A paper presented at the Law and Religion Scholars’ Network conference at Cardiff Law School on 27 April 2018.

An Lanntair (The Lantern, the arts centre in Stornoway) showed the latest in the Star Wars series, The Last Jedi, from 26 to 31 January – including on the Sunday. It was the first Sunday opening of the cinema and a sell-out. But it was very controversial: the Free Church of Scotland has a long tradition of Sabbatarianism and the Revd James MacIver, the Free Kirk minister at Stornoway, was particularly vocal in opposing the move.

After the dispute broke out, the National Secular Society posted an opinion piece on its website by Megan Manson. She asked, “supposing Jediism were officially recognised as a religion. What would the world make of the Stornoway Free Church’s behaviour then?”. She also noted that the Jedi’s application to become a registered charity (or, to be strictly accurate, a Charitable Incorporated Organisation) had previously been rejected by the Charity Commission for England & Wales because it did not recognise Jediism as a religion [see Temple of the Jedi Order – Application for Registration [2016] Charity Commission 16 December] – though the NSS added a footnote to the effect that the decision did not apply in Scotland and that it was open to the Office of the Scottish Charity Regulator to take a different view.

So, supposing Jediism were officially recognised as a religion, what then? – and what is different about Scotland anyway?

The differences between Scots and English law on ‘religion’

The two charity statutes

For the purposes of charity law in England and Wales, s.3(2)(a) of the Charities Act 2011 states that:

“‘religion’ includes– (i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god.”

S.7(2)(c) of the Charities and Trustee Investment (Scotland) Act 2005 does not even go that far, merely listing “the advancement of religion” as one of its “the charitable purposes”. The differences between the two in terms of the treatment of “religion” was apparent in two very similar cases involving Roman Catholic adoption societies.

In England, Catholic Care, based in Leeds, was embroiled in lengthy litigation over its refusal to place children with same-sex couples. The case was finally disposed of when Sales J dismissed Catholic Care’s appeal. He conceded that Catholic Care’s views were sincerely and honestly held but concluded that they were outweighed by the harm to same-sex couples of making them feel that the adoption system discriminated against them and the damage to the general social value of promoting equality of treatment.

In Scotland, things turned out very differently. OSCR had ruled that St Margaret’s Children and Family Care Society, a voluntary Roman Catholic adoption agency, was to lose its charitable status over its refusal to place children with same-sex couples unless it changed its practice. The charity appealed, and in St Margaret’s Children and Family Care Society v Office of the Scottish Charity Regulator [2014] Scottish Charity Appeals Panel App 02/13, the Panel overturned OSCR’s decision. It concluded that the Agency had demonstrated that it was more than merely an adoption agency, that its purpose was the manifestation of its religion and the religion of its members and supporters and that its activities had to be in accordance with the teachings of the Roman Catholic Church. Nevertheless, St Margaret’s allowed non-Roman Catholics to use its activities and to take part in its decision-making. The Panel concluded that the effect of the change ordered by OSCR would be disproportionate because it would ultimately result in St Margaret’s closure and a consequent loss to the community it served. OSCR decided not to appeal further.

St Margaret’s is still in business and still arranging adoptions. Catholic Care is also still in business – but it closed its adoption service.

Registration of public places of worship

Another major difference between the two sides of the Border is recognition of places of worship. In England and Wales, in order to be licensed for solemnising marriages, a church or chapel (except for churches of the Church of England and the Church in Wales) must be registered under the Places of Worship Registration Act 1855. In order to qualify for registration, the building must be a place in which worship is held in public and where what goes on inside is worship.

It was the refusal of the Registrar General to register the Central London chapel of the Scientologists that led to the litigation in R (Hodkin & Anor) v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77; and the reason why it went all the way to the Supreme Court was because the lower courts regarded themselves as bound by R v Registrar General ex p Segerdal & Anor [1970] 2 QB 697 – a very restrictive judgment by the Court of Appeal as to what constituted “worship” which had been handed down by three judges in pretty much a Judaeo-Christian mindset. They gave passing approval to Buddhism simply because they could hardly declare it to be a non-religion. However, there is no such requirement in Scotland, so arguments about what does or does not constitute a place of public worship have simply never arisen in modern times.

