International Journal of Cultic Studies ■ Vol. 3, 2012 7
“disqualification by definition” is made
redundant, particularly if no inherent distinction
between ethical and unethical groups is read into
the definition. This point has been tellingly
made by the Church of Scientology, which
claims that,
Despite the specific cultural differences
among countries, contemporary court
decisions are adopting expansive
definitions of religion that appear to fit
perfectly within the “ethically neutral”
approach taken by scholars of
comparative religion. In fact, the
definition of religion adopted by the
High Court of Australia … could well
have been written by a scholar of
religion.23
Although an expansive, ethically neutral,
sociological definition might be useful for
academics who wish to study religions (as an
entomologist studies insects), it is probably not
the nuanced approach that might be required in a
variety of public-policy applications. For
example, one legal scholar has suggested that to
make sense of the two basic components of s.
116, free exercise and nonestablishment, a
bifurcated definition of the word religion might
be required to achieve the underlying objectives
of the provision.24
If we are to apply a one-size-fits-all definition to
the word religion found in fundamental laws and
ordinary legislation, then we need to find
compelling rationales to exclude problematic
groups from privileges afforded to all those
“religious” groups that qualify by definition.
Legislative regimes based on these rationales
then have to run the gauntlet of potentially
overriding judicial interpretation.
To enable policy flexibility, some broad public-
policy discretion is written into the European
Convention on Human Rights and Fundamental
Freedoms 195025—discretion that is not found in
23 Church of Scientology International, Scientology: Theology and
Practice, pp. 9–10.
24 Wojciech Sadurski, “Last among Equals: Minorities and
Australian Judge-Made Law,” ALJ 63 (1989), p. 842.
25 Article 9 (2) includes the following: “Freedom to manifest one’s
religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order, health
the US First Amendment or s. 116 of the
Australian Constitution Act 1901. It is also
worth pointing out that s. 116, while modeled on
the fairly equivalent provision in the US Bill of
Rights, has been interpreted entirely differently,
such that in Australia majority judicial opinion
has thus far eschewed the US notion of
separation embedded in the almost identical
provision. This brings us to the observation that
Rights determination processes …
depend on the precise constitutional
circumstances of particular policy
systems … [and] different constitutional
arrangements shape the political process
for making and determining competing
claims.26
In light of the preceding discussion, one might
suggest that not only do different constitutional
arrangements shape different processes and
hence outcomes, but similar provisions might
also result in very different processes and
outcomes.
France
Interpretations of provisions in fundamental
laws often serve to reinforce prevailing
ideological assumptions. Hence the
commitment in French society today to the
doctrine of laïcité is a continuation of a
commitment to secularism that predates the
“secular republic” found in the first article of the
1958 French Constitution.27 To the French,
there is no doubt that “secular,” or laic, means a
relatively strictly enforced “separation” between
church and state—the explicit nature of the
policy being set out in the famous law of 1905,
whereby some explicit rules were set down
intended to ensure that “no religion could be
supported financially or politically by the
or morals, or for the protection of the rights and freedoms of
others.” European Convention on Human Rights, Council of
Europe Treaty Series, No. 5, p. 11.
26 John Uhr, “Constitutions and Rights,” in Handbook of Public
Policy, edited by B. Guy Peters and Jon Pierre (London: SAGE
Publications, 2006), pp. 170, 172.
27 France shall be an indivisible, secular, democratic and social
Republic. It shall ensure the equality of all citizens before the law,
without distinction of origin, race or religion. It shall respect all
beliefs. It shall be organized on a decentralized basis. The French
National Assembly Constitution of 4 October, 1958.
http://www.assemblee-nationale.fr/english/8ab.asp
“disqualification by definition” is made
redundant, particularly if no inherent distinction
between ethical and unethical groups is read into
the definition. This point has been tellingly
made by the Church of Scientology, which
claims that,
Despite the specific cultural differences
among countries, contemporary court
decisions are adopting expansive
definitions of religion that appear to fit
perfectly within the “ethically neutral”
approach taken by scholars of
comparative religion. In fact, the
definition of religion adopted by the
High Court of Australia … could well
have been written by a scholar of
religion.23
Although an expansive, ethically neutral,
sociological definition might be useful for
academics who wish to study religions (as an
entomologist studies insects), it is probably not
the nuanced approach that might be required in a
variety of public-policy applications. For
example, one legal scholar has suggested that to
make sense of the two basic components of s.
116, free exercise and nonestablishment, a
bifurcated definition of the word religion might
be required to achieve the underlying objectives
of the provision.24
If we are to apply a one-size-fits-all definition to
the word religion found in fundamental laws and
ordinary legislation, then we need to find
compelling rationales to exclude problematic
groups from privileges afforded to all those
“religious” groups that qualify by definition.
Legislative regimes based on these rationales
then have to run the gauntlet of potentially
overriding judicial interpretation.
To enable policy flexibility, some broad public-
policy discretion is written into the European
Convention on Human Rights and Fundamental
Freedoms 195025—discretion that is not found in
23 Church of Scientology International, Scientology: Theology and
Practice, pp. 9–10.
24 Wojciech Sadurski, “Last among Equals: Minorities and
Australian Judge-Made Law,” ALJ 63 (1989), p. 842.
25 Article 9 (2) includes the following: “Freedom to manifest one’s
religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order, health
the US First Amendment or s. 116 of the
Australian Constitution Act 1901. It is also
worth pointing out that s. 116, while modeled on
the fairly equivalent provision in the US Bill of
Rights, has been interpreted entirely differently,
such that in Australia majority judicial opinion
has thus far eschewed the US notion of
separation embedded in the almost identical
provision. This brings us to the observation that
Rights determination processes …
depend on the precise constitutional
circumstances of particular policy
systems … [and] different constitutional
arrangements shape the political process
for making and determining competing
claims.26
In light of the preceding discussion, one might
suggest that not only do different constitutional
arrangements shape different processes and
hence outcomes, but similar provisions might
also result in very different processes and
outcomes.
France
Interpretations of provisions in fundamental
laws often serve to reinforce prevailing
ideological assumptions. Hence the
commitment in French society today to the
doctrine of laïcité is a continuation of a
commitment to secularism that predates the
“secular republic” found in the first article of the
1958 French Constitution.27 To the French,
there is no doubt that “secular,” or laic, means a
relatively strictly enforced “separation” between
church and state—the explicit nature of the
policy being set out in the famous law of 1905,
whereby some explicit rules were set down
intended to ensure that “no religion could be
supported financially or politically by the
or morals, or for the protection of the rights and freedoms of
others.” European Convention on Human Rights, Council of
Europe Treaty Series, No. 5, p. 11.
26 John Uhr, “Constitutions and Rights,” in Handbook of Public
Policy, edited by B. Guy Peters and Jon Pierre (London: SAGE
Publications, 2006), pp. 170, 172.
27 France shall be an indivisible, secular, democratic and social
Republic. It shall ensure the equality of all citizens before the law,
without distinction of origin, race or religion. It shall respect all
beliefs. It shall be organized on a decentralized basis. The French
National Assembly Constitution of 4 October, 1958.
http://www.assemblee-nationale.fr/english/8ab.asp
