Religion in Modern English Law

England and Wales is one of the three legal jurisdictions that make up the United Kingdom of Great Britain and Northern Ireland, the other two being Scotland and Northern Ireland. Before the advent of the Enlightenment and the Industrial Revolution, it was an avowedly Christian state with the Church of England as its established religion. This arrangement broke down during the nineteenth century, as the English governing class admitted into its ranks first non-Anglican Protestants and Roman Catholics, then Jews, and finally people of any faith and none.Footnote ¹ In the courts, the traditional doctrine that Christianity was an integral part of the ordinary law of the land was first wounded and then, in 1917, killed off for good.Footnote ²

In modern times, English judges have spoken baldly of the “divide between Church and State;”Footnote ³ and a series of well-publicized decisions relating to homosexual relationships has emphasized the formally areligious character of contemporary English law.Footnote ⁴ This position is consistent with the United Kingdom's international obligations, as state neutrality between different religions is required by the European Convention on Human Rights.Footnote ⁵ The Church of England has “little more than a ceremonial presence in the public sphere.”Footnote ⁶ Its remaining status in England—it has not been the established church in Wales since 1920—may be regarded as a residual survival rather than as a defining feature of the contemporary legal landscape.Footnote ⁷ Its legal regimen forms a special category of “ecclesiastical law” that exists within well-demarcated boundaries and is largely enforced in separate ecclesiastical courts. England and Wales is formally no longer a Christian jurisdiction.

The basis of the law's present-day approach to religion was explained by Lord Nicholls in a 2005 case in the House of Lords (which was at that time the country's highest court):

This principle of pluralism serves to deter the courts from inscribing religious value judgements into the law. The courts will enter such territory only if “a Claimant asks the court to enforce private rights and obligations which depend on religious issues”; for example, if a claimant's rights under a contract or trust are expressed to turn on some element of religious doctrine.Footnote ⁹ This reluctance to adjudicate on religious matters was highlighted in 2014, when the court dismissed an attempt by former members of the Church of Jesus Christ of Latter-day Saints (Mormons) to prosecute the president of that church for fraud.Footnote ¹⁰

Against this background, Paganism should in principle be able to take its place as one of the many different religious traditions followed by members of contemporary English society. But the legal system's formal commitment to benign neutrality only gets us so far; it is sometimes imperfectly realized in practice. This need not be because of a confessional bias toward Christianity on the part of lawmakers, lawyers, and judges. The challenges are just as likely—indeed, more likely—to be attributable to a secular perspective that struggles to come to terms with beliefs that do not fit well with rationalist precepts. It is also relevant that the general background noise of English culture is still very perceptibly Christian. As two legal writers have noted in this context,

So it is that, as one of the leading scholars of contemporary religion in England has noted, “[r]elative to the religious majority, minority religions have to struggle for recognition and privileges.”Footnote ¹²

At this point, it will be useful to review briefly the ways in which Pagans and Paganism might seek to claim the protection of English law. There are broadly five means by which minority religious rights may come to be litigated in the English courts.

First, there is the right to freedom of religion set out in Article 9 of the European Convention on Human Rights. Article 9 confers an absolute right to “freedom of thought, conscience and religion,” together with a qualified right to “manifest one's religion or beliefs.” The qualified right may be abridged in certain specified circumstances.Footnote ¹³ The European Convention on Human Rights, as interpreted by the European Court of Human Rights in Strasbourg, is binding on the United Kingdom in international law. The “Convention rights” set out in the European Convention on Human Rights are also directly enforceable in the domestic courts under the Human Rights Act 1998. This Act requires public authorities (but not private entities) to act compatibly with the Convention rights; and it mandates that other legislation must be read compatibly with the Convention rights if at all possible.Footnote ¹⁴ A litigant who has exhausted her options in the domestic courts may bring a case against the United Kingdom in the European Court of Human Rights, although this is a notoriously lengthy process.

Second, England has robust anti-discrimination laws. These intersect with the European Convention on Human Rights, as Article 14 of the Convention outlaws “discrimination on any ground such as … religion.” Article 14 applies only, however, where a person's enjoyment of the Convention rights themselves is being impeded through discrimination. In English domestic law, discrimination on the grounds of religion or philosophical belief is unlawful in other contexts, too, including most notably those of employment and access to goods and services. The relevant provisions are contained in the Equality Act 2010.Footnote ¹⁵

Third, religious premises may be registered with the Registrar General under the Places of Worship Registration Act 1855. Registration under the Act confers certain privileges, most notably tax relief and the potential ability to use the premises in question for marriages.

Fourth, a religion may be able to claim the financial and other benefits of charitable status. In order to be registered as a charity, a body must satisfy certain criteria. Traditionally, a body that existed for the “advancement of religion” would automatically be entitled to charitable status. This position has been preserved under modern legislation, with the modification that a religious charity must now show specifically that it serves the public benefit (religious charities were previously presumed to be of public benefit). Since the enactment of the Charities Act 2006, the law has expressly recognized “religion” as including polytheistic and nontheistic religions.Footnote ¹⁶

Fifth, public order laws make it an offence to engage in incitement to religious hatred. Footnote ¹⁷ This controversial legislation was introduced through the Racial and Religious Hatred Act 2006. Its principal aim was to protect the Muslim community, and it still has yet to generate a useable body of case law. The terms of the legislation are drawn narrowly, and it has been suggested by commentators that the provisions in question are essentially symbolic in nature.Footnote ¹⁸ This area of law will therefore not be considered further in this article.

