Saturday, 29 December 2012
R (on the application of Hodkin) v Church of Scientology: religion, religous premises and the law once more
UPDATE: The Supreme Court has given permission to appeal in this decision. The hearing will take place on 18 July 2013.
Readers of this blog will know that I have long advocated a separation of church and state. Broadly speaking, there are three main justifications. First, the state should be neutral as between competing world views. There is no way of deciding which religion if any is the correct one, and therefore the state should not even try.
Secondly, everyone is entitled to their own beliefs or lack of beliefs. Accordingly, the fact that one chooses to follow a particular religion or no religion should not be a ground for discrimination against oneself – be it positive or negative discrimination.
Thirdly, everyone is entitled to respect for the right to hold their beliefs – but not to those beliefs themselves. Therefore, I can claim that my beliefs (spiritual, religious, whatever) require me to lead lifestyle x, but I have no claim on the state to fund that lifestyle, rendering it hard cheese if I cannot afford it.
Sadly, at present the United Kingdom does not have a separation of church and state, and therefore regularly infringes all of those principles. A good recent example is the case of R (on the application of Lousia Hodkin) v Registrar General of Births, Deaths and Marriages  EWHC 3635 (Admin).
The claimant was a Scientologist who wished to marry her fiancé, another Scientologist, at a chapel of the Church of Scientology in London. The chapel was not registered under s 2 of the Places of Worship Registration Act 1855 as a “place of meeting for religious worship”. Accordingly it was not a registered building under s 26 of the Marriage Act 1949. Unless it could be registered under s 2 of the earlier Act, no application could be made under the later Act and the marriage would have to take place elsewhere.
The defendant registrar held that she was bound to find that a scientology chapel was not a “place of meeting for religious worship” within the meaning of the 1855 Act, following the decision of the Court of Appeal in R v Registrar General ex p Segerdal  2 QB 697 (Segerdal).
The claimant applied for judicial review. Of course the decision in Segerdal was, on its face, also binding on the High Court. She argued that the court was nevertheless entitled to depart from the earlier decision, because Scientology’s beliefs and services had evolved since 1970 to the extent that the reasoning of the Court of Appeal in Segerdal was no longer applicable. She adduced much evidence about Scientology’s practices and beliefs in support.
The claim failed on two bases. First, whether or not Scientology was a “religion” (something left open though doubted in Segerdal), its services did not involve “acts of worship”. The judge found it “difficult to see [Scientology] as a theistic religion”. He found that there had been no significant change in the beliefs of Scientologists and their services since 1970 and therefore it was not open to him or the registrar to depart from Segerdal.
Not for the first time, the High Court has had to undertake an exercise to which it is manifestly unsuited and which no-one on any side of the equation would wish it to undertake. The UK Human Rights Blog has a good post summarising the decision here. I have added in the comments section the point that there is something inherently wrong with judges having to sift through evidence and decide whether something is or is not a “religion” and I cannot imagine either religious or secular people being happy with it.
Ouseley J referred to the decision of the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 which had to decide whether or not Scientology was a religion for payroll tax purposes. The House of Lords had to do something similar with the Mormon Church in Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints  4 All ER 640, where the issue was whether or not a temple was “a place of public worship” and therefore exempt from commercial rates under the Local Government Finance Act 1988.
The tax cases can be dealt with shortly. The rule of law is hopelessly compromised in the United Kingdom by the endless series of tax exemptions, and exemptions to exemptions, that have all kinds of negative consequences. These include (but are not limited to) opportunities for loopholes for the wealthy (who are the only ones able to afford the advice to exploit them); a drain on the public finances caused by the avoided tax and the endless litigation about who or what falls within a particular class; and manifestly unfair results since some intended exemptions will fail on a technicality but unintended claims for exemptions will succeed. I wrote about this in chapter 28 of my book.
Those are all points of general application, but there is no need even to reach that far when it comes to religious organisations and their premises. If a religion is doing charitable work then it is the charitable aspect, not the religious aspect, which should qualify for tax exemption. The overarching principle is the third stated above: everyone is entitled to their own beliefs, but they are not entitled to be able to avoid taxes or otherwise ask anyone else to fund those beliefs.
The same overarching principles apply in the case of marriage. The state should not be regulating religious marriage. Instead my proposed solution, as I have written about before, is for the state to run marriages along French lines. It should set out a list of criteria (age, competence and so on) and a prescribed fee. Anyone meeting those criteria could then apply and be granted a legal marriage certificate. No ceremony would be involved; it would be along the lines of a driving licence. Then everyone would be free to have any ceremony they wanted on any premises that would have them. No religious person would consider the state’s certificate to be anything other than a formality: instead, they would consider the blessing of their church to be the only point of significance. This would free religious groups to do as they wished since they would only be performing private activities according to private contracts. Anti-discrimination laws would never enter the equation for religious groups since the laws would only apply to the state issuing its marriage certificates, not any subsequent private ceremony.
Such a solution, it seems to me, would answer any religiously-based objection to gay marriage, as well as ending the sort of dispute brought by Miss Hodkin. Instead of the courts poring over arcane texts to try and decide whether they constitute a “religion”, Miss Hodkin and her fiancé would be able to obtain a certificate from the state and then hold, just like everyone else, a “marriage ceremony” in the building of their choosing.