Palestine, and Articles 83 and 17 (1) (a) of the Palestine Order in Council of 1922, as cited in www.jewishvirtuallibrary.org/freedom-of-religion-in-israel

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It references the Declaration of the Establishment of the State of Israel, which protects freedom to practice or not practice religious beliefs, including freedom of conscience, faith, religion, and worship, regardless of an individual’s religion. The law incorporates religious freedom provisions of international human rights’ covenants into the country’s body of domestic law. The Supreme Court has ruled that this law is the basis of fundamental freedoms such as religion and has interpreted it as mandating equality.28 Criticisms that it had led courts to give preference to individual human rights and freedoms over policies that perpetuated Israel as a Jewish State resulted in the Knesset introducing the nation state legislation in 2017. the women’s equal rights law, 1951. This guarantees legal protection for women and provides a legal basis for gender equality in all spheres of life. It was radically amended in 2000.

Courts and Tribunals Israel has much the same spread of domestic courts and tribunals that typify contemporary democratic societies but unlike them it also has a parallel tier of religious courts; it is without a human rights commission and it chooses not to accept the jurisdiction of most supranational courts. International Although choosing not to subscribe to the jurisdiction of international courts, this has not prevented Israel from appearing as a party before the International Criminal Court (ICC) and the European Court of Justice (ECJ) and being subject to rulings, even if these are non-binding.

the european court of human rights (ecthr). Israel, as a non-European democratic state willing to contribute to building democratic institutions in Europe, has been granted “observer” status with the Council of Europe. This means, among other things, that it is not bound by Article 46 of the ECtHR – as are all of the fortyseven member states – requiring compliance with ECtHR judgments (see further in Chapter 3). the human rights committee (hrc). This body monitors progress made on promoting human rights and provides an update every four years on achievements and agrees further goals (see further in Chapter 3). 28

See, for example, Nof v. Ministry of Defence, [1997] IsrLR2.

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other fora. The relevance of the European Court of Justice (ECJ) is limited to rulings occasionally made to restrain Israeli agricultural policies and its treatment of Palestinian Arabs. Israel rejects the jurisdiction of the International Criminal Court (ICC) but has been subject to a non-binding ruling by the International Court of Justice (ICJ) that its dividing wall with the West Bank is illegal. Various committees, established by their respective international conventions to monitor implementation, may be relevant (see further in Chapter 3). The Domestic Judicial and Regulatory Systems The plurality of courts and tribunals that constitute the Israeli legal system is complex, comprising both secular and religious forums, and largely self-contained as while decisions may be to a degree reviewable by supranational bodies, the findings of those bodies are not binding upon Israel. Unlike other developed democratic societies, the system does not contain a dedicated forum for adjudicating on broad-based allegations of discrimination and inequality.

the supreme court. As well as being the appellate court of last resort from decisions of the district courts, this institution also hears petitions submitted directly to it. Sitting as the High Court of Justice, it hears administrative cases outside the jurisdiction of the district courts and has adjudicated many political cases and cases with an international dimension. The Supreme Court has come to play an increasingly central role in protecting minorities, overturning decisions by government or parliament when they threaten human rights and protects the rights enshrined in the Basic Laws. the rabbinical courts. These courts, and others of a religion-specific nature, deal with matters of personal status such as marriage, divorce and burials. Rabbinical court judges – dayanim – are male Orthodox rabbis. equal employment opportunity commission (eeoc). Established in 2008, pursuant to an amendment to the Employment (Equal Opportunities) Law 1988, section 18a, for the purpose of eliminating discrimination in the workplace on sixteen grounds including religion, it began functioning in 2015. the state comptroller. Established in 1949, this body carries out external audits and reports on the legality, regularity, economy, efficiency, effectiveness and integrity of the public administration in order to assure public accountability. Since 1971, it has also fulfilled the function of Public Complaints Commissioner (ombudsman) to which any person may submit complaints against state and public bodies. A 2017 report from this body criticised four hospitals for segregating Jewish and Arab women in maternity wards.

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the national labour court. This court has an appellate jurisdiction in respect of rulings delivered by the five district tribunals. Appeals may lie from its decisions, on points of principle, to the Supreme Court. the labour tribunals. These independent bodies determine labour law cases, any issues involving employers and employees, all cases against the National Insurance Institute and some other socially oriented matters.

International Reports The number of international reports expressing concern regarding what are considered to be Israel’s non-human rights compliance towards Palestinian Arabs seem to be increasing; the following are among the more recent. The UN Special Rapporteur Report The 2019 report “The Question of Palestine” declared that Israel’s exploitation of Palestinian resources and the degradation of the water supply violates their human rights.29 The UN Human Rights Council Universal Periodic Review Report The 2018 report noted “excessive use of force” by Israeli forces against Palestinians and urged Israel to establish a national human rights institution in accordance with the Paris Principles. Human Rights Watch and Amnesty International Reporting on events in 2018, both the Human Rights Watch and Amnesty International expressed grave concern regarding what they termed systematic discrimination against Palestinians, which included the deaths of 240 Palestinian adults and 50 children, the destruction of 390 Palestinian homes, and the forcible displacement of about 407 Palestinians.30 The UN Committee on the Elimination of All Forms of Racial Discrimination In its 2007 report the committee, noting the separate sectors for educating children, suggested that this “may amount to racial segregation”. 29

30

www.un.org/unispal/document/israels-exploitation-of-palestinian-resources-is-human-rightsviolation-says-un-special-rapporteur-for-the-situation-of-human-rights-in-the-opt-press-release/ www.hrw.org/world-report/2019/country-chapters/israel/palestine and www.amnesty.org/en/ countries/middle-east-and-north-africa/israel-and-occupied-palestinian-territories/

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The UK Annual Government Human Rights and Democracy Report The 2018 UK report praised Israel for being “a robust open democracy with a vibrant civil society”, but cited the building of 7,663 housing units in a new settlement area as evidence that “Israel continued its systematic policy of settlement expansion, a breach of international humanitarian law”. It also expressed concerns over the contentious nation state law.31 The US Annual Government Report on International Religious Freedom In its report on events in 2018, while noting the earlier mentioned security-related issues, the report also drew attention to the predicament of the Bedouin: since 2010, cancellation of the citizenship of 2,600, due to a “registration error” granting citizenship to their ancestors between 1948 and 1951, which left them stateless; and that “in nine of 11 recognized villages, all residences remained unconnected to the electricity grid or to the water infrastructure system”. Other areas of concern included that “Arab citizens faced institutional and societal discrimination”;32 women from certain Orthodox Jewish, Muslim, and Druze communities faced significant social pressure not to report rape or domestic abuse; in some matters, religious courts – responsible for adjudication of family law, including marriage and divorce – limited the rights of Jewish, Christian, Muslim, and Druze women; the posting of “modesty signs” demanding women obscure themselves from public view to avoid distracting devout men; and the growing trend towards increased gender segregation.

case law: the church–state relationship and fundamental human rights The fundamental human rights – the freedoms of religion, association/assembly and expression – provide particularly useful indicators of the contemporary church–state relationship in Israel. Freedom of Religion Justice Landau recognised that33 every person in Israel enjoys freedom of conscience, of belief, of religion, and of worship. This freedom is guaranteed to every person in every enlightened, democratic regime, and therefore it is guaranteed to every person in Israel. It is one of the 31

32 33

See further in https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/806851/human-rights-democracy-2018-foreign-and-commonwealth-officereport.pdf See further in www.state.gov/reports/2018-report-on-international-religious-freedom/ H.C.243-62, Filming Studios in Israel Ltd. v. Guery et al., 16 P.D., p. 2407. See also Faithful of the Temple Mount v. Commander of Police in the Jerusalem Area, H.C. 292/83, 38(2) P.D. 449, 454, per Justice Barak.

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fundamental principles upon which the State of Israel is based. . .. This freedom is partly based on Article 83 of the Palestine Order in Council of 1922, and partly it is one of those fundamental rights that “are not written in the book” but derive directly from the nature of our State as a peace-loving, democratic State.

It would seem probable, though there has been no Supreme Court ruling on the matter, that religious liberty is protected under the right to freedom of religion and conscience as provided for in the Basic Law: Human Dignity and Liberty. Definitions In Israel, “Jewishness” is the defining characteristic of both the state and the majority of its citizens. This elevates the locus standi of that religion, relative to all others, gives religion in general a significance unknown in other modern developed nations and establishes Israel as unique among democratic Western states.

“religion”. For all official purposes, “religion” in Israel refers to one of the five recognised religions: Judaism, Christianity, Islam, Druze and the Baha’i faith. However, to be defined as a “Jew” does not necessarily mean being an adherent of that religion as a large proportion self-define as irreligious. The national debate as to the definition of “Jew” – an amalgam of religious and political interpretations – has been protracted and inconclusive.34 “beliefs”. In addition to the above named five religions, official recognition is also extended to the beliefs of ten Christian denominations: Greek Orthodox, Greek Catholic, Latin (Roman Catholic), Armenian Orthodox, Armenian Catholic, Maronite, Syrian Orthodox, Syrian Catholic, Chaldaic (Catholic) and Evangelical Episcopal (Anglican). worship. As Justice Landau once said: “The freedom of conscience and worship is one of the individual’s liberties assured in every enlightened democratic regime”.35 Nonetheless, the controversies regarding which group of religious adherents may worship at which holy site are as ancient as the sites themselves. Religious Discrimination Religious discrimination against Jews – anti-Semitism – has always accompanied Judaism and continues to blight democratic societies everywhere. In Israel, religious authorities maintain exclusive jurisdiction over family life and personal status, which results in a situation where a significant proportion of the population is exposed to what they might perceive as state-authorised religious discrimination. 34 35

See, for example, Pew Research Centre, www.pewforum.org/2013/10/01/sidebar-who-is-a-jew/ Cr. A. 112/50, Yosifof v. Attorney General, 2 Piskei Din 486, 598, 612 (per Justice Landau).

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Protecting the State from Religion The foundations underpinning this state are incontrovertibly religious, deliberately designed to be so, and offer more support to Judaism and less to all other religions. While unsurprising, this direct consequence of the “Status Quo Agreement” continues to structure a symbiotic church–state relationship, which effectively protects the Jewish State from any incursion by other religions. However, it may also constitute a derogation of state responsibility as the latter assigns to religion exclusive responsibility for determining matters that in other democratic societies are addressed by state provision of independent and impartial bodies to which all citizens – religious and secular, male and female – are equally entitled to access. Arguably, by restricting to recognised religious communities the right to determine access to marriage, the state has abdicated a significant responsibility and compromised its capacity to ensure a basic human right, albeit subject to the caveat that the Supreme Court has on occasion ruled on decisions taken by the religious courts.

an “established” church. Israel does not have an “established” church: Judaism has no official status as the national religion; nevertheless, Judaism dominates state institutions. As noted in the 2018 US report, “the government continued to implement policies based on Orthodox Jewish interpretations of religious law”. a secular state. Israel is not a secular state: its institutions are sometimes held to be secular, but in reality religion permeates all aspects of public life; indeed much of the law of Orthodox Judaism has been incorporated into state legislation. Religion can even determine citizenship, as a Jew from anywhere in the world is automatically entitled to such status whereas a Muslim from Palestine is not. The Knesset is itself comprised of some religion-specific parties36 that pursue overtly religious policies, while a number of other political parties contain staunchly religious lobbyists. The education system is fragmented into religious bunkers. Basic human rights are at times required to cede precedence to religion: the religion override is evident, for example, in relation to gender equality, particularly in an ultra-Orthodox and Muslim context; access to justice is problematic for Palestinians but more readily assured for Jewish citizens; housing and land acquisition favour Jews at the expense of Muslims. The Supreme Court would seem to be the sole state institution representative of secular principles, but in fact there have always been some staunch Orthodox Jews among its members and, as in the USA, it is clearly not wholly insulated from politics.37 36

37

In 2019, Zionists and the ultra-Orthodox (United Torah Judaism, the Union of Right-Wing Parties and Shas) accounted for approximately 21 per cent of all seats. An estimated one-third of all seats were held by the religious and Haredim. See further in www.jpost.com/Opinion/Toomuch-religion-in-the-Knesset-585804 See for example www.israeltoday.co.il/read/supreme-court-judges-as-political-figures/

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The non-secular nature of the Israeli State, indeed the deep-rooted entanglement of church and state, was evident, for example, in the 1988 gender equality cases of Shakdiel38 and Poraz.39 The first case concerned the refusal of the minister for religious affairs and a ministerial committee to appoint Leah Shakdiel to serve as an elected member of a local religious services council, on the grounds that she was a woman. The second case concerned the decision of Tel Aviv Municipal Council not to appoint women to the electoral board for the Tel Aviv municipal rabbi. Both cases were based on claims that, under Jewish law, women may not elect or be elected to public office and both were resolved by the High Court finding that women’s right to equality was a “fundamental principle” of the Israeli legal system. However, in affirming the right of women to equality of opportunity in relation to appointments to the boards of public bodies, the rulings were not without equivocation. In Shakdiel, Justice Elon held that the principle of equality had to be “balanced against other legitimate interests of individuals or the public”. Hence, he argued, Had there been a prohibition in the halakha against women serving on religious councils . . . a compromise would have to be found between the two approaches. Although the municipal council is a secular statutory body and is hence subject to secular law, it deals with halakhic affairs . . . and thus it would be desirable to seek ways to bridge the opposing interests.40

In Poraz, Justice Barak regarded it as the duty of the court to balance “the general principle of equality, on one hand, and particularistic interest in the appointment of an electoral board, which should be able to carry out its functions properly, on the other. . .. Equality is an important principle but it is a relative principle”.41 Clearly, while the outcome in both cases was a ruling affirming the gender equality right – at least in the context of appointments to state bodies – that outcome was prefaced by (perhaps contingent upon) a need to first establish whether or not there was any religious contra indicator blocking that right in the halakha teachings. This built-in deference to religious interests, negotiated at the founding of the state, was the result of political compromises reached between ultra-Orthodox and other branches of Judaism. Although statute law, enacted by the Knesset, remains the primary source of Israeli law, the Foundations of Law Act, 1980, granted the courts an important discretion: when a legal issue cannot be resolved by reference to legislation, judicial precedent or analogy, the judiciary are entitled to reach a determination “in light of the principles of freedom, justice and peace of the Jewish heritage”,42 which opens the door to halakha. The secular/religious balance achieved 38 39 40 41 42

Bagaz153/87 Shakdiel v. Minister for Religious Affairs et al., 42[2] P.D. 221. Bagaz 953/87 Poraz v. Lahat, Mayor of Tel Aviv et al., 42[2] P.D. 309. Shakdiel v. Minister for Religious Affairs et al., 42[2] P.D. 221, pp. 242–243. Poraz v. Lahat, Mayor of Tel Aviv et al., 42[2] P.D. 309, p. 336. Foundations of Law Act, 5741-1981, § 1, 34 LSI 181 (1979–1980).

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on independence has been maintained, with occasional instability, by virtue of the religious interests remaining represented by the same political parties that continue to form the coalitions that have always governed in the Knesset. Essentially, the “status quo” within the various religions and between religion and secularism is “constitutionally” guaranteed and indeed the fact that the ultra-Orthodox43 are now the fastest growing group in Israel suggests that existing divisions may harden and place the state under threat of further religious incursion from that quarter.44 accommodating religious law and courts. Laws, inherited from the era of the Ottoman Empire and the British Mandate,45 establish the right of an officially recognised religious community to maintain its own independent system of law and courts with authority to determine matters of personal status that in the USA and other countries would fall to be decided by secular authorities. This privilege is restricted to such “recognised” communities and includes marriage, divorce, maintenance, guardianship, adoption and the burial of their members and, more mundanely, kosher certification. Consequently, Jewish, Christian, Muslim, Druze and Baha’i communities each have jurisdiction over their own members in relation to those matters, while all other non-recognised religious communities do not. There is a double-edged and clearly inequitable patriarchal bias to this arrangement: the religious courts are inevitably male dominated;46 and the issues brought before them, equally inevitably, largely concern disadvantaged women. In particular the jurisdictional remit of the rabbinical courts47 allow these bodies to play an important role in Jewish society; they adjudicate on by far the greatest volume of cases, but as the Supreme Court in a pivotal ruling has declared, they and the chief rabbinate are public bodies and as such are subject to the rule of law to judicial review by the High Court of Justice.48 In keeping with Orthodox interpretations of Jewish law, the judiciary of the rabbinical courts are exclusively male; they have never had any female judges. Only when religious courts lack jurisdiction, as in cases of mixed-religion and same-sex couples, will jurisdiction default to the state courts. Both state and religious courts have jurisdiction over matters stemming from divorce proceedings, including 43

44

45

46 47

48

For argument that “Haredi” should be substituted for “ultra-Orthodox”, see A. Shafran, “Stop Otherizing Haredi Jews”, New York Times, 20 February 2020, www.nytimes.com/2020/02/20/ opinion/haredi-jews-ultra-orthodox.html See further in https://foreignpolicy.com/2019/04/17/the-ultra-orthodox-will-determine-israels-pol itical-future-haredi-likud-netanyahu-shas-deri-utj/ The British Mandatory Law of 1922, Article 51(a), established the right of recognised religious communities to each have their own court system. H.C. 153/87 Shakdiel v. Minister of Religious Affairs, (1988) 42(2) P.D. 221. The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, establishes the normative framework of the rabbinical courts’ jurisdiction. H.C. 732/84 Tzaban v. Minister of Religious Affairs, (1986) 40(4) P.D. 141 and H.C. 3269/95 Katz v. Jerusalem Regional Rabbinical Court, (1996) 50(4) P.D. 590.

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alimony, child support, child custody, guardianship, and property division. As religious courts determine personal status issues, women, in particular, can be placed at a serious disadvantage in divorce and other matters, the degree of disadvantage varying according to the religion. Secular courts have primary jurisdiction over questions of inheritance, but parties may file such cases in religious courts by mutual agreement. Decisions by these bodies are subject to Supreme Court review and this has led to serious jurisdictional clashes. The decision of the Supreme Court in the pivotal case Bavli v. Great Rabbinical Court,49 concerning the application of the Equal Rights of Women Law to religious courts, had directed the religious courts to follow the statutory principle of community of property, which does not exist in religious law. The rabbinical court, however, being of the view that it was unable to deviate from religious law, ignored the direction of the Supreme Court when the case was returned to it,50 the judge stating that the Spouses (Property Relations) Law, 1973, ridiculed the Rabbinical Court and no religious court in Israel would be guided by it.51 This prompted the Supreme Court, in the Sidis case,52 to advise that religious courts must apply statutory principles of equality between spouses, unless the parties have expressly consented to the application of religious law, and it rejected the inference of the Rabbinical Courts that by submitting to religious jurisdiction the parties had agreed to the use of religious law. Subsequently, in Amir v. Great Rabbinical Court,53 the Supreme Court warned that for those religious courts that form part of the state’s legal system, their jurisdiction is determined by law, and they cannot act outside it; other religious courts that are not part of the state system (for instance, the Jewish ultra-Orthodox court, the Beit Din Zedek), can act as arbitrators, because they have no statutory jurisdiction.54 In 2017 the Supreme Court upheld the jurisdiction of rabbinical courts to impose community-based punishments on a get-refuser, excluding him from community activities, and advertising these decisions to the public. However, it rejected a prohibition on allowing a get-refusing man a Jewish burial; by dying he had resolved the issue. sharia law. The sharia courts were assimilated into the national legal system in 1961 and have exclusive jurisdiction on personal status issues such as marriage,

49 50 51 52 53 54

HCJ 1000/92 Bavli v. Great Rabbinical Court, 48(2) PD 221. Tel Aviv Local Rabbinical Court, Case 884/99, Bavli v. Bavli. Judgment of 20 February 2000, Regional Rabbinical Court, per Mazouz J. HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court, 12 PD 1528. HCJ 8636/03 Amir v. Great Rabbinical Court. See further in A. Scolnicov, “Religious Law, Religious Courts, and Human Rights within Israeli Constitutional Structure”, International Journal of Constitutional Law, vol. 4, no. 4 (2006), pp. 732–740.

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divorce and paternity matters among Muslim Israeli citizens. In April 2016, the sharia courts – unlike the rabbinical courts – appointed their first female judge. Protecting Religion from the State While the symbiotic church–state relationship naturally affords a high degree of protection for Judaism, protection singularly reinforced by possible charges of antiSemitism if violated, it relatively disadvantages all other religions, particularly the Arab Muslims.

determining the legitimacy of religion and beliefs. The official “recognition” of a religion or belief determines whether it can be regarded by the state as legitimate. This is an administrative rather than a theological process. state protection of beliefs/culture of indigenous people. Though the Palestinians are now mainly resident in the West Bank and the Gaza Strip (where they do not have Israeli citizenship), or are scattered in a diaspora, they also constitute approximately 21 per cent (1.6 million) of Israel’s population. These, the Palestinian citizens of Israel, are the people who remained in their homeland, which became the State of Israel after the war of 1948; they consist of three religious communities: Muslim, Christian and Druze; the vast majority, 83 per cent, being Muslims.55 The state has conspicuously failed to protect their religion, property and their Israeli identity. In recent years, for example, many thousands of Bedouin have had their citizenship revoked, their homes bulldozed and have been transferred to less desirable locations. The Palestinian Arabs as a whole have suffered considerably, some hundreds of thousands being required by the Israeli State to vacate their homes and land for Jewish settlements. The majority are now socially disadvantaged and marginalised; access to their holy sites has been a particular source of friction.56 The Discriminatory Laws Database, a report published by Adalah (the legal centre for Arab minority rights in Israel) has identified more than sixty-five laws enacted since 1948 that directly or indirectly discriminate against the indigenous Palestinian citizens of Israel.57 A clutch of these concern the appropriation of land and seemingly followed on from the Law of Return, 1950, which, having granted every Jewish person in the world and their families the right to immigrate to Israel, created an obligation on the state to provide places to live for those choosing to avail of that right. The Absentee Property Law, 1950, authorised the legal appropriation of land owned by the expelled Palestinians and continues to be used today in relation to properties in East Jerusalem. More explicitly, the Land Acquisition Law, 1953, transferred the land of 349 Arab towns and villages to the state. The most recent 55 56 57

See further in www.jewishvirtuallibrary.org/the-status-of-arabs-in-israel See, for example, https://imeu.org/topic/category/palestinian-citizens-of-israel See further in www.adalah.org/en/content/view/7771

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discriminatory legislative initiative came with the Basic Law: the Nation State of the Jewish People introduced by the Knesset in 2018.58 This downgraded the status of the Arabic language from official state language to the more ambiguous “special status” and will undoubtedly deepen the sense of alienation already felt by the Palestinian Arab minority. It defines Israel as the “nation-State of the Jewish people” and as a “Jewish and democratic State”, adding for good measure that “the State views the development of Jewish settlement as a national value and will act to encourage and promote its establishment”. State neutrality towards religion is conspicuously absent. State Treatment of Religions Unsurprisingly, the treatment of religions by the Israeli State is different from that adopted in other modern democracies. While clearly partisan, favouring Judaism as against all others and being discriminatory against some such as Jehovah’s Witnesses, it also strongly favours religion per se relative to secularism. The latter characteristic is clearly apparent in the referral of matters of personal status – marriage, divorce, burials – to be determined by designated religious communities instead, as elsewhere, by secular authorities. It is also evident in the policy of direct state funding for religious education and in the decision to establish a Ministry of Religious Affairs at the heart of government.

equal treatment by the state. The state does not grant equality of status to all religions. It formally recognises only those recorded in the National Registry: Judaism, Christianity, Islam, the Druze faith, and the Baha’i faith; and it provides financial support on a discriminatory basis, excluding, for example, the Protestant religion. Persons not belonging to one of the recognised religions are classified in negative terms as “lacking religion”. state prejudicial intervention. The government policy of not granting parity of official recognition to the many religious groups in Israel is clearly prejudicial to those excluded, as evidenced by the differentiation in tax exemptions – Jehovah’s Witnesses being among those whose applications are refused; however, members of such unrecognised religious groups remain free to practise their religion. Prejudicial also is the flow of government funding to non-Jewish schools, especially so in relation to the Bedouin. The Ministry of the Interior (MOI) relies solely on the Jewish Agency for Israel59 to determine who is qualified to immigrate as a Jew or descendant of a Jew. It denies applications from those who have converted to another religion, including those 58 59

See further in www.jewishvirtuallibrary.org/israel-s-basic-laws-the-israel-nation-state-law Established in 1929 as the operative branch of the World Zionist Organization, the central purpose of the agency is to promote the settlement of Jews in Israel.

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holding Messianic or Christian beliefs, and the chief rabbinate continues not to recognise non-Orthodox converts as Jews, although they remain eligible for immigration under the Law of Return, if they converted outside the country, and for citizenship. Relatives of Jewish converts may not receive residency rights, except for the children of male or female converts born after the parents’ conversion was complete. state-supportive intervention. As noted, the Supreme Court has repeatedly declared the importance of defending “the freedom of conscience, of belief, of religion and of worship”.60 One means of doing so is through the penal law, which criminalises the damage, destruction or desecration of religious sites (subject to seven years’ imprisonment) and actions that “harm the freedom of access” of worshippers to religious sites. Preferential government support is provided, under the Law of Return, to Jews and their relatives who immigrate to Israel and it provides funding for both Orthodox and non-Orthodox conversion programs. Following a 2013 Supreme Court ruling, the government continues to pay the salaries of twelve non-Orthodox rabbis serving regional councils while the Ministry of Housing provides funding for the construction of non-Orthodox Jewish religious institutions. Such channelling of state support towards interests having a religious character is justified “provided they affect an appreciable part of the public” and do not impose a “burden which cannot be borne”.61 Berenbaum adds, “the religious ministry refused to provide non-Orthodox support so that the Housing Ministry was substituted so that in practice there is support – unequal but still support”.62 affirmative action. In 2012, the government initiated a program to make higher education more accessible to the Arab public. A study released in January 2018 by the Council for Higher Education found that the total number of Arab Israeli students pursuing all forms of higher education in Israel rose by 78.5 per cent from 2010 to 2017.63 religious symbols/prayers in state facilities. National pride in religious identity is reflected in many ways including declaring Shabbat and the Jewish holidays to be the national days of rest; the Zionist lyrics of the national anthem; the display of a national flag and emblems that solely express the Jewish tradition; 60

61

62 63

H.C.243-62, Filming Studios in Israel Ltd. v. Guery et al., 16 P.D., per Justice Landau, p. 2407 and Faithful of the Temple Mount v. Commander of Police in the Jerusalem Area, H.C. 292/83, 38(2) P.D. 449, 454, per Justice Barak. Cr. A. 217/68, Izramax v. State of Israel, 22(2) Piskei Din 362. A similar rationale applies in the United States to justify government support for religion. See P. Kurland, in Law and Religion, vol. 18 (1962), p. 122. Note to author: 03.03.2020. F. Raday, “On Affirmative Action”, Mishpat Umimshal, vol. 3 (1995), p. 145.

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and the requirement that only kosher food is provided to members of the national armed forces. The US 2019 annual human rights report notes that on taking office, members of the Afula City Council added an oath to “preserve the Jewish character” of the city, which some interpret as promoting discrimination.64 State Protection for Manifestations of Religious Belief In such a religiously polarised state, the probability that manifestations of religious belief in public would generate a reaction is greater than in more pluralistic societies. Policing the exercise of the right to manifest belief, so as to protect those involved ensure the rights of others are not violated and to limit damage to holy sites and artefacts, has been a constant drain on the resources of the state. As “religiousification” – hadata – is seemingly being stepped up so, correspondingly, is the level of adverse reaction and consequent need for state protection.65

religion-specific clothing. The need for state protection is particularly acute in relation to types of clothing worn in the vicinity of religiously sensitive sites. The adverse reaction is most likely to involve ultra-Orthodox men, Muslim women or Christian clergy and may take the form of verbal abuse, spitting or stone throwing. As Jerusalem contains the greatest number of religiously significant sites – globally important to Jews, Muslims and Christians – it is here that the religious interface is most volatile and at times virulent, where religion-specific clothing or clothing that is perceived as disrespectful to religion can trigger an abusive reaction. Current examples of hadata include women being required to sit at the back of public buses in ultra-Orthodox areas, and the posting of “modesty signs” demanding women obscure themselves from public view to avoid distracting devout men. There are some specific rules regarding wearing religious clothing or other religiously identifying items: non-Muslim religious symbols are not allowed to be worn on the Temple Mount/Haram al-Sharif; women are not allowed to conduct prayers at the Western Wall while wearing prayer shawls, though there is a separate prayer area along the Western Wall south of the Mughrabi Gate, where they may do so, a rule repeatedly upheld by the Supreme Court but equally repeatedly challenged on site by ultra-Orthodox men. religion-specific customs, practices and rituals. As noted in the 2019 US international human rights report, the Israel government continues to enforce a prohibition on performance of “a religious ceremony that is not in accordance with the customs of the place, which harms the feelings of the public towards the place”. 64

65

See Country Reports on Human Rights Practices for 2018. United States Department of State, Bureau of Democracy, Human Rights and Labor, “Israel and the Golan Heights 2018 Human Rights Report”, p. 53, www.justice.gov/eoir/page/file/1181641/download See Pew Research Centre, “Latest Trends in Religious Restrictions and Hostilities” report, 2015.

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This is interpreted to include mixed gender Jewish prayer services and other ceremonies that do not conform to Orthodox Judaism. The growing trend towards gender segregation – a proxy manifestation of religious belief – reflects the increased assimilation of Jewish religious practice into government institutions, including the IDF. Such practices include the more strict interpretations of Jewish law which prohibit mixing of the sexes. In 2019, Israel’s attorney general said that cities could enforce gender segregation at public events.66 The Protection of Holy Sites Law, 1967, enacted after Israel gained control of the West Bank, protects all holy sites and governs the rights of religious groups to access and to worship there, including those in Jerusalem. Authority is conferred on the state, not the courts, to decide the scope of the right to worship at certain sites, resulting in Muslims being guaranteed access to mosques, including the al-Aqsa Mosque and Christians to churches. While the government has ensured limited access to the Temple Mount/Haram al-Sharif to everyone regardless of religious beliefs, only Muslims are allowed to pray at the site. Government policy, denying non-Muslims the opportunity to worship there, for example in 2017, has been repeatedly upheld by the Supreme Court. The government provides resources for the protection and maintenance of the holy places of all recognised religious communities but does so to a significantly greater level for those of the Jewish religion. There is now a great deal of protective legislation in force imposing criminal penalties for actions “likely to violate the feelings of the members of the different religions” with regard to their religious sites or for any damage caused to them. state protection of its traditional religious/cultural identity. To the state, the culture to be protected is Orthodox Judaism – an uncertain mix of religion, ethnicity and an amalgam of cultures from many continents – a task to which it assiduously applies itself; even the exemption of yeshiva students from military service was justified as necessary to preserve Jewish culture, though this has become increasingly contentious.67 To the Palestinian Arabs, it is they who have a demonstrably good claim to be treated as the indigenous religious/cultural community, a view endorsed by many outsiders: the land was not terra nullius before the declaration of independence. Having been traditionally and continuously in occupation of the land, it is their identity that the state is obliged to protect but instead they attract adverse state discrimination. State treatment of the Bedouin,68 the ongoing government policy of land seizures69 and the 2018 nation state law testifies 66

67 68

69

See further in www.haaretz.com/israel-news/.premium-israel-s-ag-says-gender-segregatedevents-permissible-if-public-desires-1.7733542 A. Avichi, David Ben Gurion Establishes the State, 1974. R. Shamir, “Suspended in Space: Bedouins under the Law of Israel”, Law & Society Review, vol. 30, no. 2 (1996), pp. 231–258. Eliezer Avitan v. Israel Lands’ Authority et al., (1989) 43(4) P.D. 297.

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to state protection being emphatically directed towards Judaism rather that the Arab Muslims, while the evidence also indicates that protection will be extended to prevent undermining by secularism. As noted in the 2019 US international human rights report, the Israel government continues to implement policies based on Orthodox Jewish interpretations of religious law. The state is entitled to require Jewish symbols and values to be preserved by government authorities, and to expect that these would be manifested by its official representatives in the course of their duty, even if this lacks a supportive public consensus.