Paganism in Modern English Society

Historical indigenous Paganism died out in England and Wales in the early Middle Ages.Footnote ¹⁹ The modern Pagan revival can be traced to the eighteenth century; it was heavily influenced by the romantic movement in the arts and literature.Footnote ²⁰ It is not entirely clear who the first modern English or Welsh Pagan was, but candidates would include Iolo Morganwg (1747–1826), a founding figure of modern Druidism, and the Platonist philosopher Thomas Taylor (1758–1835). The rebirth of Paganism was essentially a reaction against, on the one hand, the perceived rigidity and authoritarianism of orthodox Christianity; and, on the other hand, the perceived spiritual emptiness of scientistic Enlightenment rationalism. For this reason, as I have already intimated, Paganism is doubly countercultural. Individual Pagans with conservative political and social views can certainly be found, but the movement as a whole is culturally transgressive. Rejecting both Christianity and secularity at the same time is an uncommon position in modern England.

As to its internal composition, Paganism is strikingly and self-consciously diverse. Practitioners may identify with any one or more of a range of “paths,” from reconstructed ancient varieties of Paganism (Celtic, Germanic, Greek, and so on) to goddess worship, forms of witchcraft, and shamanic practices. Marion Bowman of the Open University has written,

Such a complex phenomenon defies simple definitions. In broad terms, however, Paganism tends to be characterized by the following features: a theology that rejects Abrahamic monotheism in favor of a conception of the divine based on plurality (polytheism) or the immanence of divinity in the natural world (pantheism, panentheism); an attachment to indigenous Pagan cultures, whether from the ancient world or from modern non-Western societies; an ethic that values personal responsibility over rule-based prescriptions; and the use of practical supernatural techniques such as divination and magic. This last characteristic highlights the overlap between modern Paganism and witchcraft. Indeed, Paganism is often conflated in the popular mind with the tradition of revived witchcraft known as Wicca. While Wicca is certainly a form of Paganism, the Pagan community is considerably broader than Wicca.Footnote ²²

Pagans are evidently a religious minority, but how small a minority? Unfortunately, Pagans are difficult to count. In the late 1990s, several estimates converged on a figure of approximately 107,000–140,000 Pagans in Britain.Footnote ²³ The 2001 and 2011 national censuses recorded around 41,000 and 76,000 Pagans respectively in England and Wales. These numbers are likely to be undercounts, as there are a number of reasons why a person of Pagan leanings might not identify as such on the census form.Footnote ²⁴ The English and Welsh Pagan population, defined broadly, is likely to be in the order of magnitude of hundreds of thousands in a population of 56 million.

Paganism is therefore very definitely a minority religion, although it has rather greater visibility than other minority faiths due to its presence in popular cultural products such as the novels of Terry Pratchett and TV series like Charmed and Buffy the Vampire Slayer. It has obtained a measure of “official” status through participation in the Inter Faith Network and the Religious Education Council. In all, we may say that the Pagan community in England and Wales has a sufficient degree of size and recognition to be a presence on the peripheries of the national conversation; but it is too small and socially diffuse to wield significant political influence.

This state of affairs can have unfortunate consequences. An academic research project that was conducted from 2010 to 2012 found that Pagans were exposed to an elevated risk of discrimination. The researchers noted specifically that negative sentiment against Pagans “echoed historical prejudices,” although they also reported that “Pagan organizations … have cited human rights law as having opened up the possibility of more equitable participation in aspects of public life.”Footnote ²⁵ It was apparent that the position of Pagans had in fact improved over the preceding decade. Comparable research published in 2001 had found “open hostility and discrimination” against Pagans, including allegations of child molestation stemming from the “Satanic Ritual Abuse” panic of the 1990s.Footnote ²⁶ In any event, Pagans are precisely the kind of nonstandard minority that might be thought to need both the protection of the law and the social legitimacy that legal recognition can help to bring.

Paganism in English Law: Historical Perspective

Historically, the category of “Pagan” coexisted and overlapped in the vocabulary of English law with other terms in the Christian lexicon of religious deviance, such as “infidel,” “Jew,” “Turk,” and “Mohammedan.” In some cases, the term was used to define a catchall religious out-group: a Pagan was anyone who was not a Christian.Footnote ²⁷ On other occasions, and especially as time wore on, it was used in a more accurate way to refer specifically to people who were not members of the monotheistic Abrahamic faiths.Footnote ²⁸ It usually seems to have included Hindus,Footnote ²⁹ and it could also include Cree Indians.Footnote ³⁰

People who were identified by the law as Pagans could expect to be treated in more or less the same way as other unpopular minorities in premodern societies. They were liable to be regarded as “enemies” who were not under the king's protection and could not sue for justice in his courts.Footnote ³¹ It was not decided until as late as 1745 (in a case concerning a Hindu) that a Pagan could even be a witness in court proceedings.Footnote ³² It was never illegal to be a Pagan, but the Blasphemy Act 1697 did made it illegal for a Christian to cease to be a Christian, and hence for a Christian to convert to a Pagan form of religion. (No known prosecutions were brought under the Act, and it was eventually repealed by the Criminal Law Act 1967.) Interestingly, the only Pagans who could be spoken well of in an English courtroom were those who were safely dead: the Greeks, Romans, and other ancient peoples. These Pagans were sometimes referred to with approval, or at least neutrally, but not always.Footnote ³³

