INTRODUCTION AND RATIONALE
Religion is, in many legal jurisdictions, considered to be ‘special’.Footnote 2 It is usually bracketed alongside philosophical beliefs of equivalent status to religion, thus widening the definition for these purposes.Footnote 3 As ‘special’, religion and philosophical belief as a combined category, takes its place alongside certain human characteristics, such as sex race disability age and sexual orientation, which are afforded some forms of legal protection or immunity in Europe North America, Australia and elsewhere.
Unlike these other categories,Footnote 4 there is a widespread perception that religion involves individual choice – it is not an ‘immutable’ characteristic.Footnote 5 This is disputed by many on a variety of grounds.Footnote 6 What is difficult to dispute, however, is that someone's religion is not always immediately apparent to others (unlike their sex or race).Footnote 7 This will be still more true of philosophical beliefs. One of the consequences of this is the likely need for some kind of criteria to identify religion (or philosophical belief) when it has been ‘assumed’ by an individual, usually in terms of consequent beliefs and the ways these are manifested. The purpose of such criteria would be to attest to the authenticity of those religious or philosophical beliefs.
It might be objected that such criteria are unnecessary. The holding of a religious belief is rarely any more than a first stage in terms of the distribution of any available protections – the second stage is often more significant, where the religious ‘right’ is balanced against any competing rights (such as, in workplace cases, the rights of the employer) in order to assess which right should stand and which give way. Nevertheless, even if the establishment of religion or belief is not the last word on the matter, it is still potentially significant. After all for a right to exist it must surely require a firm foundation – it would be difficult to build a robust case for religious rights if any human activity could be dressed up as religious or analogous to religious. For example, if devotion to baseball or the stock exchange were accepted as ‘religious’ in character this would surely trivialise the whole notion of religion (and belief),Footnote 8 and it would be difficult to see how this could stand against rights with a firmer foundation, such as, for example, sex or sexual orientation, or even employer discretion. On a practical level, in the oft-quoted words of Judges Mason and Brennan: ‘The mantle of immunity would soon be in tatters if it were wrapped around beliefs, practices and observances of any kind whenever a group of adherents chose to call them a religion’.Footnote 9
In other words, protection for religious belief is a scarce resource and must remain so if that protection is to be meaningful. In the United Kingdom workplace, for example, the manifestation of religious (and analogous) belief enjoys some ‘negative’ protection principally under the doctrine of indirect discrimination.Footnote 10 There is however a (‘second stage’) defence in law to a claim of indirect discrimination which is that, in this case, any restrictions on manifestation can be shown to be ‘a proportionate means to achieve a legitimate aim’.Footnote 11 It will surely be easier for an employer to demonstrate that this level of proportionality has been achieved if faced, under a regime based on total inclusion, with a bewildering array of religious beliefs and forms of manifestation. This might justify a general policy of setting the bar very high indeed before accepting the legitimacy of manifestations of religious belief where a potential conflict might arise.
A QUESTION OF SINCERITY
The determinant of legitimacy which is most commonly applied in many legal jurisdictions is that of individual sincerity. A helpful definition of ‘sincerity’ from a court's perspective is that provided in Amselem v Syndicat Northcrest Footnote 12 as ‘imply[ing] an honesty of belief and the court's role is to ensure a presently asserted belief is in good faith, neither fictitious nor capricious and that it is not an artifice.’Footnote 13 An individual's ‘sincerity’ is generally framed as a question of fact for the court to determine.Footnote 14 As the court is therefore required to engage in some form of inquiry, it seems not inappropriate to refer to this as a ‘test’.
