The vexed question of ‘what constitutes a religion?’ has come up from time to time in the domestic courts, most recently in R (Hodkin & Anor) v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77 about the status of Scientology. Though there is no bar on someone setting up and practising his or her own ‘religion’ and no obligation to register it with officialdom, the issue is important in practical terms because registering a trust as a charity gives it several financial advantages, while the practice of religion itself is a human right protected by Article 9 of the European Convention.

In 1999, the Charity Commission of England and Wales (the regulator that approves or rejects applications to register new charities) had refused to register the Church of Scientology as a charity on the grounds that its core practices did not constitute ‘worship’ and that even if it were otherwise established for ‘the advancement of religion’, its activities were not of sufficient public benefit – and, in consequence, the Registrar General of Births, Deaths and Marriages refused to register the Church’s chapel in London as an approved venue for solemnising religious marriages. Louisa Hodkin and her fiancé wanted to marry in the chapel and took their challenge to that refusal all the way to the Supreme Court.

In the leading judgment, Lord Toulson described ‘religion’ as

‘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 … Such a belief system may or may not involve belief in a supreme being’.

On that basis, the Supreme Court held that the Church of Scientology satisfied the test and that its London chapel was indeed a place of meeting for religious worship within the meaning of the Places of Worship Registration Act 1855 – and ordered the Registrar General to register it. So far as I am aware, however, despite the ruling in Hodkin and a ruling in January 2023 that parts of its buildings in London were exempt from business rates because they were used in connexion with public religious worship, the Church of Scientology has still not been registered as a charity in England and Wales – though perhaps it has not bothered to reapply.

But that was by no means the end of the story. In 2016, the Charity Commission refused to register The Temple of the Jedi Order as a charitable incorporated organisation with purposes including ‘to advance the religion of Jediism, for the public benefit worldwide, in accordance with the Jedi Doctrine’. The Commission took the view that ‘religion’ in charity law was characterised by

‘belief in one or more gods or spiritual or non-secular principles or things, and a relationship between the adherents of the religion and the gods, principles or things which is expressed by worship, reverence and adoration, veneration intercession or by some other religious rite or service’ and ‘must be capable of providing moral and ethical value or edification to the public and characterised by a certain level of cogency, seriousness, cohesion and importance’

 – and it decided that Jediism failed those tests. It did suggest that there was scope for Jediism and the Jedi Doctrine to be advanced and followed as a secular belief system, but noted that, in Hodkin, Lord Toulson had excluded secular belief systems from his description of ‘religion’.

Fast forward to the 2020s, and the latest round of the ‘what is a religion’ saga has just been played out in Strasbourg, where the European Court of Human Rights has returned to the matter in two judgments: Alm v Austria [2022] ECHR Application no. 20921/21 and Sager and Others v Austria [2022] ECHR Application no. 61827/19.

The basis for the Court’s decisions in Alm and Sager was its earlier ruling in De Wilde v The Netherlands [2021] ECHR No 9476/19. Mienke De Wilde, a Pastafarian, had applied for a new driving licence and a new identity card with a picture of her wearing a colander on her head. When the domestic authorities refused her request, she took the matter to Strasbourg – where the ECtHR was equally unsympathetic, concluding that Pastafarianism was not a ‘religion’ or ‘belief’ within the meaning of Article 9 and that Article 9 could not apply to the Church of the Flying Spaghetti Monster or its followers. Therefore, said the Court, on the facts her complaint was incompatible with the provisions of the Convention.

In Alm, the applicant was refused permission to wear a ‘pasta crown’ on the photograph for his identity card and passport. The ECtHR noted that, although the concept of ‘religion or belief’ in the sense of being protected by Article 9 of the Convention (freedom of thought, conscience and religion) had to be interpreted broadly, that did not mean that all opinions or convictions were to be regarded as religious or philosophical positions. Further, the Court had previously concluded in De Wilde that Pastafarianism was not to be regarded as a ‘religion or belief’ within the meaning of Article 9. So in the present case, the Court saw no reason to hold otherwise and the complaint was therefore incompatible with the provisions of the Convention within the meaning of Article 35(3).

The Court took a similar line in Sager in relation to the complaint under Article 9. As to the additional complaint under Article 11 (freedom of association), it rejected the applicants’ claim that they had been prevented from freely associating as a confessional religious community and enjoying the benefits of that status because – unjustifiably – Austria only granted it to ‘religious’ communities and not to non-religious ideologies. The Court reiterated that Article 11 did not give associations a right to any specific legal status and that the applicants had, in fact, successfully established a (non-religious) association under Austrian law in 2015. The Court had confirmed in De Wilde that where a state had created a privileged status for religious communities, it had to apply the criteria for acceptance in a non-discriminatory manner and give religious groups a fair opportunity to apply for that status. But because Pastafarianism did not constitute a ‘religion’ within the meaning of the Court’s case‑law, Article 11 of the Convention did not apply in its case. It followed that the complaint was manifestly ill‑founded, and the Court rejected it.