Freedom of Association The wilful and unjust disturbing of any meeting of persons lawfully assembled for religious worship, or an assault on someone at such a meeting, is a criminal offence. Religious Organisations and the State For religious organisations in Israel, the distinction between being a “recognised religious community” or not is all important: it provides the basis for public body status, for having locus standi to operate a religious court and for claiming tax exemptions. The basis for state distribution of funds to religious organisations was challenged by the Ma’ale association, which appealed to the Supreme Court after its request for a funding allocation had been denied.70 This association, providing support services for a settlement of some 40,000 residents on the outskirts of Jerusalem, was focused on “organizing and maintaining religious services by combining the Torah of the Israeli people, the Israeli nation, the land of Israel and the State of Israel”. Interestingly, its argument that it was entitled to government funding as it provided support for the cultural activities of the ultra-Orthodox was dismissed by the court.

intervention in church disputes. In Israel this area of contention has primarily focused on the long-running issue – who is a Jew? Disputes arose from the fact that neither the Law of Return, 1950, (granting every Jew the right to immigrate to Israel) and the Population Registry Law 1964–1965 (requiring the registration of every citizen), provided a definition of “Jew”. In the 1962 “Brother Daniel” case,71 which concerned the issue of whether a Jew converting to another religion would lose their preferential access to Israeli citizenship, the court determined that someone born to a Jewish mother was not a Jew if he/she converted to another religion, and this remained the law until both the Law of Return and the Population Registry 70

71

H/C 4346/92 Ma’ale, the center of religious Zionism v. The Education and Culture Minister, 46(5) PD 590. Rufeisen v. Minister of the Interior, (1962) 16 PD 2428.

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Law were amended in 1970. Thereafter, “Jew” was understood to refer to someone born to a Jewish mother or who had converted, and the contention duly shifted to “who is a convert”? This question was then examined in a slew of cases.72 It was in the first case that Justice Silberg asserted his view that the court was not the appropriate tribunal for deciding the issue, that this was a question for the entire Jewish people and one which could only be resolved by reference to halakhic teachings and was, therefore, a theological matter outside the jurisdiction of the court. Perhaps considering the issue to be as much about national as religious identity, the courts did, in fact, open enquiries but chose not to pursue a theological analysis of what constituted conversion in Israel and settled instead for advising that a public committee be set up to do so.73 It would seem, however, that, at least within Judaism, the courts view such matters as justiciable as they have often adjudicated on appeals from petitioners alleging unlawful refusal of registration as Jewish citizens, appeals that necessitate a forensic dissection of “Who is a Jew?”74 state preferencing of religious organisations and communities. Religion, religious organisations and religious adherents are classified by the state according to whether or not they belong to an officially recognised “religious community” and this determines their entitlement to state preferential treatment. Official recognition has been granted to Orthodox Judaism, Muslims, Christians and the Druze. Others, dismissively classified as “religion-less”, include Hinduism, Buddhism, Shinto and Messianic Judaism. Only registration within the former group is accompanied by the right to administer religious law to determine matters of personal status such as marriage divorce and burial and to claim certain taxexemption privileges. Freedom of Expression The right to freedom of expression is protected primarily by the Basic Law: Human Dignity and Liberty, 1992, but is subject to boundaries that criminalise statements demeaning, degrading or showing violence towards someone based on race while providing an exception for statements citing a religious source, unless there is proof of intent to incite racism. Calling for, praising, supporting or encouraging acts 72

73

74

HCJ 58/68 Shalit v. Minister of the Interior, [1970] IsrSC 23(2) 477; HCJ 1031/93 Alian Pessaro v. Minister of the Interior, [1995] IsrSC 49(4) 49, 661; HCJ 5070/95 Na’amat v. Minister of the Interior, [2002] IsrSC 56(2) 721, 729–731; HCJ 2597/99 Toshbeim v. Minister of the Interior, [2004] IsrSC 58(5) 412; and HCJ 2597/99 Toshbeim v. Minister of the Interior, [2005] (unpublished). H.C. 5016/96, 5025/96, 5090/96, 5434/96, Horev and Others v. Minister of Transport and Others, (1997) 51(4), P.D.1. See further in G. Sapir, “How Should a Court Deal with a Primary Question That the Legislature Seeks to Avoid? The Israeli Controversy over Who Is a Jew as an Illustration”, Vanderbilt Journal of Transnational Law, vol. 39 (2006), pp. 1233–1302.

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of violence or terrorism are also criminalised where such actions are likely to lead to violence, including calls for violence against religious groups. Free Speech The Boycott Law, 2011 – prohibiting Israeli individuals and groups from advocating an economic, cultural or academic boycott of the state – was largely upheld by the Supreme Court in 2015, while a further 2017 law barred access to the country for any foreign individuals or groups that had ever supported such action. Under the latter provisions, in 2018 the government expelled the local director of Human Rights Watch for allegedly supporting a boycott on Israel, a decision upheld by the Supreme Court but one that calls into question the reality of the protection available for free speech and for the safety of those who stand up for human rights in Israel. Lehava, described by press as a radical right-wing Jewish group opposing romantic relationships between Jews and non-Jews, whose actions were declared illegal, continued to assault Arab men whom they perceived to be consorting with Jewish women. In 2013, Reporters Without Borders ranked Israel 112 out of 179 countries in its Press Freedom Index due to Israeli actions in Operation Pillar of Defense during which, it claimed, “Israel Defense Forces intentionally attacked journalists and buildings where media connected to Hamas had premises”.

blasphemy. Article 173 of the penal code constitutes a de facto blasphemy law, mandating a one-year term of imprisonment if “one publishes a publication that is liable to crudely offend the religious faith or sentiment of others”, or if “one voices in a public place and in the hearing of another person any word or sound that is liable to crudely offend the religious faith or sentiment of others”. In 2017, the Supreme Court ordered Justice Minister Ayelet Shaked to explain why the government had not held a disciplinary hearing for chief rabbi of Safed, Shmuel Eliyahu, a government employee, for his alleged racist and offensive statements against Arabs, Druze, women and the LGBT community. proselytism. Proselytism is legal and vigorously practiced, facilitated by the Religious Community (Change) Ordinance, 1927, which is still in force. However, a 1977 law makes such activity illegal when accompanied by a material inducement or if directed towards a person under eighteen years of age without the consent of both parents. Given that government funding is available for conversion programmes, some might perceive proselytism in Israel as having attained the status of official state policy. The government continues its long-standing agreement with the Church of Jesus Christ of Latter-day Saints that no member of the church will engage in proselytising of any kind within Israel, the West Bank and Gaza. Some other non-recognised Christian communities have reported that the MOI Department of Non-Jewish

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Affairs had discouraged them from proselytising or holding large public gatherings outside their houses of worship. Matters of Conscience In this highly religious state, matters of conscience probably have a greater salience than in other democratic societies but, in keeping with the deep religious differences, they may well also trigger greater social disruption.

refusal to bear arms. Israel is a small vulnerable state, positioned in the midst of hostile environment with a clear need to rely on its self-defence capacity. It therefore places a high value on the mandatory military service of its citizens. The National Service Law, 1953, however, provides females with an exemption from conscription on religious grounds. Ultra-Orthodox Jews, or Haredim, have traditionally been excused from conscription on religious grounds. Ressler v. Minister of Defence75 determined that the Defence Service Law, 1986, clause permitting the minister to defer service “for special reasons” included deferring yeshiva students on religious grounds until they were no longer eligible to serve. However, in 2017, the Supreme Court rejected a claim from some ultra-Orthodox men that mandatory conscription was a violation of their right to conscientious objection on the basis of religious beliefs, and the following year the Knesset gave initial approval to a draft law that would regulate the future conscription of Haredim. The practice of approving annual “delays” of conscription to military service for individual Jehovah’s Witnesses continues, although without any acknowledgment of their right to conscientious objection. public interest and personal conscience. Manifestations of personal conscience that clash with the public interest are a constant feature of everyday life in Israel. Whether this takes a religious form, as with the many personal protests relating to dress, gender segregation or access to holy sites, or is political in nature and occurs in the context of settlement issues, evictions or the sale of land, they are all indicative of the strains in this singular church–state relationship. Nof v. Ministry of Defense76 is illustrative of the range of incidental issues that often come before the courts where they can present as matters in which such manifestations and the public interest response are apparently so consequential as to be of “constitutional” significance. This case concerned a man with a beard who requested the Civil Defense Authority to provide him with new protective kit and a gas mask designed for those with beards. In accordance with the Civil Defense Regulations, to qualify for such a kit he was required to sign a statement that he grew a beard for religious reasons which, as he was not a religious man, he refused to sign. 75 76

42(2) P.D. 441. 50(5) PD 449 (1997).

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On appeal to the Supreme Court, he argued that the regulations were unconstitutional as they discriminated between those who grew beards for religious reasons and those who grew them for other reasons. Ruling in his favour, the court held that the right to grow a beard forms a part of one’s human dignity and as with any other such right it was protected under the Basic Law: Human Dignity and Liberty, which provided that it could only be infringed if the infringement be expressly set out in a statute, that it accord with the values of Israel as a Jewish and democratic state and that it did not infringe the protected right more than necessary. The right to freedom of conscience has played a prominent role in the longrunning saga of grocery shops opening on Shabbat – pitching those who conscientiously object to a religious veto on shopping against those who just as strongly object to secularism undermining religious belief – which came to a head with the High Court ruling in 2017 that they could open on Shabbat in Tel Aviv. Supreme Court President Miriam Naor stated that municipal authorities were specifically authorised to issue bylaws determining if shops can be open in their jurisdictions and rejected the suggested interpretation of the Hours of Work and Rest Law that it constituted a blanket ban on opening businesses on Shabbat. She added that the law required a balance to be found between the rights to freedom of occupation and freedom of conscience. In October 2019 she expressed the view – an exemplar of values in a democratic society – that “while protecting the special character of Shabbat, every individual must be allowed to formulate his Shabbat in accordance with his own path and his beliefs, and fill it with content that is appropriate for himself”.

case law: the church–state relationship and equality rights The principle of equality is not expressly embodied in the Basic Law: Human Dignity and Liberty, while the Declaration of Independence restricts itself to declaring that “the State of Israel [. . .] will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”. Consequently, as it has neither constitutional status nor explicit legislative force, the principle of equality in domestic law is of uncertain weight and application in Israel.77 Equality and the Church–State Relationship The earlier mentioned Status Quo Agreement has in effect worked to negate any possible reconfiguring of the relationship between church and state.78 The 77

78

The principle is, of course, imported into Israeli law courtesy of the country being a signatory state to such international human rights instruments as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). See, for example, Y. Dinstein, ed., Israel Yearbook on Human Rights, Springer, The Netherlands, 1995.

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agreement to maintain the dominance of Orthodox Judaism foreclosed a rebalancing of secular and religious interests in a manner that would more fully reflect and address the contemporary needs of this complex society. Consequently, inequality is a prominent characteristic of the Israeli church–state relationship. Although much state support is provided to religious communities, some benefit much more than others. Conversely, it is manifestly the case that one religion not only supports the state but is a constituent part of it, while others are relatively marginalised. Moreover, and unlike other democratic societies, religion in general exercises considerably more leverage than secularism in their respective relationships with the state. All of this simply reflects the political realities regarding the singular locus standi of religion in this democracy. The Religious Exemptions It would seem that in many instances, the religious exemption is in effect reversed: since the birth of the state, religion has had a monopoly on matters of personal status such as marriage, divorce and burial. There is still virtually no secular exemption to the many exclusively religious processes.

tax-exemption privileges. The places of worship of “recognised” religious communities are exempt from taxation but this applies only to properties mainly used for worship and having no business activities, religious organisations are obliged to pay taxes on other property (such as monasteries, pilgrim hostels, and soup kitchens) and assets. Some “unrecognised” religious groups, including Jehovah’s Witnesses and Seventh-day Adventists, have received exemption from property tax on their houses of worship, although others, such as Buddhists and the Church of Scientology, have not. In Jerusalem, church-owned businesses – such as hotels and office spaces – have always enjoyed tax exemption, but in 2018 the Jerusalem Municipality declared that properties belonging to various churches and UN institutions in the city would be liable for municipal tax. testamentary privileges. The law governing testamentary dispositions is to be found in the Succession Law 5725-1965 in conjunction with the accompanying Succession Regulations 5758-1998. Under statutory law, conditions may be attached for the distribution of the property as long as they are reasonable and enforceable. For Orthodox Jews, however, statutory law provisions are beside the point as the halakha teachings forbid discretionary testamentary dispositions: prescribed rules order the distribution of property to heirs of the deceased; male offspring being the sole inheritors of their father’s estate, a widow and/or daughters having no inheritance rights.79 Given that such a large proportion of its citizens subscribe to 79

However, as Michael Berenbaum points out, “Non-Haredi Orthodox Jews have their daughters inherit equally. This is not an issue in that community” (note to author: 02.03.2020).

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Orthodox or ultra-Orthodox Judaism, and comply with halakha teachings, it is noteworthy that the state concedes – or does not intervene to rectify – on religious grounds, what would seem to constitute a significant breach of internationally established gender equality principles. employment law exemptions. Commerce, and economic activity more broadly, are as much permeated by religion as other aspects of life in Israel and much more so than in other modern democracies. Accordingly, religious organisations as employers are the norm rather than the exception, so the exemptions work in reverse: it is the secular employers and employees who require permission to be excused from the constraints of halakha teachings. Religious exemptions in an employment context are largely to be found in the provisions of the Hours of Work and Rest Law and in the municipal bylaws enacted by most of Israel’s local authorities. The first regulates the circumstances in which employers and employees have discretion as to work schedules, permitting some flexibility to meet religious obligations. The second empowers local authorities to do much the same by determining the opening and closing times of businesses and shops within their boundaries. In both, the legislative objective is partially to give recognition to the halakha prohibition on employing Jewish workers and opening businesses on Shabbat, while also providing the statutory exemptions for employers and employees necessary to facilitate business. Local authorities are now statutorily permitted to “take religious tradition into consideration” when exercising their powers. regulatory exemptions. The non-stunning of animals prior to slaughter, to ensure compliance with kosher religious requirements, is perhaps the most widely known exemption to standard regulatory controls for food preparation and, proportionately, is practised on a much larger scale in Israel than in other democratic societies. This is accompanied by a raft of other regulatory exemptions available on religious grounds that similarly would not usually be found in other such societies, including those relating to public transport and business on Sabbat (now relaxed in Tel Aviv following a recent court decision); sale of land; unleavened bread in hospitals on Passover; importation of food; conscription into the armed forces; citizenship; and matters reserved to the rabbinical courts. Equality, Family, Life, Death and the Church–State Relationship The laws governing marriage, family life, divorce and death are central to any religion. In Judaism such matters are subject to rules sourced in the halakha teachings, as venerated over countless generations, and provide a context in which the interests of state and religion subsist virtually in unison. This was illustrated by the 1951 law on women’s equality (as amended in 2000), which explicitly

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excluded issues of marriage and divorce and appointments to religious positions.80 It was evident also in the provisions of the Penal Code that permitted a married Jewish man to marry a second wife.81 For a modern democratic society, family law in Israel remains uniquely underpinned by institutionalised gender inequality.82 The Marital Family Marriage in Israeli law has always been a religious rather than a civil process: it is restricted to those who share the same religion and can otherwise satisfy the criteria for entry in the marriage register, leaving the state with no authority to provide a civil alternative. Consequently, the only domestic marriages with legal standing and therefore eligible for entry in the marriage register have been those performed in accordance with the rules and rites of state recognised religious communities; invariably – whether Jewish, Muslim or Druze – the rules of these patriarchal communities have not allowed for gender equality. In recent years this situation has been relaxed, if only slightly. The civil registration of two persons as a married couple is legally permissible if they are married outside the country;83 or if the partners are of different religions and their respective religious courts do not object to a civil registration; or, since the introduction of the Civil Union Law for Citizens with no Religious Affiliation, 2010, which permitted heterosexual couples to do so in Israel if both are listed as “lacking religion” in the national population register; or if it is a same-sex marriage conducted abroad. Although an increasing number of marriages – officiated by some Orthodox and non-Orthodox rabbis – are being conducted outside the authority of the chief rabbinate, as these are unregistered there are issues regarding their validity under Israeli law. Members of non-recognised religious groups can request that personal status documents, including marriage licenses, be processed through the administrative systems of a recognised religious community with the latter’s agreement. While national secular family courts were established in 2001, with an adjudicatory brief for all family matters including personal status, that initiative failed to displace the traditional jurisdiction of the religious courts. Israeli marriage laws would seem to be a consequence of continued Orthodox resistance to any legal change regarding issues involving the fused authority of halakha and state. It represents a clear refutation of state neutrality. The only domestic form of marriage recognised in law is religious; there is no civil alternative. For Jews, marriage in Israel is only possible if authorised by the chief rabbinate, 80

81

82 83

See further, F. Raday, “Equality, Religion and Gender in Israel”, https://jwa.org/encyclopedia/ article/equality-religion-and-gender-in-israel Penal Code, s.179, amended by the Penal Law Amendment (Bigamy) Law, 5719 (1959). See Boronovski v. Chief Rabbinate, (1971) 28(1) P.D. 7 and Streit v. Chief Rabbi of Israel, (1964) 18 (1) P.D. 598. Lifshitz-Aviram v. Law Society, (1976) 31(1) P.D. 250. State Comptroller, Annual Report for 1990, No. 40.

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which continues to refuse to perform marriages involving citizens without maternal Jewish lineage as they are not considered Jewish according to halakha. This excludes all citizens who self-identify84 as Jewish, such as Reform and Conservative converts to Judaism and prevents Jewish men with priestly patrilineage (kohanim) from marrying converts or divorcees. The tensions between the Supreme Court and the religious courts have also been very evident in disputes arising on the breakup of marriages. Notably, the Spouses (Property Relations) Law, 1973, provides that it will apply in both religious and civil cases unless the parties have agreed to the jurisdiction of religious law.85 The Yemeni case,86 for example, concerned a divorce in which the wife applied for an equitable division of the marital property in accordance with the provisions of the 1973 act. The rabbinical court had concluded that it had jurisdiction and could apply religious law as both parties submitted to its jurisdiction and therefore their agreement could be assumed. The Supreme Court disagreed, advising that the statute required the parties to expressly agree, and noted that it had previously established that religious courts and civil courts were bound by the Women’s Equal Rights Law, 1951.87 The above issues and their outcomes illustrate the potentially important role for state neutrality but, as things stand, they reveal the penalties likely to be incurred by women when matters are adjudicated upon in traditional patriarchal forums where statutory protections are unavailable. This has attracted international concern.88 Spouses The above tight restrictions have resulted in a situation where a very significant number of Israeli citizens, living in spousal type relationships – yedua bezibor – are denied formal recognition of their de facto status in Israeli law. It is estimated that 42 per cent of family units now fall outside the legal definition of “family” – a heterosexual couple, of the same religion, married in accordance with religious rituals and with a child or children born of their marriage – and are consequently discriminated against in terms of status, rights and benefits.89 The religious courts that officiated over the marriage and registration of a couple of the same recognised religion have exclusive jurisdiction in respect of their divorce and this can result in inequitable treatment of women. Druze divorces, for example, performed by an oral declaration of the husband, place a disproportionate burden on the woman to leave the home with her children immediately. A Jewish divorce is 84

85 86 87 88 89

In 2017, the rabbinical courts required 3,996 marriage applicants, self-identifying as Jewish, to prove their Jewish lineage; 122 were unsuccessful. Bavli v. Rabbinical Court of Appeals, (1994) 48(2) P.D. 221. HCJ 9734/03 Yemini v. Great Rabbinical Court, 59(2) P.D. 295 (2004). HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court, 12 PD 1528. See, for example, CEDAW. Sixth periodic report on Israel at CEDAW/C/ISR/6 See further in www.newfamily.org.il/en/the-problem/

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predicated on a husband initiating proceedings – issuing a get – an explicit rejection of his wife which, if the wife accepts, is then endorsed by the rabbinical courts. Problems arise when the husband, who may be unreasonable, ill or abusive, refuses to issue the get leaving his wife trapped in an unhappy marriage. In the 1997 Plonit case,90 a petition was submitted to overturn a ruling of the Grand Rabbinical Court, which had refused to oblige a husband, who had been separated from his wife for more than six years, to give her a divorce. The High Court ruled that it could not intervene in the Grand Rabbinical Court’s holding that there had not been proof of violence by the husband and that, even if there had, the husband “had not been put on warning”. It is believed that thousands of Jewish women are currently stuck at varying stages of informal or formal get refusal, especially in the Orthodox and ultraOrthodox communities. The rabbinical courts, which function in effect as state institutions, will respond to substantiated complaints from such women and, in 2017, reported that they had issued nine arrest warrants against men who refused to give a get and had secured 216 gets from intransigent husbands. Parenting Difficulties in obtaining a get are well documented and result in many women remaining technically married but living with another partner and this gives rise to legal and social problems for them and for any children of that partnership.91 A child born to a woman married to someone else is considered a mamzer (child of an unpermitted relationship) under Jewish law, which restricts the child’s future marriage prospects in the Jewish community. That the legal situation is no better for Muslim women was illustrated in in Halima Bria v. Qadi of the Shari’a Moslem Court et al.,92 which concerned a widowed mother of three children who had remarried and sought to prevent an application from a sister of the children’s father to the High Court requiring it to cancel her guardianship, in accordance with Islamic law, as once remarried she no longer had guardianship rights in respect of her own children. The High Court refused to grant her petition. More recently in Anonymous v. Shari’a Court of Appeals,93 the sharia courts again claimed jurisdiction and proceeded to award sole guardianship of children to their father in disregard of statutory principles. The Supreme Court then warned that if a Muslim religious court confined itself to sharia law and did not take into account the Women’s Equal Rights Law, 1951, then it would be acting ultra vires and, on an application for judicial review, its decision would be held to be illegal. Surrogacy laws in Israel also give rise to complications. A law adopted in 2018 extended surrogacy rights to women without a male partner but not to men 90 91 92 93

Plonit v. Ploni, 51(1) PD 198 (1997). Efrat v. Population Registrar, (1993) 47(1) P.D. 749. [1955] 9 P.D. 1193. Petition in HCJ 4018/05 Anonymous v. Sharia Court of Appeals (cited by Scolnicov, “Religious Law, Religious Courts, and Human Rights”, p. 738).

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without a female partner, effectively excluding gay men. Birth certificates have also been problematic. In response to a petition by thirty-four lesbian mothers, the Supreme Court ordered the government to explain its refusal to list non-biological mothers on birth certificates, despite court-issued parenting orders. In another petition same-sex couples demanded to be listed on the birth certificate of their adopted child, following the issue of a parenting order. The government argued that birth certificates should represent a child’s biological parents. SOGI Issues Same-sex relationships were legalised in 1988 and discrimination on the basis of sex orientation was prohibited in 1992.94 Adoption by same-sex couples, applying jointly, became lawful following a court decision in 2008. The Israeli armed forces are SOGI compliant in terms of enlistment, service conditions and grounds for discharge. Curiously, by providing the most liberal LGBT legal framework in the Middle East, despite ultra-Orthodox resistance, the state has managed to set a standard for neutrality in regard to sexual relationships, which lie at the heart of the family matters zealously controlled by religious communities since the Status Quo Agreement. Suicide and Medically Assisted Death Halakha imposes a duty to preserve life, including one’s own, and consequently it prohibits suicide, which is a disgrace under Jewish law and those who die in this way are denied full burial rites. The sanctity of life – kedushat hakhayim – is a central tenet of Judaism and a breach is a serious violation of halakha. Again, the state would seem very reluctant to break with a religious belief of central importance to Judaism. It remains legally prohibited to assist the death of another in any circumstances. The courts have usually required life-saving medical intervention, even against the wishes of the next of kin, in cases where a patient with limited life expectancy and very poor physical health, would otherwise die.95 The Dying Patient Act, 2005, was a first step towards recognising the right to allow patients to end their lives with dignity while respecting the cultural reluctance to withdraw treatment. It provided terminally ill patients with a life expectancy of less than six months the right to formulate advanced directives that may include the forgoing of treatment. More recently, in the Tel Aviv district court in 2014,96 Rahmim Cohen J, in compliance with the wishes of an ALS patient, authorised a gradual decrease in life-saving treatment. The 94

95

96

El Al v. Danilovich, (1994) 48(5) P.D. 749. See Y. Cohen, “The Development of the Issue of Same-Sex Couples under Israeli Law”, Brigham Young University Journal of Public Law, vol. 30 (2016), p. 177, https://digitalcommons.law.byu.edu/jpl/vol30/iss2/2 See, for example, Request No. 28450/09 the Attorney General in the Ministry of Welfare v. B.V.V. (2009), and Case No. 24638-02-14 Shaarei Tsedek Medical Services Center v. Anonymous (2014). Request 1683-11-14 Anonymous v. the Attorney General.

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attorney general did not object to applying the principle recognised by the law for dying patients, which would permit avoidance of treatment rather than a deliberate act resulting in the patient’s death.

Equality, Healthcare and the Church–State Relationship In any modern democratic state, managing the tension between religious belief and public healthcare services inevitably presents challenges. For Israel, with its many and fervently religious, bunkered communities, coexisting alongside a growing secularist population, the challenges might be anticipated to be particularly acute. Healthcare Services Israel has a modern, sophisticated, national public healthcare service, accessible to all citizens which, as in other contemporary developed societies, is experiencing the effects of increasing privatisation.

the services. Predictably, access to contraception and abortion has been an area of contention due principally to the perceived incompatibility of such services with halakha teachings in the eyes of Orthodox Jews and its rejection by Muslim Arabs. While oral contraceptives have been available since 1995, it was not until the liberalisation of the law97 in 2014 that abortion became as freely available as it is in any other modern developed nation, perhaps more so than in most, due to women’s reproductive rights being advanced as an aspect of personal liberty and dignity. Emphatic affirmation of these rights came with the 1995 Supreme Court decision in the leading case of Nachmani v. Nachmani98 when, in essence, it ruled that the right of a woman to motherhood was superior to her husband’s right not to be a father. Nonetheless, access to abortion remains subject to the approval of a pregnancytermination committee while access to surrogacy is heavily regulated, legally restricted and, as mentioned above, excludes same-sex couples. In 2010, the comptroller general conducted an investigation into a “sterilisation policy” that public health services were alleged to be conducting in relation to newly arrived Ethiopian Jewish immigrants.99 The inquiry confirmed that gynaecologists had been administering injections of the long-acting contraceptive Depo-Provera drug on hundreds for women of Ethiopian origin, in many cases without their informed consent, but concluded that this treatment had not been forced upon them by the state. 97 98 99

The Penal Code, s.316a. 50(4) PD 661 (1995). https://davidduke.com/jewish-supremacist-media-silent-over-israels-forced-black-sterilizationpolicy/

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professional exemption from healthcare service provision on religious grounds. Israel’s universal healthcare system is internationally praised for cost effectiveness, professional standards and coverage: it is heavily regulated, functions at an advanced level and attracts a considerable level of income from “medical tourism”.100 What is missing from the reviews of this system is any reference to a religious dimension that might affect service provision.101 Given the general salience of religion and matters of conscience in the population, it is surprising that there are no reports of difficulties comparable with the USA and other modern democratic societies of medical practitioners seeking exemption from certain areas of service provision – abortion and IVF for same-sex couples – and no related case law. Further, there are no references to service-user segregation whether on religious grounds or by proxy on gender grounds. It seems probable that this occurs but is perhaps hidden by privatisation: the ultra-Orthodox and other religious communities may organise their own healthcare cover within a system of private hospitals and private insurers; and medical professionals with religious qualms may relocate accordingly.102 Berenbaum comments that “it also has no political support: unlike the Christian right, the Orthodox right does not try to impose its will on secular society”.103

Equality, Education and the Church–State Relationship Being a critical forum for the intergenerational transfer of cultural values and religious belief, a national education system will inevitably reveal the actuality of any state claim to neutrality in relation to religion. State Schools and Religion The state school system, governed by the Compulsory Education Law, 1949, and the State Education Law, 1953, provide for the compulsory enrolment of all children in either a state secular school or a state religious school administered by the ministry of education, or in one of the other independent schools, outside the state system, but recognised and supervised by the ministry.104 The latter strives to bring a degree of coherence to its overall responsibility for the state school system, both secular and religious, through use of a mandatory core curriculum. 100 101

102

103 104

See further in www.jewishvirtuallibrary.org/general-overview-of-health-and-medicine-in-israel For example, there is no such mention in the 2017 comprehensive 200 page Rosen et al. report: B. Rosen, R. Waitzberg and S. Merkur, “Israel: Health System Review”, http://eprints.lse.ac.uk/ 67099/1/Rosen_Waitzberg_%20Merkur_Israel%20Health.pdf The Sharap system, which allows patients to choose their physician in return for a privately funded fee, may facilitate this. Note to author: 02.03.2020. See further in http://cms.education.gov.il/NR/rdonlyres/80371F5E-6AFC-445A-81A5– 2DB9EAFC6184/130303/sectionA.pdf

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The Pupils’ Rights Law, 2000, prohibits discrimination on grounds of religion in admission to or expulsion from an educational institution; in establishing separate educational curricula or in holding separate classes in the same educational institution; and in the rights and obligations of pupils. Endorsed by the Supreme Court, this law has generated protest from ultra-Orthodox parents who object to having to send their children to integrated schools. educational facilities. The education system, comprising schools differentially funded by the state, is very fragmented, reflecting the need to provide for a disparate religious and ethnic population. Structurally it is divided into four sectors: state secular; state religious; independent religious; and Arab and Druze. There are also some state-funded integrated schools and some private schools such as the American International School. The state school sector is the largest and provides separate schools for Arab (27 per cent) and Jewish (73 per cent) children.105 State funding is provided for the religious schools; however, resources available for religious or heritage studies in Arab and non-Orthodox Jewish public schools remain significantly less than that available to Orthodox Jewish state schools. Segregation in schools has been a recurring problem: between Arabs and Jews, and also between different Jewish sects. In 2017 the state comptroller criticised the ministry of education for failing to respond effectively to discrimination in educational institutions following media reports of at least fifty schoolgirls being denied entry to ultra-Orthodox schools to which they had been assigned because of their lack of “spiritual suitability” due to their Sephardic heritage. There have also been a number of reports revealing a much lower level of state support for Arab schools than for Jewish schools, which results in correspondingly lower education-attainment levels and workforce participation. The US 2019 annual human rights report notes that “separate school systems within the public and semi public domains produced a large variance in education quality”. Also, that Bedouin children, particularly girls, continue to have the highest illiteracy rate in the country, that the government did not enforce compulsory education in unrecognised Bedouin villages in the Negev and did not grant construction permits in these villages, including for schools.106 Minors have the right to choose a public secular school instead of a religious school regardless of parental preference. educational content and instruction. State school curriculum content is influenced by the halakha teachings. The infusion of Judaism into state schoolroom teaching and school activities has been termed religionisation – hadata – by critics. 105 106

Figures relate to total school population in 2013, of approximately 1.6 million. US Department of State, Bureau of Democracy, Human Rights and Labor, 2019 Country Reports on Human Rights Practices: Israel, West Bank, and Gaza, p. 41, www.justice.gov/eoir/ page/file/1181641/download

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In 2018 it was reported that the minimum number of tuition hours in maths, science and English in the state secular schools had been cut while funding for the educational input from Jewish religious organisations had risen sharply.107 The Secular Forum has criticised the ministry’s “Jewish Israeli culture curriculum” for students in first to ninth grade, referring to it as “religious indoctrination to young children”. religious prayers and symbols. Judaism, viewed as integral to the cultural heritage of the Jewish State, results in a Jewish ethos permeating much of public life. In the context of state schooling, therefore, and more so in Jewish faith schools, the routine exposure to tenets of the Jewish religion and its associated teachings, prayers and symbols, is inescapable. In addition, recent years have seen a significant increase in non-curriculum-related religious teaching and activities from Jewish religious organisations to secular state schools. Faith Schools In the main, faith schools are either Jewish ultra-Orthodox or Muslim Arabic, both of which are growing relative to other denominational schools, reflecting the dramatic population increase in Haredi children relative to secular or state-sponsored religious schools: there are also some Druze schools; approximately 25 per cent of the state school system consists of state-funded Jewish faith schools. Such schools are markedly less compliant with equality and non-discrimination principles in matters of school organisation and curriculum content. Christian schools are in the “recognised but not official” category and are exempted from normal equality and non-discrimination requirements when hiring teachers, admitting students, and in the use of school property. Unlike schools affiliated with the ultra-Orthodox political parties, United Torah Judaism and Shas, which are also categorised as “recognised but not official” but are fully state funded, only 34 per cent of the funding for Christian schools is met by the state. Many ultra-Orthodox religious schools do not include basic humanities, maths, and science in the curriculum. In 2015 a group of formerly ultra-Orthodox students who graduated from these schools sued the state for allowing them to graduate without the requisite knowledge to participate in the economy.

state involvement. There is a marked disparity in state funding of faith schools: ultra-Orthodox and Christian schools are both categorised as “recognised but not official”; but the former receives full government funding while only one-third of the running costs of the latter are met by the state which, reportedly, could cause their closure in five to ten years. The government has offered to fully fund the Christian schools if they become part of the public school system, but the churches 107

See further in www.haaretz.com/israel-news/business/.premium-under-bennett-less-math-andscience-more-religious-education-1.6450991

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rejected this option, stating they would lose their autonomy. According to a 2017 report by the liberal think tank Molad, classes in Jewish education received a great deal more funding than their secular counterparts.108

Equality, the Workplace and the Church–State Relationship A legal framework for employment is provided by the Hours of Work and Rest Law, 1951, the Employment Service Law, 1959, the Employment Equal Opportunities Law, 1988, as amended in 1995, and the Basic Law: Freedom of Occupation Law 1994. Hiring and Firing Staff The Employment Equal Opportunities Law, 1988, section 2(a), prohibits discrimination – on grounds that include religion – in the hiring or firing of staff, in determining their working conditions, promotion, professional training or studies, in settling their discharge or severance pay, or in the allocation of benefits and payments provided for employees in connection with their retirement from employment. The Freedom of Occupation Law guarantees, among other things, the right to engage in any occupation, profession or trade. The Hours of Work and Rest Law, 1951, declares Shabbat and Jewish holidays to be national days of rest: employers who open their businesses and employ Jews on Shabbat are criminalised; but not the workers, other than those who are selfemployed. Exceptions are provided for essential infrastructure and the hospitality, culture, and recreation industries. An increasing number of municipalities are electing to run bus services on Shabbat, which enables businesses to open. This was amended in June 2018, in order, among other things, to allow any employee to observe the Shabbat or not as they choose. This does not apply to workplaces that are entrusted with maintaining public safety, or that are related to public safety, the hotel industry, the production or flow of electricity, or the existence or provision of essential services; or workplaces that have received a ministerial permit. It is instructive that this new law, effective from January 2019, was necessary in order to prohibit employers from not hiring workers who refuse to work on their day of rest on religious grounds, regardless of whether they are religiously observant.

religious organisations. One example of religious discriminatory conduct emerged with the successful 2017 prosecution of the Hebrew Labour Classified in the Jerusalem Magistrates Court. On its website the agency had encouraged the exclusive employment of Jews and on that basis found to have offered a service that “discriminates on the basis of race and religion”.109 108 109

See further in www.molad.org/images/upload/files/Education-for-valuesMOLAD.pdf See further in www.haaretz.com/israel-news/jews-only-work-listing-website-fined-for-racial-dis crimination-in-israel-1.5458380

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secular organisations. A flaw in the domestic legal framework is that it does not seem to generate the litigation that could be expected to result from what appears to be systemic structural discrimination in the employment prospects and workplace treatment of Arab Muslims.110 It may be that this is a definitional issue or category error: to be identified as either Arab or Muslim is to elide their dual ethnic and religious identity and allow possible prosecutions to slip away.111 proselytism in the workplace. Proselytism is lawful in the workplace, as elsewhere, provided it does not constitute harassment. The pending Law for the Prevention of Abuse in the Workplace defines abuse in the workplace very widely, as “recurring behaviour towards a person, on several different occasions, which creates a hostile work environment for such person”.