It should also come as no surprise that Pagans received rough handling from the Anglican ecclesiastical courts. In one important nineteenth-century case, the distinguished judge Lord Penzance found that it was contrary to the doctrine of the Church of England to display devotional statues and images in the Roman Catholic fashion, even if there was no question of people worshipping the objects themselves, as Pagans supposedly did.Footnote ³⁴ This conception of Pagan beliefs as amounting to mere image worship comes straight from the anti-idolatry polemic of the Hebrew Bible. It is neither sophisticated nor accurate, whether ancient or modern Pagans are in view. Nevertheless, the words of Lord Penzance were quoted and re-quoted repeatedly in a succession of later ecclesiastical cases, extending as far as the early twenty-first century.Footnote ³⁵

It is also worth saying a word about witches.Footnote ³⁶ Until 1951, the governing statute in this area was the Witchcraft Act 1736, which made it illegal to claim to be a witch. The Act of 1736 was a product of Enlightenment rationalism, and it superseded earlier legislation that had actually criminalized witchcraft itself, going back to the Witchcraft Act 1542. In 1951, the Act of 1736 was replaced by the Fraudulent Mediums Act, in the wake of pressure from the Spiritualist movement. It was said, tongue-in-cheek, that the Act of 1951 implicitly recognized the existence of non-fraudulent mediums. The Act of 1951 was not regularly enforced, but it was not a dead letter either. It accounted for six prosecutions and five convictions between 1984 and the date of its repeal in 1993. Its current successor is the Consumer Protection from Unfair Trading Regulations 2008.

Casually negative attitudes toward Paganism persisted in legal circles well into the twentieth century. In 1903, a case arose concerning an archaeological find made in Ireland. Applying the law as it stood at the time, the High Court found that the items discovered fell within the doctrine of “treasure trove” and hence were the property of the Crown. This required the court to dispose of the possibility that the items were votive offerings that their original owners had been intending to dedicate to the gods. The items included a necklace and a chain that had been placed inside a hollow collar. Mr. Justice Farwell took the view that this indicated that the items were not religious offerings:

This simplistic view of Pagan beliefs—Pagans think that a god is just like a big man—is a direct legacy of the Abrahamic rejection of polytheism. The giveaway is the reference to the deity Ba'al, who appears in the Hebrew Bible as the principal representative of Canaanite idolatry. Mr. Justice Farwell's comments were of a piece with Lord Penzance's decision referred to above. Yet some other cases from the later part of the nineteenth century and the earlier part of the twentieth century bear witness to an interesting shift in emphasis.

First, there was the prosecution of William Price (1800–1893), a Welsh physician and Druid. Dr. Price had attempted to cremate the body of his infant child. He was indicted for this act, as well as for the related offense of preventing the holding of an inquest. The trial judge, who happened to be the great criminal jurist Mr. Justice Stephen, ruled that incinerating a corpse was not in itself illegal. The pagan overtones of cremation were acknowledged (the practice “prevailed to a considerable extent under the Romans as it does to this day amongst the Hindoos”Footnote ³⁸); and so was the fact that opposition to it was bound up with Christian belief in the resurrection of the body. Yet Dr. Price's behavior was treated not as an affront to God but as a “novelty,” a “singular” eccentricity that was to be met with a rational application of legal principles. Mr. Justice Stephen told the jury,

Dr. Price was duly acquitted.

Next, there was a 1911 case on the arcane technicalities of traditional English real property law. Mr. Justice Hamilton let fall the following comment:

This comment linked Paganism (accurately) with the sacredness of the hearth and (less accurately) with superstition. There is a rationalist air to it. The pejorative force of “pagan” is based not on biblical injunctions against Ba'al, but on the notion that the whole business is silly nonsense.

A more explicit version of this position was put forward in 1929 by the Court of Appeal. The case involved a lady named Miss Hoskins-Abrahall who was seeking to assert, against the local council, her right of access to a vault in which her mother was buried. She had been having unusual rites performed in and around the vault. These included burning candles and incense, as well as leaving food, drink, and flowers for the deceased. Miss Hoskins-Abrahall claimed that these were early Christian practices. The judgment contained this revealing passage:

In this view, which drew upon the developing field of comparative religion, the problem was not that Paganism was objectionable from the point of view of traditional biblical doctrine. The issue was rather that it was outmoded and absurd from a modern, 20th century point of view. One set of background premises was giving way to another. Interestingly, the judgment also recalls a more recent case from an ecclesiastical court in which the judge noted that the custom had developed of bereaved Christians leaving bottles of beer by the graves of their loved ones, “although this is an entirely pagan practice.”Footnote ⁴²

These cases are revealing. In them, we can see that the law was evidently moving on from the premodern Christian world in which Pagans were simply religious enemies. By the first half of the twentieth century, it would seem that at least some judges could find it natural to think of Paganism as “superstitious” and “quite out of touch with the habits of modern civilization.” This is an essentially modern, secular orientation. It came to accompany, but not altogether to replace, the traditional Christian prejudice against Paganism.