This test of sincerity is usually allied to some form of ‘functional’ test to determine the centrality of a particular ‘religious’ belief in someone's life.Footnote 15 In R (on the application of Williamson and others) v Secretary of State for Education and Employment and Others,Footnote 16 such a ‘functional’ test was set out by the House of Lords: ‘The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance … it must be a belief on a fundamental problem.’Footnote 17
In a recent UK employment case, Grainger plc (and others) v Nicholson,Footnote 18 it was suggested that any functional test might be interpreted more widely than was previously thought to include single issue beliefs, if they impact sufficiently on an individual's life, such as a belief in man-made climate change. If the importance of the function of belief in an individual's life is (arguably) downplayed as a result of being broadened in this way, then the sincerity element is correspondingly magnified.
There are of course other tests which may be employed to determine legitimacy. For example, it is possible to make inquiries into a particular religious practice to determine if it is indeed an orthodox expression of a known religion. If so, there may be an allied test to determine whether or not the practice is mandatory (or ‘necessary’ as in the human rights case of Arrowsmith v UK Footnote 19), such that the individual is under an ‘obligation’ to engage in that religious practice. For example, in R (Playfoot) v Governors of Millais School,Footnote 20 the court ruled that a schoolgirl was not ‘obliged’ by her Christian faith to wear a silver ring symbolic of a commitment to pre-marital chastity.
Another test involves reference to a group of people who share the same religion – the more adherents who support a religious practice, the more likely it is to be regarded as legitimate. An example of this is the decision by the Court of Appeal in Eweida v British Airways,Footnote 21 a case where the claimant was seeking to establish unlawful discrimination on the grounds of religion and belief due to her employer's refusal to permit her to wear a visible cross. The Court determined as there were not significant numbers of Christians who had a religious belief that they must wear a visible Christian cross so there was no protection for Eweida under indirect discrimination provisions.Footnote 22
These tests are controversial; the first particularly so as it requires courts to involve themselves in some way in determining the requirements of religious doctrine.Footnote 23 Indeed, there is a line of legal reasoning which suggests that courts should restrain themselves from interfering in such matters. This was recently confirmed in His Holiness Sant Baba Jeet Singh Ji Maharaj v Singh,Footnote 24 a libel action brought by a controversial Sikh leader, Jeet Singh, who had been described by journalist Hardeep Singh, inter alia, as an ‘imposter’. In his judgment on this question, Eady J found that the relevant issues were inextricably linked to religious doctrine:
… it seems to me plain that the allegation of ‘impostor’ cannot be divorced from questions of Sikh doctrine and practice. Of course, I recognise that if an allegation were made of someone, who happened to be a religious leader, that he had his hand in the till, or assaulted a follower, this could be determined separately and without reference to religious doctrine or status, but that is far from this case. The issue whether this Claimant is or is not fairly described as an ‘impostor’ cannot be isolated and resolved without reference to Sikh doctrines and traditions.Footnote 25
As Eady J was unable to distinguish aspects of the claimant's alleged conduct from his religious practice he was unable to reach a conclusion, having accepted the arguments presented to him that secular courts lacked the jurisdiction to determine religious issues, following the guidance in Blake v Associated Newspapers Footnote 26 that ‘the court will not venture into doctrinal disputes or differences’.Footnote 27 The libel action was therefore stayed.Footnote 28
For the purposes of this article, whether religious beliefs are the subject of judicial inquiry as in Playfoot or not as in Singh is not in fact central to the argument presented. Individual sincerity remains highly important in either case. Invoking a ‘necessary’ orthodox religious belief will not be sufficient to entitle the individual to some form of potential benefit without evidence that this is also a sincerely held belief. Equally, as considered earlier, if there is no ‘doctrinal’ inquiry of any kind, then sincerity of belief can be the only realistic test. Thus individual sincerity is of great significance to legitimising religion and its manifestation for the purpose of legal protections. However, the sincerity test does have its stern critics as to its appropriateness as a test in principle.Footnote 29 It can also be criticised, on a more practical level, as at best somewhat elusive in spite of judicial efforts to define it more clearly.Footnote 30 Indeed it may be so elusive that courts in the West have tended, as Ahdar and Leigh note, to accept all but the most patently fraudulent claims.Footnote 31 This being the case, and given its key role in differentiating between worthy and unworthy claims, there is surely merit in subjecting the issue of individual sincerity to greater levels of scrutiny with a view to developing a more consistent and robust approach which might be useful to both courts and, in modified terms, to those such as employers who might sometimes be required to take a view on whether or not a professed religious faith is genuine.Footnote 32