Derk Venema and Niko Alm have previously criticised the approach of the ECtHR on several grounds. The criticism that chimes most insistently with me is the concept of ‘invented religions’: that a religion that has been ‘made up’ by its adherents cannot be serious or worthy of respect. Pastafarianism and Jediism are the extreme cases: the first began as a spoof in reaction to the rise of the Intelligent Design movement, while the second came to public attention in 2001 when almost 400,000 people recorded their religion as ‘Jedi’ on the UK Census. But lots of religions that are now fully accepted were ‘invented’ at some point.

The Church of Scientology began life as recently as the 1950s, while the Latter-day Saints were first organised by their prophet, Joseph Smith, in 1830: before that, they simply did not exist. The Quakers emerged in the mid-17th century and were routinely persecuted and imprisoned by the authorities, most commonly on charges of blasphemy and the non-payment of tithes. Even in the case of Christianity itself in the wider, non-denominational sense, it was not clear until the middle of the first century, when the Council of Jerusalem, as described in Acts 15, considered the matter in some detail, that it was going to be a distinct religion it itself rather than a reformist movement within Judaism. Or again: there was no Islam before Muhammad, no Buddhism before the Buddha.

So is ‘madeupness’ a valid or useful criterion for evaluating the validity of a religion or life-stance? I would suggest not: at the very least, courts – and not only the ECtHR – should reject a new or unfamiliar religion only after considerable and anxious forethought. Probably the test case is the Church of Jesus Christ of Latter-Day Saints: it was undoubtedly invented by (or, as Mormons would put it, revealed to) Joseph Smith, but surely no-one nowadays would dispute its cogency, seriousness and cohesion – whatever view they might take of the truth or otherwise of its doctrines. And in any case, as Mienke de Wilde and Paul Cliteur point out:

‘What is it called when you really, really, really believe in secularism? Can you hold these views and morals so dearly that they become sacred to you? … what if someone’s secular worldview is so firmly held that he believes he needs to adopt a fitting religion to practise, preach and teach that secular worldview in the best possible way? Should he not have the right to practise his worldview freely if – with this religion of practising secularity – he does no harm to others?’

Indeed: how could he or she not have that right?

 Whether or not Pastafarianism should be protected as a ‘religion or belief’ under Article 9 remains arguable, but I would suggest that, at the very least, domestic authorities should be very, very careful how they apply the test of ‘cogency, seriousness, cohesion and importance’. One person’s ‘cogent and serious’ belief may be another person’s fairy-tale. And at least one common law jurisdiction, New Zealand, has two officially registered Pastafarian marriage celebrants, one in Wellington and the other in Auckland.

But perhaps the last word should rest with Niko Alm himself, who suggests in his latest comment on his case that the approach of the Austrian Department of Religious Affairs to the issue has been totally irrational:

‘The simpler, cheaper and more elegant decision would have been to simply accept what is worthy and right: to allow the pasta crown in the identity card. The only person who would have made a fool of himself would have been me.’

Further reading on Pastafarianism and its challenge to established religion:

Religious Privilege 2 : 0 Pastafarians, by Niko Alm

Flying spaghetti monsters, by Emma Park (for the New Humanist)

The secular religion of the Church of the Flying Spaghetti Monster, by Paul Cliteur and Mienke de Wilde

Judging the Flying Spaghetti Monster, by Derk Venema and Niko Alm

Pastafarian Month at the Freethinker

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The post What is ‘religion’? Strasbourg and the Pastafarians again appeared first on The Freethinker.

Misogyny, homophobia, child beatings and the Taliban are not causes that most people would associate with charity work. But these are all examples of things which I have seen registered charities promote quite openly on their websites.

The Holiness Revival Movement Worldwide Europe, which registered with the Charity Commission last year, ran essays on its website condemning women who wear trousers as ‘harlots’ and blaming women who dress ‘sexily’ for rape.

The Core Issues Trust, a registered charity in Northern Ireland, offers what it calls ‘change orientated therapies’ for people ‘who want to move away from homosexual feelings, behaviours and attractions’. If you think this sounds an awful lot like ‘gay conversion therapy’, that is because, judging from the definition on its website, that is what it is.

The official website of the Free Presbyterian Church of Scotland devotes a whole article to why parents should physically discipline their children, simply because the Bible says: ‘Withhold not correction from the child: for if thou beatest him with the rod, he shall not die.’ Yet smacking children is illegal in Scotland.

And last year, the Miftahul Jannah Academy, a registered charity in England, published a lecture on their website in which a preacher praised the ‘amazing victory of the Taliban in Afghanistan’, saying ‘Allah gave them victory on the battlefield.’

What links these charities is that they are all registered in the UK, quite lawfully as matters stand, under the charitable purpose of ‘the advancement of religion’. This is not a coincidence. These organisations have promoted extremist ideologies because those ideologies stem from their religious beliefs. And this is one reason why ‘the advancement of religion’ is perhaps the most controversial and archaic of the recognised charitable purposes under the law in England and Wales, and similar provisions in Northern Ireland and Scotland.