The Law Today: Difficulties of Definition

Before proceeding to test whether understandings of Paganism in the legal system have become more sympathetic in recent times, I must first deal with a key issue of principle. The era of religious pluralism has brought to the fore a fundamental question that the court must address when it is faced with an unfamiliar or stigmatized belief system: What is a religion?

This is always a difficult and sensitive question. It is accepted among both lawyers and social scientists that religion is a “constructed and politically laden category,” that attempts to define it “are always normative and often ethnocentric,” and any purported definition “can be used for the very political act of exclusion.”Footnote ⁴³ An American writer has argued that attempts by legal professionals to pin down what religion really is “often make a poor fit with religion as it is lived,” and that the very exercise “asks the government to be the arbiter of religious orthodoxy.”Footnote ⁴⁴

One might say that such difficulties should not deter those of us in the legal world from at least trying to grasp the definitional nettle. One commentator, for example, has cautioned that “the absence of a definition might equally be used to exclude groups who would, under a properly developed definition, be entitled to consideration as a religious grouping.”Footnote ⁴⁵ But do we need the category of “religion” at all? Some Pagans would say that we do not:

This is not just a matter of semantics. If claiming the status of a “religion” is the key to accessing important legal rights and protections, is the law forcing Pagans to submit to a conservative or Christianizing category that does not fit well with their worldview? Admittedly, “the law” is not a monolithic whole in this regard. The European Convention on Human Rights does not present a problem, as it protects both religions and “beliefs.” The anti-discrimination legislation also protects “beliefs” alongside religions, but seemingly only “philosophical” beliefs; and it is not clear how far Paganism can be described as a philosophy, nor how far Pagans would accept that label.Footnote ⁴⁷ In charity law, the “advancement of religion” rubric extends only to religion. Words are important, and there is much to be said in favor of aligning the wording of the charity and anti-discrimination legislation with that of the European Convention on Human Rights.

Nevertheless, let us proceed on the assumption that “religion” is an appropriate category in this context. How is the court to determine whether or not Paganism, or a particular form of it, is truly a religion? This is a question that has puzzled courts in a number of common-law jurisdictions, as evidenced by the fact that the English courts have referred to overseas case law in this context on more than one occasion.Footnote ⁴⁸ The choices that the English courts themselves have ended up making are worth looking at in some detail.

To begin with, there may be a threshold test. This is about testing the adherent rather than the religion. The court may need to be satisfied that the (putative) religion in question really is professed by the person concerned. It appears that the court will decide this as a straightforward question of fact. This will not entail it making a value judgement on the person's convictions, whether against an external objective standard or against a standard of orthodoxy internal to the relevant religion. The law protects subjective beliefs, and it is candidly accepted that these need not be rational or consistent.Footnote ⁴⁹

When the sincerity of the individual's beliefs has been established, what then? How may it be determined that the beliefs at issue amount to a religion? Perhaps surprisingly, there is no one answer to this question in English law. The way in which the court will address the matter depends on the nature of the case that it finds before it. Modern English jurisprudence offers three distinct modes of answering the question of whether or not something is a religion. Perhaps surprisingly, these turn out on examination to encode fundamentally different approaches to the question.

The first relevant body of case law comes from litigation concerning the European Convention on Human Rights. In cases of this sort, the court will adopt a test that derives ultimately from a 1982 European Court of Human Rights decision known as Campbell. As it happens, Campbell related to a nonreligious belief, namely the wrongfulness of using corporal punishment in schools. In the judgment, reference was made to “views that attain a certain level of cogency, seriousness, cohesion and importance.”Footnote ⁵⁰ These four criteria have since been refined (by merging “seriousness” and “importance”) into what amounts to a three-part test. First, the alleged religion must be consistent with basic standards of human dignity and integrity. This excludes, for example, beliefs entailing “torture or inhuman punishment.” Second, the belief system must relate to matters that are not merely trivial: it must “possess an adequate degree of seriousness and importance.” Third, it must be “coherent in the sense of being intelligible and capable of being understood,” although it is recognized that religion “is not always susceptible to lucid exposition or, still less, rational justification.”Footnote ⁵¹

It would seem that this test sets the bar very low. It carves out of the protection of the European Convention on Human Rights anyone with a belief system that is degrading, trivial or unintelligible; everyone else is included. There should certainly be no argument that Paganism passes the test. It would also seem that the same test applies outside the relatively limited field of the European Convention on Human Rights. It may be argued, based on authority from the Employment Appeal Tribunal, that it also applies in cases under domestic anti-discrimination law.Footnote ⁵² This was certainly the intention that was expressed in the parliamentary debates over the Equality Act 2006, the predecessor of the current legislation.Footnote ⁵³ Nevertheless, the Employment Appeal Tribunal does not rank especially high in the English judicial hierarchy; and parliamentary debates are not necessarily admissible as evidence for the meaning of statutory provisions. There is some judicial authority in the other direction, and legal commentators are divided on the issue.Footnote ⁵⁴ For now, the question remains open. It is to be hoped that a generous approach will be taken when the matter comes to be considered by the higher appellate courts.