SINCERITY AND CONSISTENCY
Sadurski, whilst rather sanguine about the need to do so, explores this issue from a judicial perspective and identifies three elements for measuring the sincerity of a claim for religious exemption:
i. the conformity of this claim with the written or empirically verifiable traditions and proscriptions of the religion or the cult;
ii. congruence between the professed religious tenets and one's actions;
iii. the willingness to undertake alternative duties and burdens, equally onerous but neutral from the point of view of that religion's proscriptions, etc.Footnote 33
Unless applied at a very basic level indeed, the first element does look rather like a test of doctrine (in its loosest sense) which is surely, in reality, quite different to a sincerity test and which the judge in Singh was so anxious to avoid. For the purposes of this article, the second and third elements are more compelling. With regard to the third, certainly in the workplace, requiring that a religious employee makes some form of reciprocal ‘sacrifice’, in exchange for being excused from a particular task on religious grounds, might quickly reveal how far there is a genuinely held desire to abstain from that task. For example, a Muslim factory worker might authenticate the genuineness of a request for time off for prayers on Friday afternoons by accepting a potentially unattractive Saturday evening shift as an alternative. However, not all occupations and not all religious beliefs lend themselves to such an easy trade-off. The well-known case of Ahmad v Inner London Education Authority,Footnote 34 for example, illustrates the difficulty of finding an appropriate time trade-off in a profession with fixed hours such as that of a school teacher. In this case, Ahmad, a Muslim, wished to absent himself from the classroom on Friday afternoons for prayer; the only trade-off which could be contemplated was the financially disadvantageous one of a reduction in wages to reflect the reduction in hours worked – one which was not acceptable to him. It is more problematic still to see how the principle of reciprocal sacrifice might work in cases where the right to wear a particular form of religious dress or adornment is the key claim.Footnote 35 The immediate difficulty would involve quantifying the ‘loss’ to another party (such as an employer) and the second, very practical, difficulty would lie in quantifying an appropriate means by which ‘compensation’ might be made for this loss.
Sadurski's second element, however, appears to be potentially more all-embracing of the various ways in which individuals might manifest their religious beliefs. This element is very close, if applied systematically, to what might be termed ‘a consistency test’. In brief, this could be defined as a measure of how far the individual's actions are in conformity with the religious belief or beliefs he is relying on. This is potentially a very useful means of measuring sincerity as it relies on the congruence between belief and action,Footnote 36 and is worthy of fuller development.
It is submitted that something very like a consistency ‘test’ was considered by the European Court of Human Rights in Kosteki v the Former Yugoslav Republic.Footnote 37 Kosteki (on two separate occasions) took a day's unauthorised absence at the expense of his employer, the Electric Company of Macedonia, during Muslim festivals. On both occasions he was fined by his employer as a disciplinary sanction. In a subsequent court case, the Bitola Municipal Court found that Kosteki had not provided evidence that he was a Muslim. His previous conduct weighed heavily with the court which noted that he had never been absent from work during a Muslim holiday before a particular date, instead he had celebrated Christian holidays. His way of life suggested he was a Christian and both this parents were Christians.
The approach by the Court was challenged by Kosteki under Article 9. The European Court of Human Rights dismissed the case, and judged that a requirement to show evidence of allegiance to a particular faith was ‘not unreasonable or disproportionate’ and that it was within the scope of the margin of appreciation for member states to require this.