Weddings, buildings and celebrants

The last major difference is this. The basic rule in England and Wales is that religious buildings are licensed for the conduct of weddings under the Places of Worship Registration Act. In Scotland, under the Marriage (Scotland) Act 1977, individual celebrants are licensed to conduct non-civil weddings. So in Scotland, there is no issue about – for example – conducting humanist wedding ceremonies and by June 2017 Humanists Scotland had conducted 25,000. Perhaps more to the point, Louisa Hodkin’s brother David had been married (before she herself was married) at the Church of Scientology in Edinburgh – see R (Hodkin) [2] – because the Registrar General for Scotland had previously authorised the Church’s ministers to perform wedding ceremonies.

Could Jediism be classed as a “religion”?

The test for a protected belief set out in Campbell and Cosans v UK (1982) 4 EHRR 293 – that, in order to attract Article 9 ECHR, a belief had to achieve “a certain level of cogency, seriousness, cohesion and importance” [36] – possibly raised as many questions as it attempted to answer. Precisely what constitutes “cogency, seriousness, cohesion and importance” is a matter of opinion; and the result has been that arguments about whether a particular belief merits protection have tended to turn on the facts of the individual case.

As everyone knows, Lord Toulson’s “description” of ‘religion’ in R (Hodkin) is as follows:

“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 … 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” [57].

On that basis, what characteristics might Jediism have that could qualify it under that description?

A puzzle it is. One Jedi adherent, Padawan Ahsoka, suggested in a recent interview in The Telegraph that many parallels can be drawn between Jediism and other faiths:

“She likens The Force to the ‘chi’ or ‘qi’ of traditional Chinese culture, or ‘prana’ of the Hindu faith. Defined as ‘the vital life force that flows through the body’, chi indeed shares similarities to The Force – and the followers of the church are looking to these similarities to legitimise their faith.”

That would certainly make sense to some Druids – who are recognised as a religious charity by the Charity Commission – because many are either atheist or non-theist or their spiritual belief is framed in terms of “energy” in a way that is very close to language that would be readily understood by Star Wars fans (and consequently, one would assume, acceptable to at least some Jedi). Further, according to Ms Ahsoka, Jediism is about practice as much as belief:

“There are many practices that alter your life when you become a member of the Church of Jediism. One of my favourites and I think most positive of these is that we are all given a timetable at the beginning of a week. By the end of the week, we must have filled out this timetable, documenting when we did good or nice things for people. This encourages kindness, and I think that is important. I now spend a lot of time thinking about what I can do to help people.”

Quite a few Quakers might sign up to that: not many of them are interested in doctrine in the traditional Christian sense: what they are concerned about is practice. [See Simon Jenkins’s latest piece in The Guardian.]

The absence of a general definition

In an earlier post on this blog, Russell Sandberg argued that the definition of religion for the purposes of charity and registration law is now “hideously confused”:

“Without questioning the actual decision, elements of the reasoning by the Charity Commission are cause for concern: following Hodkin slavishly in some respects but ignoring it in others and introducing a plethora of new assumptions and requirements that are deeply questionable. There is now a desperate need for the definition question to be revisited and for reform that increases clarity and inclusiveness.”

I agree entirely about the hideousness of the confusion but I believe that the underlying issue is even more basic than that: that the principal objection in some quarters to the recognition of Jediism and other new religious movements seems to be – at least in the minds of many of its critics – that they are “made-up” religions.

Conclusion: “made-up” religion?

Scientology is the most recent religion to be recognised as such in England and Wales. It is derived from the writings of L Ron Hubbard in the early 1950s when he invented what he called “Dianetics”. As a result, Scientologists have come in for a certain amount of scorn from non-Scientologists. But – to turn the criticism on its head – is there any religion that has not, in some sense, been “made up”?

The Bahá’í faith began in the mid-nineteenth century, first with Siyyid Alí-Muhammad of Shiraz, when he proclaimed that he was ‘the Báb’ (“the Gate” or “the Door”), referring to his later claim to the status of Mahdi, the Twelfth Imam of Shi’a Islam. As the Báb’s teachings spread, his followers came under increasing persecution and he himself was imprisoned and eventually executed in 1850. Then the Báb’s teachings were developed by Bahá’u’lláh, who is regarded as the founder of the modern Bahá’í faith.