Being a registered charity means being exempt from most taxes in exchange for providing some kind of benefit. There are therefore a number of conditions that a non-profit organisation must fulfil to be recognised as a charity in law. One is that the charity must exist to serve a public benefit, without causing harm. Another is that it must exist for a recognised charitable purpose in law, sometimes called a ‘head’ of charity. These heads include things such as ‘the prevention or relief of poverty’ and ‘the advancement of health’. They also include ‘the advancement of religion’.

The advancement of religion as a head of charity originates from Tudor times, when trusts supporting the upkeep of churches, the maintenance of preachers and the provision of religious practices were considered charitable. However, in post-Reformation England, charity law functioned to support only the established church and approved religions; trusts for non-conformist religious purposes were identified as illegal ‘superstitious uses.’ Over the centuries, the definition of what counts as a religion in charity law has gradually widened.

Under the law as it stands today, in theory, existing for a charitable purpose such as ‘the advancement of religion’ is not sufficient for an organisation to be a charity – it must also demonstrate a ‘public benefit’. But in practice, evidence suggests that religious charities do not have to demonstrate any tangible public benefit at all – and often, they can promote harmful messages under the cloak of ‘advancing religion’.

The existence of the ‘advancement of religion’ charity head reveals an inherently pro-religion bias in charity law: why would it be considered a charitable purpose at all if religion was not thought to benefit the public in some way?

Furthermore, attempts to make this charitable purpose inclusive of non-religious worldviews such as humanism have failed. Despite other laws such as the Equality Act 2010 being inclusive of ‘religion or belief’, charity law stubbornly continues to recognise religion only.

Why are religions, but not non-religious worldviews, considered so beneficial that they deserve charitable status, with all the financial benefits this brings? Strangely, there seems to be no clear explanation for this anywhere in the law or in guidance issued by charity regulators.

The vague assumption that religion is inherently beneficial is at odds with what most British people think about religion: in a series of recent studies, 52% of British adults said they had no religion, 68% said religion was ‘not important’ to their own life, and over 60% of those under 65 thought religion does more harm than good.

But as a result of conceptions about religion and charity originating from the Tudor period, we are now in a situation where, every year, hundreds of charities register in the UK under ‘the advancement of religion’ provision without really having to demonstrate a public benefit.

Some of these charities are seemingly benign but of dubious benefit. A typical example is CV Europe, which registered earlier this year. Its website says it works in three areas: ‘Introducing people to Jesus’, ‘Mobilising Christians to evangelise’, and ‘Resourcing the Church with free digital content and knowledge’. It is hard to see what tangible public benefit this charity serves – except to Christian institutions looking to expand.

But then there are others, like the examples given earlier, which are potentially harmful. And unfortunately, in some cases there is little the charity regulators can do to rein them in.

When the National Secular Society raised concerns with the Northern Ireland Charity Commission regarding the Core Issues Trust, the Commission refused to intervene. It said the Core Issues Trust presents its ‘therapy’ as ‘beneficial’ and ‘contests the view that this practice is inherently harmful.’ In other words, the Commission was prepared to take the Core Issues Trust’s word over that of all reputable health and psychological organisations, since every one of them considers ‘conversion therapy’ to be ineffective, unethical and harmful.

Earlier this year, the NSS referred a Christian charity, East Kilbride Christadelphian Ecclesia, to Scotland’s charity regulator OSCR, after finding anti-vaccine conspiracy theories and viciously homophobic posts on the charity’s Facebook page. OSCR said there was nothing it could do, because it concluded the views expressed by the charity are ‘in accordance with their religious beliefs’.

Such cases provide clear evidence that ‘the advancement of religion’ as a charitable purpose not only provides cover for useless charities – it provides cover for downright harmful ones as well.

At this point, it is important to highlight that there are many religious charities that do genuinely good work for the public. There are many running food banks, helping the homeless, and providing essential aid overseas. But in every one of these cases, the beneficial work they are doing can be classified under a charitable purpose other than ‘the advancement of religion’. The Trussell Trust is one excellent example of a Christian charity whose work is classified under a number of different purposes, none of which are ‘the advancement of religion’.

Religious charities are a secularist issue. Giving tax breaks to organisations simply because they advance religion violates the principles of church-state separation and state neutrality on religion.

The simplest solution would be to remove ‘the advancement of religion’ from the list of recognised charitable purposes. This would not be a barrier to religious charities which do provide a genuine public benefit, because that benefit would be covered by one of the other charitable purposes. But it would go a long way to ensuring all charities, religious or not, are held to the same high standards when it comes to satisfying the public benefit requirement.

And more importantly, it would close the loophole which currently permits charities to advance intolerant, harmful, extremist ideologies under the cloak of religion.

See also:

How taxpayers subsidise evangelism, by Emma Park (New Humanist)

2019 report by the National Secular Society on ‘the advancement of religion’

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