The second distinct approach to defining religion comes from a separate line of case law that relates to the Places of Worship Registration Act. The two key cases were generated by the Church of Scientology. The first was Segerdal, which was decided in 1970 by the Court of Appeal, the second-highest court in the English system. The leading judgment was given by the legendary jurist Lord Denning. His Lordship had this to say about the phrase “place of meeting for religious worship” that appears in the Places of Worship Registration Act:

This is an unapologetically theistic—indeed, monotheistic—conception of religion. It is perhaps no coincidence that Lord Denning himself was a practicing Christian, albeit one of relatively liberal theological views. His Lordship's definition does advert to “exceptional cases” like Buddhism, but there is no attempt to specify what would count as an exceptional case or why. Moreover, the approach of accepting certain religions as exceptions to a monotheistic norm poses an obvious problem in the context of a multi-faith society.

The interpretation of the Places of Worship Registration Act was revisited over a generation later by the Supreme Court in the 2013 case of Hodkin, which concerned a couple who wished to get married in a Scientologist church. Speaking for the majority, Lord Toulson expressly rejected Lord Denning's premise that a religion needs to recognize a God or “supreme deity.” Referring to case law from the High Court of Australia, he adopted the less prescriptive approach of asking whether a belief system has certain “indicia” that are broadly characteristic of religions across human cultures:

This approach clearly marked a major step forward. It abandoned the explicit theism of Segerdal in favor of a cross-cultural approach that eschewed the notion that a “definitive formula” could be crafted to meet the purpose at hand. The court's stance was value-neutral and pluralistic; and the test that it arrived at would seem to include Pagan religious traditions.

Pausing there, it is an arresting fact that the European Convention on Human Rights and Places of Worship Registration Act lines of case law differ on a very fundamental level. The European Convention on Human Rights test appears to start with the implicit presumption that something is a religion, and then measures it against three rather undemanding criteria. The Hodkin approach, by contrast, is to approach the “something” with an open mind and then to ask whether it bears certain typical indicia shared across world religions. This divergence of approaches is probably not material from the point of view of Paganism, but nevertheless it is far from obvious that it serves any principled purpose. It is, rather, an example of the anomalies that are thrown up by a society in transition from Christian hegemony to secularism. It may be that the Supreme Court will one day consider it appropriate to revisit this inconsistency.

The third attempt at a legal definition of religion comes from the domain of charity law. It will come as no surprise by now that the jurisprudence in this area has historically been tilted toward Christianity and the Abrahamic faiths. Furthermore, the jurisprudence is not in a very elegant or satisfactory condition. As one writer put it, “Commentators on the law through the years have been consistent in their criticism of the bias and incoherence of the law.”Footnote ⁵⁷

The origins of English charity law lie in a 1601 statute known as the Charitable Uses Act or the Statute of Elizabeth. Writing in 1946, one academic lawyer had this to say in relation to the religious aspect of the law:

Accordingly, in the 1917 case of Bowman v Secular Society Ltd., it was held that “a trust for the purpose of any kind of monotheistic theism would be a good charitable trust.”Footnote ⁵⁹ This conservative monotheistic approach was still being treated as good law as late as 1980. In a case involving the charitable status of an ethical society, Mr. Justice Dillon drew on the Places of Worship Registration Act decision in Segerdal to arrive at this conclusion:

Faith, worship and a singular god: this was the conceptual language of an earlier era. The coming of the age of pluralism and human rights meant that something would have to give. That something came with the enactment of the Charities Act 2006, which (as previously noted) made it clear that a religion could be polytheistic or nontheistic in nature for the purposes of charity law. The story, however, does not end there. There is still a residue of confusion in the law in this area that may benefit from future consideration by Parliament.

The statutory regulator of charities in England and Wales is the Charity Commission. The Charity Commission's guidance on the law in this area neatly summarizes the outstanding difficulties (it should be noted that the guidance is currently under review). The commission identifies the characteristics of a religion in the following way:

• • the belief system involves belief in a god (or gods) or goddess (or goddesses), or supreme being, or divine or transcendental being or entity or spiritual principle, which is the object or focus of the religion (referred to in this guidance as “supreme being or entity”);

• • the belief system involves a relationship between the believer and the supreme being or entity by showing worship of, reverence for or veneration of the supreme being or entity;

• • the belief system has a degree of cogency, cohesion, seriousness and importance;

• • the belief system promotes an identifiable positive, beneficial, moral or ethical framework.Footnote ⁶¹

The first point is effectively a modern version of the traditional requirement for monotheism, adapted in the light of the changes in the Charities Act 2006 that I have referred to. It implicitly takes God as the point of departure and then adds alternatives such as “goddesses” and a “spiritual principle.” The second point is also Abrahamic in origin and comes from the decision in the Places of Worship Registration Act case of Segerdal. The third point is taken from the European Convention on Human Rights case law; it is a near-verbatim quotation from Campbell. The final point is unique to the field of charity law, and makes sense within that context. It incorporates a morality test drawing on the historic case law,Footnote ⁶² along with the concept of public benefit that is specific to charity law.

The Charity Commission's guidance, then, adopts an eclectic approach. No criticism of the commission is intended here: the commission is simply trying to arrive at the best interpretation of some dated and inconsistent case law. As noted, the Charity Commission is currently revising its published material, and it may be that changes will be made in the light of the Supreme Court's decision in Hodkin. Until then, the evolution of the law on religious charities may stand as a reminder of the incremental and piecemeal nature of the transition that the English legal system has made to the conditions of a diverse modern society.