Slightly earlier, the Church of Jesus Christ of Latter-day Saints was formally constituted by Joseph Smith in April 1830 in western New York: prior to that, it did not exist. It is clearly “Christian”, though not in a way in which mainstream Trinitarian denominations would understand that term. And, of course, it has its own Holy Book in addition to the Bible: the Book of Mormon.

No-one suggests – certainly not the Charity Commission – that Bahá’í and the LDS are not legitimate religions.

And to go back further, Muslims believe that the Q’uran was revealed verbally by God to Muhammad through the angel Gabriel (Jibril) gradually over a period of approximately 23 years from December 609 CE, when Muhammad was 40, to 632, the year of his death. Inasmuch as Islam is an Abrahamic faith, one could argue that it must have existed in some sense before that – but Islam articulated as we know it derives from the Q’uran and the hadith.

Equally, it is difficult to see how there could have been anything one could reasonably label as “Christianity” before the Pauline epistles. One of the first issues that the Christian community had to resolve was whether it was to be a Jewish sect or a new religious departure – and the Council of Jerusalem in Acts 15 and Paul’s Epistle to the Galatians dealt with that question at length. Even Judaism, though its origins may be lost in the mists of time, began to take its modern form only with the production of the Mishna around 200 CE then, subsequently, the Babylonian and Jerusalem Talmuds.

I would suggest that all religions can, in some sense, be described as “made-up”. That is not meant to be either a sneer or even any kind of mild adverse criticism: it is merely an assertion – rightly or wrongly – that religions are, ultimately, human constructs.

If called upon to defend that view in theological terms, I would argue that it is pretty much a given, at least among liberal Christian theologians, that God (however defined) is ultimately beyond human understanding: in Paul Tillich’s terms, the “ground of being” – an expression subsequently adopted by John Robinson in Honest to God and cited by Lord Toulson as evidence that “to confine religion to a religion which involves belief in a ‘supreme deity’ leads into difficult theological territory” [52].

If we are to believe Tillich and Robinson, then anything we say about God (however defined) must at best be partial and at worst inadequate. So my contention is that particular versions of “religion” cannot help being, at least to some extent, derived from our histories and cultures: compare and contrast, for example, the Quakers and the Oriental Orthodox – who may hold, perhaps, a handful of beliefs in common but who have very different ways of expressing them – or Zen Buddhism as practised in Japan with Tibetan Buddhism as practised in the Himalayas.

When it rejected Jediism, the Charity Commission stated that it was not satisfied

“that the observance of the Force within Jediism is characterised by a belief in one or more gods or spiritual or non-secular principles or things which is an essential requirement for a religion in charity law. Despite being open to spiritual awareness, there is scope for Jediism and the Jedi Doctrine to be advanced and followed as a secular belief system. Jediism therefore lacks the necessary spiritual or non-secular element. The Commission noted that in Hodkin Lord Toulson did distinguish and exclude secular belief systems from the description of religion” [18: emphasis added].

That, I would argue, goes much too far. Is Jediism an entirely secular belief system? Not, it would appear, for Ms Ahsoka. And there is scope for other religions to be followed as secular belief systems: for example, churchgoing agnostics (or even atheists). Are secular Jews who continue to observe the basic dietary laws, at least by avoiding pork and bacon, and practise circumcision out of respect for their traditions and culture not, at least in some sense, observing Judaism? And just because some people choose to follow a religion because they are attracted to its moral and ethical principles without believing in its transcendental elements, does that mean that it could cease to be a “religion” in charity law? I don’t think so.

So to conclude: if Scientologists – or, for that matter, Mormons or Quakers – are recognised as following “religions”, why not the Jedi? Perhaps it’s not Jediism that’s the problem, but the Charity Commission’s perception of what “religion” is about. And yes: OSCR could certainly take a different view.

And, as a footnote, in April An Lanntair announced that its three Sunday showings had been so successful that it plans to start Sunday opening “as soon as operationally possible”.

May the Fourth be with you…

[With thanks to Russell Sandberg for some helpful comments – and a terrible pun.]