Although consistency was the key issue in Kosteki, it is not yet firmly established that this is an appropriate area for inquiry by courts and tribunals. This is clear from a recent United Kingdom employment case, Khan v Vignette Europe Ltd. Footnote 38 Although it was a procedural issue which was central to this case, there is no reason to suspect that the tribunal's reasoning in respect of the sincerity of the claimant's religious beliefs would have been any different had it touched on a more substantive point. In brief, the case concerned Mr Khan, a Muslim, who had been dismissed from his job in telemarketing on 8 June 2007 following a protracted series of grievances during which, when his laptop was examined, it was found that he had downloaded pornographic materials – a matter which the company regarded as one of gross misconduct and something which Mr Khan did not subsequently deny.
When the matter reached the employment tribunal, Mr Khan made two successive applications for an adjournment (for different reasons); both were refused. During the course of the hearing, and apparently following advice from a Muslim witness appearing on his behalf, he made a third application on the basis that it was, at that time, Ramadan. During Ramadan, Mr Khan wished to ‘enjoy a period of mental and spiritual purity’Footnote 39 which might be compromised by the pornographic material integral to the facts of the case.
Notwithstanding the late appearance of this application, and its rationale, the tribunal accepted its authenticity. It was then faced with ‘a difficult and anxious task’Footnote 40 in balancing the rights of the claimant to fully enjoy his religious rights during Ramadan and the rights of the respondent not to be put to unnecessary cost and delay.
Although both the tribunal and the EAT ultimately found in favour of the respondent, it would surely have been desirable to avoid the ‘difficult and anxious task’ it set itself by applying a test of consistency; it is likely that this would have led to a much more speedy resolution of the issue. Mr Khan was inconsistent in two ways. Firstly he was inconsistent in the rationale he offered for his requests for adjournment, his religious basis only appearing after other avenues were exhausted and seemingly for tactical reasons. Secondly, he was inconsistent in terms of his own behaviour – his interest in pornography was not compatible with his Muslim faith in this respect.
PROVISOS TO THE CONSISTENCY TEST
It should perhaps be noted at this point that despite the merits of a test of consistency, there is a powerful objection, illustrating the need to pursue the test judiciously and with appropriate provisos. It is that an individual's actions may well conflict at times with his or her religious convictions which might otherwise be deeply held. There may be various reasons why this might be the case. These reasons are set out, with comment, below.
First, inconsistency may be inspired by what might appear to be a perhaps unconscious double-standard – for example in McFarlane v Relate Avon Limited,Footnote 41 a Christian relationships counsellor was seemingly happy to give advice on sexual techniques to unmarried heterosexual couples but his conscience prevented him from providing this advice to same-sex couples. Sex outside marriage, whether heterosexual or homosexual, is regarded as sinful under traditional Christian teaching. This inconsistency is likely to be rooted in theological misinterpretation – the kind of inconsistency which Lord Nicholls described in Williamson when he opined that ‘[e]ach individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some.’Footnote 42 This is not the kind of inconsistency envisaged by the test considered in this article, which is much more focused on an individual's actual behaviour. In McFarlane there was a consistency of behaviour – the claimant consistently refused to agree to provide sex therapy to same-sex couples.
Second, inconsistency may be prompted by fear or other pressures. In McClintock v Department of Constitutional Affairs,Footnote 43 for example, in noting the inconsistent basis of a Christian magistrate's objection to being required potentially to give an order for adoption by homosexual couples (originally presented on the basis of entirely neutral reasoning, then on the basis of religious conscience), the tribunal was sympathetic to the possible reason for this flip-flopping: ‘perhaps because of a reluctance, understandable in the current environment, of admitting to a fixed opposition to the notion of same sex couples.’Footnote 44 In other words he was nervous about admitting the true basis of his religious objections because of a fear of encountering a negative or hostile response. In these circumstances, inconsistency would not necessarily provide evidence of insincerity.
