The adventures of religious freedom: Do judges understand religion?

Abstract

At the dawn of the twenty-first century, something rather unexpected happened: religion became significant again. Since the time of the Enlightenment, great thinkers had been quick to predict that religion would vanish in modern rational society and throughout the twentieth century this broadly became the case. However, the events of the late twentieth and twenty-first centuries have questioned these long held expectations about the decline of religion. One of the most noteworthy, but often overlooked, changes relates to law. Religious freedom is now recognised as a human right and discrimination on grounds of religion or belief has become explicitly prohibited. These new laws have led to a significant increase in litigation and discussion of ‘religious rights’ (a process which may be referred to as the ‘juridification of religion’). And long-standing assumptions and values have become questioned. The relationship between law and religion has become increasingly important and increasing controversial. This paper looks at several recent high profile effects in order to determine the effect of this ‘juridification of religion’. Cases concerning prayers said at Council meetings, refusals to give urine samples and protests outside St Pauls Cathedral will be amongst those examined to determine whether judges truly understand religion and the extent to which the new legal framework is working. This paper was originally presented at a staff seminar in Keele University on 21 March 2012.