Law and Society Section B Seminar 3-law, religion and culture

State and religious right: freedom of belief and practice

What is religion:
not necessarily believing in god, including supernatural belief
Hong Kong: is it a religious society?
Comparatively yes, more room for religious practice e.g. faluengong
compare:
UK, Europe: being more secular society: less spaces for religious practice, growing
prevalence of skepticism against religions
Metaphor:
veil of ignorance
suggest liberal model: political structurediff to make choices catering each
individuals need
state: not engaging in the collective value, creating conditions
distribution of wealth
contrasting utilitarianism: should care about overall welfare of society, as long as
societys utility is maximized, individual needs should be sacrificed
??to what extent should the state create conditions
what is the right of freedom of religion, what is the content, what is the scope
Faluengong case
members denied entrance
Issue: is faluengong a religionderiving any religious rights?
Chu Woan Chyi v Director of Immigration [2007]
-no requirement to believe in a deity, but in a supernatural , transcendent reality(goes
beyond the secular scope)
-no single definition
Q: Why shouldn't the court give the definition of religion?
A: possible exclusion of certain religions, creating privileges and discrimination
-avoidance of a technical/narrow approach, generous interpretation
-Something more than a set of shared ethical beliefs (or the law will be a religion

itself)
-ideas relating to mans nature and place in the universe and his relation to the
superrnatural
e.g. let individual understand oneself, society, in-depth social discourse
-these ideas encourage men to abide by standards or participate in practices with
supernatural significance
e.g. catholic canon
-possible variation but in constitution of an identified or identifiable group
Jew: OCA, orthodox church
Do we have any additional requirement on religion?
-merely sincerity in holding some belief?
US: established tradition in conserving religious freedom
e.g. UK survey 2001 (part of the census)-Jedi Religion (starwar)
e.g. scientology, tom cruise
e.g. US: boohoo, Italyreligion?
When religious practices conflicts with law
which one prevails
how should we reconcile
how should we decide,
To what extent
Should law restrict religious freedom? what is the role of law?
-unlimited religious freedom may hurt public interest/particular members of society
e.g. headscarfspreading religious belief of inequality between genders?
-harm principle?
are religious practices harming others?
e.g. Afghanistan: violation of religious lawnose cut/ disfigure of face
what are the boundaries
e.g. human dignity (?may not justify state intervention into religious practice)
harm principle: physical harm? Intellectual pressure, e.g. moral/psychological?
freedom to develop religious thought?
French National Assembly approves ban of face veils
Story of Ayan
-sending the children to the school=implicit agreement to school rules?

restriction of right: forbidding/encroaching his right to relgion

asking him to pray(following Christian belief)+forbidding him to express Muslim
belief
In legal terms
I) international laws
1. ICCPR-more on individual participation (negative rights)
Art 181
2. ICESCR-collective nature (positive state rendering+fulfilment of right protection):
negative: freedom from sth
positive: freedom to sth, state needs to do sth to meet those rights
religious right: individual mater, not in societal context
II) BL art.32, freedom of conscience, public religious practice
art. 15: freedom of thought, conscience and religion-banning coercion(2), restriction
*limitation: as are prescribed by law+necessary+legitimate goals(3)
III) BORO
Art 15 (3)
APPROACH:
1. right is in issue: religion
-the claim must fall within the scope of right protected under the ECHR
2. has it been infringed? How?
3. is the infringement justified?
-in accordance with the law?
-for a legitimate purpose?
-necessary in a democratic society(ECHR)? (HK working: necessary)
Application:
UK woman-permanently ill, want to die
asked the state not to prosecute her husband for assisted suicide
right to life=encompass right to die+right to privacy? Deserve states respect?
lost in UK court and took the case in ECHR
what are the requirement to allow this to happen?
what is necessary in a democratic society?
-necessary=/=useful,reasonable, desirable
necessity test

1. pressing social need (objective of the action)

