Paganism, religion and human rights

In a post in October 2012 on concerts and performances in churches and cathedrals we noted, very much in passing, Caroline Briggs-Harris’s suggestion that the courts:

“… appear to be moving towards accepting a wider definition of religion and faith. Paganism and witchcraft, although not yet specifically identified by the courts, could be deemed to fall within the protection afforded by the human rights legislation” [‘Witchcraft: from Crime to Civil Liberty’ (2011) 167 Law and Justice at 54].

Our conclusion at the time was “But not yet”. But the law has developed fairly rapidly since then and we wonder whether that is still true.

Public authorities seem to have been more accepting of paganism in its various manifestations as “religious” for some time now. Like its undated predecessor, the current ACAS guidance, Religion or belief and the workplace (March 2014), gives as examples of “Other Ancient Religions” Druidism, Paganism, Wicca, “Astaru” (I think they mean Ásatrú), Odinism and Shamanism and lists some of their festivals. But as far back as 2004 the captain of HMS Cumberland, at Devonport Naval Base, gave permission for a naval technician from Edinburgh, one Chris Cranmer (no relation), to register as a Satanist[1] – which meant that he would be allowed to perform Satanic rituals on board the vessel. The BBC reported a spokesman for the Royal Navy as saying that “We are an equal opportunities employer and we don’t stop anybody from having their own religious values” – and the Navy was obviously as good as its word because, again according to the BBC, by 2008 he had been promoted to Chief Petty Officer. More formally, in September 2010 the Charity Commission for England and Wales recognised the activities of the Druid Network as meeting the requirements for registration as a charity for the advancement of religion.

Religious Studies posted a helpful analysis of the case-law in July 2012 but, of course, that post predates two critical cases: R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages [2013] UKSC and Holland v Angel Supermarket Ltd & Anor [2013] Employment Tribunal 3301005-2013 – neither of which gets a mention in the ACAS guidance.

In Hodkin, as we noted at the time, Lord Toulson offered the following working definition of “religion” at para 57:

“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 more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula”.

On that definition almost any reasonably systematic belief-system would count as a religion: it would certainly include Druidism, Paganism, Wicca,  Ásatrú, Odinism and Shamanism, though possibly not Jedi or Pastafarianism – but who knows for certain?

In the second, Ms Karen Holland, a Wiccan, was successful in her claim that she had been sacked by the proprietors of the grocery store where she had worked for over two years because she told them that she had attended a Halloween ceremony. Watford Employment Tribunal concluded that her dismissal had breached “the basics of natural justice” and that her employers’ reaction when she explained that she had attended the Halloween ritual because she was a Wiccan

“… betrayed some antipathy towards the claimant because she was not an adherent of one of the more well-known world religions. The comment was probably made; and made in a tone which she reasonably interpreted as being rejection of her as a Wiccan” (para 23).

In short, she had suffered direct discrimination on grounds of religion and belief. The respondents said they would appeal; but at the time of writing the matter was no further forward.

So where have we got to in the last two years? Only time will tell; but assuming that, in spite of his protestations that he was merely suggesting “a description and not a definitive formula”, Lord Toulson’s dictum starts to be treated as a judicial definition, then the area of protection covered by “religion” is going to be widened. Moreover, Article 9 ECHR protects freedom of thought and conscience as well as freedom of religion – and a belief system that didn’t quite manage to qualify as a formal religion might still be regarded as a matter of thought or conscience deserving the protection of Article 9.

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[1] Initially typed as “register as a Stanist” – an echo of that mythical biblical misprint: “Get thee behind me, Stan”.

Cite this article as: Frank Cranmer, "Paganism, religion and human rights" in Law & Religion UK, 20 October 2014, http://www.lawandreligionuk.com/2014/10/20/paganism-religion-and-human-rights/

5 thoughts on “Paganism, religion and human rights

  1. With reference to Jedi and Pastafarianism, I think the obstacle for both would be sincerity. The Toulson definition of religion requires that the beliefs are ‘held’, which implies the court can dismiss your claim if they don’t think you actually ‘hold’ your belief (but are just saying you do).

    In Grainger v Nicholson, which works for philosophical beliefs, the belief has to be ‘genuinely held’ in order to be protected.

    It’s likely that most people who say they follow these religions are not serious believers in the religious sense – but if you can find someone who genuinely follows such a religion, why shouldn’t their beliefs be protected?

    There is no requirement in Toulson’s definition of religion, or the Grainger definition of a philosophical belief, for there to be more than one believer of whatever system is involved. I could make up my own religion and as long as I believed sincerely, my beliefs would be protected. That’s as it should be – why should a belief be more worthy of being protected just because it’s shared by lots of other people?

    It’s worth remembering, though, that Hodkin wasn’t really about Article 9 and the freedom to follow a religion. It was about having a Scientologist marriage ceremony in a Scientology chapel, which required Scientology to be classified as a religion, not a philosophy, in order to get the proper permits.

    So even though your beliefs might be protected as a philosophy under Article 9/Grainger, you might still lose out (depending on what you want to do/not do) because adherents of religions have extra privileges denied to adherents of philosophies.

    • Of course you’re right to say that Article 9 was certainly not the central issue in Hodkin; it was only mentioned once, at para 32. But I would reckon that it was highly relevant to the reasoning and subtext of Lord Toulson’s judgment. At para 64 he said:

      “If … Scientology comes within the meaning of a religion, but its chapel cannot be registered under PWRA because its services do not involve the kind of veneration which the Court of Appeal in Segerdal considered essential, the result would be to prevent Scientologists from being married anywhere in a form which involved use of their marriage service. They could have a service in their chapel, but it would not be a legal marriage, and they could have a civil marriage on other ‘approved premises’ under section 26(1)(bb) of the Marriage Act, but they could not incorporate any form of religious service because of the prohibition in section 46B(4). They would therefore be under a double disability, not shared by atheists, agnostics or most religious groups. This would be illogical, discriminatory and unjust” [My emphasis].

      That, to me, sounds like an implicit acceptance that their Article 9 rights were being traversed.

  2. Indeed, their Article 9 (religion) rights were certainly being infringed if they were a religion, because they would then be the only religion in England/Wales not allowed to have their own legal marriage ceremony. If, however, they did not count as a religion, they would be a philosophy and thus not allowed to have their own marriage ceremony under English/Welsh law (the pre-Hodkin situation). Thus, the central point was whether Scientology counted as a religion, as the Article 9 interpretation was dependent on the answer to that question.

    So if you are an adherent to a religion, you are allowed to have a legal marriage ceremony in accordance with your beliefs.

    If you are an adherent to a philosophy (however coherent etc that philosophy is) and you want to get married, you have to have the generic civil ceremony (although you can have a blessing etc afterwards).

    So the difference between a religion and a philosophy is an important one, because adherents of religions have rights (including the right to get married in accordance with their beliefs) that adherents to philosophies do not.

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