Respecting the dignity of Religious Organisations: When is it appropriate for Courts to decide Religious Doctrine?

• Author: Neil Foster
• Position: BA/LLB (UNSW), BTh (ACT), DipATh (Moore), LLM (Newc); Newcastle Law School, University of Newcastle, NSW, Australia
• Pages: 175-219

“RESPECTING THE DIGNITY OF RELIGIOUS

ORGANISATIONS: WHEN IS IT APPROPRIATE FOR

COURTS TO DECIDE RELIGIOUS DOCTRINE?”

ASSOCIATE PROFESSOR NEIL FOSTER*

The notion of “dignity” is usually associated with individuals. But in the religious

sphere, individuals often join together as part of organisations, whether “churches”

or other groups. Court decisions in disputes involving religious parties may involve

the court being invited to decide what is a “valid” or “correct” religious doctrine. But

is it consistent with the dignity that ought to be afforded to religious persons and

groups for secular courts to take on a role as “amateur theologians”? There are good

public policy reasons to suggest not, based on the lack of expertise of judicial officers,

and religious freedom considerations supporting the authority and dignity of

religious actors to decide the meaning of their own doctrines. However, in some

cases, courts are required to determine religious questions for the purposes of

enforcing a private law right, such as under a charitable trust for the advancement of

religion, or an employment contract. Refusing to decide these issues in such cases

may leave deserving parties without a valid remedy. This article reviews the approach

to this issue taken by courts in the United States, United Kingdom and Australia, in

order to determine whether these different decisions can be reconciled. It

recommends that courts usually continue to respect the dignity of religious

organisations by declining to determine the content of religious doctrine, but should

be willing to do so where the private rights of parties arise under a religious regime

initially accepted by the parties concerned.

I INTRODUCTION

What we as judges need to know and und erstand is what the individuals before us

actually believe and whether that belief is freely and sincerely held. We are not

concerned with whether it is doctrinally right or wrong… We are no longer

concerned with whether it is a ‘core belief’ of the religion to which the individual

belongs.

1

* BA/LLB (UNSW), BTh (ACT), DipATh (Moore), LLM (Newc); Newcastle Law School, University of

Newcastle, NSW, Australia.

1

The Hon Baroness Hale, “Secular Judges and Christian Law” (2015) 17

Ecclesiastical Law Jnl

170-181

at 179.

University of Western Australia Law Review

[Vol 47:175]

176

[T]he parties accepted that it was no part of the Court’s function to review the

correctness of the theological opinion expressed by the Committee and they did

not seek to tender any expert evidence on the topic. That approach is correct.

2

[T]he courts do not adjudicate on the truth of religious beliefs or on the validity of

particular rites. But where a claimant asks the court to enforce private rights and

obligations which depend on religious issues, the judge may have to determine

such religious issues as are capable of objective ascertainment. The court addresses

questions of religious belief and practice where its jurisdiction is invoked either to

enforce the contractual rights of members of a community against other members

or its governing body or to ensure that property held on trust is used for the

purposes of the trust.

3

It is not uncommon to find wide-ranging statements such as those above

that “courts do not determine religious doctrine”. But there are other cases,

flagged by the comments of the UK Supreme Court in

Shergill v Khaira

quoted

above, where the court finds itself bound to determine at least some religious

issues. Are the courts simply being inconsistent? Or is there a rational and

workable distinction between cases where religious beliefs ought not to be the

subject of “secular” judicial rulings, and those where the courts have to offer their

interpretations of doctrine? The aim of this paper is to demonstrate that the latter

is true and to provide a clearer understanding of the difference between these

two situations.

These issues matter for many reasons; some of those reasons relate to the

fundamental idea of human dignity. A basic aspect of the protection of human

dignity is respect for the fundamental religious beliefs that may underlie human

actions. Freedom of religion is protected in crucial international agreements, and

as a basic part of the presuppositions of Western societies. A key feature of

religious freedom, however, is that it protects not only the rights of an individual

in their own autonomy, but also the rights of groups of persons who joint

together to live out their shared religious commitments. Art 18(1) of the

Interational Covenant on Civil and Political

Rights (“ICCPR”), for example,

refers to the right:

2

Kumar v Satsang Hindu Maha Sabha of NSW Incorporated (No 2)

[2019] NSWSC 325 per Kunc J at

[21] (thanks to my colleague Dr Renae Barker for alerting me to this reference.)

3

Shergill v Khaira

[2015] AC 359,

[2014] UKSC 33 per Lords Neuberger, Sumption and Hodge at [45].

2020

Respecting the Dignity of Religious Organisations

177

either

individually or in community with others

and in public or private, to

manifest his religion or belief i n worship, observance, practice and teaching.

4

Part of the respect that should be offered to a religious group, then, is that it

be left to order its life in accordance with its own understanding of the religious

doctrines that shape its existence. Of course, there are some circumstances where

the living out of those doctrines may need to be controlled in the interests of

fundamental rights of members of the group or members of the public- where a

religious group, for example, inflicts physical or sexual abuse on children or other

vulnerable persons. There are well recognised limits to religious freedom.

5

But

even in those cases, there are significant questions to be raised as to whether the

State should be interpreting, or “re-interpreting” doctrine, or rather simply

saying that “whatever your doctrine means, we cannot allow this behaviour”. The

latter response is more consistent with the dignity of the group, which is not

undermined but actually affirmed when the group is held accountable for the

lived consequences of its doctrines.

Western societies in general usually assume a separation between “church”

and “state”, and one aspect of that is that secular judges do not usually make

definitive rulings on the content of religious doctrine. While there are good

reasons in most cases to be wary of judicial involvement in determining the

content of doctrine, a blanket policy of this sort may create problems where

private parties have entered into arrangements with a shared understanding of

religious beliefs.

In any event a blanket “hands off” policy

6

is not consistent with the actual

history of how courts have made decisions in some areas. Judges have regularly

asserted that they will not make rulings on theological doctrines; but historically

courts have just as regularly been called on to determine, in property disputes

involving religious trusts, what is an acceptable use of property in accordance

with the trust. To decline to make a ruling there will often leave one party at the

mercy of another who has behaved in bad faith.

4

For detailed analysis of the religious freedom rights of groups, see J Rivers,

The Law of Organized

Religions

(Oxford; OUP, 2010); Nicholas Aroney, “Freedom of Religion as an Associational Right”

(2014) 33/1

University of Queensland Law Journal

153-186.

5

See art 18(3) of t he

International Covenant on Civil and Political Rights

, providing that impairment

of the right to manifest religion is justified by “such limitations as are prescribed by law and are

necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of

others”.

6

For this terminology, see Kent Greenawalt, ‘Hands Off! Civil Court Invol vement in Conflicts over

Religious Property’ (1998) 98

Columbia L Rev

1843.