-must be relevant and sufficient (i.e. relevant time and circumstances)
2. Proportionality of the means
-must be proportionate to the legitimate aim pursued
-substantive or procedural features of the laws
Our approach:
1. Issue: freedom of religion
-fact: required to pray+forbidden to demonstrate Muslim pray
2. scope of right protected under the BOR?
3.Right infringement?
4.infringement in accordance with law
5.infringed for a legitimate purpose
6. infringement necessary in a democratic society (pressing social
need+proportionality)
Application: Ayan
step 4:
law Art 136-autonomu and academic freedom
on the basis of previous educational system, religious education(definition)
BL art 141: according to previous practice (before the handover)
preserve the previous foundation of the society(=/=do whatever he wants)
constitutional basis for independent schooling
Relevant case: Catholic Diocese of HK c Secretary for Justice [2010]
body with public participation in monitoring catholic schools vs religious groups
automony in operating schools

Two famous cases in Germany: cruisefix case, headscarf

Application: BVerfG, 2 BvR 2003
Facts: Afghan woman naturalized in Germany in 1995
She was refused to be appointed as a teaher in the state of BW for she insisted on
wearing headscarf
Issue: whether the school authority
Government
1.teacher violated the strict religious neutraility of public school

2.headscarf: religious symbol, cultural separation, political symbol

-symbol of oppression on female?
3.Undue influence on impressionable young childrencontinuous confrontation
4. Lack of aptitude
States duty to providw education art 7.1
In the manner of ideological and religious neutrality
Parents right of education art 6.2
Negative freedom of faith of schoolchildren art 4.1
Complainant
1.A mark of personality
2. Expression of her religious conviction and Islamic identity
-freedom of religion under art 4.1 4.2
-equal acess to public office art 33.2
3. human dignity art 1.1
Other possible arguments:
practical use of headscarf, as accessories
a symbol of origin, tradition of home society
a symbol of protest to western values-right to be different
Cons courts approach
Restriction on art 4.1 must be considered with
-rights of 3rd parties: parents, schools
-community values
making choices of what the good is regarding religions, balance of rights
-Restriction must have sufficiently definite statutory basis
*need to be prescribed by law
Alternative: explanation of wearing headscarfless offensive
freedom of religion: absolute right
restriction+modification of situation--. Should be done by law
Neutrality: not strict neutrality, but respectful and open
-state: completely veilnot feasible
-finding a balance, not ignoring groups interest

-a wall of separation: not a high wall, a state understanding religious belief

-subjective: headscarf
-objective: cruisefix
Held: Approach
-Rights of the c and ther rights involvef para 62
-Law: legal basis para 60
-Test on intention of a teacher: objective standpoint of the onlooker para 53
-Other interests affected? Evience? Para 53 c
-For the legislative body to pass new law para 65b
Case discussion and Critic
please comment R(E) v Governing Body of JFS critically
Fact: boys not accepted due to mothers identity (not converted in orthodox church)
Issue: whether by offering places for Jewish pupils firstm JFS had discriminated?
RRA1976
outlawed discrimination on racial grounds
i.e. colour, race, nationality or ethnic or national origins
*direct discrimination
no defense for justification: the motive doesn't matter (para 9)
e.g. swimming pool case gender discrimination
-motive not matter
Defendants argument:
-discrimination on religious grounds, not on racial gorund
-the book of moses: ruth, deuteronomy
-founded on religious dogma, in accordance with Jewish religious law
Not a test of ethnic status or origin but of realigius origin and status
Test (para 28)
Dual nature of conversion (para 39)
-refer to biblical story: Ruth the Moabite
-religious+ethnic
reasoning:

selection on the sole basis of genetic descent by the maternal line form a woman who
is jewish is direct racial discrimination
-not on religious basis
Dynamics of Rules in Society
Fundamentals of religious fate:
States willingness to negotiate the boundaries between law, religion, tradition
Private, religion public
Regulation by govt vs autonomous self-governance
*normative attitude towards values
-tolerant conception of social, cultural, religious values
State not separated from meaning parts of society
Indirect discrimination can be justified based on proportionality test