The Law Today: Paganism in Court

I now proceed to look at the recent case law on Paganism. How far in practice have the English courts been prepared to place Paganism on the same level as other, more established religions?

I take the European Convention on Human Rights as the point of departure. The case law in this area has undergone something of a shift over the years. The view has been expressed that, under the European Convention on Human Rights system, unfamiliar religious traditions “have been treated with caution and their manifestation only over time acknowledged as entitled to legal protection … if at all.”Footnote ⁶³ This view seems to be borne out by the way in which the European Convention on Human Rights institutions have engaged with Paganism.

The first formal engagement came in 1977 with the X case. A prisoner had brought a complaint before the European Commission of Human Rights with a view to, among other things, registering his religion with the prison authorities as Wicca. The commission, a now-defunct body that was subordinate to the European Court of Human Rights, stated that “the applicant has not mentioned any facts making it possible to establish the existence of the Wicca religion.”Footnote ⁶⁴ The case therefore failed at the first hurdle. It has been commented that this outcome “raised some interesting questions, not least being what evidence of the Wicca belief the Commission would have found satisfactory.”Footnote ⁶⁵

The X case signaled a doctrine in which “followers of non-traditional religions and beliefs … bore the burden of proving the existence of the religion (or belief) in question.”Footnote ⁶⁶ But it is only fair to say that this approach seems to have given way over time to “more generous acknowledgement of non-mainstream religions.”Footnote ⁶⁷ Some years have passed since the X case was decided, and it preceded the development of the current test for identifying a religion under the European Convention on Human Rights (based on the Campbell case), to which I refer above. The significantly increased public profile of Wicca and other forms of Paganism would probably mean that a different outcome from that in X would be reached if the European Court of Human Rights considered a similar case today. Nevertheless, the decision has never formally been overruled. It was quoted with approval in a House of Lords case in 2005,Footnote ⁶⁸ and it is treated as authoritative by the standard encyclopedia of English law and by a major textbook on the law of religion.Footnote ⁶⁹

The European Commission on Human Rights subsequently became drawn into a long-running dispute over access to the ancient Pagan monument of Stonehenge, which contains a famous stone circle dating from 2500 BCE.Footnote ⁷⁰ The stones are aligned with the position of the sunrise on the morning of the summer solstice; and, from the late nineteenth century, Druid revivalists began to use the site to celebrate this festival. From the mid-1970s in particular, Stonehenge at solstice time became a gathering place for people of alternative lifestyles, both Pagan and secular.

In 1985, the official tone changed. Attitudes hardened and restrictions were imposed on access to the site. The prime minister, Margaret Thatcher, took a personal interest in the case, which ended up influencing wider public order legislation. A legal challenge to the decision to seal off the site to Druids at the 1986 solstice found its way to Strasbourg and came to be considered by the European Commission on Human Rights.Footnote ⁷¹ Unlike its action in the X case, the commission did not dismiss the challenge out of hand. It did, however, decline to take the plunge and make a clear ruling that Druidism counted as a religion. It opted to decide the case on other grounds.

Attitudes at the commission continued to soften over the following decade, during which time the European Convention on Human Rights case law on religion underwent a broader maturation process. Another Stonehenge case, arising out of very similar facts from the first case, reached Strasbourg in 1998. On that occasion, the European Commission on Human Rights appeared to accept implicitly that Druidism was a religion, although again it shied away from being definitive on the point.Footnote ⁷² In any event, a more tolerant official response to celebrations of the summer solstice at Stonehenge has come to be adopted since 1999–2000. Interestingly, as discussed below, explicit official recognition of Druidism under the law has ended up coming from another, quite different source.

While the Stonehenge litigation was making its way through the system, Pagan groups were taking their first tentative steps toward obtaining legally recognized status in England and Wales. In the vanguard were two organizations dedicated to Odinism, a form of Paganism that draws its inspiration from Odin and the Norse pantheon. The Odinic Rite, which is known today as the Odinist Fellowship, succeeded in registering with the Charity Commission in February 1988. Another Odinic body, the Odinshof, followed suit in June 1989. These two Pagan charities were joined on the register in July 1995 by the Pagan Hospice and Funeral Trust, which had been seeking charitable status for the previous decade.Footnote ⁷³

At this point, difficulties arose with the Charity Commission. In March 1996, the Pagan Federation, an umbrella group for English Pagans, applied for registration. The application failed; and this seemed to signal a hardening of the Charity Commission's stance. In April 1996, the Pagan Hospice and Funeral Trust was informed that it was being deregistered, a step that was accomplished in January 1998. The Charity Commission also challenged the status of the Odinshof, with the result that the organization reconstituted itself and re-registered under the name of the Olgar Trust. Another Pagan body, the Pagania Trust, was denied registration in 2000.