Equality, Service Provision and the Church–State Relationship Managing the tension between the right of the general public to access services and that of religious adherents to have their interests respected is a constant problem for the Israeli State if principles of equality and non-discrimination law are to prevail. It is made more complicated by the leverage exercised by powerful religious parties in the Knesset. Service Provision: Public and Private The legislative intent behind the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000, is self-evident. The prohibition against discrimination, on grounds that include religion, would seem intended to apply across all service provision sectors. Nonetheless, the structural separation of Muslim Palestinian Arabs from full participation in Israeli society is difficult to ignore: the disproportionate denial of Palestinian access to essential municipal services such as electricity and running water, accentuated as it often is by the aggression of Jewish settlers in the “occupied territories”. Moreover, a creeping concession to religious belief is evident in the increasing introduction of gender segregation in state facilities such as hospitals and municipal swimming pools.

service provision by religious organisations. The chief rabbinate has sole legal authority for issuing certificates of kashrut, which certify a restaurant’s adherence to Jewish dietary laws. In a country where three-quarters of the population and presumably an equivalent proportion of the restaurants are Jewish, this is a 110

111

See T. Steiner, “Combating Discrimination against Arabs in the Israeli Workforce”, Policy Paper No. 91, The Israeli Democracy Institute, 2015. See the Or Commission report, “Commission of Inquiry into the Clashes between Security Forces and Israeli Citizens in October 2000”, State of Israel Judicial Authority, 2003.

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significant degree of regulatory control. Where his authority and that of the ministry of health intersect, then most often the religious values, as governed by halakha, prevail – to be given effect by the state – at the expense of state neutrality. Arguably, when this disadvantages secularists and others, they would have grounds for claiming that their rights under the above 2000 act have been breached. One long-standing area of contention, illustrative of this predicament for secularists and those of non-Jewish religions, perhaps particularly for Palestinian Arabs, lies in the annual ban issued jointly by chief rabbinate and the health ministry against bringing leavened bread and similar foods into public hospitals during Passover.112 Enforcing the ban entails routine searches on those entering hospitals, followed by the confiscation of any non-kosher food intended for patients and often the refusal of visiting rights for those found with such food. Although these state hospitals risk losing their kashrut license for refusing to implement the ban, an increasing number of institutions are choosing to do so: five in 2018 but thirteen in 2019. A High Court challenge resulted in a ruling endorsing the ban but suggesting as a compromise that hospitals set up cordoned-off areas where patients and visitors could eat food that is not kosher for Passover.113 public sector service provision. The 1951 act, following shortly after and being closely aligned to the Status Quo Agreement, gave effect to halakha and prevailing religious values by prohibiting any form of work or profit making activity on Shabbat, with limited exceptions for emergency services, which virtually closed down public and commercial services on the Jewish day of rest and on other holy days. This was furthered by a prohibition on the use by the public sector of nonemergency vehicles on Shabbat and reinforced by the Transportation Ordinance, 1991, to that effect.114 The ensuing difficulties have frequently required the judiciary to adjudicate on the many and varied clashes that arise when the decisions of public regulators are challenged on religious grounds. In the 1969 Kaplan case,115 for example, Justice Zvi Berinson – sitting on Shabbat – overruled a government prohibition on public television operating on Shabbat, which attracted protests from both the chief rabbi and the minister of justice. In a traffic control case,116 the court ordered the closure of a section of road

112

113

114

115 116

Until 2015 this was a matter left to individual discretion but then the health ministry introduced a policy banning bringing leavened products into hospitals for the duration of Passover. See further in www.timesofisrael.com/13-hospitals-to-defy-passover-bread-ban-more-than-doublelast-years-number/ In 2017 exceptions were introduced for vehicles bringing passengers to hospitals, remote localities and non-Jewish localities, and for vehicles essential to public security or for maintaining public transportation services. H.C. 708/69 Adi Kaplan v. Prime Minister and Broadcasting Authority, (1969) 23(2) PD 394. H.C. 174/62, League for Prevention of Religious Coercion v. Jerusalem City Council, 16 Piskei Din 2665, 2668.

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bordering a prominent synagogue in a heavily trafficked area during periods of worship, explaining that in attaching some value to the consideration that motor traffic along the roads concerned on a Jewish festival and the Sabbath disturbs worshippers during their prayers in the Yeshurun Synagogue and prevents them from praying in tranquility, [the Traffic Controller] gave thought to an interest of a religious character. However, this does not invalidate his decision, just as it would not be invalid had he had in mind some cultural, commercial, health or other like interest.

Again, an order of the Food Controller prohibiting the breeding of pigs in certain areas was overturned by the Supreme Court, which noted that “the sole firm grounds, or at least the primary and decisive grounds, for the Food Controller’s administrative and legal Acts in this matter were national-religious and not economic grounds inherent in the purposes of food control”.117 In recent years the difficulties have been ameliorated somewhat by the minister of labour issuing special permits in cases where not employing workers on Shabbat might cause great harm to the economy or to the needs of the public. Permits have been duly issued to public institutions such as the Israel Broadcasting Authority and the Israel Airports Authority but also to ensure water supply, the availability of lifeguards on beaches, swimming pools and the needs of the hospitality industry and such. Nonetheless, the 1951 act continues to provide the governing legal framework, which results in a situation where service provision by public authorities – at least on Shabbat and holy days – remains contingent upon a much higher degree of compliance with religious values than would normally be the case in a democratic society. private service provision. As long ago as 1968, Justice Zvi Berinson held that the fact that a municipal bylaw, dealing with the opening and closing of businesses, accords with religious demands, will not invalidate all or any part of it “if the primary purpose sought to be achieved by means of it is not a religious purpose”.118 Given that bylaws providing for business closure are invariably motivated by and primarily serve a religious purpose, his statement seems, at best, disingenuous. The Local Authorities Law (Prohibition of Opening and Closing Businesses on Rest Days) 1988, expressly empowered municipalities to regulate the opening and closing of shops, workshops, cinemas and other places of public entertainment and to decide the opening and closing hours on holidays. Many municipal bylaws were duly enacted: in Jerusalem, with its considerable religious and ultra-Orthodox population, they mainly forbade the opening of businesses on Shabbat; in Tel Aviv, home to a mostly secular population, they largely allowed them to open.

117 118

H.C. 105/54, Lazarovitz v. Food Controller, 10 PD 44, 55, per Justice Berinson. Cr. A. 217/68, Izramax v. State of Israel, 22(2) Piskei Din 362.

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When the latter was reviewed in the courts, such bylaws were declared void as they limited the freedom of religion (which also includes the freedom not to believe). In response the Knesset, led by ultra-Orthox political parties, reversed the court’s decision by introducing an amendment to the Municipalities Ordinances allowing the municipalities to prohibit businesses’ opening on the Sabbath. This proved to be the opening shots in a battle – lasting for several years, involving many court rulings – which revealed the depth of law/religion entanglement, the partisan role of the Knesset and the consequent absence of any semblance of state neutrality on this particular interface. In February 2012, the Tel Aviv Administrative Court refused to order the closing of businesses on the Jewish Sabbath, a ruling overturned by the Supreme Court in June 2013, which directed the Tel Aviv-Jaffa Municipality to enforce its municipal bylaws. In 2014 a Tel Aviv municipal bylaw allowed 165 grocery stores to open on Shabbat and this was upheld in 2017 when the Supreme Court President Miriam Naor stated that the autonomy of the Tel Aviv Municipality must be supported as this was the basis for local government. In January 2018 the Knesset approved the Supermarkets Law granting the minister of the interior the authority not to approve municipal bylaws allowing the opening of stores on Sabbat and thus allowing the ultra-Orthodox to petition the High Court for their closure as they had done in Tel Aviv in 2012–2013. broadcasting services. Israeli media and the regulatory authority are legally required to protect freedom of speech in all its forms, including freedom of the press and of broadcasting. Limits on this freedom, imposed by the Defamation Law,119 were explored by the Supreme Court in the Orbach case.120 This concerned a television program “Uvda” (“Fact”), which dealt with an investigative report about an incident that occurred in an Israel Defence Force (IDF) installation in the Gaza Strip in 2004 when a thirteen-year-old girl was shot dead by an IDF soldier. The report criticised the army’s investigation of the event, which was termed “the kill confirmation affair”. The soldier responsible, acquitted by the army of any wrongdoing, successfully sued for defamation and then followed a succession of appeals concluding with a Supreme Court hearing. Ultimately, the court determined that the publication was defamatory but acknowledged a defence of “protection of responsible journalism” under section 15(2) of the Defamation Law. The case is of interest, in the present context, because of the judicial attention given to the importance of halakha in Jewish law. Noting that Jewish law is meticulous in regard to a person’s dignity, Justice Rubenstein (dissenting) reviewed that law and the halakhic approach to defamation

119 120

The Defamation Law, 5725-1965. Anonymous v. Orbach, CFH 2121/12, (2014).

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(lashon hara). He contended that despite the importance attributed by Jewish law to freedom of expression, there was no denying that the default position – where lashon hara was concerned – was to refrain from publication, except in exceptional cases. In his opinion, the challenge before the court in this case as in other defamation cases, was whether or not the alleged disparagement would contribute to creating a more decent, moderate society. Noting that the court had considerable scope for interpretation, an “open canvas”, under the defamation statute, he argued that – in light of the exalted status of the right to dignity, which was enshrined in Basic Law: Human Dignity and Liberty – when striking a balance between a person’s right to a good name and freedom of expression, the latter should not be preferred a priori. Justice N. Hendel (concurring) disagreed arguing that despite the importance of the two values, freedom of expression had priority. He emphasised that the court was concerned with the halakhic limits upon the free press in a democratic society. This was not a question concerning an individual, but the public, in fact not only the public, but the state, the State of Israel. He questioned whether it might be possible to consider the issue in broader terms from the perspective of Jewish law: given the growing influence of the press, and its important contribution to democratic life on the one hand, and the unquestionable prohibition upon lashon hara, on the other, what was the proper halakhic balance? This exchange of views would seem to represent the ongoing tension between those who hearken back to the traditional centrality of halakha in Jewish law as offering the true touchstone for weighing the public significance of conduct in contemporary Jewish society and those who look more to international law for guidance as to the appropriate interpretation of principles – such as freedom of expression – that should now be trusted to signpost the development of democracy in the State of Israel.

Equality, National Security, the Migrant Crisis and the Church–State Relationship From inception, Israel has had every reason to feel vulnerable, surrounded as it is by neighbours that have threatened its very existence. In the intervening seventy years, however, it has become a nuclear state, expanded its territory,121 population and armed forces and secured the military backing of the world’s most powerful nation. Israel is now a well-established, secure and dominant regional force, though remaining exposed to terrorist attacks and to the ever-present danger of Iranian incursion.

121

Note that in 2004, an advisory opinion by the International Court of Justice concluded that Israel had breached its obligations under international law by establishing settlements in the West Bank, including East Jerusalem.

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State Response to Terrorist Threat This Jewish State in a volatile Muslim environment has experienced decades of religiously driven warfare: Israel’s borders have been under persistent attacks from Hamas and other Palestinian groups and threatened attacks from Hezbollah122 and ISIS. However, its response has at times been such as to elicit international protest that it is breaching basic human rights, abusing ethnic minorities, disregarding the right to protest and failing to act in accordance with the standards expected of a democratic society. Such protests are construed by some as anti-Semitic.

anti-terrorism measures. Israel has taken a variety of different measures to counter what it sees as a terrorist threat to its security: a threat substantiated by endless rocket attacks emanating from outside its borders and many internal attacks by assailants armed with knives, guns and vehicles, all of which have cost the lives of random Israeli citizens. State responses range from legislation, to surveillance, to the use of full military force. From independence to the present day, Israel has been in a constant “state of emergency” and its population subject to the Defence (Emergency) Regulations, 1945, the Prevention of Terrorism Act, 1948 and more recently the Anti-Terror Law, 2016. These legislative provisions give the authorities wide powers including covert surveillance, authority to enter, search and destroy premises, and to detain without trial. The Citizenship and Entry into Israel Law (Temporary Order), 2003 – continuously challenged in the Supreme Court but repeatedly renewed and still in effect – prohibits Palestinians married to Israelis from gaining rights to Israeli citizenship or residency. It has been argued that the law is racist because it targets Palestinian Arabs; it is undemocratic as it disrupts the family life of Arab Israeli citizens; and that the Supreme Court endorsement was political as a majority found the Palestinians to be “enemy nationals”.123 Security measures have also involved the building of a barrier – a solid, fortified, five-metre high wall – to separate Israel from Gaza and the West Bank. The barrier traverses into Palestinian lands, annexing many villages, the appropriation of which has been approved by the Supreme Court.124 Most controversial has been Israel’s military response to a cycle of Palestinian protests leading into uprisings – the intifadas of the late 1980s, early 2000 and 2018 – causing the deaths of many thousands of Palestinians and several hundred Israelis. This controversy, centring on what was widely viewed as a disproportionate Israeli use of military and airpower, was exacerbated by Israeli recourse to the targeted 122

123

124

Hezbollah – or the Party of God – a well armed and trained Islamic military force was formed in the early 1980s by the State of Iran to further its policy of Shia expansion and has since been active in Iraq, Lebanon and Syria. The United Nations Committee on the Elimination of Racial Discrimination unanimously approved a resolution saying that the Israeli law violated an international human rights treaty against racism. See R. Shehadeh, “This Land Is Our Land”, The New York Review of Books, 18 January 2018.

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assassinations of known Palestinian leaders. In 2019, the UN Human Rights Council reported that it had reasonable grounds to believe that “Israeli soldiers committed violations of international human rights and humanitarian law. Some of those violations may constitute war crimes or crimes against humanity”.125 The disregard for state neutrality can seldom be more graphically highlighted than when the response of a religious state to protests from those of another religion causes an international human rights body to condemn that state, in the harshest terms, for an abuse of power: “There can be no justification for killing and injuring journalists, medics, and persons who pose no imminent threat of death or serious injury to those around them. Particularly alarming is the targeting of children and persons with disabilities”.126 State Response to Migrant Crisis Although Israel is party to the 1951 Convention Relating to the Status of Refugees and its 1967 protocol (see further in Chapter 3), its record as regards the treatment of refugees is mixed.127 The Prevention of Infiltration Law 2014 defines illegal migrants or asylum seekers as “infiltrators” – mistanenim – and provides for their detention for three months “for the purpose of identification” and then for twelve months at a remote facility. This legislation was, seemingly, the state response to concern generated by reports of thousands of African migrants illegally entering the country. Between 2013 and 2017, an estimated 13,764 migrants had filed for asylum (thereby becoming reclassified as “asylum seekers”) of whom ten were approved by the courts. As of 2018, the number of African migrants had increased to nearly 40,000: mainly young men, and mostly from Eritrea or Sudan.128 In addition, an estimated 74,000 “tourists” had overstayed their visas. By 2013, illegal immigrants, mostly African, were being detained and then returned to their countries of origin or to third countries (such as Canada), which prompted the US government’s comment that the environment for refugees in Israel had deteriorated “due to adoption of policies and legislation aimed at deterring future asylum seekers by making life difficult for those already in the country”.129 During this period, the state detention and deportation policy was repeatedly challenged in the courts.130 By 2018 it had stopped accepting asylum applications and was planning to deport 20,000 single men, voluntarily and with cash payments, 125

126 127

128 129

130

See further in www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=24226& LangID=E Ibid. See, for example, Amnesty International report “Forced and Unlawful”, 2018, www.amnestyusa .org/wp-content/uploads/2018/06/Israel-deportation.pdf As estimated by the Population and Immigration Authority. US Department of State’s “Country Report on Human Rights Practices for 2015”, https://20092017.state.gov/j/drl/rls/hrrpt/humanrightsreport//index.htm#wrapper For example, on 15 April 2018, the Supreme Court ordered the suspension of the deportation plan and the release of all Eritrean and Sudanese asylum seekers detained awaiting deportation.

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to third countries within two years, a policy that may well give rise to judicial challenge under the “refoulement” rules. Israel’s position is that it has no legal or moral responsibility for allowing illegal immigrants to remain, nor to absorb migrants seeking to avoid military service in their country of origin131 or those seeking opportunities for employment. religious/cultural differences. As a counterpoint to its rejection of any legal or moral responsibility for illegal immigrants, so called “infiltrators”, Israel argues that in law and in practice it functions first and foremost as a migrant state being established explicitly for the purpose of receiving and housing Jewish migrants. Its contribution to the global problem of mass migration has been the absorption of millions of Jews, many of whom were as much in need of a refuge as contemporary migrants. As a small country, with a growing population and little need for immigration to fill gaps in its labour force, Israel now sees its first duty as continuing to receive, and ensure adequate employment and housing for, Jewish migrants wishing to exercise their right to aliyah under the Law of Return.132 It must take such steps as may be necessary to safeguard its future capacity to absorb Jewish migrants. Moreover, Israel has never purported to be anything other than a Jewish state and maintains that it has a duty to preserve its Jewish identity. The illegal immigrants are not only not Jewish, they are almost invariably Muslim, an unknown number of whom could conceivably pose a security risk to the state. Israel is managing to satisfy its labour force requirements while also protecting its religious/cultural integrity by establishing an effective system of foreign guest workers (currently 88,000) who come to Israel for a limited time and are not granted citizenship. This, it argues, is an appropriate and defensible policy for a small nation with a religion-specific culture, which differentiates it from larger multicultural countries like Canada and Germany with labour force needs and demographic profiles that are conducive to absorbing migrants from diverse cultural backgrounds. revival of “nation state” ideology. The 2018 nation state legislation defines Israel as the “nation-State of the Jewish people”, and as a “Jewish and democratic State”. In so doing it builds upon a 2010 government endorsement of an amendment to the country’s citizenship laws that introduced a requirement that applicants for

131

132

See further in www.timesofisrael.com/israel-frees-207-african-migrants-from-detention-asdeportation-talks-persist/ In February 2018 the Court of Appeal ruled otherwise, finding that Eritreans who deserted military service in their home country have grounds to be considered asylum seekers, www .timesofisrael.com/court-rules-eritrean-draft-dodgers-eligible-for-asylum-in-israel/ See further in D. Feferman and D. Maimon, “An Integrated Jewish World Response to Israel’s Migrant Challenge”, http://jppi.org.il/new/en/article/english-an-integrated-jewish-world-responseto-israels-migrant-challenge/#_ftnref2

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citizenship pledge an oath of allegiance to Israel as a “Jewish and democratic State”, a term that some view as consisting of two mutually exclusive constructs. The legislation declares that “the right to exercise national self-determination” in Israel is “unique to the Jewish people”; Hebrew is Israel’s official language, downgrading Arabic to a “special status”; and it asserts “Jewish settlement as a national value”, which the state “will labour to encourage and promote”. Some civil society organisations and some political leaders believe this emphasis on an exclusively Jewish identity amounts to apartheid and licenses discrimination against non-Jewish minorities.133

conclusion Israel’s Declaration of Independence proclaimed that the state will “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”. Thirty years later, and some forty years ago, Michael Berenbaum noted that134 contemporary Israeli society is undergoing a Kulturkampf in which vestiges of the past persist and flourish amidst contemporary transformations in Jewish life. This Kulturkampf is muted somewhat by external pressure and by the need for internal unity. The culture, however, is still shaped by the dialectical interaction of tradition and innovation, and national consensus is often absent.

Not much has changed, including a total failure to fulfil the above proclaimed promise. Indeed, if anything, the absence of any willingness to do so has become a settled characteristic of the Israeli State in recent years.

133

134

See R. Falk and V. Tilley, UN report, Israeli Practices towards the Palestinian People and the Question of Apartheid, 2017. See M. Berenbaum, review of Abramov, Perpetual Dilemma, in Journal of Church and State, pp. 349–351, 349.

p a r t i ii

Towards a More Stable Civil Society

10 Themes of Commonality and Difference

introduction This chapter trawls through Part II material to trace patterns/trends of jurisdictional commonality and difference. It follows the structure of the jurisdiction-specific chapters, dealing in four sections with policy and legal framework; the interface between the church–state relationship and the fundamental human rights of religion, association and expression; that relationship and equality rights in general; followed by the church–state relationship and equality rights in the context of family matters, health, education, employment, service provision, national security and the migrant crisis. It identifies and examines governing principles emerging from national jurisprudence, which would appear to conform to established US precedents, distinguishing these from the more jurisdiction specific, and considering those which have, or would seem to be acquiring, a wider international application.

policies and contemporary legal frameworks Since before the turn of the twenty-first century, US-led wars in Muslim countries have overshadowed the foreign policies of all Part II jurisdictions and made a significant contribution to shaping those relating to their domestic church–state relationships.

Policy While international developments – the migrant crisis and war in Muslim countries – may have caused a strengthening of secularism in the Part II jurisdictions, they also hardened the position of those of a more conservative Christian outlook, especially fundamentalists, already worried about equality legislation threatening their traditional values and becoming increasingly concerned that the culture and 449

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identity of their society could be undermined. From both quarters there emerged an upsurge of dissent, reawakening nation-state idealism, seeking to politically assert and defend national culture, values and boundaries. Multiculturalism, Diversity and Pluralism All Part II jurisdictions, with the exception of Israel, have long since transformed their historical cultural homogeneity into multicultural and religiously diverse populations, England being now among the most radically transformed in Europe. There, as in Germany and France, the problems with multiculturalism are very similar:1 immigrants, particularly Muslims, with a strong shared sense of cultural identity have naturally tended to form their own separate communities where they could keep alive their traditional customs, dress, language and way of life; this has led to increasingly fragmented societies, particularly in urban areas. In the USA and Canada, both multicultural from the outset but also home to sizeable indigenous communities, the state has always had to address diversity. The “open market” or “melting pot” approach in the USA has essentially proceeded on the basis that communities can be left to mix at will so long as their members subscribe to basic citizenship standards – an approach reflecting pluralism rather than multiculturalism. In recent years, however, the state has moved into a closer and more structured relationship with religion while at a more subliminal level, religious values and morality have broadened the “culture wars” and accelerated the fragmentation of society. In Canada, the Multiculturalism Act requires state officials to promote measures that facilitate a diverse society and this is supported by the principle of “reasonable accommodation”. Bill 21 signifies a step away from social integration and towards enforced assimilation – at least in Quebec – but it remains to be seen whether this approach will be adopted elsewhere in Canada. The absence of any national state agencies established to liaise with religious organisations is a notable aspect of Canadian state neutrality. In Israel, as the Pew Research Centre report spells out, the state is as religiously divided as it is religiously diverse.2 The fact that 74 per cent of the population are Jews gives a misleading impression of homogeneity: Judaism and the state may be a unified entity but Judaism itself is fractured into several quite different and often mutually abrasive strands, while the state legislature has remained politically dominated by Zionist parties. So also with multiculturalism. Although comprised of cultures drawn from many parts of the world, including indigenous Arab communities, multiculturalism in practice would seem to mean those who are Jews and those who are not – the latter consisting of Muslim Arabs and 1

2

All three countries are bound by Article 17(1) of the Treaty on European Union which, by extending a common EU citizenship status to the citizens of all signatory states, has greatly facilitated the growth of multiculturalism in each. Pew Research Centre, Israel Survey Full Report, www.pewforum.org/2016/03/08/israelsreligiously-divided-society/israel-survey-full-report/

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a range of others – all of whom have in common little other than being regarded by the state as second-class citizens, if allowed citizenship. Pluralism It has been said that “French law is at present trying to reconcile neutrality of the State in a pluralistic society and effective exercise of different cultural practices in respect of public order”.3 Arguably, that observation could be applied to most Part II jurisdictions.

The Legal Framework The framework of international instruments, courts and monitoring bodies – in place and largely uniformly subscribed to by all Part II jurisdictions – has shaped a common understanding of the rights and standards that should prevail in relation to the church–state relationship. Together with a mass of related jurisprudence, despite much being neither directly applicable to nor enforceable in some nations, this framework has for some decades provided both a common point of reference for judiciary and government and an objective means of measuring any divergence from international rights and standards, as duly reported by international monitoring bodies, in all Part II jurisdictions. International The Universal Declaration of Human Rights (UDHR), 1948, laid the foundations for international human rights worldwide and for every subsequent international human rights instrument. In particular it provided the basis for the European Convention on Human Rights (ECHR), 1950, and the International Covenant on Civil and Political Rights (ICCPR), 1976, both of which have greatly influenced church–state case law. Indeed, it would be hard to overstate the importance of the rulings of the European Court of Human Rights (ECtHR), which for almost seventy years have set benchmarks for the church–state relationship and evolved standards for the practice of state neutrality in the forty-seven nations that signed the treaty. However, it is the ICCPR that has the greatest reach, and all Part II jurisdictions are among the 74 signatories and 168 parties to this covenant. They are all, therefore, equally bound by provisions such as Articles 18 and 19 (guaranteeing the rights to freedom of belief and religion and to manifest such religion and belief ), 20 (prohibiting religious discrimination) and 26 (equality before the law); most are subject to the Optional Protocol and all to the mandatory monitoring process conducted by the Human Rights Committee. They are all also voluntarily and 3

See B. Chelini-Pont and N. Nassima Ferchiche, Religion and the Secular State: French Report, 2017, p. 321. See further in https://hal-amu.archives-ouvertes.fr/hal-01432382/document

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uniformly subject to the ICESCR, the ICEFRD, CEDAW, UNCRC and other international instruments (see further in Chapter 3). domestic law. Where the principles of the earlier mentioned international treaties, covenants and conventions were not already provided for in the constitutions or legislation of the Part II jurisdictions, then they have, by and large, since been incorporated into their domestic law by means of specific human rights legislation. In addition, the jurisdictions have also subscribed to principles of equality and anti-discrimination, which have evolved from more generic human rights antecedents to become a powerful generator of issues illuminating and shaping the nature of contemporary tensions on the church–state interface.

the church–state relationship and fundamental human rights Pressures from Islamic terrorism, international and domestic, and from other sources are leading to increased confrontations between fundamental human rights. Mostly this occurs between the rights to freedom of religion and to expression, which inevitably impose constraints on a state’s neutrality policy but does so with particular potency when the state is concerned or pushed to protect its traditional cultural heritage.

Freedom of Religion Roger Trigg’s comment that “freedom of religion has been attenuated into freedom of ‘religion or belief’, and all too often it seems to become freedom of conscience”4 would seem to be borne out by contemporary case law generated in all but one of the jurisdictions studied. Definitions The avoidance of any attempt to introduce legal definitions of “religion” or “belief” is a common feature of the law relating to the church–state relationship in international and domestic law and, while wholly understandable and appropriate, this tends to favour the traditional institutional “religions” with a presumption of locus standi that is not automatically available to the newer and emerging forms of belief.

religion, beliefs and worship. Having long since ceased to be legally amenable to definition solely in theistic terms in the USA, religion has now become similarly broadly “defined” in all Part II jurisdictions, with the exception of Israel. 4

R. Trigg, Equality, Freedom and Religion, Oxford University Press, Oxford, 2012, p. 134.

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While in all other countries surveyed, the range of religions, beliefs and accompanying forms of worship acquiring recognition in law is constantly expanding, in Israel such recognition is currently restricted to five monotheistic religions, as extended to ten Christian sects. Again, excepting Israel, the definition of what may constitute a “belief”, warranting a status equivalent to “religion” in law, is determined in accordance with the subjective understanding of the individual concerned – cogency, substantiveness and personal commitment permitting – rather than as prescribed in tenets or doctrines,5 while theological matters and related disputes are considered best left to the churches concerned, not to be probed by the judiciary or state authorities.6 Arguably, state neutrality is now most credible – and is perhaps only wholly viable – in this core differentiation between the competencies of church and state, as enforced by the judiciary, in relation to theological matters. Some of the Part II jurisdictions contain the remnants of indigenous populations the religion, beliefs and culture, which have clearly not benefitted from any application of state neutrality. Palestinian Arabs, Native Americans and the First Nations would all seem to have suffered a similar history of subjugation, proselytism and marginalisation at the hands of colonising states, which were most often implementing policies of assimilation rather than being guided by respect for cultural autonomy. This continues to be largely the case. One aspect of this is an absence of equivalence in the recognition, status and protection that the law affords places of worship. So, for example, while there can be no doubting the importance the state attaches to holy sites in Israel (e.g. Temple Mount and Church of the Holy Sepulchre) or to the Anglican Church sites in England (e.g. St Paul’s Cathedral), it attaches considerably less importance to the arguably comparable sites of the First Nations in Canada (e.g. Qat’muk7). Religious Discrimination The full force of the law – channelled by explicit legislative provisions regarding nondiscrimination, equality and neutrality, underpinned in some cases by constitutional requirements – is applied as required in all Part II jurisdictions by the ICCPR, but most impartially in the USA, to prohibit domestic religious discrimination, and in France to safeguard secularism. In Israel the prohibition is politically driven, without much concession to considerations of state neutrality or to principles of impartiality and equality, is rigorously applied and is evidenced in civil and military action directed against Muslim Arabs and in a body of discriminatory legislation. However, discrimination must also be seen in an international context: the fact that these

5 6

7

See, for example, Grainger v. Nicholson, [2010] IRLR 4 (EAT), per Burton J, para. 24. See, for example, Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/ 10, 51671/10 and 36516/10 (2013). Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54.

