On Tuesday we posted a brief note on the judgment of the Fourth Section ECtHR in Church of Jesus Christ of Latter-Day Saints v United Kingdom  ECHR 227. Following is a fuller analysis.
There are two Mormon temples in the UK, at Preston and at East Grinstead. Local Mormon congregations meet in chapels that are open to the general public – which the two temples in question are emphatically not. Mormon temples are used for “temple ordinances”; and not only are they closed to non-Mormons, Mormons themselves are not allowed inside unless they are in possession of a “temple recommend” from their local bishop.
The case before the ECtHR was the latest in a long-running saga about the refusal of the local Valuation Officer to exclude the temple in Preston and some of its associated buildings from the rating list, pursuant to the provisions of paragraph 11 Schedule 5 to the Local Government Finance Act 1988. That paragraph provided for the exclusion of “a place of public religious worship”; and exclusion conferred total exemption from business rates. The Valuation Officer refused to exclude the temple and some of the other buildings on the site on the grounds that they were not places of public worship.
The preliminary determination by the President of the Lands Tribunal, Mr George Bartlett QC, was upheld by the Court of Appeal in Gallagher v Church of Jesus Christ of Latter-Day Saints  EWCA Civ 1598. That judgment, in turn, was upheld by the House of Lords in Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints  UKHL 56 on the basis of the earlier judgment in Church of Jesus Christ of Latter-Day Saints v Henning (VO)  AC 420. Because it was held that temple worship was not “public”, the LDS qualified only for the normal 80 per cent charity exemption.
The applicants argued that the operation of the relief
“… imposed a tax burden on the … temple which was not applied to other religious structures. More importantly, [it] excluded the applicant’s most sacred space and rituals from eligibility for tax exemption, while granting exempt status to the full range of worship for other denominations. Implicit in this differentiation were non-neutral State assumptions, stereotypes and stigmatisation that operated prejudicially against the applicant and those of its members who chose to engage in temple worship” [para 19].
They contended that this was in breach of Article 9 ECHR (thought, conscience and religion) and Article 1 of Protocol No. 1 (protection of property), both taken alone and in conjunction with Article 14 (discrimination), and that the Church had been denied an effective remedy contrary to Article 13.
The Fourth Section ECtHR held that there had been no violation: the issue was not about manifestation but whether or not the place of worship was open to the public. After pointing out that the stake centre situated on the same site as the temple received the statutory exemption as a “place of public religious worship”, the Court noted that the temple itself benefited from the 80 per cent reduction in rates given to buildings used for charitable purposes. But the legislation was not discriminatory as between different religious beliefs; and the Court was not convinced that the LDS was
“… in a significantly different position from other churches because of its doctrine concerning worship in its temples, so as to call for differential treatment involving exemption from the contested tax, since other faiths likewise do not allow access of the public to certain of their places of worship for doctrinal reasons” [para 31].
“Neither in its objects nor in its effects does the legislation prompting the contested measure go to the legitimacy of Mormon beliefs. The legislation is neutral, in that it is the same for all religious groups as regards the manifestation of religious beliefs in private; and indeed produces exactly the same negative consequences for the officially established Christian Church in England (the Church of England) as far as private chapels are concerned [para 34].
In the opinion of the Court, any prejudice caused to the LDS by the operation of the relief was reasonably and objectively justified:
“The purpose of the exemption, as explained by Lord Pearce in the Henning case, was, from the moment it was introduced in 1833, to benefit religious buildings which provided a service to the general public and where the church in question ‘worshipped with open doors’ … The House of Lords held that there was a public benefit in granting the general public access to religious services” [para 32].
Nor had the domestic authorities exceeded the margin of appreciation available to them [para 35].
The Court held that the complaint under Article 13 was inadmissible. Though the complaint under Article 14 taken in conjunction with Article 9 was admissible there had been no violation. There was no need separately to examine the complaints under Article 9 and Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14.
The applicants ran the ingenious but ultimately specious argument that the nature of temple worship as understood by believers,
“… required that only those who voluntarily lived by the kinds of commitments made in the temple should be allowed to participate. This was not a case of worship being made private for the purposes of being exclusive or to provide private benefit; it was because the very nature of the worship as understood by its believers required privacy to promote the sacred character of the worship. The relevant analogy would be to insist that the tax exemption be denied to space devoted to confessionals or to the area behind the iconostasis [the wall of icons that separates the main body of the church from the sanctuary] in Orthodox churches. Just as an invitation to the general public to enter these spaces would disrupt sacred practices, so the nature of temple worship would be destroyed if there were a general requirement that the public be able to sit in” [para 21: my italics].
Surely that assertion is based on a category mistake. To take up the Orthodox example, “worship” is what takes place in the church building as a whole during the Holy Liturgy: the fact that the laity are not allowed to pass through the Holy Doors into the sanctuary behind the iconostasis does not mean that they are not participating in the worship, nor that the worship is not public. Orthodox “worship” is what the clergy and the people are doing together – and it does not matter which side of the iconostasis they are standing on as they do it. A Mormon temple is a quite different proposition from an Orthodox church: a person without a temple recommend is not allowed into the building at all and it is difficult to see how he or she could be said to be “participating” in the worship within the temple while standing outside the building. (And as regards confessional boxes, I should have thought that the percentage of space taken up by confessionals in churches that still have them was in any case de minimis.)
As to the argument that the concession granted “exempt status to the full range of worship for other denominations”, it depends on how one interprets “the full range of worship”. If it was intended to mean that there were certain acts of LDS worship that could never attract the full rating exemption it was correct; but, as the Court pointed out, private chapels of other denominations were also excluded from the relief, so did that also come under the definition of “the full range of worship”?
David Hart QC suggests on UKHRB that the Court fudged the issue as to whether or not the complaint fell within Article 9 – and perhaps he’s right, given that the Court, in effect, decided the case on Article 14 grounds. But was there all that much to fudge? It’s difficult to see how having to pay 20 per cent business rates instead of nothing at all could have had any serious effect on the right or ability of Mormons to practise their religion: surely all it meant was an increase in the temple’s running costs. It wasn’t as if it was a specific charge on the LDS: any private place of worship would be in the same position.
In the Court of Appeal Neuberger LJ (as he then was) declared that “The exercise we are carrying out is concerned with a topic which cannot be characterised as remotely religious, namely rating legislation” [para 31]. Which seems fair enough to me.