The Charity Commission's reasons for adopting this stance were interesting. It was clearly influenced by some of the conservative case law that I have referred to. It stated that English law required a religious charity to have, among other things, a “belief in a supreme or supernatural being (ie a personal creator deity standing outside the world).”Footnote ⁷⁴ It also claimed that “Paganism” is not a clearly defined concept: it could simply mean “non-Christian,” a notion that echoes the premodern case law mentioned above. At best, the Charity Commission took the view that Paganism amounted to “an indistinct form of loosely related nature spiritualities.”Footnote ⁷⁵ A commission employee added,

The point that the Pagan community is diverse and embraces a collection of “loosely related” traditions is not without truth. One researcher has described the Pagan movement as belonging to a category of “diffuse faiths” that encounter corresponding difficulties in obtaining legal recognition.Footnote ⁷⁷ Yet it is not at all clear that we need place Paganism in a discrete category of this sort. A better response to the argument based on the movement's diversity is that it cuts with equal force against most mainstream religious traditions. The “loosely related” description could also be applied to the different forms of, say, Buddhism, or, indeed, to the established Church of England, which serves as a striking reminder that a single Christian denomination can embrace adherents ranging across the spectrum from biblical fundamentalists to postmodern nontheists. This perspective has been recognized in academic writing since at least the 1980s, when it became fashionable to speak of “Christianities,” “Judaisms,” and so on. Moreover, the notion that “less salubrious” elements can taint the whole of a religion may be met with a similar response. It would be interesting to speculate on the results if this principle were to be applied consistently across the board.

There was a definite shift in the stance of the Charity Commission following the passage of the Charities Act 2006, with its modification of the legal criteria for a religion to include non-monotheistic faiths. This shift was illustrated by the case of the Druid Network. The Druid Network initially applied for registration as a charity in 2006. The application failed, but the organization reapplied and obtained success the second time around: in September 2010, it was granted recognition. The Charity Commission continued to apply the principle that a religion required a supreme being or entity (singular or plural), but it accepted that Nature fulfilled this role within the Druidic belief system. It expressly took note of the need to avoid discriminating against new or minority religions and the “importance of looking at each application on a case by case basis.”Footnote ⁷⁸

This decision of the Charity Commission aroused some media interest. Melanie Philips, a well-known tabloid journalist of Jewish faith, declared that it was “an attack upon the very concept of religion itself,” as a religion requires “a belief in a supernatural deity (or more than one) that governs the universe.”Footnote ⁷⁹ This was an explicit call for the law to return to the days of Lord Denning and Segerdal, and it provided a reminder that the law sometimes moves faster than public opinion (or at least tabloid opinion). It has been said that the mixed reaction to the Charity Commission's decision amounts to “one instance of how alternative spiritualities are rapidly becoming ‘mainstreamed’ at the same time that they continue to be marginalized by some.”Footnote ⁸⁰ Courts and governmental bodies are not neutral observers of this process; they are participants in it.

The ambivalent nature of the mainstreaming process was soon highlighted again. In October 2012, the Charity Commission declined a renewed application from the Pagan Federation for registration. As had been the case previously, the acknowledged diversity of beliefs within the Pagan community was the sticking point (and, interestingly, the Charity Commission recognized the counterargument that the same observation could be made about better established world religions). The commission's correspondence with the Pagan Federation also pointed up the problem of the inherently conservative connotations of “religion” as a category, as well as the uncertain relationship between religions, philosophies, and other committed ways of life:

At the time of writing, it is understood that the Pagan Federation is intending to make a further application to the Charity Commission. It appears, however, that any such application will be based on the organization's “secular” activities, such as providing education, rather than on the “advancement of religion” criterion.

To return to the courts, the first legal case in England and Wales in which a Pagan tradition was formally recognized as a religion did not come along until 2006.Footnote ⁸² The case arose out of an employment dispute in which a former employee of the Royal Mail, Donald Holden, was claiming unfair dismissal. Mr. Holden was a member of the Odinist Fellowship, the Pagan group discussed above, which sought to register as a charity. Tensions had arisen between Mr. Holden and some Muslim fellow employees over the use of a workplace prayer room. A muddy footprint allegedly appeared in the room, and this set off a chain of events that led to Mr. Holden's dismissal. In the course of the dismissal process, the company treated Mr. Holden's religious commitment with suspicion. One of its managers proceeded on the basis that “it is not likely that a democratic society would accept Odinism as a religion.”Footnote ⁸³ This view—declining to accept that a Pagan religion is a religion at all—is reminiscent of the X case. If officially adopted, it would have returned English law to the 1970s.

By the time that the case reached the Employment Tribunal, the Royal Mail's counsel was adopting a neutral stance on whether or not Odinism counted as a religion. The Employment Tribunal went some distance further, finding unequivocally in Mr. Holden's favor. The relevant section of the judgment is worth quoting at length:

The Tribunal held that Mr. Holden had been unfairly dismissed and ordered the Royal Mail to pay compensation. The decision was naturally hailed as a victory by the Odinist community, and understandably so. The passage quoted above shows an impressive willingness to read the claimant's material carefully and to digest its contents. Nevertheless, the decision had its shortcomings. In particular, it did not set a legal precedent: the decision of an Employment Tribunal has no binding force in relation to future cases.