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jurisdictions, sharing a common Christian cultural tradition, have for many years been engaged in US-led wars in or against Muslim countries, has inevitably been perceived by some – mainly Muslims – in terms of religious discrimination. laws of universal application that incidentally burden religion/ belief. The extent to which the effects of such laws on a religious minority could be construed as discriminatory and in breach of state neutrality has been controversial. In the USA, the ruling in Employment Division v. Smith8 confirmed that the state could impose legal restrictions upon religious freedom, provided the law was neutral and universally applied to all persons equally. This promptly changed with the introduction of the Religious Freedom Restoration Act (RFRA), endorsed by the ruling in Gonzales,9 which strengthened the legal entitlement to protection for religion and for those of religious belief by extending such protection to those disproportionately affected by any law of universal application. This enabled the courts to invalidate state legislative encroachment on religion if it incidentally infringed the practices of even a tiny minority of religious adherents. Again, as mentioned earlier, this bears a strong resemblance to the Canadian “reasonable accommodation” rule evident in cases such as Multani,10 even though the rule is restricted to the individual’s experience and does not extend to that of groups or communities. The RFRA brought US law into closer alignment with that prevailing in the UK and as applied by the ECtHR. Protecting the State from Religion The evidence indicates that governments in all Part II jurisdictions are becoming more aware of a threat to social cohesion emanating from religion-related concerns, though the extent to which their responses compromise state neutrality varies greatly.

accommodating religious law and courts. In all Part II jurisdictions, the state makes room for religious law (e.g. the canon law of the Catholic Church) and associated courts (e.g. the Beth Din of Judaism) to coexist alongside equivalent secular institutions. Excepting Israel, they do so subject to the constraints that the authority exercised is restricted and that any rulings issued by such courts, while not illegal, are not generally enforceable by their secular counterparts. In Israel, a singular interpretation of state neutrality has designated the religious courts of Jewish, Christian, Muslim, Druze and Baha’i communities with sole adjudicative power to determine matters of personal status; in other respects, state and religion, in effect, exercise parallel juridical authority. 8 9 10

48 US 872 (1990). Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418 (2006). Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6.

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The ECtHR ruling that sharia law is incompatible with democracy,11 and that consequently the neutrality of a democratic state may be compromised to the extent necessary to deny that law and the rulings of its courts any validity where they conflict with those of the state, would seem to concur with similar judicial findings in Part II jurisdictions.12 the culture wars. The ostensibly largely secular US society has, paradoxically, been locked in religiously based culture wars for many decades. There is little room for doubt that the hallmark culture-war issues – which include abortion, same-sex relationships and medically assisted death – have significant religious connotations, though they are of course also significant for many secularists. While divisive for adherents of other religions, notably Muslims, and are so in other countries, these issues have generated much social polarisation in the USA. Possibly this is due to the presence of both the metaphorical but legally underpinned “wall” separating church from state and an increasingly assertive evangelical Christian community. These issues would seem to function as proxies for overt religiously discriminatory values. In short, the culture wars may function as a subliminal form of religious opposition to the state: serving to protect the latter from open challenge and avoiding an equally open state response, while channelling resistance to law and policies considered to represent unwarranted state intervention into religious matters, but in doing so provoking a secularist reaction. Protecting Religion from the State For Israel, the raison d’être of the state is the protection of religion – Judaism – all other religions being relatively unprotected and disadvantaged, none more so than that of the indigenous population. Here, as in France, it is the state that determines what in law constitutes a “recognised religion”, and it confines such recognition to a finite list, thereby restricting the ambit of state protection. State commitment to Judaism reached an apotheosis of sorts with the 2018 nation state legislation.13 The presence of holy sites, venerated by different religions and legislatively assured of protection, is a distinctive aspect of the Israeli state–religion relationship. In France, laïcité guarantees religion respect and protection from state intervention while in Germany the state has maintained its official recognition of those religions with public body status conferred in the era of the Weimar Republic – almost exclusively Christian – which at least ensures their protection. In the USA the ambit of protection is wide as “religious beliefs need not be acceptable, logical, consistent

11 12

13

Refah Partisi v. Turkey, (2003) 37 EHRR 1, [2003] ECHR 87. See, for example, in the USA: S.D. v. M.J.R. 415 N.J. Super. 417, 427–429, 431 (N.J. Super. Ct. App. Div. 2010). Basic Law: Israel as the Nation-State of the Jewish People, enacted by the Knesset on 19 July 2018.

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or comprehensible to others in order to merit First Amendment protection”,14 though it is not limitless.15 Religion and belief are protected from the state to the extent that the latter is prohibited from trespassing on theological matters while state intervention for any other reason must meet a “compelling interest” test16 and is subject to the earlier mentioned “unduly burden” rule. In the CANZUS nations, state recognition and protection for the religions/beliefs of indigenous people is at best negligible but still better than the joint state–church repression inflicted in the past: the trauma of residential schools, designed and conducted to enforce the replacement of indigenous culture and beliefs with Christianity, continues to embitter government/indigenous community relationships. determining the legitimacy of religion and beliefs. The rule that determining the validity of a religious belief is a matter reserved for the church concerned provides the primary means of protecting religion from the state,17 though it is open to the courts to test the sincerity with which the beliefs are held.18 However, although repeatedly stated by the ECtHR, this ruling is not uniformly applied in all Part II jurisdictions. In particular, determination of what may be officially recognised as a religion can fall to be determined by the state. As the range of “beliefs” expanded exponentially, accelerated by judicial acceptance of the veracity of subjective interpretation, so too did the need for a threshold that would exclude fantasies – belief in the tooth fairy – and cults. In England the finding that “all beliefs are equally protected”19 is unlikely to attract widespread judicial endorsement. Instead, in that jurisdiction and more generally, there is evidence that the courts are prepared to make limited, preliminary enquiries into aspects of the belief in question such as its legality, conformity with public policy, its cogency and significance.20 State Treatment of Religions Any interpretation of state neutrality clearly requires a state to at least refrain from preferential or punitive treatment towards a particular religion. Where a state behaves in either way towards religions in general relative to secularism – affirmative action, perhaps, excepted – then again it is in breach of the principle as it is targeting 14 15

16 17 18

19 20

Thomas v. Review Bd. of Indiana Employment Security Div., 450 US 707, (1981), p. 714. The plaintiff’s claim that his belief in the contribution of Kozy Kitten People/Cat Food to his well-being constituted a personal religious belief, was not accepted by the court in Brown v. Pena, 441 F.Supp. 1382 (D.C. Fla. 1997), aff’d, 589 F.2d 1113 (5th Cir. 1979). Sherbert v. Verner, 374 US 398 (1963). See, for example, Miroļubovs and Others v. Latvia, Application No. 798/05 (2009). Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). GMB v. Henderson, EAT 73/14/DM, 13 March 2015, para. 62. Grainger v. Nicholson, [2010] IRLR 4 (EAT).

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rather than being impartial. There is little evidence of total impartiality in state treatment of religion in any of the Part II jurisdictions. preferential, supportive and prejudicial state treatment. In Israel the preferential influence of the state in relation to religion is singular in that its institutions owe their existence to Judaism, they function primarily to protect that religion, and the state has declared that religion can determine citizenship. In Canada, as in England, there have long been constitutional measures in place that permit or require state support for religion, while in Germany the church tax is undoubtedly experienced by the religious as evidence of such support. In all Part II jurisdictions, the permeating Christian cultural context unavoidably colours the functioning of state institutions and the perceptions of their staff and users. Further, the introduction of structures of government offices with a specific remit for religion in many of those jurisdictions is at least indicative of a state policy to separate the religious from the secular and to cultivate a new type of relationship with the former (see further in Chapter 11). The well-established state practice of treating religious organisations preferentially, relative to secular entities – through tax concessions, funding arrangements and exemption from regulatory regimes – is a consistent theme across all Part II jurisdictions. This is accompanied by the trend towards an increase in state contractual relations with religious organisations as the latter are singled out from other nongovernmental bodies and relied upon for the delivery of cost-effective public services (see further in Chapter 11). Direct state funding for education, health and social care services provided by religious organisations is viewed by the ECHR as compliant with freedom of religion,21 though this has been a constant source of litigation and USSC rulings in the USA22 where it would seem that government is settling for an interpretation of state neutrality restricted to treating all religions equally.23 Prejudicial state treatment of religion is evident in France: generally, as regards the appropriation and retention of ownership of church property; specifically, as regards the public manifestation of the Muslim religion by women wearing the burqa or hijab. In Israel, and to a lesser extent in Germany, the constraints on religious organisations becoming public bodies must be experienced as prejudicial, particularly to those representing newly emerging forms of belief. As noted earlier, Israeli treatment of religions other than Judaism is invariably relatively prejudicial. affirmative action. There is a difference between neutrality and neutered. State neutrality has been interpreted to suggest that rather than being equidistant 21 22

23

C. v. UK, 37 D&R 142 (1983). See, for example, Lemon v. Kurtzman, 403 US 602 (1971) and Zelman v. Simmons-Harris, 536 US 639 (2002). Van Orden v. Perry, 545 US, 677 (2005).

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from all religions and beliefs, or adopting a “religion-blind” approach,24 the state should intervene where necessary to ensure a level playing field. As Jürgen Habermas puts it,25 the secular character of the State is a necessary though not a sufficient condition for guaranteeing equal religious freedom for everybody. It is not enough to rely on the condescending benevolence of a secularized authority that comes to tolerate minorities hitherto discriminated against.

Such intervention may entail directing the necessary resources to support a weak religious organisation, or reduce the institutional leverage of a strong one, so as to facilitate their more equal participation in society. The argument that the state must be vigilant to ensure such a level playing field and intervene to offset disadvantages that may be hindering any particular religious entity, although endorsed by ECtHR rulings26 and given effect in all Part II jurisdictions, is clearly problematic. It is not without some irony that this argument has most exercised academics and others in the USA where the free-market economy suggests that affirmative action has no part to play: unfettered competition, with entities left to rise or fall in accordance with their perceived relative value, generally prevails. State Protection for Manifestations of Religious Belief The powerful significance of displaying religion-specific symbols has frequently come before the courts. The implications for state neutrality are clearly greater where the display is mandated or permitted by the state, in its facilities or by its representatives, as an assertion of national pride in traditional cultural and religious heritage. It has also become a matter of heated contention in some jurisdictions when it is the chosen means for individuals to publicly manifest a private religious affiliation, particularly when this is at variance with that traditionally adhered to by the nation.

manifesting religion/belief: by the state and by citizens. State endorsement of a specific religion – or religion in general as opposed to secularism – by demonstrating allegiance through, for example, the display of religious symbols (on a national flag, coinage or by public officials wearing religiously significant items), expression of sentiments (in a national anthem or at state ceremonies) or a requirement that citizens do so (through prayer or oath in official settings) would seem to secularists to constitute a breach of state neutrality. While such practices are not uncommon in all Part II jurisdictions, and proliferate in Israel, their use (other than 24

25 26

See further in R. Moon, ed., Law and Religious Pluralism in Canada, UBC Press, Vancouver, 2008, p. 231 and R. Ahdar and I. Leigh, Religious Freedom in the Liberal State, 2nd ed., Oxford University Press, Oxford, 2013, pp. 113–114. Habermas, “Religion in the Public Sphere”, p. 4. See, for example, Bessarabia v. Moldova, Application No. 45701/99 (2001) and Leyla Sahin ¸ v. Turkey, Application No. 44774/98, ECHR 2005-XI.

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in that country) is usually defended on the ground that they represent residual vestiges of a nation’s traditional culture rather than an assertion of its contemporary religious identity. They become particularly contentious when manifested in state settings such as schools27 – by staff (but not pupils) wearing religiously significant clothing/items, the role of chaplains, prayers or the display of religious symbols – when proselytism or undue influence becomes an issue.28 Contention triggered by public displays of private religious belief – most often and most widespread featuring the wearing of the hijab or burqa – has generated an increase in legislation and judicial rulings on issues relating to state initiatives aimed at curbing more overt displays.29 Such state initiatives have been generally inconsistent, based variously on grounds of health and safety, improper proselytism, or antiterrorism, and largely unsuccessful. The equality and non-discrimination provisions in the domestic legislation of all jurisdictions, however, provide a degree of protection for the manifesting of religious belief in public settings such as the workplace. State recognition and protection of religious customs, practices and rituals can also be contentious whether this takes the form of a religious exemption to the law requiring the stunning of animals prior to slaughter for human consumption, or relates to practices such as eruv, the use of eagle feathers or hallucinatory substances for ritual worship purposes. Where any such practice is not human rights compliant – including FGM and underage “marriage” – or conflicts with domestic law – including talaq divorce, nikah marriage and misuse of the get – then there can be no state neutrality, though enforcement of such prohibitions varies across the Part II jurisdictions. Most recently in the USA, legislators and judiciary have crafted a rule that such practices and displays of religious belief are permissible when this is motivated by a sincerely held belief; where any legal restraint is the consequence of a law with universal and neutral application having the unintended outcome of unduly burdening the right of an individual, group or religious organisation to freely practise their religion; and where the state has no “sufficiently compelling reason” to restrict that practice.30 As mentioned earlier, this is not unlike the Canadian “reasonable accommodation” rule. A more respectful and protective approach is applied in England and Germany, as favoured by the Human Rights Committee (HRC)31 and the European Court of Justice (ECJ),32 which differs considerably from the forthright and targeted constraints imposed in France.33 In Israel religious manifestation is not only permitted, it is a frequently exercised and highly developed 27 28 29 30 31 32 33

Folgerø & Others v. Norway, Application No. 15472/02 (2007). Lautsi v. Italy, Application No. 30814/06 (2011). Ahmet Arslan and Others v. Turkey, Application No. 41135/98 (2010). Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US (1993). Raihon Hudoyberganova v. Uzbekistan, Communication No. 931/2000. Bougnaoui v. Micropole SA, [2016] EUECJ C-188/15 EU:C:2016:553 (13 July 2016). S.A.S. v. France, Application No. 43835/11 (2014).

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practice and one given state protection, particularly in the vicinity of the many religiously sensitive sites. defence of national culture/religion. Governments have been revising their approach to national culture and there is emerging evidence of a new emphasis on giving it more positive recognition. A nation’s traditional religion34 – or tradition of being religiously averse – will have played a significant role in its cultural development, which suggests that it should be balanced against the right to manifest other religions, beliefs or secularism.35 This approach has been deployed by governments specifically, though not exclusively, in relation to the public display of Muslim beliefs: most obviously in France, with increasing contention in the USA and parts of Canada, and is now surfacing in Germany and in England. In Israel – in keeping with the same approach adopted in earlier centuries by colonial powers – the culture/religion to be asserted, forcefully if necessary, is that of the settlers, in this case Orthodox Judaism; the corresponding cultural heritage of the native Arab population, excepting the internationally recognised holy sites, and the political salience of secularism are treated as potential threats to be contained. Supranational courts and other fora are currently much exercised by the dilemma of the weighting that can be given to a nation’s traditional religious/cultural heritage without breaching equality and non-discrimination imperatives. Consequently, the concepts of proportionality and affirmative action are now widely used to justify state intervention in the balancing of such considerations.

Freedom of Association The right to form associations constitutes a hallmark of democracy.36 For centuries the state in democratic societies has generally ensured that this right has been available to those wishing to exercise it for religious purposes and has thereby facilitated the development of what has become, in all Part II jurisdictions, an ever increasing range of religions and beliefs. Religious Organisations and the State The autonomous existence of religious organisations or communities is considered to be a fundamental aspect of the freedom of association. This has been repeated in 34

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Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, Application No. 71156/01 (2007), Folgerø & Others v. Norway, Application No. 15472/02 (2007) and Lautsi v. Italy, Application No. 30814/06 (2011). Akda¸s v. Turkey, Application No. 41056/04 (2010). See the Helsinki Accords of the Organisation (former Conference) on Security and Cooperation in Europe (OSCE), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

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many ECtHR rulings,37 usually coupled with the observation that pluralism and the right to religious freedom in a democratic society are dependent upon such autonomy. Thus, on the face of it, the retention of an “established” Church as in England, must be viewed as seriously compromising that autonomy and as non-compliant with the freedom of association. This clearly applies even more so in Israel and to a lesser extent in Canada where the Constitution Act 1867, section 93, provides protection for denominational schools and permits partisan state funding. Other religious organisations in England, as in the USA and Canada, together with their associated entities in education, health and social care, are all eligible for registration as public benefit bodies, or charities. Germany, France and Israel also have processes for registering such bodies and in Germany the state is constitutionally required to provide them with support: while this has benefitted the traditional Christian communities, not all others have been able to access such support; it has proved particularly problematic for Jehovah’s Witnesses. In France, the fact that the state retains financial responsibility only for all pre-1905 places of worship means in practice that those of the Catholic church are highly subsidised while those of all other religions – particularly Muslim mosques – receive significantly less state subvention. Relative to other non-governmental organisations, those established by religious adherents – even if not always established for religious purposes – enjoy considerable state support, the German church tax being particularly beneficial. Such support is strengthened by religious organisations becoming, in all Part II jurisdictions, the favoured partner when the state has to delegate public benefit service delivery. The support mainly takes the form of exemptions from tax and from much equality legislation but is also increasingly apparent in the emergence of government offices and programmes established to facilitate religious organisations in general. This has become a feature in the USA since the turn of the last century, as has the introduction of preferential state treatment for commercial entities owned by those with religious beliefs. intervention in church disputes. The principle that in a democracy, the judiciary, like the state, should not intervene in the affairs of the church is well established though, in contrast with most other Part II jurisdictions, in England there is some evidence of judicial willingness to intervene and adjudicate on matters of doctrine.38 In the USA the courts abide by “the wall of separation” approach but have a wide discretion to intervene in property disputes if they can do so without having to decide religious questions.39 In Canada40 the courts have 37

38 39 40

Metropolitan Church of Bessarabia v. Moldova, Application No. 45701/99 (2002) and Hasan and Chaush v. Bulgaria, Application No. 30985/96 (2000). Shergill v. Khaira, [2014] UKSC 33. Walz v. Tax Comm’n of New York, 397 US 664 (1970). Syndicat Northcrest v. Amselem, [2004] 2 SCR 551.

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determined that they have no jurisdiction over disputes between members and their denominations, demonstrating that this is an area in which state neutrality is now more strictly upheld than in the UK, the USA and Germany. In France, the lack of any known cases where courts have intervened to settle disputes within or between churches would seem to testify to the success of the state neutrality policy, while in Israel such matters are justiciable but as this would undoubtedly necessitate reference to the halakhic teachings, state engagement is more circular than neutral.

Freedom of Expression For religion per se, its adherents and organisations, the freedom to express belief is an inherent aspect of religious commitment: for many of the religious it is obligatory, spreading the word is a duty, not a discretionary option; for the irreligious the freedom to challenge, protest and ridicule belief is often equally important. This right is upheld in all Part II jurisdictions as fundamentally important for democracy with application to a wide range of media, including all forms of artistic expression and the internet, to religious organisations and secular corporations, as well as to individuals. In recent years it has generated considerable controversy, particularly in France, in relation to satire and the wearing of religious clothing. Free Speech, Blasphemy and Proselytism The freedoms of speech and religion are often in conflict. While the law in all Part II jurisdictions requires expressive rights to be treated with a certain amount of “give and take”, the parameters are more permissive in some than in others. In general the courts have ruled that state neutrality has its limits: the government may limit free speech when giving effect to policies such as preventing religious discrimination, ensuring LGBT rights or promoting gender equality. In the USA – and perhaps to a slightly lesser extent in England, Canada and Germany – the law provides a high threshold of tolerance for insulting or provocative speech: there is no right not to be offended; evidence of wilful intent to incite hatred and/or violence is necessary and pluralism in a democratic society must accommodate verbal confrontation even if it is shocking and highly offensive. Incitement to hatred incurs prompt state intervention in France but a generous latitude is extended to ridicule and satire. In Israel, the threshold is lower: incitement to hatred would seem to more readily justify restrictions upon the freedom of speech or expression; and constraints may also be imposed as and when indicated by political expediency. Blasphemy continues to be an offence only in Israel while proselytising or “spreading the word” is perfectly legal and frequently practised in all Part II jurisdictions but more so in the USA and Israel than elsewhere and is limited in France by the principle of laïcité.

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Matters of Conscience The range of beliefs, morals and matters of principle that entitle an individual to claim exemption from a statutory obligation would seem to be increasing, and increasing with it is the challenge to the nature of the relationship between state and citizen. What, if any, application state neutrality should have in relation to matters such as the refusal of health professionals to provide public services that they disagree with on religious grounds, or as regards parents who refuse to allow their children to be vaccinated as this is contrary to their beliefs, is rapidly becoming a stress test for that relationship.

objection to service in armed forces. Conscientious objection to service in a nation’s armed forces has traditionally rested on the religious beliefs of the objector and has tested state willingness to recognise the exceptional locus standi of religious adherents in relation to armed conflict. All Part II jurisdictions now recognise and protect the right of an individual to be exempted from such service on grounds of religion or belief, though this is qualified to some degree in Israel. public interest and personal conscience. Conscientious objection to engagement in public service provision – as provider or user – is generating a rapidly growing area of jurisprudence as national legislation prescribes for a new set of social mores, particularly in relation to LGBT matters. To established areas of contention – such as contraceptives, abortion, blood products, surrogacy and stem cell research – are now being added others, including same-sex marriage and adoption, gender neutral facilities, and a range of SOGI issues, to each of which there are some who object on grounds of religion, belief or conscience. In the USA, many states have introduced “religious liberty laws”41 exempting healthcare professionals from delivering public services they find objectionable on the grounds of personal conscience, a development reinforced by the newly formed Conscience and Religious Freedom Division established as part of the federal government. This approach, now becoming accepted in Canada as in England, if not so extensively, is in marked contrast to ECtHR rulings,42 which emphasise that the law does not permit state employees to veto public service provision on grounds of personal religion, belief or conscience: the state must ensure continued access to public services; this may entail providing alternative routes when individual service 41

42

The legislative intent of the federal Religious Freedom Restoration Act (RFRA) was “to protect the free exercise of religion” by ensuring that government “should not substantially burden religious exercise without compelling justification” and that it should only do so if it furthers a compelling governmental interest in the least restrictive way possible. Since it became law in 1993, about twenty-one states have introduced similar “religious liberty” laws. X. v. the United Kingdom, Application No. 8160/78 (1981), C. v. the United Kingdom, Application No. 10358/83 (1983), Bouessel du Bourg v. France, Application No. 20747/92 (1993), XR.R. v. Poland, Application No. 27617/04 (2011) and P. and S. v. Poland, Application No. 57375/08 (2012).

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providers refuse to co-operate. In Germany,43 but more so in France,44 personal religious beliefs as grounds for opting out of public service delivery responsibilities are met with a good deal less state tolerance. In Israel the same issue plays out with the state generally taking the lead in designating carve-outs from access to public services on religious grounds, though this is subject to exceptions in particular municipalities; in all, the role of the state towards opt-outs from public service provision by providers and users on such grounds is at best ambiguous and incoherent. This is set to become a challenging and divisive issue for all states in the years ahead (see also, Chapter 11).

the church–state relationship and equality rights Equality and non-discrimination legislation, drawn from jurisprudence generated by the UDHR and successive international human rights instruments, especially the ICCPR, have in recent decades become part of the domestic law of most developed nations. Exceptionally, Israel does not have any human rights legislation, nor any specific equality and anti-discrimination statute, but as it has ratified the ICCPR it is bound by equivalent provisions in that covenant. Although the impact of this legislation has wrought profound changes on the Part II jurisdictions, it has been a relatively recent phenomenon when viewed in the context of the Christian millennia. These societies still retain much of their traditional cultural heritage – institutions, social mores, values and beliefs – ingrained over centuries, most obviously when they continue to nurture an “established” church or allow their traditional religious affiliation to dominate government. Every state is currently challenged by the need to hold in balance the tensions arising from the often competing demands of neutrality and equality.

Equality and the Church–State Relationship State neutrality flows logically and probably mandatorily from principles embedded in equality and non-discrimination legislation. Nonetheless, and despite the Part II jurisdictions being signatory states to much the same body of international human rights instruments,45 and having similar related domestic legislation, the manner in which they do or do not give effect to state neutrality is far from uniform: national approaches are often preconditioned by constitutional arrangements, principles and established jurisprudence; some are also more open to being diverted by political exigency. 43 44 45

Grundgesetz, Article 33(2). Pichon and Sajous v. France, Application No. 49853/99 (2001). The state neutrality doctrine being embodied, for example, in Articles 18 of the UDHR and the ICCPR, as endorsed by all Part II jurisdictions.

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The Religious Exemptions Religious organisations have traditionally attracted preferential treatment from the state: being automatically granted charitable status accompanied by tax-exemption privileges, but, unlike secular charities, they have also been excused from most registration requirements and trusted to regulate their own affairs. State positive discrimination – favouring religion, its adherents and associated organisations much more so than other non-governmental entities – continues to distinguish the church–state relationship and breach any semblance of state neutrality.46 While the range of exemptions is extensive, if variable, in all Part II jurisdictions – excepting France and the anomaly that is Israel – the broadening of state preferential treatment in the USA to permit commercial organisations with religious owners to discriminate on the grounds of religion or belief or sexual orientation in the way they operate, may set a precedent with far reaching consequences for the future of state neutrality. Alvin J. Esau, in his “islands of exclusivity” argument,47 suggests that it is wholly justifiable on public benefit grounds to excuse the religious and their organisations from universal constraints such as taxation that the state imposes upon citizens and associations. Arguably, however, to do so is to penalise the irreligious and the indifferent as they are then burdened with making good the tax revenue shortfall. This gives rise to the issue of whether, in a democratic society, the state should require the beliefs of one group to be subsidised by another and, if so, why only beliefs of a religious nature? What about those who believe just as strongly in atheism? Moreover, what is the rationale for extending the privileges to regulatory, testamentary, employment and other areas of exemption, thereby often licencing religious discrimination in breach of public policy and legislative provisions of universal application? What determines where the circle of privilege begins and ends?

Equality, Family, Life, Death and the Church–State Relationship Family law, more so than any other branch of law in the developed nations, graphically reveals the extent to which centuries of church–state unanimity on social issues has been steadily eroded. As society loses what is left of its cultural and religious homogeneity, an evolving democratic state has necessarily had to distance itself from its traditional supportive role and adopt one that is more neutral in relation to religion, the religious and the irreligious. This has meant assuming responsibility for matters relating to family affairs – including marriage, procreation, divorce and death – that had previously fallen to the church, and continues to do 46

47

See further in K. O’Halloran, Human Rights, Religion and International Law, Routledge, London, 2019. A. J. Esau, “Islands of Exclusivity Revisited: Religious Organizations, Employment Discrimination and Heintz v. Christian Horizons”, Canadian Labour & Employment Law Journal, vol. 15 (2009–2010), p. 389 and Esau, “Islands of Exclusivity”.

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so in Israel. The latter fact is a singular distinguishing feature of jurisdictional difference. Unsurprisingly, this has given rise to a host of legal issues such as those relating to abortion, gay marriage and assisted suicide, which can be seen as “proxy religious issues” as their roots would seem to lie in traditional religious values and seemingly signify matters so essentially private and personal as to be essentially more sacred than secular. These and many other such issues, often relating to sexuality (the lynchpin of traditional family law), having been claimed by the state but still disputed by the church and strongly contested by certain religions, are added to that ever growing ragbag of moral imperatives that constitute the “culture wars” and present a correspondingly growing threat to civil society. As might be expected, there is considerable variation among the Part II jurisdictions in the church–state approach to such family-related matters. The Marital Family, Spouses and Parenting The speed and extent to which the state in each Part II jurisdiction has intervened with legislation to adjust the archetypal traditional model family in response to emerging changes in social mores reflects the capacity of state neutrality to prevail in the face of traditional and primarily religious opposition. Clearly, most legal characteristics of the traditional “family” have now been shed: divorce, cohabitation, serial parenting and non-marital children have all contributed to reshaping it. The most recent and most fundamental change, for all Part II jurisdictions (except Israel), has been the legal redefinition of “spouse” to accommodate samegender couples. Given that for most of the twentieth century, homosexuality was a criminal offence in those nations and elsewhere, the speed and broad social acceptance of gay marriage legalisation is remarkable. This was followed, slower in some jurisdictions than in others, by legislation extending the right of adoption to gay couples. Parenting more generally has also presented challenges. Anything other than a natural birth to a heterosexual married couple would have been, and in some places continues to be, viewed as violating basic religious precepts. Yet, in all Part II jurisdictions the state, if not the church, now sanctions IVF, surrogacy (not in France and subject to restrictions in Israel) and, with more circumspection, gene editing and the use of embryos for research. Assisted death has proved to be a tougher hurdle for state neutrality: medically assisted death has attracted strong resistance from religious organisations; but state endorsement has prevailed through specific permissive legislation in Canada, some US states and to a degree in France, but not yet in England, Germany or Israel.

sexual orientation and gender identity. Another level of disruption to the traditional model family, as legally defended by church and state over the past many centuries, is the ongoing unfolding of SOGI-related issues that would seem to be taking society and the law into a new post-binary gender world. In the past decade or

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so, the Part II jurisdictions have introduced legislation to provide legal recognition for trans persons, to facilitate gender reassignment and to include sexual orientation and gender identity as among the protected characteristics in domestic equality and anti-discrimination legislation. This permissive policy has been most assertive in Canada. Some jurisdictions – including England and some states in the USA – require evidence of surgery as a prerequisite for legal recognition of a change in gender identity, and most refuse such recognition for persons of non-binary or intersex status. In the USA, and more tentatively in England, there would now appear to be the beginnings of a legislative push back on the previously facilitative approach towards SOGI-related issues. Equality, Healthcare and the Church–State Relationship Public healthcare services – particularly abortion, IVF, genetic editing and the use of embryos for research, transgender procedures and now medically assisted death – are heavily loaded with religious values and inevitably provide a test bed for state neutrality. This, of course, is further compounded when individual professional healthcare providers, or religious organisations that own or manage hospitals and other such healthcare and social care facilities, refuse to facilitate service delivery on the grounds that the service in question is not compliant with their religion or beliefs. The Services For Christianity and the other main religions, the process and social circumstances governing procreation has traditionally been at least as important as the rearing of the child concerned. The related legal framework legitimating conception, birth and parenting was – and for many still is – the most hotly contested interface between church and state in society. Unsurprisingly, therefore, female reproductive rights proved to be an early and enduring challenge for both those with religious convictions and for state neutrality: access to contraceptives and abortion is now available, if subject to various restrictions, in all Part II jurisdictions; nonetheless access continues to fuel a bitter and religiously based face-off between pro-choice and pro-life camps, particularly in the USA. IVF and fertility treatment in general are contentious in many jurisdictions while surrogacy is illegal in Germany and restricted to heterosexual couples in France and Israel. Professional Exemption from Healthcare Service Provision on Religious Grounds For state neutrality, the question as to whether the availability of public services should be subject to the religious beliefs, morals or conscientious objections of a healthcare service provider – whether an individual or an organisation – is clearly a very basic challenge.

