Citation:  UKSC 77 Supreme Court of the United Kingdom
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
This case concerned a consideration of whether Scientology in the UK constituted a religion. Hodkin and her fiancé wished to be married in a church which was part of the Church of Scientology. However, in R v Registrar General, Ex parte Segerdal  2 QB 697 the Court of Appeal had held in a similar case that a different church within the Church of Scientology was not a ‘place of meeting for religious worship’ within the meaning of section 2 of the Places of Worship Registration Act 1855 (18 & 19 Vict c 81) (PWRA), with the result that a valid ceremony of marriage could not be conducted there. This appeal challenged that decision.
The challenge to the Registrar General’s decision arose because on 31 May 2011 a trustee of the relevant church applied on behalf of the congregation to the Superintendent Registrar of Births, Deaths and Marriages at the Islington and London City Register Office to register the church as a ‘place of meeting for religious worship’ under PWRA and as a building ‘for the solemnization of marriages therein’ under the Marriage Act 1949. The application was supported by statutory declarations made by Hodkin and by the minister of the church. It was also supported by a certificate signed by 24 householders stating that it was their usual place of worship (as was required by section 41 of the Marriage Act). The application was referred to the Registrar General and rejected. The refusal letter stated that the Registrar General was bound by the decision in Segerdal and therefore unable to proceed with the application. The Court below had also considered itself bound by Segerdal: see  EWHC 3635 (Admin). In Segerdal, the Court of Appeal had defined religious worship as involving the veneration of a deity (or similar).
The relevant legislation (PWRA) provides in section 2 that:
‘Every place of meeting for religious worship of Protestant Dissenters or other Protestants, and of persons professing the Roman Catholic religion, … not heretofore certified and registered or recorded in manner required by law, and every place of meeting for religious worship of persons professing the Jewish religion, not heretofore certified and registered or recorded as aforesaid, and every place of meeting for religious worship of any other body or denomination of persons, may be certified in writing to the Registrar General of Births, Deaths and Marriages in England, through the superintendent registrar of births, deaths, and marriages of the district in which such place may be situate; … and the said superintendent registrar shall, upon the receipt of such certificate in duplicate, forthwith transmit the same to the said Registrar General, who, after having caused the place of meeting therein mentioned to be recorded as hereinafter directed, shall return one of the said certificates to the said superintendent registrar, to be re-delivered by him to the certifying party, and shall keep the other certificate with the records of the General Register Office.’
The current provisions giving legal effect to marriages in places of worship registered under the PWRA are contained in the Marriage Act 1949, as amended.
The Church of Scientology was established in the United States by L Ron Hubbard in 1954, and its customs and practices are based on his writings. Scientology involves belief in and worship of a supernatural power, also known as God, the Supreme Being or the Creator. Understanding of the Creator is attainable only through spiritual enlightenment, and the goal of Scientology is to help its members to obtain such enlightenment. Scientology holds that the accomplishment of spiritual salvation is possible only through successive stages of enlightenment.
L Ron Hubbard identified eight human impulses which he termed dynamics of existence. In ascending order they are the urge of survival as an individual, the urge of survival through one’s family, the urge of group survival, the urge of survival for all humankind, the urge of survival for all life forms, the urge of survival of the physical universe, the urge of survival for all spiritual beings and lastly the urge of existence as infinity. God is infinity although Scientologists do not describe God in anthropomorphic terms. All Scientology practices are aimed ultimately at complete affinity with the eighth dynamic or infinity.
The minister of the relevant church in this case led regular services which included recitations akin to prayer, a sermon based on Hubbard’s writings, and a process called auditing. Evidence was considered by the Supreme Court of the wording of the prayers, which included several references to ‘God’. The Court of Appeal in Segerdal had considered the same evidence as to the wording of the prayers of the church, but concluded that they represented more a philosophy than a religion. The Court of Appeal found that there was no evidence of reverence or veneration of (as a sort of humble submission before, or seeking intercession from) God or a Supreme Being (at pages 697, 707-709 of that decision).
The Supreme Court noted that there had never been a universal definition of religion in English law. Nevertheless (at -):
‘Religion and English law meet today at various points. Charity law protects trusts as charitable if they are for the advancement of religion. Individuals have a right to freedom of thought, conscience and religion under article 9 of the European Convention. They enjoy the right not to be discriminated against on grounds of religion or belief under EU Council Directive 2000/78/EC and under domestic equality legislation…More recently Parliament provided partial definitions of religion in section 2 the Charities Act 2006 (now section 3 of the Charities Act 2011) and section 10 of the Equality Act 2010 for the purposes of those Acts.’
