Case Preview: R (Hodkin & Anor) v Registrar-General of Births, Deaths and Marriages
22 Monday Jul 2013
Angels on Pinheads? Religion in the Supreme Court
At present, and pending any Order to be made by the Secretary of State under the Marriage (Same Sex) Couple Act 2013, s 14 which would permit marriage according to the usages of (non-religious) belief organisations, legal marriages can only be conducted in England and Wales (1) by Registrars, (2) according to Protestant, Catholic, Jewish or Quaker “usages”, or (3) in “registered places of worship” by persons authorised by the trustees or governing body of the building.
On 18 July the Supreme Court (Lords Neuberger, Clarke, Wilson, Reed and Toulson) heard the appeal in R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriage). The case concerns the interpretation of the Marriage Act 1949, which provides for the recognition by the state of marriages conducted in “registered places of worship”. The First Claimant wishes to marry her fiancé in the London Church Chapel, a chapel of the Church of Scientology which is not registered under the Places of Worship Registration Act 1855 as a “place of meeting for religious worship”, and could not therefore be recognised for the purposes of the 1949 Act.
In 2011 the second Claimant (the Church of Scientology Religious Education College, which owned the Chapel) applied to the Defendant for registration under the 1855 Act, which application was refused on the ground that the Chapel was not a “place of meeting for religious worship”. In doing so the Defendant followed her predecessor’s earlier decision to refuse an application made some four decades before for the registration as a place of worship of a Scientology chapel in East Grinstead. That decision had been upheld by the Court of Appeal in in R v Registrar General ex parte Segerdal  3 All ER 886, Lord Denning MR declaring that a:
“‘place of meeting for religious worship’ … connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words ‘place of meeting for religious worship’ is that it should be a place for the worship of God”.
Lord Denning had gone on to suggest that:
“the Church of Scientology … seems to me to be more a philosophy of the existence of man or of life, rather than a religion. Religious worship means reverence or veneration of God or of a supreme being. I do not find any such reverence or veneration in the creed of this church… There is considerable stress on the spirit of man. The adherents of this philosophy believe that man’s spirit is everlasting and moves from one human frame to another; but still, so far as I can see, it is the spirit of man and not of God. When I look through the ceremonies and the affidavits, I am left with the feeling that there is nothing in it of reverence for God or a deity, but simply instruction in a philosophy. There may be belief in a spirit of man, but there is no belief in a spirit of God…”
Winn LJ, who with Buckley LJ agreed with Lord Denning as to the outcome of the appeal, expressly dismissed the question whether Scientology itself was to be regarded as a religion, observing that:
“The answer to that specific question must depend so directly on the meaning that one gives, for the particular purpose and in the particular context, to the chameleon word ‘religion’ or ‘religious’”. But “whilst it may be right—or it may not be right—to call this philosophy (because that is what it is) a religion, when adherents to it come together in any building or other place for communing one with the other—since there is no suggestion that they commune with a deity—and discussion and instruction by sermon and otherwise, they do not, so far as the evidence reveals to my own mind, observe any form whatsoever of worship; by no ‘worship’, if I am bound to define my terms, I mean to indicate that they do not humble themselves in reverence and recognition of the dominant power and control of any entity or being outside their own body and life”.
Buckley LJ, who also declined to determine whether Scientology was a religion, added that the recital by Minister and congregation of portions of the Scientologists’ creed “are affirmations of faith, but they do not, I think, partake of the character of worship”.
The Decision under Appeal
The application for Judicial Review in the instant case was rejected by Ouseley J on the basis that the Segerdal, which he understood to permit the recognition of non-theistic religious worship, was binding on the Court. He accepted (§38) that Segerdal would cease to be binding on the Defendant and the High Court if there was evidence of a change in Scientologists’ practice since 1970” but took the view that no such evidence had been produced. Ouseley J accepted that Scientology was a religion and remarked (§40) that it was “quite difficult in this statutory context to separate the question of ‘worship’ from whether there is a religion involved. The reasons why a service does not constitute ‘worship’ are closely linked to the reasons why a belief system is not a religion”. But (§41):
“the Court of Appeal must be taken to have reached its conclusion on ‘worship’ on the basis that it did not matter whether Scientology was a religion or not; its services were not ‘worship’. Therefore, in practice, it could make no difference to its decision, all of its doubts notwithstanding, if Scientology were found to be a religion, unless a substantial change in worship since 1967 was also found to have occurred. Such a change might show also that Scientology is a religion, given the intermingling of the issues, and that conclusion would not be precluded by the decision of the Court of Appeal since it made no finding on that issue. But it is on the question of a substantial change in ‘worship’ that the Registrar General was right to focus.”
Ousleley J went on to consider the evidence before him as to the nature of Scientology and its services, including that of the Chapel’s Minister who testified that (§55) during services Scientologists “commune with the Infinite and reach with reverence and respect towards the Supreme Being. They always include a prayer to the Supreme Being in which the whole congregation joins. There is also a reading of the Creed of the Church of Scientology, in which the pre-eminent position of God is affirmed.” And at §57:
“It is in our Sunday services that we come to celebrate and acknowledge God. This is emphasised not only by the simple coming together of many beings in a joint spiritual experience, but also by the express postulation of the pre-eminent position of God in the recitation of our Creed. We show profound religious reverence and respect for the Supreme Being. We engage in auditing as a group. We also join in common prayer which is the way that people directly communicate with the Supreme Being, seeking its intercession.”