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In France48 and Germany,49 the law prohibits the refusal of healthcare professionals to provide a service on religious grounds. Increasingly, over recent years, the courts have ruled that healthcare and social care professionals in the UK,50 unlike their US counterparts,51 do not have a legal right – short of the Canadian reasonable accommodation rule52 – to refuse to provide services on grounds of religious belief. In the USA at federal and state levels, and more recently in England, there have been legislative initiatives to provide protection for such professionals, which in turn is generating concern. The concern is not so much about the principle – there is a mounting consensus that no person, or at least no public healthcare professional, should be required to act contrary to their religious beliefs – such actions are now being interpreted as constituting a legitimate manifestation of religious belief, and as such fall to be protected under human rights law, perhaps in accordance with the “reasonable accommodation” rule. The more difficult issue lies with the parameters of any such legal protection. The range of matters that might qualify for protection could conceivably be as broad as the range of beliefs or matters of conscience – subjectively experienced – that are steadily gaining judicial recognition as being of equivalent locus standi as “religion”. This could extend well beyond issues relating to abortion, LGBT, trans persons and assisted death to include, perhaps, veganism, climate change and a host of other such moral imperatives. Then there is the accompanying issue of who is to be construed as a service provider: any number of persons in a chain linking the provider to the user – a secretary or a receptionist – might also claim entitlement to protection. It would seem likely that healthcare service provision is set to become a more complex and probably even more bitterly contested stress test for state neutrality than others so far experienced in the Part II jurisdictions. Equality, Education and the Church–State Relationship Provision for the intergenerational transfer of cultural values and norms has long been a concern of both church and state. This has made education, its content and facilities, matters of central importance. State Schools and Religion As the institutions of democratic states become more secular, so the continuation of church influence on educational facilities and content has become more contentious. In the democratic societies of the Part II jurisdictions, state neutrality requires 48 49 50 51

52

Pichon and Sajous v. France, Application No. 49853/99 (2001). Blumberg v. Germany (dec.), Application No. 14618/03 (2008). Greater Glasgow Health Board v. Doogan and Wood, [2014] UKSC 68. See DHHS, Office of the Secretary, “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority”, 2019. Moore v. British Columbia (Ministry of Social Services), [1992] B.C.C.H.R.D. No. 15.

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state educational systems to provide access for those of all religions, and to ensure that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, without any censorship or embellishment in relation to particular religious or secular viewpoints. However, where the cultural legacy of that state is strongly imprinted with a particular religion, then the relevant church will be reluctant not to have that primacy acknowledged and reflected in teaching materials, while the state may consider that it has a duty of care for its cultural heritage, which also requires some emphasis to be given to that specific religious component. This has led to the present situation where all jurisdictions would seem to be currently struggling to balance the conflicting tensions of equality, parental rights and cultural heritage in their state education systems; consequently state neutrality is frequently and variously compromised. In England, as in Germany, religious education is mandatory for pupils of all ages throughout the state education system, whereas in France that system is firmly subject to a secular seal requiring all state schools to remain equally accessible to children of any or no faith and to be devoid of religious education. In the USA although the state education system is also secular, it is less so than in France, and is underpinned by the principle that the right to direct the education and upbringing of children lies with their parents rather than the state.53 The same principle applies in Canada, though the state education system in this country is structurally compromised in its relationship with religion due to the “denominational clauses” in the charter. Structural fault lines also compromise state neutrality in Israel as regards religion in the school system. Although the law prohibits discrimination on grounds of religion in admission to or expulsion from an educational institution, in establishing separate educational curricula or in holding separate classes in the same educational institution and in the rights and obligations of pupils, in practice religious segregation is endemic: between Arabs and Jews, and also between different Jewish sects. educational content and symbols in state schools. The inclusion of SOGI-related educational content in state school curricula has generated contention in all Part II jurisdictions. Defended by state educational authorities on the grounds that such material forms part of sex education and/or of morals and ethics and should be mainstreamed in school curriculum lessons, it is vociferously opposed by many parents on the grounds that it is offensive to their religious beliefs. Parental resistance in the relevant jurisdictions is fortified by recourse to Article 2 of Protocol 1 of the ECHR, which prohibits a state from pursuing an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. While the law permits the state to compromise by providing non-stigmatising opt-out opportunities for those pupils affected, this has 53

Wisconsin v. Yoder, 406 US 205 (1972).

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proved unsatisfactory mainly because of the expense involved and because opting out invariably attracts some stigma. In the USA as in Canada, the dissatisfaction of parents with the lack of religious content and/or of the presence of SOGI-related content in state education has resulted in significant numbers of parents opting instead for home schooling (an option not legally available in Germany). In England, France and most explicitly in Israel, the same parental dissatisfaction is channelling increasing numbers of pupils into faith schools. The display of religiosity in the form of symbols, clothing, ornaments and such on state school premises is generally viewed and treated as an unjustifiable breach of state neutrality, unless it can be excused on the grounds of cultural rather than purely religious affiliation. The importance attached to this principle has been evident in the judicial response to cases involving the wearing of religious clothing in schools: when worn by a teacher, this is almost always found to be impermissible on the grounds of its possible proselytising effect on impressionable pupils.54 In England there is a legal requirement that all schools engage in daily acts of collective prayer or worship, whereas state schools in France prohibit all indications of religious affiliation. In the USA and Canada neither school prayers nor staff wearing religious clothing are permissible. In Germany, considerable weighting is given to the cultural caveat: essentially, class prayers and the display of religious emblems such as a crucifix or religious clothing is lawful and compatible with state neutrality where parents of the pupils regard this as an appropriate concession to their cultural heritage. However, this has been interpreted as justifying not extending the same privileges to non-Christian cultures, which while lawful cannot also be compliant with state neutrality. In Israel the legality of such displays of religiosity are predetermined by the religious structuring of the state education system. Faith Schools and the State Faith schools are generally exempted from the more onerous provisions of equality legislation. In France, however, where secularism is an emphatic characteristic, direct state funding is not permitted for faith schools though the payment of staff wages is permitted subject to the national public school curriculum being followed and attendance for religious lessons being discretionary. Faith schools give rise to a serious challenge for state neutrality as such government-funded schools are entitled to pursue an extensive range of discriminatory practice: preferential treatment in terms of funding to become established; permission to discriminate in pupil admissions and staffing; a teaching curriculum skewed in favour of religious belief; and a corresponding alignment of religious belief and acceptable practice in relation to matters such as gay marriage, 54

Dahlab v. Switzerland, Application No. 24095/94 (1996), Kurtulmus v. Turkey, Application No. 65500/01 (2006) and Leyla Sahin ¸ v. Turkey, Application No. 44774/98 (2005).

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contraception, abortion and trans issues. In all Part II jurisdictions, the numbers of faith schools are increasing and, as these are almost always funded at least partially by the state, so also is the extent to which state neutrality is being compromised. Equality, the Workplace and the Church–State Relationship For those with as for those without religious belief, the workplace can be a threatening environment in which to maintain and express the convictions that contribute greatly to building a sense of personal identity, social role and civil society. Equality and anti-discrimination legislation have brought much needed protection for minority groups, including those wishing to maintain and manifest their religious beliefs. However, religious organisations and persons of religious belief are exempt from many of the constraints of such legislation and consequently the privileges traditionally granted to the church continue to preference its adherents relative to all others in the workplace and correspondingly compromise state neutrality. Hiring and Firing Staff In all Part II jurisdictions, decisions relating to the hiring and firing of staff and all other employment-related decisions are prohibited from being taken on the grounds of religion or belief, unless the employer is a religious organisation. The fact and extent of the latter’s exemption from equality and anti-discrimination legislation provides a measure of jurisdictional variation as regards state neutrality in an employment context. Religious Organisations Employers in religious organisations and in those with an “ethos based on religion or belief” are in general permitted to discriminate on the grounds of religion or belief in their hiring, remuneration, promotion and firing of staff. This is subject to certain variables: the type of post; the type of misconduct of an employee to be fired, relative to the core beliefs of the organisation and to the status of that employee; and whether the organisation is engaged in government-funded service provision. In the USA the free exercise clause of the First Amendment permits religious organisations to discriminate when hiring and firing, on the basis of religion, contrary to the Title VII prohibition, and in addition to both the “ministerial exception” and the bona fide occupational requirement (BFOR). In that country – as in Canada and in England – the hiring and firing of employees by religious organisations is only protected by the religious exemption from equality and antidiscrimination legislation if there has been compliance with the BFOR rule: essentially, the employee’s post must be one that relates directly to the core beliefs of the employing organisation; the post of teacher in a religious school, for example, would be so entitled in a way that a gardener would not. This rule has no application in France, which makes no status differentiation between the

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employees of a religious organisation, all are equally entitled to protection, while in Germany the law does not permit such organisations to make religious affiliation a prerequisite for employment. In Germany, whether a religious organisation is protected by exemption from equality and anti-discrimination legislation when firing an employee for misconduct will depend on a combination of factors: the type of conduct, relative to the core beliefs of the organisation; and the status of the employee, as a representative of that organisations, of its beliefs and of its standing in the community. The Hobby Lobby case55 has significantly changed the law in the USA by extending the religious exemption privileges to include secular organisations owned or “closely held” by religious persons. In the USA and Canada, as in England, a religious organisation loses its protected right to discriminate in the hiring or firing of staff if it is contracted in an agency role to deliver government services. Secular Organisations State neutrality comes into play in relation to employment in a secular context by means of regulatory rules that balance the respective responsibilities of employers and employees with regard to manifesting religion or belief in the workplace. Employers have a duty to make reasonable accommodation for the religion and beliefs of their employees who in turn have the right to bring personal religious beliefs into the workplace, provided this does not infringe the sensitivities of others or negatively impact upon the working environment; a restriction on the manifestation of a religion or belief in the workplace requires justification. However, employees also have a responsibility, of uncertain breadth and weighting, not to choose occupations they know will compromise their beliefs and not to breach the terms and conditions of their contract. In England, as in France and Germany, the principle of “proportionality” developed by the ECtHR now plays a key role in the mediation legally required between employer and employee on religion-related issues. This principle is one that shares common ground with the “reasonable accommodation” rule that prevails in the USA, subject to the “compelling interest” test, and is applied with greater rigour in Canada. In both countries the rule governing neutral laws of universal application, which unduly burden a religious minority, also applies. In France – where issues often arise in relation to Muslim women’s clothing – any restriction on religious freedom must be justified by the nature of the employee’s duties and should arise from a genuine and determining occupational requirement, subject to the proviso that the objective be legitimate and the requirement proportionate. This would also seem to be the case in Germany. In Israel, while the law prohibits discrimination, it is structured and applied to ensure that secular organisations comply with religious requirements. 55

573 US 134 S Ct 2751 (2014).

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Proselytism in the Workplace State neutrality can be challenged by the need to manage the tensions between the right to disseminate personal religious beliefs, to protect private autonomy from intrusion by others, and the right to freedom of speech. While wholly legal in all Part II jurisdictions, proselytising becomes uniformly unlawful when it is undertaken in ways that others find objectionable, when it interferes with workplace processes or if it constitutes undue pressure on an impressionable or dependent audience. The threshold for imposing justifiable constraints is probably lowest in France, lower overall when the proselytiser is a public service employee and highest in Israel where it is tolerated until it becomes harassment.

Equality, Service Provision and the Church–State Relationship In all Part II jurisdictions, the issues on the church–state interface are most contentious when they arise in the context of public service delivery by religious organisations, or by religious persons in public service agencies. State neutrality is then usually quite straightforward, requiring the response of judiciary or regulator to objectively uphold the public interest notwithstanding the sincerity of any opposing private religious beliefs of the parties involved (unless legislation provides otherwise). Where issues arise in the context of private commercial service provision, then the matter is more nuanced: state neutrality is, arguably, less central and equality more so; greater weight is given to the right of an individual to manifest their religious or secular beliefs. Service Provision by Religious Organisations The outworkings of religious organisations have expanded in all relevant jurisdictions, bringing their commercially oriented service-provision ventures increasingly into close partnership arrangements with government. This development inevitably raises issues regarding state impartiality in its choice of religious rather than secular service delivery organisations and the entitlement of the former to exemption from tax and other constraints, which increase their profit margins while burdening that of secular competitors, particularly as regards the opportunities to use their religious status to avoid key provisions in equality and anti-discrimination legislation. In England, the USA, Canada, Germany, and to a growing extent in France, religious organisations may avail of their statutory exemption to the general prohibition on inequality and religious discrimination, but not if acting as agents of government in the delivery of public benefit services – such as schools, hospitals and homes for the aged – when in law they are treated the same as a government body. Such an exercise of state neutrality has caused some religious organisations to give priority to their beliefs and withdraw from service provision: the Catholic Care

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agency in England56 and the USA, for example, has chosen to withdraw from adoption and foster care rather than consider extending service provision to include same-sex couples. In the latter jurisdiction, as previously mentioned, the Hobby Lobby case has greatly widened the definition of service provision bodies entitled to avail of the religious exemption. In Israel, where much public benefit service provision is either directly controlled by the chief rabbinate or otherwise governed by halakha, there is little distinction between services provided by religious organisations and the state. Public Sector Service Provision State neutrality is clearly most evident in relation to the range of public services available and as regards any religious factor conditioning access to them. Where service availability is dependent upon provision by religiously minded public sector employees – e.g. in schools, healthcare and social care facilities – this can cause difficulties; nonetheless public services are required to be delivered in a manner compliant with equality and non-discrimination legislation. Courts and regulators in England, France and Germany – following ECtHR rulings57 – have, at least until very recently, consistently upheld the dismissal of state employees for their refusal to provide public services on grounds of personal religious beliefs. Israeli law leans in the opposite direction: there would seem to be a legal presumption that access to public services will be in accordance with religious beliefs – Orthodox Judaism – resulting, for example, in public transport closures on Shabbat, with the legislature, courts and regulators carving out exceptions to the general presumption so as to permit access to certain public services. In Canada, or at least in Quebec, public employees are prohibited from wearing or displaying any indicators of religious affiliation.58 As noted above, this approach is in flat contradiction to that being introduced by the US “liberty laws”59 and policies, an approach that shows signs of being emulated in England. Private Service Provision The relevant issues, arising in all jurisdictions, often concern a conflation of religious belief with aversion to SOGI-related equality legislation resulting in litigation regarding the denial of a service, typically hotel accommodation for same-sex couples. In all such cases, the service provider is being prevented from manifesting their beliefs, contrary to the internationally protected right to freedom of religion, while the service user protests that their rights under SOGI equality legislation 56

57

58 59

Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales, [2011] EqLR 597. Pichon and Sajous v. France, Application No. 49853/99 (2001) and Eweida and Others v. the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10 and 36516/10 (2013). Bill 21, entitled “An Act respecting the laïcité of the State”, became law in March 2019. Barber v. Bryant, 17-547, and Campaign for Southern Equality v. Bryant, 17-642.

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should not be negated by the provider’s perception that matters of sexual orientation and religious belief are inseparable. In England the enforcement of equality legislation ensures that private or commercial services are not provided on a discriminatory basis. In the USA, private service providers may well be entitled to claim First Amendment protection on the grounds that their actions are a manifestation of religious beliefs and that no serious and compelling reason exists for state interference with any such manifestation; the likelihood of success will increase where the provider is the religious owner of a “closely held”, if secular, commercial business. Canadian jurisprudence regarding private service providers is somewhat mixed but, as in Germany, it tends towards favouring equality rights where these conflict with religious beliefs. There is no evidence of any such equivocation in France. In Israel the reverse presumption applies, allowing private businesses to be managed in accordance with religious beliefs – of Orthodox Judaism – unless state intervention by legislation or by court/ regulator rulings provide otherwise. Broadcasting Services Contention regarding the church–state relationship can be particularly volatile in the context of public broadcasting services. In all Part II jurisdictions, as in all other democratic societies, such contention became abruptly more acute following the Paris massacre of journalists associated with the Charlie Hebdo satirical cartoons. However, there is very little in the way of jurisdictional difference in the interface between the church–state relationship and broadcasting services. They all attach significant importance to the freedom of the press, which includes accommodating material that may offend, shock or disturb, and recognising that there is no right not to be offended. Similar acknowledgment is given to tolerance parameters that only prohibit material that actually or potentially incites hatred or violence or is defamatory. It is probable, however, that again in Israel the practice is somewhat different: the church–state relationship is such that the freedom of the press may well be vulnerable to political pressure at times when the joint interests in that relationship are perceived to be threatened domestically or internationally.

Equality, National Security and the Church–State Relationship The recent flux of international crises – mainly relating to terrorism and mass migration, both largely Islamic in origin – revealed the alacrity with which the state will, in such circumstances, prioritise defence over religious matters. Curiously, but not coincidentally, the current national defence concerns in all Part II jurisdictions are also concerns about religion: specifically, their defence policies – domestic and foreign – have for some years now been focussed on Muslim fundamentalists’ threats and atrocities.

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State Response to Terrorist Threat State concerns to promote human rights, including the right to freedom of religion or belief, will from time to time be constrained by a pressing need to secure the safety of citizens.60 This has been the case for all Part II jurisdictions as they tighten internal security and invest resources in collaborative international efforts to suppress militant Islamic insurgencies in North Africa and the Middle East. However, any measures a state may impose, within the parameters set out in Article 18(3) of the ICCPR and other international human rights instruments, are required to be compliant with the UN Global Counter-Terrorism Strategy,61 which cautions that unless such measures are proportionate to the particular threat posed, they risk undermining the basic ideals necessary for a democratic society.

anti-terrorism measures. The volume and extent of anti-terrorism measures now being applied by Western states, in particular in all Part II jurisdictions, are intrusive and enduring. Domestically, they include legislation to authorise monitoring of organisations and their funds; “stop and search” and deportation; deployment of armed and often masked troops to patrol city streets; intrusive surveillance by drones; the covert accessing of communications data; and the use of CCTV technology. Internationally, this has involved forming alliances and waging war against terrorist organisations in countries such as Afghanistan, Iraq and Syria; extraordinary rendition and torture of unconvicted suspects; assassination by drone strikes; and international exchanges of information between government security forces. While all the above have now become an accepted part of daily life, so also have concerns regarding the suffering of civilians in poor countries caused by Western military intervention, coupled with the fear of random mass murder in Western cities. As the attendant danger of being drawn into a much wider and more dangerous geo-political conflict increases, with all its resonances of earlier disastrous religious confrontations, so also is there an increased likelihood of state neutrality in relation to religion becoming steadily eroded and perhaps wholly abandoned. State Response to Migrant Crisis Wars produce refugees. Since the Arab Spring, wars have been a fact of life within many Muslim countries and warfare has also been directed against some of them by a US-led coalition of Western powers. The migrant crisis of 2015–2017, though compounded by other factors such as climate change and the lure of better socioeconomic opportunities, was largely a response to the devastation and dislocation

60 61

See UN Security Council resolution 1373. See General Assembly resolution 60/288.

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caused by prolonged warfare. The Part II jurisdictions involved in protracted warfare with Muslims proved to be ill-prepared and often unwilling to cope with the resulting waves of Muslim refugees. In the USA, domestic immigration policy became rapidly conditioned by homeland security concerns, which led to restrictions, assimilation programmes and surveillance directed specifically at Muslim refugees. This was already the established policy in Israel and became more so after 2015. In England, where immigration had been a hot political issue before the crisis, the migrant crisis generated even more public protest regarding what were perceived to be weak border controls and contributed significantly to the success of the Brexit campaign. In France the existing social tensions with a marginalised and alienated Muslim population led to a guarded and restrictive response that contrasted sharply with the welcoming of huge numbers of migrants into Germany and a not dissimilar response from Canada. religious/cultural differences. An inescapable feature of the migrant crisis was that it was very largely Muslim in nature; moreover nearly three-quarters of the migrants were men, half of whom were aged between eighteen and thirty-five.62 This matters because of the misogynist and patriarchal attitudes associated with that particular demographic and also because, according to some studies, Muslims in general integrate less and more slowly than non-Muslims.63 Many tens of thousands of migrants were denied refugee status as governments and citizens showed increasing intolerance towards those whose particular religious/ cultural affiliation seemed to obstruct their assimilation. For the many tens of thousands who succeeded, it was natural that they should be accommodated alongside those with whom they shared a religious/cultural identity, but this reinforced the separateness of the Parisian banlieues and equivalent cultural ghettoes in other European countries. In England the government launched its 2018 “Integrated Communities Strategy” to facilitate greater understanding of English language and culture among the immigrant population, an approach also adopted in the USA and Canada. In France, adherence to the principle of laïcité did not sit well with the overt intrusion into the public sphere of an ever-growing religious community which – in terms of dress, mode of worship, gender equality and LGBT awareness – were demonstrably disinclined to adapt to the secular norms of contemporary French society. For Germany, the many recorded incidents of sexual assault by Muslim males during the 2016 New Year’s celebrations in Cologne clearly illustrated that bridging the religious/cultural differences between the migrants and their host society would be problematic and consequently federal and local authorities

62 63

See, for example, Migrant Watch, www.migrationwatchuk.org/briefing-paper/372 A. Bisin, et al., “Are Muslim Immigrants Different in Terms of Cultural Integration”, Journal of the European Economic Association, vol. 6, no. 2–3 (2008), pp. 445–456.

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introduced programmes to promote assimilation. In Israel, a small country with a religion-specific culture, the settled policy is that it must maintain its historic role as a place of refuge for Jews and is therefore obliged to restrict a right of entry to all others in order to ensure that its religion and culture remain intact and can offer a home for future Jewish migrants. revival of “nation state” ideology. The consequence of these twin events – ISIS terrorism and the migrant crisis – has been a marked policy shift away from celebrating diversity and cultural difference towards fostering social integration and nascent support for asserting national identity. In a reflex reaction to the combined pressure from both sources, governments and citizens in all Part II jurisdictions, as elsewhere, have rallied to revive and protect their national cultures, switching abruptly from multiculturalism to pluralism and from state neutrality to state protectionism. In the USA, as in England, a new populism would seem to be encouraging a retreat to a narrow definition of “citizenship” with state neutrality being more tightly constrained, if not entirely abandoned. Canada, on the other hand, would seem unlikely to subscribe to the temptations of what appears to be a nation state ideology. Similarly the fact, uncomfortable as it is undeniable, that in Germany the migrant crisis caused the growth of the far-right political party – the Alternative für Deutschland (AfD) – is not in itself persuasive that Germany is likely to succumb again to such an ideology. France also has, so far, resisted the strident nationalism advocated by Marine Le Pen and chosen not to “pull up the drawbridge”. Israel, however, particularly in the light of the 2018 nation state legislation, would seem to have become the standard bearer for a resurgent nation state ideology. The migrant crisis has raised serious challenges for the future stability of civil society. While the latter would seem to be predicated upon accommodating diversity, it also requires respect for a society’s cultural heritage, its current ethos and adherence to the social norms affirmed and represented by government policy, laws and conduct. The scale and nature of the migrant crisis impacted with such immediacy on European states as to feed the existing cultural dissonance caused by multicultural policies and to undermine essential civic virtues of trust and cooperation.64 It has inflicted a severe jolt to the settled norms of liberal democracy, including the principle of state neutrality. A general populist upsurge suggests that it is not politically tenable for governments to stand aside and allow a nation – its borders, traditional culture and its religion – to be exposed to the levelling effects of equality and egalitarianism.

64

See T. Judt, “The World We Have Lost”, in Ill Fares the Land, Allen Lane, New York, 2010, pp. 42–80.

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conclusion While secularism in the Part II jurisdictions was already set on an upward trajectory, gaining increased traction in mitigating traditional church–state relationships, the ripple effects of war, including the largely Muslim migrant crisis, did much to strengthen the secularist position as religiously driven terrorism and overt displays of religiosity impacted upon the normal routines of daily life. Consequently all jurisdictions experienced a lurch away from the traditional religious/cultural homoeostasis: the Muslim factor increased both religious diversity and secularism; while public service delivery concerns prompted the forging of partnership arrangements with religious organisations. Some went further, in response to a new political awareness of religion, and a spate of government initiatives established offices and programmes to facilitate and promote church–state relationships. For all Part II jurisdictions, the impact of equality legislation has caused difficulties for church–state relationships because of its unremitting levelling and reductionist effect. One result of this has been the recognition given in law to same-sex relationships and gender transitioning, which seriously compromise some of the more fundamental beliefs of the traditional religions. Additionally, the fact that religious entities – adherents and organisations – are exempted from many of the equality provisions that unduly burden their right to freedom of religion, certainly eases the constraints on how they manifest their beliefs but to others such exemptions also expose the duplicity of those of a “sacred” calling using their position to avoid obligations binding on their secular counterparts. Another and related problem for most Part II jurisdictions, perhaps excluding Israel, is that religion has become so attenuated in terms of legal definition that it is increasingly difficult to distinguish it from other beliefs. This would seem to replicate the experience in human rights law: established fundamental rights and beliefs being parsed and deconstructed to meet niche sets of need; but, in that process, both end up undermining or at least diluting the integrity of primary principles. All of this feeds the “culture wars” that now seem to be spreading from the USA to contaminate civil society throughout all Part II jurisdictions.

11 State Neutrality: A Work in Progress

introduction The winds of change, seemingly set to batter our Western democratic societies, will force hard choices upon the state. As Gopnik notes in A Thousand Small Sanities:1 In a progressive country change is constant: and the great question is, not whether you should resist change which is inevitable, but whether that change should be carried out in deference to the manners, the customs, the laws, the traditions of the people, or in deference to abstract principles and arbitrary and general doctrines.

Much turns on whether the Gopnik choice allows for a future “big” or “small” state, if, indeed, this is any longer a matter of choice.2 This brief concluding chapter considers the challenges facing the state in contemporary democratic societies where it must find a balanced way of relating to the fading remnants of traditional institutional religions, together with a flux of modern variants and assorted forms of belief and imported cultures, at a time when secularism is becoming steadily more assertive, and where all must be given autonomy and the freedom to safely mix and mutate. It takes into account the disruption affecting those societies as a consequence of their protracted wars in largely Muslim counties, combined with the ongoing migrant crisis largely emanating from the same places, together with residual ISIS-related terrorism, all of which inevitably impose constraints upon domestic policies of multiculturalism or pluralism and will impact upon civil society for the foreseeable future. It also notes that these developments are accompanied by varied national progress in terms of building a binding grid of equality and non-discrimination legislation and in subscribing to a tightening 1

2

A. Gopnik, A Thousand Small Sanities: The Moral Adventures of Liberalism, Basic Books, New York, 2019, p. 96, citing Benjamin Disraeli. R. Dasgupta, After Nations, 2020 and further in www.theguardian.com/news/2018/apr/05/ demise-of-the-nation-state-rana-dasgupta

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mesh of supranational human rights. This gives rise to some discussion of the Gopnik concerns for cultural dislocation, the levelling effect of equality legislation and perhaps the desiccation that threatens to accompany the present rights-driven approach to complex social problems. This last chapter returns to the first to reconsider, in the light of Part II material, the validity and significance of the state neutrality principle. It begins by differentiating between the various iterations of the principle and assesses the significance of characteristic jurisdictional differences. This facilitates an overall consideration of the principle’s validity as a means of balancing the sacred and the secular. In the light of what appear to be intimations of a general loosening up of basic reference points for the church–state relationship, it would seem best to be cautious regarding the uniform applicability and sustainability of any doctrinaire approach in such a shifting landscape.

state neutrality towards religion: principle and practice Any interpretation of the principle of state neutrality must now take into account the role of the state as both aggressor and victim in a cycle of transnational warfare, in which there is an inescapable religious dimension. Consequently, as noted in the preceding chapter, all Part II jurisdictions have had to develop strategies that permit aggressive and decidedly non-neutral state intervention directed towards specific religious extremists overseas. Domestic state–religion relationships are now playing out against that background. State Neutrality Mandated by international treaties and conventions and underpinned by the rulings of international courts and other bodies, this principle is applied with considerable jurisdictional variation. Despite the clarity of legislative intent, reinforced by innumerable judicial expositions, there is no uniformity of interpretation, purpose or of outcomes in contemporary church–state relationships. In practice, how this relationship is interpreted is very much conditioned by the history and culture of the nation concerned, often subject to constitutional constraints, and in some instances the interpretation bears little, if any, resemblance to state neutrality. Interpreting the Principle In practice, the different models of state neutrality represented in the Part II jurisdictions have proven to be of varying effectiveness.

separation of church and state. In the USA, the metaphorical “wall” dividing church and state started out as the most firm and clear exposition of the

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neutrality principle. This separation promised to make an authentic and uncompromising contribution to developing and sustaining an independent and democratic civil society. While the entitlement to hold and profess personal beliefs, free from state interference, continues to be treated in law and policy as sacrosanct, the evidence emerging from case law, legislative initiatives and from presidential intervention illustrates just how far the current reality has drifted from its initial promise. Currently, it would seem that the state is becoming steadily more purposeful in its deliberate efforts to cultivate a supportive and protective relationship with JudaeoChristian religious organisations, discreetly constraining the growth of their Muslim counterparts and largely ignoring those of the indigenous communities but being tolerant and willing to recognise new religions and belief systems. The separation in France seems deeper and more uncompromising: laïcité and the 1905 law combine to ensure that religion does not influence the state and vice versa. Laïcité goes further than signifying a neutral demarcation between the spheres of influence of church and state; it suggests a firm renunciation of religion in public affairs – all religions and all forms of ideology. Arguably, this is due less to the principle of state neutrality and more to that of republican egalitarianism, which requires all citizens to be equally loyal to the state without any blurring caused by status or conflicting allegiances. state’s benign engagement with traditional religions. In Canada, which is somewhat idiosyncratic due to its bijuralism, state neutrality is constitutionally compromised by the denominational clauses guaranteeing the rights of the Protestant minority in Catholic Lower Canada and the Roman Catholic minority in Protestant Upper Canada, resulting in a range of religion-specific schools and colleges in the state education system and similarly with religion-specific hospitals and other healthcare facilities within the state healthcare system. The Canadian version of neutrality does not prevent the state from either burdening religion nor from assisting it. Unlike its US counterpart, the Canadian State has a clear mandate to provide support for religion and religious entities, provided it does so in an evenhanded manner. However, the effect of Bill 21 – which requires public officials not to wear any form of religious clothing or other such identifiers – aligns Quebec with the French laïcité approach and distances it from the rest of Canada. It may prove a precursor for further stringent state neutrality intervention in religious matters. State neutrality in Germany accommodates a distinctly benevolent dimension: rather than requiring a strict separation of state and church, it instead suggests an open and mutually respectful relationship. In recent decades and across all of Germany, the cultural homogeneity imprinted on the landscape by centuries of Christianity, accompanied by folk aspirations of a united vaterland, have faded: partially as a consequence of EU membership and partially due to the growing presence of an expressive Muslim faith, a development accelerated by the migrant crisis. As in the USA, state neutrality permits support for religion per se with a

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leaning towards the Christian religion and culture when doing so; in Germany this is greatly assisted by the church tax, if to the detriment of neutrality. state preferment of a specific religion. Israel embodies a symbiotic church–state relationship in which state neutrality is a complete misnomer: that principle, together with Zionism and halakha, must all be seen against the background of the 1948 Status Quo Agreement.3 The state and its institutions exist and function primarily for the protection of Judaism; and Judaism is emblematic of citizenship. While the state affords formal recognition to a restricted list of other religions, it keeps a watchful eye on Islamic religious organisations, and cedes legal jurisdiction on matters of family status to religious courts. In England and Wales, a formal relationship has, for the past five centuries, been maintained between the state and the Church of England as the “established church”. This preferment of a specific religion, while allowing for recognition of others, gives the state permission to acknowledge its singular contribution to shaping the national culture and to prioritise that religion in all respects including statefunding arrangements. In practice, despite its entrenched commitment to an “established church”, the state has a decidedly relaxed approach towards religion and promotes religious pluralism, perhaps influenced by its exposure to the consequences of religious polarisation in Northern Ireland. State Accommodation of Religious Legal Systems The politics of identity probably play a part in the difficult issue of the extent to which a state might be expected to make room for religious law and courts to function alongside the national statutory legal system. Currently, populism, triggering a resurgent interest in reclaiming cultural identity, would seem to be in the ascendancy in most Part II jurisdictions to the detriment of pluralism. This may well develop to have a constraining influence on the future accommodation of non-national cultures. How such a development will affect tolerance of religious law and courts may depend, to some degree, on whether it takes the form of a secular populism that exercises particular constraints on religious pluralism. Religious Laws and Courts in General The laws and courts of Judaism and Christianity continue to function alongside the national legal systems of the Part II jurisdictions as they have done for many centuries: subject to legislative delineation of state jurisdiction; with religious courts

3

The origins of the agreement are generally considered to lie in a letter written on the 19 June 1947 by Ben-Gurion, then chair of the Jewish Agency Executive, to representatives of Orthodox Judaism in which he sets out the basis for a policy on national unity to be submitted to the UN.