Understanding the historical background of the PWRA was important. However (at ):
‘…the expression “place of meeting for religious worship” in section 2 of PWRA has to be interpreted in accordance with contemporary understanding of religion and not by reference to the culture of 1855. It is no good considering whether the members of the legislature over 150 years ago would have considered Scientology to be a religion because it did not exist.’
Moreover, other common law jurisdictions had moved on in this area some time ago. The Supreme Court quoted the judgment of Adams CJ in Malnak v Yogi 592 F.2d 197 (1979) concurring in a per curiam opinion of the US Court of Appeals, 3rd Circuit, and the judgment of the High Court of Australia in Church of the New Faith v Comr of Pay-Roll Tax (Victoria)  HCA 40.
In Malnak v Yogi the issue was whether the teaching in a public school of a course entitled the ‘Science of Creative Intelligence – Transcendental Meditation’ was a religious activity violating the first amendment of the US Constitution (which forbids the establishment of a State religion). Without making a narrow definition, Adams CJ identified three indicia of religion in that case:
1. That the belief system was concerned with the ultimate questions of human existence: the meaning of life and death, mankind’s role in the universe, the proper moral code of right and wrong;
2. That the belief system was comprehensive in the sense that it provides an all-embracing set of beliefs in answer to the ultimate questions;
3. That there were external signs that the belief system was of a group nature which could be analogised to accepted religions. Such signs might include formal services, ceremonial functions, the existence of clergy, structure and organisation, and attempts at propagation.
This set of indicia was subject to some criticism, including in the Church of the New Faith case from Australia. In that case, the Church of Scientology was seeking exemption from payroll tax in Victoria because it was a ‘religious institution’. The High Court also looked for criteria (at , per Mason CJ and Brennan J):
‘We would therefore hold that, for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.’
The Church of the New Faith (Scientology) was a religious institution under these criteria, and thus was exempt from income tax. Theistic definitions of religion such as existed in England were too narrow in the High Court’s view, and the indicia of Adams CJ in the US included indicia which did not really relate to religion. Wilson and Deane JJ put the relevant test as follows (at ):
‘One of the more important indicia of “a religion” is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has “a religion”. Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium (cf. Malnak v. Yogi  USCA3 125; (1979) 592 F (2d) 197) is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.’
Since Scientology satisfied all these criteria, it was a religious institution for the purposes of exemption from payroll tax, and for other purposes, including charity law, in Australia.
The Supreme Court unanimously agreed (per Lord Toulson) with the non-theistic approach of the High Court of Australia (at , ):
‘Unless there is some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today’s society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism…Of the various attempts made to describe the characteristics of religion, I find most helpful that of Wilson and Deane JJ. For the purposes of PWRA, I would describe religion in summary 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 in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.’
Therefore, Scientology was a religion (at ), and its church was a place of worship within the PWRA. Segerdal was expressly overruled as ‘unduly narrow’ on the issue of what constitutes a religion for the purposes of the PWRA (at , ). This was because (at -):
‘I interpret the expression “religious worship” as wide enough to include religious services, whether or not the form of service falls within the narrower definition adopted in Segerdal…The broader interpretation accords with the purpose of the statute in permitting members of a religious congregation, who have a meeting place where they perform their religious rites, to carry out religious ceremonies of marriage there. Their authorisation to do so should not depend on fine theological or liturgical niceties as to how precisely they see and express their relationship with the infinite (referred to by Scientologists as “God” in their creed and universal prayer). Those matters, which have been gone into in close detail in the evidence in this case, are more fitting for theologians than for the Registrar General or the courts.’
The case may be viewed at: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0030_Judgment.pdf
Implications of this case
This case has important implications in England because until now the Church of Scientology has been denied charity status by the Charity Commission of England and Wales (the law of Scotland already accepts Scientology as a religion). The Church of Scientology is registered as a charity in Australia. When denying registration as a charity, the Charity Commission had argued that there was no public benefit from Scientology. Although the Supreme Court has now ruled that Scientology is a religion for the purposes of registering a place of worship for marriage, the public benefit issue in the context of charity law has still to be resolved.