Third, inconsistency may be prompted by a recent religious conversion (the right to change religion is after all clearly recognised as an integral element of many relevant human rights instruments, such as Article 9 ECHRFootnote 45) or a similar experience leading one to take one's religion much more seriously. In these circumstances a test of consistency would not be appropriate, although the genuineness of the conversion does perhaps require substantiation through judicial inquiry.
Fourth, inconsistency may be prompted by the effects of shifting priorities towards religion in one's life.Footnote 46 This is surely true for many, but by no means all, religious adherents. However, a test of consistency can accommodate this. Ahdar and Leigh suggest that it is important in, as they put it, ‘weighting the claim’, to ‘focus on the person's beliefs at the time … not past practice or belief.’Footnote 47 It is surely correct that recent conduct should be at the forefront of the consistency test. This is also the view taken in Amselem where the need was identified to perform ‘an analysis of whether the alleged belief [of a claimant] is consistent with his or her other current religious practices.’Footnote 48 This is surely the correct perspective. It is surely also reasonable to ration a claim by an individual for protection for his religious beliefs by means of an assessment of whether or not these beliefs are actually taken seriously by that individual at the time of making the claim.
Finally, inconsistency may be prompted by particular moral failing (in Christian theology, a particular ‘besetting sin’) with which an individual might struggle. However, a lack of congruence with faith convictions in one area of personal conduct need not invalidate the sincerity of belief in other areas of life. With reference once again to Khan, whilst Khan's interest in pornography was inconsistent with Islamic teaching, it would surely be presumptuous and judgmental to conclude on this basis that he was not a devout Muslim and therefore in some way ‘ineligible’ to claim legal protections for his chosen forms of religious manifestation. There is thus a clear dilemma with regard to the claims made by an individual in these circumstances. Happily, the dilemma can be resolved if the consistency test is weighted towards the particular beliefs for which the individual would like some form of protection. Thus, individual moral failing should not be a bar to religious-based claims in general by that individual, but it could be a bar to any rights to the free exercise of the particular religious belief in which the individual is morally compromised, and indeed it should be if the rights of someone else are at stake. Thus an individual who takes pleasure in pornography, an offence to the religious convictions he espouses, cannot then credibly claim immunity from contact with that same pornography on the basis that it is offensive to his religious sensibilities, whatever the reason for the alleged offence (here the interference with Ramadan). It should also be obvious to individuals in this predicament that, by their actions in stubbornly seeking immunities through the courts in such circumstances, they risk damage to the reputations of the religions they espouse.
CONCLUSION
The need for a more robust basis for discerning sincerity in religion and belief cases has been considered in this article. It is argued that this need is increasing as the notion of what qualifies for the status of a religion or philosophical belief appears to be widening. In these circumstances, an assessment of individual sincerity has become the key means of identifying eligibility for any available legal protections or immunities. It is clear that there are various means to gauge individual sincerity, but the most universally relevant is where a would-be claimant's behaviour, and its congruence to the beliefs espoused, is at the forefront of any assessment. This already occurs (sporadically) in the courtroom and tribunal, but, it has been argued, there may be benefit in emphasising the importance of such an assessment to the point of developing a ‘test’ of consistency which might be more generally applied in all such cases.
However, Lord Walker is surely correct when he voiced his opposition to ‘a rigidly analytical approach’ in addressing questions of this kind,Footnote 49 and it is clear that the test must be approached in a nuanced way. A series of preliminary questions must be asked if, primae facia, an individual has failed to demonstrate consistency, including the following:
i. Is the inconsistency one of theological understanding as opposed to individual behaviour?
ii. Is the inconsistency a result of fear?
iii. Is the inconsistency due to a recent defining religious experience?
iv. Is the inconsistency due to changes over time in the relative importance accorded to particular religious beliefs (or indeed belief in general)?
v. Is the inconsistency due to a particular moral failing unrelated to the form of religious manifestation in question?
A fair application of the consistency test would require an initial ‘no’ to each of these questions, before proceeding to an overall assessment.