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retaining a much wider span of authority, in respect of family matters, in Israel. In practice, as the rulings of these courts only come to state attention when an aggrieved party seeks redress in the secular legal system, they rarely give rise to contention. When they do, as in challenges to the use of the Jewish get, in protests regarding the religious upbringing of children, or as regards resistance to the marriage of divorcees or gay couples in Christian places of worship, the national legal systems have little difficulty in reviewing and overriding any decisions taken that are contrary to statute provisions. sharia law. Unquestionably, sharia law is a growing presence in all Part II jurisdictions, accompanied by an increase in disputes regarding the disparity between it and human rights law and protests as to the appropriateness of its transfer into a Western democratic cultural context. There is every reason to be concerned. Sharia, for example, sanctions the misogyny evident in the Islamic treatment of women (honour killings, subjugation, constraints on dress and social roles). The Hudud (or Hadd) offences – including sex outside marriage, theft, music, gambling and drinking alcohol – are punishable by penalties such as stoning, flogging or the amputation of a limb and, although abjured by most Muslims, these are clearly not human rights compliant. The validity of an unregistered Muslim marriage, conducted unilaterally without reference to the procedural safeguards provided by statute in democratic states, must be of doubtful legal validity in those states, which leaves the parties and any children thereof exposed to potential risks. Moreover, the Islamic mahr agreement (“bride price” or dowry, payable to the wife on divorce), for example, is no substitute for judicial distribution of assets following statutory matrimonial proceedings. No matter how important these matters may be in an Islamic cultural context, or in Islamic theological terms, the related edicts of sharia cannot hope to find shelter behind the state neutrality principle in the Part II jurisdictions. The Neutrality Principle and State Agencies for Religious Matters State neutrality is not necessarily compromised by the existence of government offices and processes which, in most jurisdictions, have channelled communications between religious organisations and government, on a local and sometimes centralised basis for many years. More recently, however, a new generation of such structures has been introduced in some jurisdictions that are intended to positively promote better and more focused church–state relationships. These tend to function in relation to issues affecting particular religions – primarily the Judaeo-Christian and Muslim religions – and can often serve to channel supportive state funding. This development is altering established practice and eroding state neutrality.

established state–religion infrastructure. In France, any state initiative to establish agencies for religious matters would risk compromising some of the more fundamental principles of the republic. However, it has had Le Bureau Central des

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Cultes (the Central Bureau of Worship) since 1911, which functions as a bridge between state and church. In 2008 the Haute Autorité de Lutte contre les Discriminations et pour l’Egalité (HALDE) was established, to monitor application of equality and non-discrimination legislation. Thereafter this agency has acted as a restraining influence on any state intervention directed towards curbing public manifestations of religion. In Israel, unsurprisingly, the opposite approach has dictated policy. Since the birth of the state, there has been a designated government department – the Ministry of Religious Services – to take responsibility for managing domestic religious affairs. introduction of new state–religion infrastructure. In the USA it must now be open to question whether government continues to aspire to neutrality and indeed whether an increasingly politicised US Supreme Court (USSC) is capable of holding government to account in respect of policies and practices that may compromise any such aspiration. Since the White House Office of Faith-Based and Community Initiatives was established in 2001, many states have created similar offices and have passed legislation or enacted administrative policy changes to give effect to faith-based initiatives. This entanglement with religion was intensified by the Charitable Choice programme launched in 2003, extended by the Obama administration’s government funding for “faith-based initiatives” and furthered by the Trump administration instituting a new department – the Division of Conscience and Religious Freedom. Not dissimilar initiatives were instigated in England and Wales when the office of “Minister of State for Faith and Communities” was established in 2012. This office funded the Near Neighbours’ programme, expanded in 2014 and 2016, which saw massive funding extended to the Church of England in order that it may strengthen local faith projects. absence of state/religion infrastructure. Neither Canada or Germany would seem to have any equivalent to the earlier mentioned networks of government offices.

the contemporary western state The meaning of certain key concepts – such as “state”, “religion”, “democratic society”, “culture” and “citizenship” – that previous generations had every reason to believe were virtually immutable would seem to be undergoing profound change. This is likely to have fundamental implications for future church–state relationships.

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The State In the space of a few decades, the state in the developed West has shrunk and shifted from being the source of public benefit services to the regulator of their production, quality and distribution. As its independence, capacity to exercise control over its resources, and exposure to global influences became more pronounced, the authority of the state generally withered, although it seemed to become more willing to exercise its traditional executive powers in terms of tightening domestic security and committing its armed forces to combat overseas. The diminution in powers of control over domestic matters has also progressively weakened any ability the state might formerly have had, as a nation state, to unilaterally choose whether it relates neutrally or in any other categorical manner towards religion with its transnational capacity. Democracy and Civil Society Involved as all Part II jurisdictions are, though to varying degrees, in combating Islamic fundamentalism at home and abroad, the resulting consequences in terms of numbers of migrants, exposure to domestic terrorist attacks, Islamophobia and reciprocal Muslim alienation are common to all. This has been accompanied by a reawakening of pride in national culture. These interrelated developments are imposing constraints upon the functioning of democracy and civil society in those jurisdictions. The dynamics at play resonate with the choices articulated by Gopnik.

democratic society. Against a background of continuing war being waged by Western powers in Muslim countries and a litany of barbaric murders and acts of terrorism perpetrated at home and abroad by Islamic extremists who claim their actions are sanctioned by their religious beliefs, governments in all Part II jurisdictions have been reviewing their policy regarding national security, public displays of religious belief in general and in relation to the Muslim religion in particular. The results are evident in the presence of armed (often masked) troops on city streets, in more intrusive state surveillance of private data, in tighter border controls, in the scrutiny of far-right political groups and in a heightened sensitivity to public manifestations of religious belief. While it has to be noted that the democratic societies in the Part II jurisdictions are acting with considerably more restraint than others such as Turkey, nonetheless the restrictions on human rights, particularly as regards the freedom of expression, are not always wholly compatible with democratic principles. In the Part II jurisdictions, at the dawn of the twenty-first century, resonances of social upheaval generated by earlier failings in the state–religion relationship are now triggering an acute political awareness of the strategic role of religion in civil society. The mounting internal and external threats to national security, together with populist reactions to the increasingly more noticeable Muslim presence, have

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prompted Part II governments to consider the extent to which they can or should take steps to protect and assert their traditional religion/culture. Political pressure from the far right (as populism and anti-Muslim sentiments increase) and from the left (as the levelling effect of equality and anti-discrimination principles roll relentlessly onwards), together with international commerce and the more game-changing effects of globalisation – climate change, large scale population movement, IT, finance and social media – are triggering a resurgent nationalism with populist leaders challenging establishment structures and politics. In response, governments are attempting to appease nationalist sentiments by introducing tougher constraints on migrants and, to a varying extent, on overt displays of religiosity, which again adversely impact upon a democratic society. civil society. Proportionately, relative to population growth, a retraction of the public sector is evident in all Part II jurisdictions. This may well be linked to the 2008 global recession and the ensuing government austerity programmes. The consequences, in terms of deterioration in levels of public service infrastructure, are endemic with complaints about inadequate resources for policing, nursing, road maintenance and suchlike being common to all jurisdictions. As the public sector shrinks, the space available to civil society is expanding but arguably it is being filled in a manner not conducive to the general health of society. An increase in the number and rapaciousness of hedge funds, other high finance and property magnates at one end of society is being matched by that of food banks and charities at the other, while global social media and IT companies with little accountability or sense of civic responsibility compete for the middle ground. This polarisation in wealth disparity and in self-concern is corroding cultural identity, undermining social cohesion and refuting the relevance of religion. It would seem that a general weakness in state ability to pursue equality-based principles by regulating exploitation and moderating social inequity through taxation, is in keeping with its performance in respect of neutrality towards religion. Perhaps, to that extent, this indicates that government has quietly decided to reject the Gopnik option of “deference to abstract principles and arbitrary and general doctrines”. The autonomy of associations, vital to civil society, is becoming compromised by government suspicion that some are being used, perhaps unwittingly, as “trojan horses” to channel funds for use by Islamic extremists. A culture of government suspicion has led to stricter supervision of organisations in the non-profit sector and tighter regulatory control of their funding arrangements which, inevitably, has resulted in an overall chilling effect on civil society. Paradoxically, perhaps, it has had the contrary effect on religious organisations as governments in some Part II jurisdictions have hastily introduced organisational structures to bridge the government–religion gap and have promoted new representative bodies, though the neutrality of the former and the independence of the latter may be open to question.

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culture. The 2015 “migrant crisis” forced states to reconsider the balance that should be struck between intervention designed to bolster pluralism and positively address the insecurity of Muslim citizens and accommodate new Muslim migrants and intervention designed to appease a rising populism and protect the established national culture. In theory, it may have seemed prudent to develop a “cultural synthesis” approach which, while recognising and protecting a nation’s cultural identity, also proactively sought to give recognition and space to other cultures within national borders and promote the building of bridges with minority cultural groups. In practice, most states were unable to stabilise their societies through such measures due to the scale of the migrant crisis, the reactionary forces triggered by Islamic fundamentalism and the wave of populism that impacted upon normal politics. Culture wars have a proven capacity to divide and polarise. Following incubation and decades of transmission in the USA, the same wars with ever extending battle fronts, are now spreading across other jurisdictions with equally inhibiting effects on the vitality of civil society. In addition, and probably inescapably, an international cultural populism is being layered onto national cultures and over time there is a danger that it may slowly submerge and degrade them as effectively as colonialism did in respect of the once distinctive cultures of indigenous communities. the state, human rights and social cohesion. For many it seemed that the state’s assertion, protection and ongoing development of human rights might offer a substitute for religion, particularly when globally scaled up in accordance with the spread of binding international treaties. For others, however, there were concerns about the fragmentary effects of human rights on society. While fundamental human rights are by definition fundamentally important and tend towards generating social cohesion, the proliferation of international human rights treaties has, arguably, the opposite effect and may tend towards legitimising a competitive jostling for victim status. That all citizens are held to be free and equal before the law is a central principle of the liberal democracy that characterises all Part II jurisdictions. However, equality law with its levelling and reductionist effect has, perhaps, turned the focus of contemporary social policy away from the big moral public issues such as poverty, disease, climate change and the depletion of natural resources towards not just an increased recognition of the rights of minority groups but towards legitimising competing private entitlements in developed Western societies. There is a concern that such a rights-oriented approach, together with the partialising and subjectivity involved in the new morality, threatens to distract from the need to address entrenched global issues and dilutes or fudges the significance of cultural heritage in which religion is so intricately entwined. The distraction may include an inability to appreciate the dark side of social inequality, particularly its persistence in nondemocratic countries, a blindness to the depth and extent of estrangement that lies behind the current confrontation with ISIS, and a reluctance to accept the

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motivating factors that push, and will continue to push, so many migrants towards Western society. Religion The understanding of what in law constitutes a religion or belief has, relatively suddenly, become complicated and attenuated. For millennia, the piety of religious adherents – whether Christian, Muslim or Jew – involved a deep commitment to the ineffable, transcendent and numinous. How that piety could now be treated as being on an equal legal footing with the beliefs of members of organisations such as the Pussy Church of Modern Witchcraft (see further in Chapter 4), previous generations would view as wholly incomprehensible. Moreover, as previously mentioned, the fact that an individual’s subjective interpretation of beliefs could be considered a valid substitute for doctrines and tenets, which had always previously defined a traditional religion and bound its adherents in collective ritualised worship, would be dismissed as heresy. The State–Religion Relationship This relationship has lain at the heart of our evolving democracies, shaping and differentiating their traditional cultures over many centuries. As indicated by the findings in the previous chapter, it is now undergoing change, some but not all aspects of which are shared among the Part II jurisdictions.

the sacred and the secular. Entities such as the Pussy Church represent not just the definitional problem of determining what constitutes the sacred but also the ancillary difficulty of what exactly differentiates it from the secular. This applies to the proliferating range of organisations representing such “philosophical beliefs” as veganism and naturalism, which have now successfully claimed parity of status and entitlement to the same taxation privileges as the long established institutional religions. It may be that each and every moral imperative that constitutes the everbroadening culture wars – from abortion to assisted death – will in time produce its own representative body claiming that its beliefs, for or against, entitle it to similar recognition in law: a product of didactic moralism without borders. Differentiating between such bodies whose members purport to have a dedicated belief in the transcendent – whether of principle, philosophy or conscience – and those whose members contract to lobby for change and who pursue realisable temporal goals and objectives without any sincere concession to spiritual beliefs, is likely to become increasingly challenging. The case law also reveals a more traditional distinction: the line to be drawn between the remits of state and church in relation to family matters. In France that line was in effect abolished, as the state has assumed the previous legal jurisdiction of religious organisations: marriage, for example, being legal only if conducted in

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accordance with civil proceedings. The opposite is the case in Israel, where matters of family status are reserved exclusively to church authorities. Although largely laid to rest in the Part II jurisdictions, vestiges of this tussle continue in the argument that the marriage of divorcees and same-sex couples should be purely civil affairs, confined to registry offices. state–religion partnerships. In all Part II jurisdictions, there is much evidence to show that any semblance of strict state neutrality is being inexorably compromised by a common policy of partnership with religious organisations to deliver public benefit services. Although not necessarily contingent upon the Christian nature of their cultural heritage, state partnership arrangements are nonetheless very largely with emanations of the Judaeo-Christian religion for cost effective reasons. The devolving of responsibility for the delivery of public benefit services from state to church has been necessitated by the inability of a shrinking state with diminishing tax revenues to cope with a duty of care towards an ever increasing – and increasingly ageing and disabled – population. It has been facilitated by the fact that of all non-government organisations, it is the traditional religious organisations in the Part II jurisdictions that have the established national networks, with wellmaintained levels of community trust and acceptance, that benefit from taxexemption privileges and from the defraying of market costs by volunteer input and donations from the faithful. For such reasons the state has in recent decades cultivated relationships with those religious organisations (some would say “colonised”) and in the process has conferred preferential status upon its chosen partners, which, in turn, has generated controversy as to whether this amounts to state discrimination in favour of its traditional religious/cultural heritage. It also raises questions as to whether such an investment in competitive open market secular activity detracts from the legitimacy of an entity’s status as a religious organisation. private conscientious objection and public services. The state–religion relationship comes under stress when the state prescribes public benefit service availability on a universal basis but government-funded facilities and/or individual members of staff refuse to facilitate access to certain services on the grounds that to do so would be contrary to their religious beliefs. The increased reliance on the grounds of religion, belief or “conscience” as sufficient to excuse some from complying with civic responsibilities – mandated by equality and non-discrimination legislation – that are binding on all others, is fast becoming a significant issue in all Part II jurisdictions. There are difficulties in establishing the boundaries of this exemption. Partly this is due to the grounds: the legal interpretation of “religion” – essentially contingent upon a subjective, cogent and sincerely held belief – and the growing latitude extended to matters of conscience, makes it increasingly difficult to determine what

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grounds would not qualify. Partly the difficulty lies in the application of the exemption: the range of matters to which religion/belief/conscience could create issues for a service provider is extensive and probably interminable (including at least, abortion, genetic editing, assisted dying and all LGBT related matters). Then there is the issue of establishing the degree of removal from the service that is covered by the exemption: while the direct provider – doctor, nurse, registrar – is clearly eligible, should the privilege extend to ancillary-service support staff such as receptionists, radiographers and administrators? Moreover, there is the logical question of why such grounds should be restricted to public service providers: the gay cake bakers are surely equally entitled; where does that leave such religiously based practices such as polygamy (Mormons) and underage marital sex (Muslims)? Not dissimilar issues arise in relation to vaccination programmes: interpretation of religious/belief grounds; defining what constitutes a national and obligatory vaccination programme; and differentiating and containing the ambit of exemption. The religious liberty laws currently being rolled out on a state by state basis in the US indicate how other jurisdictions are likely to address this matter. It also indicates the dangers inherent in adopting that approach: the possible local stripping-out of specific service availability (e.g. abortion, registering same-sex marriages, or immunisation); resulting in some degree of population movement as established democratic civil rights are locally negated (reproductive rights, LGBT rights, right to health); leaving society fragmented into a geographic patchwork of regions where some citizens are branded as conservative/reactionary and others as progressive; with profound implications for a coherent democratic society. Citizens The link between the ideal of rights and the idea of citizenship was probably first made by the French State in the throes of the revolution and the subsequent Declaration of the Rights of Man and of the Citizen, 1789. Thereafter, until the latter decades of the twentieth century, the characteristic hallmarks of an autonomous nation state – firm government control over matters such as borders, security, taxation, information, finance and self-governing laws – continued to typify most Part II jurisdictions. Since then, as the capacity of the state to exercise independent control over matters within its borders has shrunk, particularly its ability to generate the funds necessary to provide public benefit services for a larger population with increased dependency needs, there has been a corresponding shrinkage in its relationship with citizens. This, in turn, would seem to have contributed to a further weakening of the interrelationship between state, religion/culture and citizen. Citizenship “Citizenship” was defined by Bryan Turner as a “collection of rights and obligations which give individuals a formal legal identity; these legal rights and obligations have

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been put together historically as sets of social institutions, such as the jury system, parliaments and welfare States”.4 A citizen was then understood as someone who belonged to one specific country, nationality and culture. By so belonging a citizen was distinguished from all others who were essentially “foreigners”. Nowadays, however, very many migrant workers and others with short- and long-term visas make it more difficult to make that distinction. Like “identity”, the concept of “citizenship” is becoming increasingly amorphous. the contemporary citizen. The Turner definition implied that a citizen was legally recognised to be in a contractual relationship with their state, and had certain rights – of residence, to vote, to protection, to access public services such as courts and healthcare – and certain duties – to pay taxes, obey laws and serve in the national armed forces if called upon to do so. This contractual relationship, territorially based and with implied cultural affiliation, varied from country to country and in the same country over time, but it retained a sense of being founded on a bond of mutual and exclusive loyalty between state and citizen. In the present era of bitcoins, social media and hedge funds where the flow of information, finance and people (not to mention epidemics and terrorists) can pass unimpeded though borders, the contractual relationship has been largely rescinded. The concept of citizenship now has to accommodate highly mobile individuals who may well have more than one passport, be citizens of more than one country and often have residences in those countries.5 Such persons are interconnected and interdependent across national boundaries; for them borders are highly permeable and loyalty to a state is negotiable. Citizenship is a status that can be used for political purposes to differentiate between those who are held to “belong” to a nation and those who are not fully accepted as such. Migrant workers resident in Germany, for example, are denied citizenship rights. Israel has taken this a step further and, arguably, a step towards religious discrimination and apartheid. Under the Law of Return, 1950, Judaism by birth, marriage or descendancy (i.e. a person whose forefathers were Jews, even if he or she is not) entitles a foreign national, resident anywhere outside the state, to claim and be automatically awarded citizenship; they need have no prior territorial link with Israel. Under the Nation State Law, 2018, citizenship is conditional upon acceptance of Israel as the “nation-state of the Jewish people”. Both laws seem to be driven by a legislative intent to give effect to Zionism; neither affords equal rights

4

5

B. Turner, “Cosmopolitan Virtue”, in E. F. Isin, ed., Democracy, Citizenship and the Global City, Rutledge, London, 2000, pp. 129–147, 131. C. Strozzi, “The Changing Nature of Citizenship Legislation”, IZA World of Labor, (2016), 322. doi: 10.15185/izawol.322

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to resident Arab nationals.6 This state use of religion as a determinant of citizenship is unique among Western democratic nations. The Changing Relationship between State, Religion/Culture and Citizen The traditional concept of citizenship – based on a coherent and exclusive blend of culture, nationality and residence – is no longer viable in any of the Part II jurisdictions. Each state now provides rights of residence for a great diversity of cultural groups, some members of which have citizen status and some who do not. Moreover, many citizens no longer view their passport as some form of “loyalty card”, a declaration of belonging exclusively to a particular state: the internet age now provides limitless opportunities for belonging and for changing allegiances, which transcend or bypass the traditional definition of citizenship; for many in the Part II jurisdictions, social media has displaced religion as a source of solace and of opportunities for developing a sense of belonging.

religious pluralism. A mix of religions and growing secularism is now to be found in all developed Western states and is necessarily eroding the inherited sense of traditional affiliation with a particular religion and devaluing it as a determinant of contemporary national culture. However, despite increased religious pluralism – despite also the lessons from Nazi Germany’s treatment of Jews – all Part II jurisdictions, as elsewhere, would seem to be experiencing rising levels of antiSemitic and Islamophobic attacks, the latter frequently with lethal consequences.7 Most often the perpetrators seek to justify their attacks by claiming to be defending the integrity of their national culture from being violated by the presence of those they say who do not belong. This phenomenon – obviously linked to the traumatising effects of Islamic terrorism and the migrant crisis – presents a serious ongoing challenge to all Part II jurisdictions. As their courts have often advised,8 maintaining state neutrality in relation to religion, its adherents’ religious organisations, and indeed secularism, is essential for the preservation of pluralism and the proper functioning of democracy. 6

7

8

In India, in spring 2020, there was serious rioting and loss of life in Delhi when the government sought to implement the Citizenship (Amendment) Act 2019, which offers amnesty to illegal immigrants from three neighbouring countries, but not if they are Muslims. As in Israel, this Indian law seeks to make citizenship conditional upon religious adherence. These include Canada, nine dead at Quebec City mosque (29 January 2017); France, one dead, at home (14 January 2015); Germany, one dead (10 May 2016); Israel, three dead, at home (31 July 2015); UK, one dead (19 June 2017) and USA, three dead, at home (10 February 2015). See, for example, England and Wales, McFarlane v. Relate Avon Ltd., [2010] IRLR 872; US, Board of Education of Kiryas Joel Village School District v. Grumet, 512 US 687 (1994); Canada, Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3; and Europe, Metropolitan Church of Bessarabia and Others v. Moldova, Application No. 45701/99, §§ 115–116, ECHR 2001-XII and Savez Crkava “Rijeˇc života” and Others v. Croatia, Application No. 7798/ 08 (2010).

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A corollary to the above is the transnational nature of Islamic fundamentalist terrorism which, of course, offers obliteration of religious pluralism. Having no interest in nation states, their territorial borders or in differences in their cultural identities, but viewing them collectively as harbouring apostates to be punished as part of the process of establishing a borderless Islamic caliphate, the terrorists operate randomly across the developed Western nations (and elsewhere). In effect, this burrowing under borders to channel terrorism, funds and weaponry in furtherance of their ideology – producing a transnational state orchestrated response – is adding to the “hollowing out” of the concept of “state”.9 It provides yet another illustration of how powerless an individual state now is in the face of contemporary global transmissions of various sorts. The ever-expanding theatres of a war10 that shows no sign of ending represents the “sharp end” of a relationship between state and religion. There is no avoiding the fact that this conflict is drawing more countries into a gradually polarising religious–cultural nexus in which the forces of the state in largely Christian countries are arraigned, in a decidedly non-neutral fashion, against Islamic fundamentalists in largely Muslim countries.11 While the short-term domestic repercussions of this policy are very evident in the random acts of Islamic violence, intrusive security measures and constraints on human rights, the alienation of many Muslim citizens and in generalised social insecurity, it is the longer-term consequences for the state and religion relationship that may prove most damaging for pluralism and to the proper functioning of democratic society. The migrant crisis, largely Muslim in character as it emanated from and followed hard on the heels of Western bombing of eastern Muslim countries (though other factors were also in play), has tested the policy of religious pluralism in the Part II jurisdictions. Aside from Germany and Canada, which opened their doors to displaced refugees, most other jurisdictions responded defensively by increasing border controls and deporting those defined as illegal immigrants. Some, specifically the USA, have adopted much the same approach as Hungary, Slovakia and Poland and sought to deny Muslim migrants access. populism. The possible unravelling of the pluralism that had come to characterise Western democracies has been exacerbated by the trend towards populism. In the USA and across Europe – Turkey, Poland, Austria, Spain and elsewhere – traditional, seemingly settled, democratic political systems have been disrupted by the sudden emergence of a new breed of political leaders and parties. The rise of populism may well be linked to a perceived threat to the traditional national culture 9 10

11

See further in Dasgupta, After Nations. The “Costs of War” report estimates that as of 2017 USA was engaged in counter-terrorism activities in seventy-six countries; see further in http://watson.brown.edu/costsofwar/ See further in W. R. Polk, Crusade and Jihad, Yale University Press, New Haven, 2018.

State Neutrality: A Work in Progress

495

posed by Islamic fundamentalism and by a surge in Muslim immigrants. The danger that populism presents can be seen in the abandonment of state neutrality as governments implement policies that include building frontier walls, denying members of certain religious/cultural groups entry to a country, banning religious apparel in public and in rewriting equality and non-discrimination laws. As populism reasserts the virtues of the nation state, sovereignty and cultural heritage, it also explicitly or by implication suggests that other cultures and religions are of lesser importance or can only be accommodated if fully assimilated. This would seem to be a fairly direct route towards the end of both pluralism and to the healthy functioning of a democratic society.

state neutrality: religious wars and the religion of migrants Turmoil throughout many countries in the greater Middle East has seen states – most notably Iran – use their authority and armed forces to further the interests of a particular religion and has witnessed religious extremists – notably ISIS – seek to destroy the authority and frontiers of states. The deployment of high-tech weaponry by the armed forces of the still largely Christian Western states has contributed to the widespread destruction of much of the social infrastructure in those Muslim countries. As a consequence, the flood of refugees, almost exclusively Muslim, which began in 2015, shows every sign of continuing well into the next decade. Religion, the State and War in the Middle East While the current theatre of war extends beyond the Middle East, that region forms the crucible for Islamic fundamentalism. It is here that the volatile Shia/Sunni nexus is centred, where Israel and Palestine are locked in enmity and where ISIS slaughtered thousands of those it renounced as “apostates” in its failed effort to establish a caliphate. It is also very largely where the confrontation between Muslim and Western armed forces has taken place. In the post–9/11 era, the endless wars in this region have brought a salutary reminder of the dangers of polarisation, of religion’s capacity for accentuating divisiveness and the risks that attend state intervention in religious matters, which is not to suggest that the risks attending non-intervention would be any the less. The Western State and Eastern Religions The well-intentioned US-led intervention to end the malign religious zealotry of ISIS disclosed the naivety of the Western states in relation to complex ethnoreligious conflicts. Intervention in those Muslim societies, characterised by fundamental Shia/Sunni divisions but also by many mutually hostile subdivisions, served to disrupt established checks and balances, increase polarisation, exacerbate

496

Towards a More Stable Civil Society

intercommunity violence and cause further large-scale population displacement. It threatens to trigger a Shia/Sunni confrontation that may have far reaching destabilising consequences for that region and further afield. state neutrality. The intervention of Western armed forces in the Middle East, resulting in the shattered cities and lives of many Muslims, is unlikely to be perceived by the latter as a reasonable exercise of state neutrality towards religion. This is not to suggest that such a result was intended, nor to discount the enormity of Muslim on Muslim violence and other contributing factors, but it has to be accepted that a hardening of the jihadist faction was always likely to form part of the price to be paid for the very many Muslim deaths caused by the long-range bombing and drone-strike executions carried out by Western states. This has led to the multiple Islamic atrocities, the domestic security response and the present “climate of fear” that hangs over everyday life in the Part II jurisdictions. muslim migrants. War in the Middle East has led also to a mass migration of refugees into the northern hemisphere, awakening folk memories: for some of the social dislocation that followed industrialisation within the nations of that hemisphere, and for others of “the barbarians at the gate” as the Ottoman Empire threatened Western Europe.12 Taylor warns against “needlessly limiting the religious freedom of immigrant minorities, on the strength of our historical institutional arrangements” as this risks “sending a message to those same minorities that they by no means enjoy equal status with the long-established mainstream”.13 However, if we accept that religion is culturally contextualised, then we must face up to its role in the present cultural dissonance between host countries and immigrant communities; needless to say, this can be particularly abrasive in relation to the often more misogynist values of religious immigrants from the Middle East, Afghanistan and North Africa. The current migrant crisis is occurring against a domestic background of increasing religious fundamentalism, which, although most readily associated with Islam, is also very apparent in the many and varied strains of evangelism recently metastasised from Christianity. This unhappy conjunction of religious fundamentalism and large-scale migration is shifting policy in the developed Western nations away from both pluralism and multiculturalism towards the more defensive management of social polarisation. The impact of so many disparate ethnic groups, mainly Muslims, on the social infrastructure and cultural cohesion of the receiving nations has already been 12 13

See Mendelsohn, “Waiting for the Barbarians”. See C. Taylor, “Why We Need a Radical Redefinition of Secularism”, in E. Mendieta and J. Vanantwerpen, eds., The Power of Religion in the Public Sphere, Columbia University Press, New York, 2011, p. 48.

State Neutrality: A Work in Progress

497

considerable. The challenge of accommodating their needs and responding sensitively to their religious and cultural affiliations is depleting resources and imposing real social and political pressures on the policies of promoting religious pluralism and diversity in those nations. As the reality and effects of climate change, exacerbated by war and socio-economic collapse, drive more Muslim migrants into the northern and still largely Christian hemisphere, it is likely that the political framework for civil society in the developed West, and with it the principle of state neutrality, will be severely stress tested.

conclusion Part II of this book would seem to represent nearly as many interpretations of the church–state relationship as it does jurisdictions. Despite all being uniformly subject to the same core international instruments, each has interpreted the state neutrality requirement differently. In the USA a “wall of separation between Church and State . . . kept high and impregnable” has been a sustained metaphor and a constant judicial reference point for the constitutional importance attached to the freedom of religion. It has served to crystallise the neutrality but not the indifference of the state towards religion. Indeed, paradoxically, it has functioned as something of a lodestar in ensuring that no obstacle is placed in the way of state resources being as available to religious organisations as for any other form of non-governmental organisation. Arguably, however, state neutrality as expressed in the establishment clause has been undercut by a pretty wide-ranging interpretation of the free exercise clause.14 Particularly under the Trump Administration, the state would seem to have pivoted away from neutrality and towards opening up formal supportive links with religion. This is most evident in the new offices and programmes being introduced specifically for that purpose, in the “religious liberty laws” and in appointments made to the USSC. Federal initiatives to make policy more responsive to the contemporary concerns of religious organisations – Christian more so than any other – are trickling down and being emulated in many states. Internationally, while the US model is widely regarded as the gold standard for church–state relationships and as the purest interpretation of the state neutrality in a democratic society, it has seldom been emulated. In Canada, state neutrality would seem to have shifted in the opposite direction. An increasingly more stringent interpretation of state neutrality is becoming steadily more apparent. Bill 21 and the Summer Jobs program, when considered alongside

14

See, for example, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 US 171 (2012), Burwell v. Hobby Lobby, 573 US 134 S Ct 2751 (2014) and Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 US ___ (2017).