There was further evidence before the Judge of prayers during Sunday services (including (§64) “‘a supplication that God might intercede in man’s affairs to bring about freedom from material entrapment’, which makes clear dependence on God and the Supreme Being as the indisputable source of wellbeing and the model for the Scientologist’s aspirations, and in which God is revered as the Author of the Universe”, and of a revised form of wedding ceremony in which (§62):
“‘upon the solemn and holy occasion’ a not unfamiliar structure of ceremony followed. Questions were asked of bride and groom ‘under the light and glory of God and truth’. There are a number of references to God, such as ‘here in all the dignity of God before me stand a woman and a man whose lives from this time hence are one…before their God…’. The couple are pronounced man and wife before the witnesses ‘and God’.”
Ouseley J went on to conclude, however, that none of the evidence showed any significant change cince 1970, this despite the introduction into services of an explicitly intercessionary prayer:
“72… I cannot accept that had this prayer been before the Court of Appeal, it would have made any difference to its judgment. Given the Court’s critique of the creed, I cannot see that this prayer would have altered its critique of the nature of the acts in the services; rather Lord Denning would have made much the same points about this prayer as he did about the creed. Likewise, I see nothing about it which would alter the judgment about whether what Scientologists did was worship, as Winn and Buckley LJJ defined it: “humbling themselves in reverence and recognition of a dominant power and control of any entity or being outside their own body and life”, or “submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession”. The simple description of it as a prayer could not suffice, nor the simple recognition of ‘God-given or Godlike’ potential. The hope that the ‘author of the universe’ will enable spiritual understanding, and the ending plea ‘May God let it be so’, are forms of prayer and intercession, but overall, I cannot see this as a significant change in practice.
73. There is also now a form of Wedding Ceremony, which states that it is taking place ‘under the light and glory of God and truth’; that too is a change. But neither by content or tone is that a real change to ‘worship’ from what the Court of Appeal considered.”
At §82 Ouseley J accepted the submission, made for the Defendant, that Segerdal “required an object of veneration, whether Being, principle or law. Belief in a principle, or aspiration to achieve an end, was not enough; veneration was required. This meant that prayers, whether or not intercessionary and a sermon could not of themselves be acts of worship, nor could a service of itself, nor a meeting to participate in core actions. Studying how to achieve enlightenment, and instruction in the tenets of a religion, were not acts of worship”. The judge went on to express his view that (§83) the “definition of ‘worship’ in Segerdal [is] problematic” in that it was “difficult to separate the concept of ‘worship’ from the tenets of the religion” and “the definition seems inapt to cover the non-theistic religions which the Court accepted are religions and which must be taken to ‘worship’ for the purposes of the 1855 Act”. He was, nevertheless, bound by the decision of the Court of Appeal which he could not, further, distinguish by dint of s3 of the Human Rights Act 1998 given his view (§90) that the 1855 Act “is not incompatible with the human rights of the Claimant. There is no interference with the right to marry according to national laws. There is no interference with the right of Scientologists to practise their religion, if such it is. There is no discrimination on the grounds of religion, assuming that Scientology is a religion”.
Ouseley J suggested, in dismissing the Claim, that “Forty years on from Segerdal, the Court of Appeal may find the route at least to reconsider its decision in Segerdal, with the fuller material now available”. In the event, the Supreme Court granted permission for a leapfrog appeal which was heard on 18 July. According to the Independent (“Judges stumped over couple’s bid to marry in Church of Scientology, 18 July 2013), the hearing “got increasingly bogged down in a discussion of what constituted religious worship” with Lord Neuberger inquiring whether “If you have a group of vegetarians who believe passionately in vegetarianism and have meetings in which to promulgate that view, is that a form of worship?”, a question which he later answered with the conclusion that such was not a religion “because you can’t very well worship a vegetable.” Lord Wilson is reported as having asked, “[a]fter reading out a prayer used in every Scientology service, which says, ‘May the owner of the universe enable all men to reach an understanding of their spiritual nature… May God let it be so,’ … ‘Just looking at that, how is that not a manifestation of religious worship?’” The argument put for the Defendant was that the services carried out in the Chapel involved “a spiritual investigation of oneself, not the worship of a divine being”.
The Independent reported that their Lordships sought further evidence from the Defendant “on whether it should have been deciding at all what constituted a religious ceremony”, this with the effect that the decision is unlikely before at least October. It is not clear that the Defendant could have done otherwise than to make this decision given that the 1855 Act tasks the Registrar with (s2) recording, inter alia, “place[s] of meeting for religious worship of any other body or denomination of persons” (emphasis added).
Whatever the particular terms of the request, it will be interesting to see how their Lordships navigate their way through the difficulties of deciding, as a secular body, whether exactly what Scientologists do in church involves religious worship. The legal basis of the 1970 decision of the Court of Appeal is not entirely satisfactory. Lord Denning’s approach gave no room to non-theistic religions despite his mention of exceptional cases and it is wholly unclear, despite Winn LJ’s insistence that classification (or not) as “religious” was not central to the question whether a place was “for religious worship”, it is difficult to see how a place could meet his requirement for worship if it is not used for religious purposes. Further, Winn LJ’s approach to “worship” expressly requires the communion with a deity. There is something very odd about a conclusion that meetings involving “commun[ion] with the Infinite”, “reach[ing] with reverence and respect towards the Supreme Being”, communal prayer to the “Supreme Being” and affirmation of “the pre-eminent position of God”, and celebrat[ion] and acknowledge[ment of] God” do not involve religious worship, whatever may be one’s attitude towards Scientology.
The Hodkin case is interesting because of the answer which the Court might give to the question before it: whether Scientologists’ ceremonial practice involves “worship”. Perhaps a more important question, though not one for the Court, is whether, in twenty first century England and Wales, the answer to this question should continue to have any legal significance.