Cultic Studies Review, Vol. 3, Nos. 2 &3, 2004, Page 29
criteria of charity law and the underlying rationale for privileging religious charities.21 It
might be considered that the public benefit standard is appropriate for any group wishing to
access fiscal privileges.22 Otherwise, it might still be acceptable to public policy makers to
privilege groups (generally non-profit but not necessarily so), that do not benefit the wider
public, but provide solace and wellbeing within a limited circle of believers. Here an internal
ethic acceptable to the state would be required. In either case, the existence of allegations
of harm could be weighed to determine whether the substance and extent of the allegations
merited group disqualification from fiscal privileges.
An examination of the New Zealand Centrepoint Trust case (1985),23 which involved a
successful application for exemption from stamp duty as a charitable trust by a group living
in community and following the precepts of a spiritual leader, provides some support for an
approach requiring minimum mandatory ethics. There High Court Justice Tomkins unpicked
a distinction between religious classification per se and subsequent qualification as a
religious charity. It seems that Tomkins J. recognised the need for at least some minimum
acceptable internal ethic before the prima facie status of a religious group could be
achieved.24 Once this was shown, a wider ethical code relating to the community was
necessary to achieve charitable status. The case also provides support for the view that a
distinction might be made between matters of transient morality and what constitutes harm.
While Tomkins J. dismissed submissions that a laissez faire attitude towards sex by the
religious group involved was harmful to the children, he did so on the basis that no adverse
evidence from qualified persons, had been presented.25 While demonstrating a liberal
attitude arguably consistent with contemporary mores, he nevertheless left the gate open to
evidenced concerns not necessarily amounting to strict illegality.
An Inclusive Prima Facie Approach and Public Policy Disqualifications
As noted above, the other way to disqualify questionable groups from privileges generally
available to religious organisations is to apply a very broad (or inclusive) definition of
religion as a prima facie qualification only, and then apply public policy parameters to sort
the good from the bad. By this I mean the beneficial from the harmful and the non-
beneficial. The concepts of benefit and harm may also have some overlap with the concepts
of moral and immoral according to contemporary standards. The courts have long refrained
from making choices between what groups may qualify as religions on the basis of doctrine
or belief – but the courts can and have made choices between groups based on questions of
morality and/or harm.
This can be observed even in the leading precedent of Thornton v Howe (1862), which is
generally used in the UK to support the proposition that ‗any genuinely theistic sect, no
matter how small or obscure or eccentric‘, will qualify as a religion.26 In that case Romilly
MR pointed out that a bequest to a sect which inculcated doctrines ‗adverse to the very
foundations of all religion, and … are subversive of all morality‘, would render the bequest
void, presumably due to lack of public benefit or alternative grounds of public policy.27 It
should also be noted that by applying an inclusive, liberal definition of religion to the
eccentric sect involved in that case, Romilly MR ensured that the bequest was ‗brought
within the clutches of the Mortmain and Charitable Uses Act 1736,28 so that it was held to
be invalid‘ in any event.29 Hence a wide definition of religion was used in that case to the
detriment of the religion.30
The Convenience of an Ethically Neutral, Inclusive Prima Facie Classification
A cursory examination of the quite different contexts in which the word religion is utilized as
a protective or privileging definition, reveals that the word is used with quite different
emphasis in different contexts. Therefore, in the context of military conscription it seems
that it is the sincerity of the conscientious objector that is the relevant issue. In such cases
the relative merits of the ‗religious‘ philosophy believed in is not in issue. Hence the US
criteria of charity law and the underlying rationale for privileging religious charities.21 It
might be considered that the public benefit standard is appropriate for any group wishing to
access fiscal privileges.22 Otherwise, it might still be acceptable to public policy makers to
privilege groups (generally non-profit but not necessarily so), that do not benefit the wider
public, but provide solace and wellbeing within a limited circle of believers. Here an internal
ethic acceptable to the state would be required. In either case, the existence of allegations
of harm could be weighed to determine whether the substance and extent of the allegations
merited group disqualification from fiscal privileges.
An examination of the New Zealand Centrepoint Trust case (1985),23 which involved a
successful application for exemption from stamp duty as a charitable trust by a group living
in community and following the precepts of a spiritual leader, provides some support for an
approach requiring minimum mandatory ethics. There High Court Justice Tomkins unpicked
a distinction between religious classification per se and subsequent qualification as a
religious charity. It seems that Tomkins J. recognised the need for at least some minimum
acceptable internal ethic before the prima facie status of a religious group could be
achieved.24 Once this was shown, a wider ethical code relating to the community was
necessary to achieve charitable status. The case also provides support for the view that a
distinction might be made between matters of transient morality and what constitutes harm.
While Tomkins J. dismissed submissions that a laissez faire attitude towards sex by the
religious group involved was harmful to the children, he did so on the basis that no adverse
evidence from qualified persons, had been presented.25 While demonstrating a liberal
attitude arguably consistent with contemporary mores, he nevertheless left the gate open to
evidenced concerns not necessarily amounting to strict illegality.
An Inclusive Prima Facie Approach and Public Policy Disqualifications
As noted above, the other way to disqualify questionable groups from privileges generally
available to religious organisations is to apply a very broad (or inclusive) definition of
religion as a prima facie qualification only, and then apply public policy parameters to sort
the good from the bad. By this I mean the beneficial from the harmful and the non-
beneficial. The concepts of benefit and harm may also have some overlap with the concepts
of moral and immoral according to contemporary standards. The courts have long refrained
from making choices between what groups may qualify as religions on the basis of doctrine
or belief – but the courts can and have made choices between groups based on questions of
morality and/or harm.
This can be observed even in the leading precedent of Thornton v Howe (1862), which is
generally used in the UK to support the proposition that ‗any genuinely theistic sect, no
matter how small or obscure or eccentric‘, will qualify as a religion.26 In that case Romilly
MR pointed out that a bequest to a sect which inculcated doctrines ‗adverse to the very
foundations of all religion, and … are subversive of all morality‘, would render the bequest
void, presumably due to lack of public benefit or alternative grounds of public policy.27 It
should also be noted that by applying an inclusive, liberal definition of religion to the
eccentric sect involved in that case, Romilly MR ensured that the bequest was ‗brought
within the clutches of the Mortmain and Charitable Uses Act 1736,28 so that it was held to
be invalid‘ in any event.29 Hence a wide definition of religion was used in that case to the
detriment of the religion.30
The Convenience of an Ethically Neutral, Inclusive Prima Facie Classification
A cursory examination of the quite different contexts in which the word religion is utilized as
a protective or privileging definition, reveals that the word is used with quite different
emphasis in different contexts. Therefore, in the context of military conscription it seems
that it is the sincerity of the conscientious objector that is the relevant issue. In such cases
the relative merits of the ‗religious‘ philosophy believed in is not in issue. Hence the US