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Towards a More Stable Civil Society

the SCC ruling in the latest of the Trinity Western cases,15 would seem to indicate that Canada is distancing itself from the “liberty laws” approach currently being developed in the USA and is pursuing its own path. However, although the church– state relationship is constitutionally underpinned, neutrality is compromised by the “denominational clauses” and the onus they place on the state to afford particular protection and privileges to specific religions. In Israel, the state neutrality principle simply does not apply: religion and the state have always been virtually synonymous and neutrality is at best illusory. Judaism is the raison d’être for the state: it permeates social institutions; is the driving force that shapes its domestic and foreign policies; and it sanctions a finite list of staterecognised religious communities. The state exists to protect and promote one particular religion above all others: institutions are clearly not insulated from permeation by religion; in fact, quite the reverse; much Orthodox Judaism law has been assimilated into state law; the state uses its armed forces to subjugate Arab Muslim protests and extend the settlements of its Jewish citizens; it has failed to protect itself from religious encroachment insofar as it has ceded jurisdiction for determining matters of personal status to religious courts; and, more broadly, state accommodation of religious law and courts is much greater in Israel than in other Part II jurisdictions. Moreover, the halakha teachings provide the basis for a religious override: they have the capacity (largely latent to-date) to negate state legislation to the extent that the latter are found to be non-halakha compliant. Israel’s theocratic tendency has become more pronounced with the introduction of the 2018 nation state legislation. In Europe generally, church–state relationship parameters are most often constitutionally set and subject to policing by the ECtHR together with the European Court of Justice (ECJ) and the Human Rights Committee (HRC). Their rulings have repeatedly stressed the importance of the state maintaining a stance of neutrality and impartiality towards religion, regardless of how a nation’s constitution or legislation has framed that relationship, though more recent judgments variously concede that cultural tradition may also be taken into account. In Germany, while state neutrality is a constitutional requirement, this is interpreted as permitting a working partnership between the federal state and religion, a partnership that in some Länder is practised with overt preference given to a particular religion and defended on the basis of respect for local cultural heritage. As in the USA and in England, the cultural dominance of the Christian legacy has been retained: all other religions being relatively less important to the state and less influential on its policies, with religious law and courts having a very peripheral role that could not be said to offer a parallel alternative to the state’s secular jurisdiction.

15

Law Society of BC v. Trinity Western University, 2018 SCC 32 and Trinity Western University (TWU) v. Law Society of Upper Canada, 2018 SCC 33.

State Neutrality: A Work in Progress

499

In England, the state neutrality principle is clearly compromised. This jurisdiction is bereft of any formal constitutional iteration of the church–state relationship but has the singular distinction of retaining its traditional “established church” (not uncommon in feudal Europe) in which religion, specifically the Church of England, is accorded significant privileges in a structured relationship with the state. The “established church” – with its accompanying trappings of status, privilege and authority – is in a mutually supportive relationship with the state. Paradoxically, although this church–state relationship continues the preferential standing of that religion relative to all others – granting it political leverage, funding advantages and partnership opportunities that are not as available to other religions – the evidence is that this jurisdiction is transitioning from being a mainly Christian nation to one that is becoming steadily more secularist. Of all the Part II jurisdictions, only France, adopting an official religious neutrality approach, has taken the steps necessary to ensure that state institutions are not influenced by religion. The neutrality requirement is applied with doctrinaire rigour, notwithstanding the population’s historic (and largely continuing) commitment to Catholicism. However, its approach has, in fact, resulted in institutions being burdened with negative policing responsibilities as regards public manifestations of religious belief. If the USA can be seen as at one end of a state neutrality spectrum, with its constitutionally protected separation of church and state, then Israel is at the other. England and Germany seem closer to the USA. France, with its doctrinaire secularism, is curiously somewhat apart. A formal legal stance, as embodied in national constitutions and legislation, is, however, belied by emerging trends and developments in practice. The case law indicates that each of these democratic societies is in the process of adjusting the state–religion relationship, and thereby reinterpreting the state neutrality principle in response to contemporary pressures, which in the main are global in origin but in the case of Israel are largely domestic.

Conclusion

Church–state relationships in all Part II jurisdictions are currently being conducted against a background of war in Muslim countries, visceral ISIS terrorism, the growing presence of Muslim and other religions/beliefs, incipient Christian fundamentalism, an ongoing and largely Muslim migrant crisis and an increasingly muscular secularism. Internationally, the power of the state is being deployed aggressively, on a global basis that is far from neutral, in relation to religion. The destructive consequences are evident everywhere: political upheaval and chaos throughout the Middle East – in Iran, Iraq, Syria and Saudi Arabia; tribal conflict and social regression across large swathes of Africa – in Egypt, Turkey, Morocco, Algeria, Libya, Mali, Tunisia and the Sudan; destabilisation of the Indian subcontinent – particularly in Pakistan, India and Bangladesh – and further afield into Afghanistan and Myanmar; and similarly also in China. Religious fundamentalism has prompted many leading Western democratic nations – USA, Canada, France, Israel, the UK and others – to coordinate resources and information systems, commit their armed forces to overseas combat and suffer subsequent retaliatory domestic terrorism. In Europe – Serbia, Kosovo and Northern Ireland – nations have also had to endure the devastation and social disruption caused by state–religion conflict. Since 1979, religiously driven violence, inflicted by or against the state, has directly caused an untold number of deaths, probably running into millions, has devastated the infrastructure of several countries, resulted in the greatest population displacement since World War II and has brought the world close to a “clash of civilizations”1 not experienced for millennia. In the international arena, at least in the aforementioned regions, there is no pretence that state neutrality is currently a guiding principle in the state– religion relationship.

1

See G. Rose, The Clash of Civilizations?, Council on Foreign Relations, US, 2013.

500

Conclusion

501

Domestically, in each of the Part II jurisdictions, although the principle retains its viability as a legal obligation and a policy aspiration – less so in Israel – its varying capacity to actually govern that relationship is weakening. This is due in part to the reduced authority of the state but also to the growing strength of secularism, relative to the traditional religions: the latter are shrinking in line with demographic trends and giving way at the margins to fundamentalist factions, new religions and to emerging forms of belief; this correlates with the opposing secularist trend, which, as it grows, presents a correspondingly stronger challenge to the continuance of traditional church–state relationships. In addition, the largely Muslim migrant crisis, combined with an enhanced Muslim presence (as more women publicly assert their Muslim identity), and complicated by the response of a renascent nationalism mixed with populism and an element of sectarianism, has wrong-footed the state and prompted reflexive intervention rather than neutrality. Most significant, perhaps, for the church–state relationship – as detailed throughout Part II – has been the penetration and spread of the equality imperative. This development may be leading towards an extension of the line previously drawn between church and state – or the sacred and the secular – in relation to family matters. Such an extended stringent secularisation, driven by equality law, into the remaining areas of what Mrs Eleanor Roosevelt referred to as “the world of the individual person . . . where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination”,2 which necessarily include healthcare, education, employment and service provision, may be logically unavoidable if the equality principle is applied in a doctrinaire fashion. Balancing the needs of the sacred and the secular is central to democracy. Adjusting that balance, to optimise the range and capacity of autonomous representative entities within it, is crucial to the health of civil society. A precondition for achieving this must be a reasonably clear grasp of what constitutes the “sacred” and distinguishes it from the “secular”. The survey of Part II jurisdictional case law clearly reveals serious obstacles to achieving this preliminary step. Next steps would also seem fraught. The impact of globalisation in its many forms – not least the wars with Muslim countries and consequent Muslim migration – is inducing Western states to reprise the value they attach to their cultural heritage and to consider the adjustments they are prepared to make to accommodate the forces of change. Given the momentum of the equality imperative applied relentlessly in all Part II jurisdictions – across Mrs Eleanor Roosevelt’s “world of the individual person” and as tracked in the related chapters – it will prove difficult to integrate any such adjustments. Hopefully, it will not come down to the stark either/ or choice presented by Gopnik – “the traditions of the people, or [in] deference to

2

See address by Mrs Eleanor Roosevelt, for the Church Peace Union, “In Your Hands: A Guide for Community Action on the 10th Anniversary of the UDHR” (New York, 1958).

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abstract principles and arbitrary and general doctrines”3 – but to some amalgamation of the two. Arguably, if state neutrality towards religion – and beliefs or matters of conscience – is to be realisable, it can only be so in a cultural context as framed and shaped by the distinctive traditional characteristics of each state: among other things, this requires the equality right to become less doctrinaire, more nuanced, circumspect and to be applied proportionately.

3

Gopnik, A Thousand Small Sanities, p. 9.

Index

A, B and C v. Ireland, (ECtHR), 128n About-Picard law 2001, (Fr), 317, 331 A.C. v. Manitoba Director of Child and Family Services, (Can), 236 Abortion Act 1967, (E&W), 288 abortion, right to, 128, 342, 433 Adi Kaplan v. Prime Minister and Broadcasting Authority, (Isr), 439 Adler v. Ontario, (Can), 205, 222, 229, 241 Affirmative action; general, 35, 64, 83, 100–101, 163, 456–457 Canada, in, 222–223 England & Wales, in, 257, 270–271 France, in, 326 Germany, in, 372–373 Israel, in, 419 US, in, 163, 167 Affordable Care Act 2010, (US), 149, 153, 176, 180, 183, 193, 200 African Charter on Human and Peoples’ Rights (AfCHPR), 1987, 83 Agostini v. Felton, (US), 143n, 189 Ahdar, R. and Leigh, I., 31, 40 Ahmet Arslan and Others v. Turkey, (ECtHR), 103 Akdas ̧ v. Turkey, (ECtHR), 109 Aktas v. France et al, (ECtHR), 346 Akhter v. Khan, (E&W), 267 Alberta v. Hutterian Brethren of Wilson County (Can), 204, 207n, 215, 221, 225 aliyah, (Isr), 445 Alternative for Germany (AfD), 360, 478 Alexandridis v. Greece, (ECtHR, 102 Al-Hijrah School case, (E&W), 294 Ali, A.H., 118n Ali, S.S., 67n Alicino, F., 333

American Convention on Human Rights (ACHR), 1978, 83, 155 American Indian Religious Freedom Act of 1978, (US), 158 Americans United For Separation of Church and State v. Prison Fellowship Ministries, (US) 164 Amir v. Great Rabbinical Court, (Isr), 416 Andrews v. Law Society of British Columbia, (Can), 215 Anonymous v. Orbach, (Isr), 441 Anonymous v. Shari’a Court of Appeals, (Isr), 431 anti-Semitic, 493 Anti-terrorism; general, 89, 295, 310, 476 Canada, in, 247 England & Wales, in, 304–305 France, in, 354–355 Germany, in, 395 Israel, in, 443 US, in, 199 Apelogun-Gabriels v. London Borough of Lambeth, (E&W), 299 Appel-Irrgang and Others v. Germany, (ECtHR), 130 apostasy, 11, 90, 117, 495 Arbitration Act 1996, (E&W), 266 Arendt, H., 41 Arrowsmith v. the United Kingdom, (ECtHR), 93n, 119n Assembly, right of; general, 78 Awad v. Ziriax, (US), 165 Azmi v. Kirkless Metropolitan Borough Council, (E&W), 273–274

503

504

Index

Baader-Meinhof gang, (Ger), 358 Baby Loup case, (Fr), 336, 339, 350–401 Bailey v. Associated Press, (US), 192 Balfour Declaration 1917, (Isr), 407 Barber v. Bryant, (US), 144n, 176n, 181n, 197 Barth, F., 22 Basic Law: Human Dignity and Liberty, 1992, (Isr), 407, 412, 423, 426, 441 Basic Law: Nation State of the Jewish People, 2018, (Isr), 407, 418, 445–446 Basic Law: Freedom of Occupation Law, 1994, (Isr), 437 Bayatyan v. Armenia, (ECtHR), 74n, 99n, 101n, 106n, 119 Bavli v. Great Rabbinical Court, (Isr), 416 bedouin, 411, 418, 421–422, 435 Begum v. Barley Lane Montessori Day Nursery, (E&W), 273 Belgian Linguistic, 78n Berenbaum, M., 404n, 427n, 434, 446 Bessarabia v. Moldova, (ECtHR), 101n Bikramjit Singh v. France, (UN HRC), 346 Bielefeldt, H., 96n bijuralism, 202 Bill 21, (Can), 205, 221, 225, 245, 450, 482, 497 Bill 62, (Can), 225 Bill C-14, (Can), 236 Bill C-16, (Can), 236, 245 Bill C-51, (Can), 231 Bill C-59, (Can), 247 Black and Morgan v. Wilkinson, (E&W), 302 blasphemy, 11, 90, 117–118, 174, 280, 335, 378, 424, 462 Blumberg v. Germany (dec.), (ECtHR), 384 Board of Education of Kiryas Joel Village School District v. Grumet, (US), 164–165 Bob Jones University v. United States (US), 185 Boisson v. Lund, (Can), 230, 246 bona fide occupational requirement (BFOR), 191–192, 234, 339, 381, 471 Boronovski v. Chief Rabbinate, (Isr), 429 Bougnaoui v. Micropole SA, (ECJ), 95, 105, 339, 350–401 Boycott Law, 2011, (Isr), 424 Boy Scouts v. Dale (US), 173 Bowen v. Kendrick (US), 189 Bowman v. Secular Society Ltd (E&W), 19 Briand-Ceretti Agreement 1926, (Fr). 310, 325 B. (R.) v. Children’s Aid Society of Met. Toronto, (Can), 230, 236 Brillinger v. Brockie (No. 3), (Can), 245 broadcasting services, 136–137, 198, 246, 303–304, 353–354, 394, 441–442, 475 Brown v. Pena, (US), 156–157, 162

Bruker v. Markovitz, (Can), 216 buddhism, 106–107 Bull v. Hall and Preddy, (E&W), 302 burkini ban, 328 Bureau Central des Cultes, (Fr), 485 Burqa; ban, the, 86, 103–104, 322, 326–327, 457 Burwell v. Hobby Lobby (US), 144, 173, 180, 183n, 193, 197–198 Buscarini and Others v. San Marino, (ECtHR), 101 C. v. A., (Can), 232 C.v. K., (ECtHR), 263 C. v. the United Kingdom, (ECtHR), 121n Caldwell v. St. Thomas Aquinas High School, (Can), 242 Calvès, G., 322n, 323, 331, 348 Campbell and Cosans v. United Kingdom, 129n, 261 Canada v. Taylor, (Can), 246 Canada Trust Co. v. Ontario Human Rights Commission, 233 Canadian Charter of Rights and Freedoms; general, 208, 212, 215, 222 section 2(a), of, 220, 230–232, 241, 245 section 2(b), of, 231 section 15, of, 212, 222, 232 section 25, of, 215 Canadian Human Rights Act 1985, 210, 215, 237, 242, 244 Canadian Human Rights Commission, 211, 225 Canadian Human Rights Tribunal, 211, 232 Canadian Multiculturalism Act, 1988, 209 canon law, 18, 50 CANZUS, 82, 456 Carter v. Canada, 236 Catholic Care case (E&W), 300 Catholic Charities (US), 166, 196, 474 Çelik, G, 58, 61n Central Alberta Dairy Pool v. Alberta (Human Rights Comm.), (Can), 243 Central Council of Muslims in Germany, 369 Cha’are Shalom ve Tsedek v. France, (ECtHR), 106 Chamberlain v. Surrey School District No. 36, (Can), 203, 218, 239 Chaplin v. Royal Devon & Exeter Hospital NHS Foundation Trust, (E&W), 272, 275–276 Charitable Choice, 149, 485 Charlie Hebdo, massacre of, 115, 303, 475 Charter of Fundamental Rights of the European Union; Article 2, 217 Article 10, 92 Article 21, 82 Preamble, to, 248

Index Cherfi v. G4S Security Services Ltd, (E&W), 272, 298 Christian fundamentalists, 36, 200 Christian heritage, 45, 96, 108–109, 129, 131, 158, 168, 171, 205, 226–227, 251, 276–277, 306, 325, 330, 370, 376, 397, 454, 457, 469, 490, 498 Christian Institute and Others v. Office of First Minister and Deputy First Minister, (E&W), 263n, 272, 276n Christian morality, 46, 68, 70–101 Christianity; crusades, of, 23, 31 general, 11, 13, 16, 18, 25, 129 Christian Legal Society v. Martinez (US), 185 Christians against Racism and Fascism v. the United Kingdom, (E&W), 280 Christine Goodwin v. United Kingdom, (ECtHR), 286 Chondol v. Liverpool CC, (E&W), 299 Church and State; general, 9, 10, 16, 20, 21, 451, 464, 467, 479, 489 Canada, in, 202, 207, 225–227, 497–498 England & Wales, in, 259–260, 263, 499 France, in, 312, 482, 499 Germany, in, 366, 376, 379, 397, 498–499 Israel, in, 411, 426–427, 498 US, in, 481–482, 497 fundamental human rights, and, 451–464, 488 future of, 485 partnership of, 490, 498, 499 separation of, 481–482 Church disputes, state intervention in; general, 111–113, 461–462 Canada, in, 228–229 England & Wales, in, 277–278 France, in, 331–332 Germany, in, 377 Israel, in, 422–423 US, in, 171–172 Church of Atheism of Central Canada v. Canada (National Revenue), (Can), 214 Church of England, 251, 264–266, 268, 275, 281, 285, 483, 485, 499 Church of Jesus Christ Latter-Day Saints v. the United Kingdom, (ECtHR), 110n Church of the Holy Trinity v. United States, (US), 143 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (US), 159, 168–169, 198n Ciarlariello v. Schacter, (Can), 237 Citizen; citizenship, 27, 67, 463, 491–493 Civil Code, (Fr), 316, 338, 340, 342 Civil Code, (Ger), 363, 380

505

Civil law, 11 Civil Rights Act 1964 (US); general, 147, 152–153 Title II, of, 195 Title VII, of, 152–153, 169, 190–204, 197, 471 Civil society; general, 43, 46, 57–67, 72, 97, 478–479 religion, and, 57–60, 67, 446, 486, 497, 501 Civil Union Law for Citizens with no Religious Affiliation, 2010, (Isr), 429 Cloutier v. Costco Wholesale Corp., (US), 156 Commission Nationale Consultative des Droits de L’homme (CNCDH), 319–320 compelling interest test (US), 152, 159, 179, 193, 456, 459 confraternities, 16, 17 Congrégation des témoins de Jéhovah de St-JérômeLafontaine v. Lafontaine (Village), (Can), 202n, 212, 222, 227 Conscience and Religious Freedom Division, (US), 176, 183, 191, 463, 485 conscience, matters of, 119–121, 175–176, 231–232, 280, 336, 379, 424–425, 463–464 Conscientious objection; general, 120, 281, 303, 336, 342–343, 379, 425, 434, 468, 490–501 motorbike helmets, Sikhs, and, 120 public sector employees, 237–238, 289, 301, 329–330, 336–337, 343, 353, 384–385, 426, 463, 467–468, 474, 490 same sex, and, 120, 300–303 Quakers, and, 120–121 Conscientious Objection (Medical Activities) Bill, 2017, (E&W), 289 Conseil de Prud’ Hommes, (Fr), 320 Conseil d’e ́tat (Fr); general, 319 Etude demand’ee par le D’efenseur des droits, (Fr), 319 Constitution; Canada, of, 208 France, of, 316 Germany, of, 368 Israel, of, 405 US, of, 150 1st Amendment, of, 28n, 55, 145–146, 150, 156–157, 168, 170–203, 176, 186, 190, 194, 197–198, 456, 471, 475 14th Amendment, of, 153, 173, 176, 183, 195 Constitution Act 1867 (Can), 208, 230, 234, 238, 461 Constitution Act 1982 (Can), 208, 212, 215 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 374

506

Index

Cooke v. Town of Colorado City, (US), 196 Cooper v. Eugene School District No. 4J, (US), 187n Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, (US), 191 Council Directive 2000/78/EC, 83 Council of Europe; general, 84, 128, 331 International Partnership on Religion and Development, 89 Cour de cassation, (Fr), 319 Cranmer, F., 77n Crime and Disorder Act 1998, (E&W), 257 Criminal Code (Fr), 316 Culture; ‘blind’, 285 context, 68, 295, 456, 488 identity, 24, 25, 44, 48–49, 64–65, 107, 138, 225, 275, 421, 449–450, 460, 469, 483, 486, 501 indigenous people, and, 48, 488 culture wars, 4, 25, 68–69, 70–72, 148, 158, 183, 199, 450, 455, 479, 488–489 Cumhuriyetçi Eg ̆itim ve Kültür Merkezi Vakfi v. Turkey, (ECtHR), 100 Curzon v. Director, Missouri Dept of Health, (US), 182 Cutter v. Wilkinson, (US), 170 D v. France, (ECtHR), 97 Dahlab v. Switzerland, (ECtHR), 90n, 103, 105, 129n, 134 Daly v. Ontario (Attorney General), (Can), 242 Death, medically assisted; general, 126, 466 Canada, in, 236 England & Wales, in, 287 France, in, 341–342 Germany, in, 383–384 Israel, in, 432–433 US, in, 182–183 Débre Law 1959, (Fr), 310 Declaration of Independence, (Isr), 1948, 405, 426, 446 Declaration of Independence (US), 12, 143, 153 Declaration of the Rights of Man and of the Citizen, 1789 (Fr); general, 315–316, 337, 491 Article 1, 308 Article 4, 316 Article 5, 316 Article 10, 309, 316

Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; general, 81, 124 Article 2, of, 81, 94 Article 4, of, 81 Article 6, of, 81 Article 41, of, 93 De ́fenseur des Droits (DDD), (Fr), 320 Democracy, 37, 486 Democratic society; general, 9, 10, 25, 30, 36–37, 62, 66, 70, 77–78, 88, 94, 97, 102, 104, 106, 109, 114–116, 130, 137, 272, 413, 426, 428–429, 434, 440, 442, 462, 465, 480, 486 thresholds of, 37, 465, 491, 494–495, 497, 499 democratic state, 36, 68, 106, 109, 426, 433, 442, 445–446, 455 Detainee Treatment Act 2005 (US), 199 Devlin, LJ, 70 D.H. v. Czech Republic, (ECtHR), 107, 119 Dhillen v. British Columbia Ministry of Transportation and Highways, (Can), 202 Diaferia v. Elliott (Can), 229 Didactic moralism, 489 Dimitras and Others v. Greece, (ECtHR), 102 Diplock, LJ, 288 Diversity; general, 38, 54–55, 78, 450 religious, 148, 252–253, 313, 356, 361, 403–404 Dodge v. Salvation Army, (US), 191 Dogru v. France, (ECtHR), 96n, 103, 333, 345 Dojan and Others v. Germany, (ECtHR), 130n, 386 Dore v. Barreau du Quebec (Can), 209 Downing v. West Haven Board of Education, (US), 194 Drew v. Walsall Healthcare NHS Trust, (E&W), 299 druids (UK), 261 Dudgeon v. The United Kingdom, (ECtHR), 125 Dying Patient Act, 2005, (Isr), 432 Eadie and Thomas v. Riverbend Bed and Breakfast and Others (No. 2), (Can), 245 E.B. v. France, (ECtHR), 340n Ebrahimian v. France, (ECtHR), 97n, 105–106, 329 Ecclesiastical courts, 18, 20 Edwards v. Aguillard, (US), 186 Education and Inspections Act, 2006, (E&W), 293 Egenberger case, (ECJ), 380, 389, 391 Eli Lilly v. Human Genome Sciences (HGS), (E&W), 286 El Khomni law, (Fr), 351 El Morsli v. France, (ECtHR), 329 Employment Appeal Tribunal (E&W), 259

Index Employment Tribunal (E&W), 259 Employment Division (Department of Human Resources of Oregon) v. Smith,(US), 151n, 152, 157, 159, 169, 172, 179, 198n, 454 Employment Equity Act 1996 (Can), 409 Employment Equality (Religion or Belief ) Regulations 2003, 255, 237, 296 Employment (Equal Opportunities) Law 1988, (Isr), 209, 437 Equal Employment Opportunity Commission (Isr), 409 Equal Employment Opportunity Commission (US), 154 Equal Employment Opportunity Commission (EEOC) v. Abercrombie & Fitch Stores Inc., (US), 169 equality, 31, 101, 501 Equality Act 2010 (E&W); general, 255–256, 261, 264, 283, 295 s.149, of, 256 s.158, 270 s.193, of, 182 Schd. 9, of, 281, 283 Schd. 23, of, 283 Equality Act (Sexual Orientation) Regulations, 2007, (E&W); Reg., 4, 302 Equality and Human Rights Commission (E&W), 258, 271, 303 Equality and non-discrimination; general, 464 US, and, 153 Equality, education and church/state relationship; general, 129, 468–471 Canada, in, 238–241 England & Wales, in, 290–295 France, in, 344–348 Germany, in, 385–388 Israel, in, 434–437 US, in, 185–190 Equality, employment and church/state relationship; general, 132–134, 471–473 religious organisations, and, 132, 428 Canada, in, 232, 234, 242–244 England & Wales, in, 282–284, 295–299 France, in, 338–339, 348–351 Germany, in, 389–392 Israel, in, 428, 437–438 US, in, 179–180, 190–195 Equality, family, life, death and the church–state relationship general, 465–467

507

Canada, in, 234–237 England & Wales, in, 284–287 France, in, 339–342 Germany, in, 381–384 Israel, in, 428–433 US, in, 181–203 Equality, healthcare and church/state relationship; general, 127, 467 Canada, in, 237–238 England & Wales, in, 288–290 France, in, 342–344 Germany, in, 384–385 Israel, in, 433–434 US, in, 183–185 Equality, national security and church/state relationship; general, 137, 475-Canada, in, 246–247 England & Wales, in, 288–290, 304–305 France, in, 354 Germany, in, 394–395 Israel, in, 442–443 US, in, 198–199 Equality, service provision and church/state relationship; general, 134–137, 473–475 by religious organisations, 135, 195–196, 283 Canada, in, 244–246 England & Wales, in, 283, 299–303 France, in, 351–354 Germany, in, 392–394 Israel, in, 433–434, 438–442 US, in, 195–198 Equality, state schools and church/state relationship; general, 129–130 Canada, in, 238–240 England & Wales, in, 290–302 France, in, 325, 344–347 Germany, in, 385–388 Israel, in 434–436 US, in, 195–198 Equal Pay Act, (US), 191 Erazo v. Dufferin-Peel Catholic District School Board, (Can), 240 Esau, A.J., 15, 68n, 201, 465 Esson v. London Transport Executive, (E&W), 298 established church, 12, 24, 26, 95–96, 114, 139, 158, 216, 251–252, 265, 285, 323, 368, 413, 461, 483, 499 Establishment Clause, the (US), 158, 163, 168, 171, 194–195, 497 Ethics and Religious Freedom (ERC), 240

508

Index

Ethnicity; general, 22 Germany, and, 23 EU Equal Treatment Directive 2000/78, 123 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950; general, 77, 254, 451 Article 1, of, 109 Article 2, of, 127, 337 Article 3, 116–117, 126, 138 Article 8, of, 77, 126, 128 Article 9 of, 77, 92–93, 96, 98, 102–103, 110, 112, 114, 117, 128, 134, 137, 260, 346 Article 10 of, 78, 117–118, 137, 393 Article 11 of, 78, 101, 112, 393 Article 12 of, 78, 125 Article 14 of, 78, 92, 94, 98, 116–117, 126 Article 34, of, 110 Article 2 of Protocol 1, 78, 108, 129–131, 261, 346, 386–387, 469 European Court of Human Rights (ECtHR); general, 26, 87, 258, 363–364, 451 margin of appreciation, and, 87–88, 90, 258 European Court of Justice (ECJ), 87, 258 European Framework Equality Directive 2000/78/ EC, 131, 133, 338 European Social Charter, 83, 132 Eweida and Others v. the United Kingdom, (ECtHR), 92n, 95, 99n, 102n, 105, 128, 134, 264n, 269, 272, 275, 281, 332n evangelism, 119, 175 Evans v. the United Kingdom, (ECtHR), 128n Everson v. Board of Education, (US), 143n, 144, 154, 164–165 Faith schools; general, 33–34, 52, 64, 75, 100, 131–132, 470–501 Canada, in, 241 England & Wales, in, 252, 291, 293–295, 307 France, in, 325, 344, 347–348 Germany, in, 388 Israel, in, 436 US, in, 188–190 Family; general, 50, 127, 489 law, 20 life, 127 marital, 18, 19, 124–127, 181–183, 235, 284, 340, 381–383, 429–430 parenting, 286, 340–401, 382, 431–432 spouses, 285, 340, 382 Farr, T.F., 144

Fellowship of Humanity v. County of Alameda, (US), 155 female genital mutilation (FGM), 267, 307 Fernández Martínez, (ECtHR), 133 First Nations, the, 216 Flack, T., 17 Folgerø & Others v. Norway, (ECtHR), 75, 78n, 101, 108, 129–130 Fox v. Fox Estate, (Can), 234 Foundations of Law Act 1980, (Isr), 414 Framework Convention on National Minorities, 84–85 Framework Equal Treatment Directive (2000/78/ EC), 83, 101, 257, 264, 283, 352, 379, 389, 391 Francesco Sessa v. Italy, (ECtHR), 135 Fränklin-Beentjes and CEFLU-Luz da Floresta v. the Netherlands, (ECtHR), 94, 106 Freedom of assembly and association; general, 109–114, 117, 460–502, 487 Canada, in, 227–230 England & Wales, in, 277–278 France, in, 330–332 Germany, in, 376–377 Israel, in, 422–423 US, in, 171 Freedom of expression; general, 114–121, 462–464 Canada, in, 230–232 England & Wales, in, 278–281 France, in, 332–337 Germany, in, 378–379 Israel, in, 423–426 US, in, 174–176 free speech, 115–119, 174, 198, 230, 424–425, 462 Freedom of religion and belief; general, 66, 92–109, 452–460 Canada, in, 212–227 England & Wales, in, 260–277 France, in, 321–330 Germany, in, 366 Israel, in, 411–422 US, in, 154–171 definitions, 92–93 equality laws, and, 121 Free exercise clause, the (US), 168, 190 Freemasons, 262 free speech, 115–119, 279–280, 333–336, 378–379, 473 French Council of the Muslim Faith, 313 Freud, S., 53 Friesen v. Fisher Bay Seafood, (Can), 243 Fundamentalism; general, 43–44, 67, 500 Islamic, 67, 285, 475, 494–495

Index Gallagher v. Church of Jesus Christ of Latter Day Saints, 61 Gareth Lee v. Ashers Baking Company Ltd., McArthur and McArthur, (E&W), 302–303 Geddicks, F.M., 144, 177, 179, 263 Gender Directive, 2004/113/EC, 83 Gender inequality; general, 121 Israel, in, 429–430 Gender Recognition Act 2004, (E&W), 285–286 General Alliance against Racism and for Respect for French and Christian Identity (AGRIF), (Fr), 334 General Equal Treatment Act 2006, (Ger); general, 379–380, 382, 389, 392 Article 9, of, 380 get, the, 97, 181, 217, 416, 431, 484 Ghai, R (on the application of ) v. Newcastle City Council & Ors, (E&W), 269, 274–275 Ghattas, K., 26n Gillette v. United States, (US), 158n, 175 Girbaud case, (Fr), 334–335 Glasgow City Council v. McNab, (E&W), 291 Gonzales v. O Centro Espirita, (US), 152, 157, 170, 179, 454 Good News Club v. Milford Central School, (US), 189 Gopnik, A., 480, 486–487, 501 Gorzelik and Others v. Poland, 78n, 110n Grace v. Places for Children, (E&W), 299 Grace United Methodist Church v. City of Cheyenne, (US), 160 Grainger v. Nicholson plc, (E&W), 262, 263n Grand Rabbinical Court, (Isr), 431 Greater Glasgow Health Board v. Doogan and Anor, (E&W), 289 Grzelac v. Poland, (ECtHR), 130n Griggs v. Duke Power (US), 190 Grundgesetz, (Ger); general, 357–358, 362–363, 366 Article 3, 367, 379, 382 Article 4, 362, 366, 368, 372–373, 375, 379 Article 5, 378 Article 6, 381, 387 Article 7, 358, 372, 385–388, 397 Article 9, 393 Article 24, 393 Article 32, 393 Article 33, 367–368, 379, 393 Article 56, 373 Article, 140, 367–368, 370, 372, 377 guilds, 17

