About Me
- Russell Blackford
- Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).
Monday, May 03, 2010
The 1983 scientology case
I'm rereading/studying this famous High Court case from 1983 as research for The Book. At issue was whether Scientology is a religion, which meant that the judges had to grapple with the question: "What is a religion, for the purposes of the law?" Though three separate judgments were published, they are not wildly incompatible with each other. It's more a difference of emphasis. The analyses of the judges are well worth reading. All held that Scientology is a religion, contrary to the views of some other courts, but it's not so much the result that's useful now as the reasoning along the way. Justice Murphy's judgment is especially good (Edit: though maybe a bit too broad and pragmatic in how he eventually defines a religion).
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7 comments:
DM and the other post tag have the same old view and unfortunately they do sound like the Fundamentalist, perhaps New Revivalists or even Mid Western Baptists - the pattern I see here is also a bit like the street calling the Exclusive Brethren use...
This is where the true argument on religion needs to be addressed. When does a religion turn into a sect - a declassification as you will.
This would mean people like DM would be stripped of religious status because in their actions they break the key tenants of their religions base beliefs: Under a review of educated atheists and theologians it is possible to construct a base point for all religions based solely on the overall and not selected passages of their teaching.
Sounds difficult but it isn't. If my church can have this scripture and social adherence set up, why can't others?
This would make DM and the not so friendly types lose immunity in a way. And it would force, at least the Christian arm, into a reasoned conformity.
Now wouldn't that be radical -- and none of it would have anything to do with supernatural or spiritual beings....
But that would be too logical I think
RNS
Hush, Rob. I sometimes leave DM's comments when it amuses me or he has some new material. But we don't feed him, okay?
Oh, Okay -- food not for sharing - bring your own guy...
RNS
Rex Ahdar, in 'Religious Freedom in the Liberal State', argues that courts should largely stay out of the business of defining religion, as it isn't a matter in which they are qualified to judge. He also argues that courts should restrict themselves to trying to ascertain the genuineness, as opposed to reasonableness or orthodoxy, of an individual's or group's beliefs.
Personally, since I don't believe that religions, or religious values or practices, should receive any preferential or otherwise special treatment, I can't see why courts should very often be called upon to make this sort of judgment, at least outwith the purely private law domain (contract law, trusts, etc)
@Colin: There are occasions when it's needed in the actual world, though, e.g. this case. Whether the Church of the New Faith was exempt from payroll tax depended on whether its activities were religious, which depended (more or less) on whether Scientology was a religion. I don't recall that Ahdar and Leigh were so much talking about this. I thought their point was more about whether courts should be in the business of sorting out which are the "true" (as in orthodox or traditional) doctrines of a religion. E.g., to take one of those issues in private law that you mention, if a will says that a sum of money is to be held in trust "for the purpose of advancing the true doctrines of the Church of Snark", the courts should try to avoid working out, in case of dispute, which are actually the "true doctrines" of that church. The courts might try to remit the case to some other body such as the Church of Snark's internal ecclesiastical tribunal. I'm not sure I agree. I don't say that I definitely don't agree, just that I'm not sure. It looks to me like there are some pros and cons, and I'd like to think about them before committing myself.
Of course, it's another thing whether or not a religious institution should have, for example, an exemption from pay-roll tax in the first place. As you might expect, I'm also not a big fan of such exemptions.
Actually, I think you're right, Russell; if we are to have special protection for religion (as A&I strongly maintain) then it stands to reason that someone will need to define what we mean by 'religion'.
What I do seem to remember, though, is that they advocate a very expansive definition of religion (for these purposes), which extends to non-theistic creeds such as Wicca, and even (fror legal purposes) analogous non-religious ideologies such as secular humanism.
Which made me wonder why they can't just go the whole hog and include all ethical and political positions in the same legal basket.
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