Other cases involving Pagans also continued to trickle through the judicial system. One case from 2007 involved a claimant who refused to open a bank account on the grounds of his Pagan beliefs. The court noted this aspect of his case in carefully neutral language:

The claimant was pointing to his religion as a reason why the local council should not require him to receive welfare payments in the form of checks. The court did not mount an inquiry into the legitimacy of Hellenic Pagan beliefs; in any event, the claim failed. In another case, from 2011, the claimant was a prisoner who had registered with the prison authorities as a Pagan. His case related to the sanitation facilities that were available to him. The judgment records the prisoner's Pagan affiliation without comment: for the purposes of the case, the judge was more concerned with assessing the sincerity of his previous registered religious affiliation, which had been Muslim.Footnote ⁸⁶

A more or less positively accepting approach was taken by the court in the 2013 case of Pendragon. The Ministry of Justice had granted a license permitting archaeologists to exhume cremation burials at Stonehenge. The license was a legal requirement under the Burial Act 1857, a statute that predated the era of modern archaeological digs. The license required that the remains in question be reinterred within two years, and the archaeologists successfully applied to the Ministry of Justice for an extension of this time. The claimant in the case was a campaigner named King Arthur Pendragon who had also been involved in the earlier Stonehenge litigation. He sought to challenge the extension. He claimed that the Ministry was guilty of duplicity, and that the extension was in fact the first step toward removing the reburial condition altogether so that the remains could be consigned to museums. Mr. Justice Ouseley found that no duplicity was involved; but, more interestingly for our purposes, he seemed to take for granted the existence and legitimacy of Pagan and Druidic beliefs.Footnote ⁸⁷

It was also in 2013 that the English justice system first recognized Wicca as a religion. As with Holden, the recognition came in an Employment Tribunal claim for unfair dismissal. The claimant, Ms. Holland, had been employed as a shop worker. She recounted that a Sikh superior, Mr. Singh, had been “seemingly revolted” to learn that she was a Wiccan who celebrated Hallowe'en: “What … you are not a Christian! You have got to be a Christian surely.” Ms. Holland was subsequently dismissed. Mr. Singh claimed that her dismissal had been for dishonesty. On a previous occasion (which she did not rely on for the purposes of the claim) Ms. Holland reported being on the receiving end of “jokes poking fun at a stereotypical view of witches” from other individuals at work.

The Tribunal found that Ms. Holland had suffered religious discrimination (as well as sex discrimination, which formed another plank of her case). It noted that Mr. Singh had “betrayed some antipathy toward the claimant because she was not an adherent of one of the more well-known world religions.”Footnote ⁸⁸ The Tribunal did not undertake an inquiry into the existence or status of Wicca as a religion, perhaps because the issue seems not to have been raised by the employer. As with Holden, this was only an Employment Tribunal decision, and it has no binding precedential force.

The most recent cases have failed to change the picture greatly. In 2014, one of the claimants in a harassment case was an employee of the Independent Police Complaints Commission named Kathryn Lawcock. A website operator by the name of Mr. Wilby had published attacks on Ms. Lawcock that included flippant references to her Pagan religious beliefs (“coven,” “broomstick,” “evil spell”). The judge was sympathetic to her case, but he merely reported her claim that she was a “practising pagan” without pursuing the point further.Footnote ⁸⁹ Most recently, in a case relating to the pay of prison chaplains, the court referred to “pagan” chaplains, in quotation marks, alongside those of other faith traditions whose names were not marked out in this way.Footnote ⁹⁰ (As a matter of interest, Pagan prison chaplains have been functioning in England and Wales since 2005.)

The Law Today: A Hopeful Outlook?

In a number of ways, Paganism today seems finally to have arrived as a recognized minority religion in the English legal system. Forms of Paganism were successfully accepted as religions in the cases of Holden and Holland. Paganism features in the official guide to equality and diversity published by the Judicial College, known as the Equal Treatment Bench Book.Footnote ⁹¹ Since 2006, there has been a special form of the courtroom oath for use by Pagans. The Pagan Federation has been included by the Law Commission in discussions on law reform.

Accordingly, the president of the Pagan Federation, Mike Stygal, has stated that judges and court staff are usually “very professional” and willing to recognize Paganism as a legitimate religion. Moreover, litigation can sometimes be an educational process, an opportunity for Pagans to give the court an understanding of their beliefs and practices that it may not previously have had. Mr. Stygal recounts the following case:

Perhaps inevitably, however, Mr. Stygal did enter a caveat:

It is particularly noteworthy that the legitimacy of Pagan religious traditions seems to have become fairly well established in the field of employment law. The Holden and Holland cases both arose out of employment disputes. A guide published by the Advisory, Conciliation and Arbitration Service, or ACAS, the state-run employment conciliation service, mentions Pagan religions in an appendix, under “Other Ancient Religions.” The guide states that examples of such religions are “Druidry, Paganism, Wicca, Astaru, Odinism and Shamanism”; and it provides a list of applicable festivals, dietary requirements, clothing, and bereavement practices.Footnote ⁹⁴

On the other side of the ledger, the Pagan community still awaits formal recognition from the higher appellate courts and the European Court of Human Rights. There is also the fact that the case law defining religion—and, indeed, the category of religion itself—continues to harbor inconsistencies and to bear the marks of having emerged untidily from a confessional Christian polity. Moreover, Paganism is not always well understood in the legal community. One of the standard encyclopedias of employment law still states baldly, in its section on protection against religious discrimination, “Witchcraft, voodoo and the like, it is to be presumed, will not qualify.”Footnote ⁹⁵

Pagans have come a long way in the English legal system over the last few decades—and an even longer way if we look back to the start of the Pagan revival in the 1700s. It is not, however, a story of unambiguous progress, and some tensions and anomalies remain. As to whether these difficulties will end up being fully resolved, for Paganism and for minority religions generally, that is a question for the future. Nevertheless, there are grounds for hope.