509

Haas v. Switzerland, (ECtHR), 126, 287 Habermas, J., 16, 39, 144–145, 147–148, 150–201, 458 hadata, (Isr), 435 Haim Cohn, Justice, 405 halakha, (Isr), 399, 414, 427–429, 432–433, 439, 441, 462, 483, 498 Halima Bria v. Qadi of the Shari’a Moslem Court et al., (Isr), 431 Hall v. Durham Catholic School Board, (Can), 244 Hall v. Tift County Hospital, (US), 195 Halpern v. Canada (Attorney General), (Can), 235 Handyside v. The United Kingdom, (ECtHR), 115, 303 Harrington, M., 215n, 228, 229n, 241n Hart, H, 71 Hasan and Chaush v. Bulgaria, (ECtHR), 26n, 99, 110n, 111, 264n Hasan and Eylem Zengin v. Turkey, (ECtHR), 108, 130n Haute Autorité de Lutte contre les Discriminations et pour l’Egalité (HALDE), 315, 485 Haye v. London Borough of Lewisham, (E&W), 299 Hearn and United States v. Muskogee Public School District, (US), 168 Heffron v International Society for Krishna Consciousness, (US), 175 Hein v. Freedom From Religion Foundation (US), 165 Heintz v. Christian Horizons (Can), 243 Hender & Sheridan v. Prospects for People with Learning Disabilities, (E&W), 295 Hennette-Vauchez, S., 311 Highwood Congregation v. Wall, (Can), 229 Hobbes, T., 14n Hobhouse, L.T., 27n Hobson, S.G., 54n homeschooling, 290 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (US), 144, 179, 191 hudud (Isr), 484 Human Fertilisation and Embryology Act, 1990, (E&W), 286 Human Rights Act 1998 (UK); general, 256, 280, 287 s.9, 256, 260 s.13, 256 schd. 1, 285 Human Rights and social cohesion, 62, 488 Human Rights Commission, 89 Human Rights Watch, 89, 211, 320, 355, 365, 410, 424 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, (US), 173

510

Index

Iacobucci, J., 213 Ibragim Ibragimov and Others v. Russia, 99, 114 identity, 47 identity politics, 46–50 Identoba and Others v. Georgia, (ECtHR), 110n, 116n, 117 Ignatieff, M., 63n, 121n Indian Act 1876 (Can), 241 Indigenous communities; general, 25, 48, 453, 456 Canada, in, 51, 53, 215, 220, 241 England & Wales, in, 53 Israel, in, 52, 417–418, 421–422 US, in, 53, 157–158, 163 International Centre for Human Rights and Democratic Development Act, 1985 (Can), 210 International Covenant on Civil and Political Rights 1966 (ICCPR); general, 79, 207, 240, 255, 451 Article 2, of, 94 Article 18, of, 79, 88, 92–93, 104, 118–119, 129, 260, 350 Article 19, of, 78–79, 114, 118, 230 Article 20, 79–80, 94, 114 Article 22, 80, 109 Articles 26 and 27, 80, 94, 208, 350 Article, 28, 88 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR); general, 80, 207, 255 Article 8, of, 109 Article 13, of, 80 International Convention on the Elimination of Race Discrimination (ICERD), 1969, 82, 89, 207, 255 International Convention on the Rights of Persons with Disabilities, 2006, 83 International Draft Convention on the Elimination of All Forms of Religious Intolerance, 95 International Labour Organisation Discrimination (Employment and Occupation) Convention 1958, 82 Ishaq v. Canada (Citizenship and Immigration), Can), 206, 224 ‘islands of exclusivity’, 15, 68, 201, 465 ISIS; general, 1, 16, 31, 43–44, 53, 137, 303, 354, 359, 443, 478, 480, 488, 495 Islam; caliphate, of, 23 democracy, and, 36–37 general, 13, 14, 285

Islamic Sharia Council, (E&W), 267 Islamic terrorism, 21, 26, 46, 53, 66–67, 139, 198, 200, 250, 304, 354, 443, 451, 486, 494 Islamophobia, 43, 159, 493 Israel, 24 Ivanova v. Bulgaria, (ECtHR), 135 IVF, 127, 286, 290, 342 Izramax v. State of Israel, (Isr), 419 Izzettin Dogan and Others v. Turkey, (ECtHR), 93n, 94n, 99n Jakobski v. Poland, (ECtHR), 106 James v. MSC Cruises Limited, (E&W), 298 Jehovah’s Witnesses Association and Ors v. Turkey, (ECtHR), 113 Jehovah’s Witnesses v. Austria, (ECtHR), 75 Jehovah’s Witnesses of Moscow v. Russia, (ECtHR), 112 ‘Jew’, definition of, (Isr), 423 Johns and Anor, R (on the application of ) v. Derby City Council and Anor, (E&W), 277 Johnston and Others v. Ireland, (ECtHR), 125 Jones v. Wolf, (US), 172 Joseph Burstyn, Inc. v. Wilson, (US), 175 Judaism, 13, 450, 455, 483, 492, 498 Judt, T., 58, 67n, 478n Jumah Mosque Congregation and Ors v. Azerbaijan,(ECtHR), 111 JQ v. IR, (ECJ), 133, 391 Karakuzey v. Germany, (ECtHR), 97 kashrut, (Isr), 438–439 Kennedy, Justice, 197–198 Kervanci v. France, (ECtHR), 103, 333, 345–346 Khan v. the United Kingdom, (ECtHR), 97, 124n kirchensteuer, Ger), 361, 372 Kjeldsen, Busk Madsen and Pedersen v. Denmark, (ECtHR), 130 Knight v. State of Connecticut, Department of Public Health, (US), 194 Knudsen v. Norway, (ECtHR), 93n, 128n Koch v. Germany, (ECtHR), 126n, 383n Kokkinakis v. Greece (ECtHR), 26n, 92n, 118n, 119 Konrad and Others v. Germany, (ECtHR), 385 kosher, 106 Kosteski v. the former Yugoslav Republic of Macedonia, (ECtHR), 99n, 133 Kottinenen v. Finland, (ECtHR), 133 Ktunaxa Nation v. British Columbia, (Can), 212, 218, 220, 229 Kurland, P.B., 145 Kurtulmus v. Turkey, (ECtHR), 105 Kuteh v. Dartford and Gravesham NHS Trust, (E&W), 299

Index Labassee v. France, (ECtHR), 341, 382 Ladele v. London Borough of Islington, (E&W), 301 l’affaire du foulard, (Fr), 312, 332–333 Laïcité, (Fr), 3, 89, 201, 204–205, 311–312, 322, 333, 353, 455, 462 Lakeside Colony of Hutterian Brethren v. Hofer, (Can), 228 Lambert and Others v. France, (ECtHR), 126n, 337 Landau, Justice, 411, 412 Lapunov v. Russia, (ECtHR), 126 Larissis and Others v. Greece, (ECtHR), 134 Laycock, D., 144–145, 148, 166, 198n Law; religion, and, 62 role of, 62–64 Law of Associations 1901 (Fr), 310, 324, 331 Law of Return 1950, (Isr), 404, 406, 417, 419, 422, 445, 492 Laws LJ, 251, 265–266, 268, 270 Law Society of British Columbia v. Trinity Western University, (Can), 202n, 230 Laurence v. McQuarrie, (Can), 233 Lautsi v. Italy, (ECtHR), 75n, 93n, 101n, 108, 119, 131, 387 Lazarovitz v. Food Controller, (Isr), 440 League for Prevention of Religious Coercion v. Jerusalem City Council, (Isr), 439–440 Le Bureau Central des Cultes, (Fr), 314 ‘lemon test’, the (US), 165, 167, 189 Lemon v. Kurtzman, (US), 143n, 165 Leyla Sahin v. Turkey, (ECtHR), 98n, 101n, 103, 129n LGBT, 47, 49, 69, 78, 86, 116–117, 126, 158, 173, 176, 184, 197, 200, 239, 246, 280, 345, 382, 432, 463, 468, 491 Lifshitz-Aviram v. Law Society, (Isr), 429 Lithgow v. United Kingdom, (ECtHR), 88n, 92n, 258n, 319n, 364n Loi du 9 Decembre 1905, (Fr), 308, 310, 312, 314, 325–326, 330–332, 336, 339, 349, 482 Loi no 2004-228 du 15 mars 2004, (Fr), 317, 322 Loi n_2010-1192 du 11 octobre 2010, (Fr), 317 Loi n_2013-404 du 17 mai 2013, (Fr), 317, 340 Lois Jules Ferry, (Fr), 323, 344 Lombardi Vallauri v. Italy, (ECtHR), 133 Loyola High School v. Quebec (Attorney General), (Can), 209, 218, 238, 240–241, 245 Ludin v. Land Baden-Württemberg, (Ger), 374, 378–379, 388 Magyar Keresztény Mennonita Egyház and Others v. Hungary, (ECtHR), 112 Magna Carta 1215, 255

511

Malnak v. Yogi (US), 156 Mandla (Sewa Singh) and another v. Dowell Lee and Others, (E&W), 291 Mann Singh v. France, (ECtHR), 329, 347 Manoussakis v. Greece (ECtHR), 26n Mansur Yalçın and Ors v. Turkey, (ECtHR), 109 Marriage (Same Sex Couples) Act 2013 (E&W), 268, 285 Marsh v. Chambers, (US), 168 Masterpiece Cakeshop v. Colorado Civil Rights Commission, (US), 144n, 197 Matter of an Application for Judicial Review by the NI Human Rights Commission, (E&W), 288 Maurice v. Canada (AG), (Can), 214 McClintock v. Department of Constitutional Affairs, (E&W), 262, 301 McConnell, M., 39 McFarlane v. Relate Avon Ltd (E&W), 251, 263n, 265, 268, 301 McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, (Can), 243 McNab v. Glasgow City Council, (E&W), 296 McLachlin, CJ, 213, 228 Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, (ECtHR), 107n, 116n Metropolitan Church of Bessarabia and Others v. Moldova, (ECtHR), 90n, 100n, 110n, 112 Mendelsohn, D., 49n, 496n Menneson v. France, (ECtHR), 127, 341, 382 M. v. H., (Can), 235 Migrants, cultural identity, and, 48–49, 199, 305–306, 445, 477–478 Muslims, and, 42, 496–497 Migrant crisis, state response to; general, 1, 41–42, 46, 49, 53–54, 137–138, 198–200, 476–479, 488, 494, 501 Canada, 247, 494 England & Wales, 305 France, 354–355 Germany, 359–360, 395–396, 482, 494 Israel, 444–445 US, 199–200, 494 Militia Ballot Act 1757, (E&W), 280 Mill, John Stuart, 27 ministerial exception, 178–179, 471 Minister of State for Faith and Communities, (E&W), 485 Ministry of Religious Affairs, (Isr), 418 Mitchell v. Helms (US), 143n, 167, 189

512

Index

Mockute_ v. Lithuania, (ECtHR), 135 molad, (Isr), 435 Moon, R., 205n, 206n, 210n, 229n, 232n Moore v. British Columbia (Ministry of Social Services), (Can), 232, 237 moral imperatives, 18, 20, 68–69, 72, 489 Morgentaler v. R (Can), 214, 237 Morgan, LCJ, 303 Moscow Branch of the Salvation Army v. Russia, 92n, 110n Mounted Police Association of Ontario v. Canada (AG), (Can), 227 Mouvement laïque québécois v. Saguenay (City), (Can), 202n, 204, 212, 214, 216, 223, 226, 229, 245 Mr H Monaghan v. Leicester Young Men’s Christian Association, (E&W), 299 Muhammed v. The Leprosy Mission International, (E&W), 283, 296 Multani v. Commission scolaire MargueriteBourgeoys, (Can), 202, 224, 226, 454 Multiculturalism; Christianity, and, 52 general, 48, 50–54, 72, 450, 478 Canada, in, 51, 205, 238–239 England & Wales, in, 53, 57, 252–253, 306–307 France, in, 313 Germany, in, 359–361 Israel, in, 52, 400–403 US, in, 147 in practice, 52–54, 138 multi-ethnic, 24 Murphy v. Ireland, (ECtHR), 137 Muslims; clothing, 49, 106, 272–274, 472 general, 15, 111–112, 137, 165, 199, 266, 285, 305–306, 311, 322, 373, 394, 396, 450, 486, 496 Sunni, 131 NAACP v. Alabama ex rel. Patterson (US), 171 Nachmani v. Nachmani, (Isr), 433 National Labour Court, (Isr), 410 National Union of Teachers v. Governing Body of St Mary’s Church of England (Aided) Junior School, (E&W), 270 Nation state, general, 4, 22, 23, 43–44, 138, 200, 247, 306, 355, 396–397, 450 Israel, and, 445, 455, 478, 492, 498 Nazi, 3, 358, 360, 382–384, 397, 493 Neuhaus, R., 40 Newman v. Piggie Park Enterprises, (US), 158, 197n Ng v. Jacobs Engineering Group, (US), 175

Nicklinson and Anor R (on the application of ) (Rev 1), (E&W), 287 Noah v. Sarah Desrosiers (trading as Wedge), (E&W), 273 Nof v. Ministry of Defense, (Isr), 425 NSS v. Bideford Town Council, (E&W), 271 Obergefell v. Hodges (US), 181, 195 Obst v. Germany , 74, 98, 133, 377, 390 Oliari and Ors v. Italy, (ECtHR), 125 Olson v. Sweden (No 1) (ECtHR), 87n, 88n O’Malley v. Simpson Sears, (Can), 243 Organisation of Islamic Co-operation, 86 Osmanog ̆lu et Kocabas ̧ v. Switzerland, (IECtHR), 97–98 Otto-Preminger-Institute v. Austria, (ECtHR), 103, 117n, 386 P. and S. v. Poland, (ECtHR), 128n Patrick v. IH Sterile Services Ltd, (E&W), 298 Paris Principles, 89, 90 Palestine Mandate 1922, (Isr), 406 parliamentary democracy, 12 Patriot Act 2001 (US), 199 Peloza v. Capistrano Unified School District, (US), 186 Pew Research Centre, 11, 118n, 122n, 147, 159, 399, 403, 420n, 450 Pichon and Sajous v. France, (ECtHR), 128n, 136, 343, 353 Pierce v. Society of Sisters, (US), 186 Planned Parenthood v. Casey (US), 183 Playfoot (a minor), R (on the application of ) v. Millais School, (E&W), 272 Pleven Law 1972, (Fr), 332 Plonit v. Ploni, (Isr), 431 Pluralism; general, 25, 29, 36, 54–57, 72, 78, 101, 109, 130, 450–501 Canada, in, 248 England & Wales, in, 54–55 Germany, in, 397 Israel, in, 402 US, in, 147 in practice, 55–56, 131 religion, and, 493–494 populism, 478, 483, 488, 494–495 Poraz v. Lahat, Mayor of Tel Aviv et al., (Isr), 414 Pretty v. the United Kingdom, (ECtHR), 103 Prevention of Infiltration Law 2014, (Isr), 444 Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000, (Isr), 438

Index pro-life/pro-choice, 184, 467 procreation, right of, 125, 127 proportionality, 74, 98, 109, 113, 349–350, 393, 472, 502 proselytism, 33, 61, 118–119, 134, 174–175, 193–195, 231, 243–244, 280, 298–299, 335–336, 351, 378–379, 392, 424–425, 438, 462, 470, 473 Protecting Religion from the State; general, 455–456 Canada, in, 217–220, 226, 228 England & Wales, in, 268–269 France, in, 324 Germany, in, 370–373 Israel, in, 417–420 US, in, 159–163 Protecting the State from Religion; general, 454–455 Canada, in, 215 England & Wales, in, 264 France, in, 322–323 Germany, in, 368 Israel, in, 413–417 US, in, 158 Protection of Holy Sites Law, 1967, (Isr), 421 Public benefit; principle of, 32 services, 21 Public policy; Church and state, and, 33, 39–40 civil liberties, and, 38 private piety, and, 40 Public Order Act 1986, (E&W), 257 Public Sector Equality Duty, (E&W), 256, 258–259, 270 Public services; delivery of, 20 Pupils’ Rights Law, 2000, (Isr), 435 Pussy Church of Modern Witchcraft, (US), 156, 489 Putnam, R.D., 61n Quental v. State of Connecticut Commission on the Deaf and Hearing Impaired, (US), 194 Qur’an, 15, 67, 105, 289, 294 Qureshi v. G4S Security Services, (Can), 242 R. v. Big M Drug Mart Ltd (Can), 203, 206, 212–213, 218, 221, 223, 226 R. v. Edwards Books and Art Ltd., (Can), 213n R. v. Jones, (Can), 204, 221 R. v. Laws, (Can), 208n R. v. N.S., (Can), 224 R. v. Oakes, (Can), 209

513

R. v. Senior, (E&W), 287 R. v. Videoflicks Ltd, (Can), 213n Rabat Plan of Action, 115, 118 Rabinical courts, (Isr), 409, 416, 431 Race Equality Directive 2000/43/EC, 83, 101 Racial and Religious Hatred Act 2006, (E&W), 257, 279 Raihon Hudoyberganova v. Uzbekistan, (ECtHR), 104 Ramsden Estate, (Can), 233 Rawls, J., 27n Ravitch, F., 145n, 159, 198 Reaney v. Hereford (E&W), 296 Re Canada Trust Co v. Ontario (Human Rights Commission), (Can), 215 Re Carroll, (E&W), 277 Recast Gender Directive, 2006/54/EC, 83 Redmond-Bate v. DPP, (E&W), 280 Refah Partisi v. Turkey, (ECtHR), 74n, 88n, 90n, 97n, 99, 258n, 318n, 364n Reference Re Same Sex Marriage (Can), 234, 235 Refusal to bear arms; general, 463 Canada, in, 231 England & Wales, in, 280 France, in, 336 Germany, in, 379 Israel, in, 425 US, in, 175 Regulatory exemptions; general, 123–124 Canada, in, 234 England & Wales, in, 284 France, in, 339 Germany, in, 381 Israel, in, 428 US, in, 180 Religion; general, 12, 13, 32, 34–35, 453 Canada, in, 213–214, 219–220 England & Wales, in, 260, 268 France, in, 322 Germany, in, 366 Israel, in, 412 US, in, 155 adherents, of, 32, 49, 66, 68, 226, 323 belief, and, 37, 261–263, 322, 367, 412, 456 ‘blind’, 29 cultural identity, and, 49 definition of, 66, 155, 261, 452, 489 democracy, and, 36, 489 legitimacy, of, 98–99, 219, 268–269, 324, 332, 370, 417, 456, 490

514

Index

Religion, manifesting of; general, 49, 102–103, 131, 479, 486 Canada, in, 223 England & Wales, in, 271 France, in, 326–330, 346 Germany, in, 373–376 Israel, in, 420–422 US, in, 168–171 proxies for, 29, 66, 71 public services, and, 58–59, 328 social capital, and, 59–60 state protection for, 457 subjective perception of, 66 Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, (ECtHR), 99 Religion specific clothing; general, 103–105 Canada, in, 224–225 England & Wales, in, 272–274 France, in, 312, 326–330, 457 Germany, in, 373–375 Israel, in, 420 US, in, 168–169 religious communities, 110, 112–113 Religious discrimination; general, 43, 65–66, 72, 94–95, 453–454 Canada, in, 215 England & Wales, in, 263, 283, 300–301 France, in, 322, 328, 330, 348–349, 350 Germany, in, 367 Israel, in, 412, 435 US, in, 158 multiculturalism, and, 52 Religious education of children; general, 129–131 Canada, in, 238–240 England & Wales, in, 290, 292 France, in, 344–345 Germany, in, 385–388 Israel, in, 434–436 US, in, 185–186 religious employers, 38 religious freedom, 28, 65 Religious Freedom Restoration Act 1993 (US), 152, 157, 159, 169–170, 179–180, 193, 198, 454 Religious Land Use and Institutionalised Persons Act 2000 (US), 151, 171 Religious Liberty Accommodations Act, (US), 176, 184, 200 religious liberty laws, 183, 463, 474, 491, 497 religious organisations, 13, 38, 63–64, 110–114, 122–123, 190, 391 service provision by, 244, 457

Religious organisations and the state; general, 457, 471–473 Canada, in, 227–230 England & Wales, in, 277–278 France, in, 330–402, 349–350 Germany, in, 370–401, 377, 390–391 Israel, in, 422–423, 437 US, in, 171–173 Religious organisations exemption; general, 122–124, 457, 465, 479 Canada, in, 232–234, 242 England & Wales, in, 295–297 France, in, 337, 352 Germany, in, 379–381 Israel, in, 427–428 US, in, 177–181 Religious symbols/prayers; general, 101–102, 131, 470 Canada, in, 223, 240–241 England & Wales, in, 271, 293 France, in, 322, 326, 345–346 Germany, in, 373, 387–388 Israel, in, 419–420, 436, 459 US, in, 187 state support for, 458–460 reproductive rights, 69, 467 Re Pinion (deceased), (E&W), 268, 277 Ressler v. Minister of Defence, (Isr), 425 Reynolds v. United States, (US), 159, 165, 168 R (Countryside Alliance) v. Attorney-General, 25 R (Fox & Ors) v. Secretary of State for Education, (E&W), 276, 292 R v. Governing Body of JFS case (E&W), 291 Richmond Pharmaceuticals v. Dhaliwal, (E&W), 279 R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages, (E&W), 260, 263n, 274 R (on the application of Johns) v. Derby City Council, (E&W), 302 Robbers, G., 361, 389n Roberts v. United States Jaycees, (US), 173 Roe v. Wade, (US), 183 Rommelfanger v. Germany, (ECtHR), 133n, 390 Roosevelt, Mrs Eleanor, 63, 73, 121, 501 Ross v. Canada, (Can), 230 Rubenstein, Justice, 441–442 Rufeisen v. Minister of the Interior, (Isr), 422 Russow v. BC (AG), (Can), 240 R (On the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School, (E&W), 269 R (Pretty) v. Director of Public Prosecutions, (E&W), 287

Index (R) The British Humanist Association v. LB of Richmond upon Thames, (E&W), 292 R (Wachmann) v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, (E&W), 278 R (Watkins-Singh) v. Aberdale Girls’ High School, (E&W), 274 R (Williamson) v. Secretary of State for Education and Employment, (E&W), 261, 269 Saadi v. Audmax, (Can), 224 sacred and the secular, 10–15, 481, 489, 501 Salazar v. Buono, (US), 162, 171 Salgueiro da Silva Mouta v. Portugal, (ECtHR), 95 Same sex issues, 125, 234, 300–303, 381, 432, 474 Samira Achbita and Anor v. G4S Secure Solutions NV, (ECJ), 95, 105, 132 Santeria, 160, 169 S.A.S. v. France, (ECtHR), 326n, 327–328, 331, 335, 347 Saskatchewan (Human Rights Commission) v. Whatcott, 231 Savez crkava “Rijecˇ života” and Others v. Croatia, (ECtHR), 100, 113, 129n Schalk and Kopf v. Austria, (ECtHR), 125 Schmidt v. Germany (ECtHR), 74n School prayer cases, (US), 187 Schools Standards and Framework Act, 1998, (E&W), 290 Schnabel, P., 58, 59 Schroen v. Steinbach Bible College, (Can), 242 Schüth v. Germany, (ECtHR), 133, 377, 390 Scrutton, R., 39 S.D. v. M.J.R. (US), 159, 163 sectarianism, 43 Secularism; general, 14, 15, 39–40, 55, 58–60, 449, 480, 501 democracy, and, 40 secular state, 96–97, 158, 216, 265, 323, 368, 413–415 secular organisations, 133–134, 191, 243, 297–298, 350, 391–392, 438, 472 Serif v. Greece, (ECtHR), 97n, 107n, 111, 125n Service provision by religious organisations general, 461, 473 Canada, in, 244–245 England & Wales, in, 300–301 France, in, 352–353 Germany, in, 392–393 Israel, in, 438–439 US, in, 195–196 Sexuality, 19, 20, 69 Sharia law, 15, 50, 97–98, 124, 159, 217, 266–268, 324, 369, 416–417, 431, 455, 484 Shakdiel v. Minister for Religious Affairs et al., (Isr), 414

515

S. H. and Others v. Austria, (ECtHR), 127 Sherbert v. Verner, (US), 159, 179, 192 Shergill v. Khaira, (E&W), 278 Sidis v. President and Members of the Great Rabbinical Court, (Isr), 416, 430n Siebenhaar v. Germany, (ECtHR), 391 Sijakova v. The Former Yugoslav Republic of Macedonia, (ECtHR), 125 Sindicatul “Pastorul cel Bun” v. Romania, (ECtHR), 113 Skugar and Others v. Russia, 99n S.L., et al. v. Commission scolaire des Chênes, et al (Can), 203, 220n, 228, 239 Smith and Chymyshyn v. Knights of Columbus and Others, (Can), 244 Smith and Grady v. United Kingdom, (ECtHR), 125n Smith v. Trafford Housing Trust, (E&W), 279 Social capital; general, 59, 72 bonding form of, 60–61 bridging form of, 60–61, 72 social cohesion, 59, 62, 78, 295, 488, 491 socially disadvantaged, 21, 167 SOGI, 46, 49, 126, 181, 236, 290, 341, 382, 385–386, 432, 463, 466–469, 474 Spence v. BMO Trust Company, (Can), 234 Spencer v. World Vision, Inc. (US), 143, 166, 197 Spouses (Property Relations) Law, 1973, (Isr), 430 Stasi Commission (Fr), general, 312, 333, 349 report, of, 314, 344 State, the; general, 486, 493 religion, and, 486, 494 State agencies for religious matters; general, 484 Canada, in, 207 England & Wales, in, 254 France, in, 314 Germany, in, 361–362 Israel, in, 404, 418 US, in, 148–151, 176 State protection for traditional cultural identity general, 107–109 Canada, in, 226–227 England & Wales, in, 276–277 France, in, 330 Germany, in, 376 Israel, in, 421–422 US, in, 163 state response to terrorism, 199 state sovereignty, 12 state support, 34

516

Index

State neutrality, general, 24, 107, 112, 121, 198, 200, 203–204, 212, 218, 299, 303, 310, 314, 333, 339, 351, 358–359, 369, 373, 376–377, 385, 393, 399, 418, 439, 478, 486 multiculturalism, and, 52, 313–314 principle of, 5, 9, 26–29, 63, 90, 96, 101, 221, 222n, 223, 227–229, 241, 249, 251, 268, 276, 278, 285, 290–302, 366, 388, 429, 440–501, 453, 481–483, 499–500 terrorism, and, 41–42, 444, 496 State treatment of religions; general, 452–454, 456–458, 461 Canada, in, 221–223, 482 England & Wales, in, 269–271, 278, 483 France, in, 324–326, 330, 332, 482, 484–485 Germany, in, 370–403, 482 Israel, in, 418, 421–423, 429, 457, 483, 485 US, in, 163 Status Quo Agreement 1948, (Isr), 398, 400, 404, 407, 413, 426, 432, 439, 483 Stedman v. United Kingdom, (ECtHR), 133n, 298 sterilisation policy, Israel and, 433 strict scrutiny test, 162 Sunday Times v. the United Kingdom (no. 1), (ECtHR), 303 Supreme Court of Canada (SCC), 211 Supreme Court of Germany, 364 Supreme Court of Israel, 409, 413, 424, 430–501, 440–501, 443 Supreme Court of US (USSC), 154 surrogacy, 289, 341, 384, 431 Syndicat Northcrest v. Anselem (Can), 213, 219–220, 225, 228 Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, (ECJ), 382 Taylor, C., 39n, 496 Tax; exemption and religion, 122, 177, 233, 321, 338, 377, 380, 427 exemption and the state, 35, 418, 461 preferencing, 35, 122, 281–282, 427 public benefit, and, 122 Taylor, C., 206n, 50n Tenafly Eruv Association v. Borough of Tenafly, (US), 170 Testamentary privileges; general, 122–123 Canada, in, 233 England & Wales, in, 282 France, in, 338 Germany, in, 380 Israel, in, 427–428 US, in, 177 religious discrimination, and, 123

theocracy, 11, 12, 23 Thilo Sarrazin debate 2010, (Ger), 394 Thlimmenos v. Greece (ECtHR), 95 Thomas v. Chicago Park District, (US), 198 Thompson v. Luke Delaney George Stobbart Ltd, (E&W), 298 Torcaso v. Watkins (US), 155, 167 Toulson LJ, 260 Tranopolsky J, 233 Trans World Airlines, Inc. v. Hardison, (US), 153 Treaty of Westphalia, 22 Trigg, R., 37, 144n, 452 Trinity Lutheran Church of Columbia Inc., v. Corner, (US), 144n, 162 Trinity Western University v. British Columbia College of Teachers, 211, 231 Trinity Western University v. The Law Society of Upper Canada, 204n, 219 Trinity Western University v. The Law Society of British Columbia, (Can), 209n, 219 Trinity Western University v. Nova Scotia Barristers’ Society, (Can), 216, 232 Trump Administration, 176, 497 Tsilhqot’in Nation v. British Columbia, (Can), 220 Turner, B., 491 Tzaban v. Minister of Religious Affairs, (Isr), 415n U.S. Commission on International Religious Freedom, 320 U.S. v. Friday, (US), 170 U.S. v. Winddancer, (US), 160 US Annual Country Report on International Human Rights; Canada, 211 France, 485 Germany, 365 Israel, 411, 420–422, 435 United Grand Lodge of England v. Commissioners of HM Revenue and Customs, (E&W), 262 United Nations; general, 85 Committee on the Elimination of Racial Discrimination, 89 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 82, 128, 207 Committee on the Rights of the Child, 259 Convention on the Rights of the Child, 48, 81–82, 90 Declaration on the Rights of Indigenous Peoples 2007, 82, 150, 207, 221 Declaration on Race and Racial Prejudice, 1978, 85 Declaration on Religious Intolerance, 123 General Assembly of, 86, 89 Global Counter-Terrorism Strategy, 476

Index High Commissioner for Refugees, 92 Human Rights Committee, 88–89, 94, 101, 118, 129, 208, 230, 238, 258, 321–322, 328, 346–347, 350, 365, 367 Human Rights Council, of, 50, 86, 90, 115, 151, 444 Universal Periodic Review Canada, on, 208, 210–212 England & Wales, on, 259 France, on, 321 Germany, on, 365 Israel, on, 410 US, on, 150 Resolutions on the Elimination of All Forms of Religious Intolerance 1981 and 1993, 82 Special Rapporteur (Religion and Belief ), for, 30, 45, 50, 65, 86, 90, 94–96, 107, 118, 270, 281 US Annual Government Report on International Human Rights, 259, 411 United States v. Seeger, 155 Universal Declaration of Human Rights 1948; general, 28, 63, 75, 207, 451 Article 2, of, 75 Article 3, of, 75–76 Articles 6-11, 76 Articles 12, 16 and 17, of, 76 Article 18, of, 76, 92, 260 Article 19, of, 114 Articles 20, 23 and 26 of, 76 Article 20, of, 109 United Kingdom Supreme Court (UKSC), 258 University of Victoria v. British Columbia (A.G.), (Can), 222 United States v. Board of Education for the School District of Philadelphia, (US), 187 United States v. Lee, (US), 192 United States v. Meyers, (US), 156 United States Supreme Court (USSC), 154 Valsamis v. Greece, (ECtHR), 101–102 Van Orden v. Perry, (US), 164 vaterland, (Ger), 359 Venice Commission, the, 88 Vögt v. Germany, (ECtHR), 393

517

Waldman v. Canada, 207n Wall v. Highwood Congregation et al, (Can), 228 Walz v. Tax Comm’n of New York, (US), 145 Ward v. Polite, (US), 185 Washington v. Glucksberg, (US), 182 Watchtower Bible and Tract Society of New York v. Village of Stratton, (US), 170 Weimar Constitution, (Ger); Article 136(4), 373 Article 137(2), 376 Article 137(3), 381 Article 137(5), 370–401 Article 137(6), 372 Article 137(7), 367–368 Weller, P., 263–264 Welsh v. United States, (US), 156 whistleblower, 264 Wiccas (E&W), 261 Widdis v. Desjardins Group, (Can), 242 Widmar v. Vincent, (US), 185 Wingrove v. the United Kingdom, (ECtHR), 116n, 137 Wisconsin v. Yoder, (US), 155, 172, 186, 188 Women’s Equal Rights Law, 1951, (Isr), 430–501 Wooley v. Maynard, (US), 156 Worship, 94, 157, 214, 263, 290, 322, 367, 412 X. v. the United Kingdom, (ECtHR), 102n X v. X, (E&W), 265 Yemini v. Great Rabbinical Court, (Isr), 430 Young v. Shawnee Mission Medical Centre, (US), 166 Young v. Young, (Can), 235 Zelman v. Simmons-Harris, (US), 164, 166–167, 190n Zionism, 300, 450, 483, 492 Zubik v. Burwell, (US), 183n Zundel v. Canada, (Can), 231 Zvi Berinson, Justice, 439 Zylberberg v. Sudbury Board of Education (Director), (Can), 240