Review of ‘Freedom of Religion & The Secular State’

By Legal Eagle

On 2 February 2012, I attended the launch of Russell Blackford’s new book, Freedom of Religion and the Secular State. I’ve finished the book so I thought I’d write a brief review as well as some comments on the visible move to secularism in one of my areas of study, trusts law.

Blackford’s central thesis is that the State is not equipped to make decisions on the basis of religious concerns. The operations of the State are in the worldly or secular realm, and consequently, it should be neutral towards religion. There should not be State religions, and all religions (insofar as they conform with secular laws governing the safety of persons and institutions) should be able to operate in the State.  In saying this, he draws on John Locke’s A Letter concerning Toleration. Locke himself was Christian, but considered that the State should govern worldly concerns, and the Church should govern otherworldly or spiritual concerns. Blackford argues that Locke’s theory remains sound, provided that it is updated in various respects to reflect 21st century concerns, and that this simple analysis can help us resolve many conflicts in modern society.

I found the book to be concise and deceptively simply written, but with great depth of analysis. Of course, as a non-religious person, perhaps it is hardly surprising that I enjoyed Blackford’s analysis so much: in a sense, he is already “preaching to the converted” for a reader like myself. However, I think it would probably provide much food for thought for the reasonable religious person too.

One example he considers is laws regarding the wearing of niqabs, burqas or other face-covering garments. Now, I have written a series of posts about this issue over the years (here, here, here and here) in which I opined that I thought women should be free to wear burqas in public if they so chose, but if they wished to wear it for a job which required face-to-face communication, an employer should be able to say that they will not employ that woman because she is not able to carry out her job adequately. And if someone wanted to give evidence to the court in a burqa, she should be permitted to do so (subject to any security concerns) but she should be warned that her evidence would be less persuasive than it would be if her face could be seen.

Blackford explains why these kinds of conclusions follow from a Lockean view of the separation between the worldly regulation permissible by the State and spiritual beliefs. He says at pages 136 – 7:

The state and its officials should tolerate the burqa; that is, there should be no comprehensive bans on wearing it in public. However, none of the above analysis entails that there should be a positive right to wear such garments even when doing so would fall foul of neutral laws of general application. Thus it is one thing to permit (i.e., not prohibit) the wearing of burqas in public streets, parks, and similar spaces. It is quite another to grant an exemption from a generally applicable, religion-blind law that requires individuals to show their faces when they walk into banks – for security reasons – or from a law that requires them to have their faces photographed for such documentation as a passport or a driver’s license. …[I]t is a matter of discretion for the legislature just how far it is prepared to go to grant these sorts of exemptions. Failing to do so may cause anguish and practical problems, but this needs to be weighed against whatever secular concerns motivate the law in the first place.

Though the burqa should not be banned by law, we are not required to approve of it or of whatever messages it is thought to communicate. It is certainly not obvious that employers should be compelled by law to permit it in their offices or factories. …

I don’t, however, mean to state definitively that anti-discrimination law should leave this situation untouched. There are important points to be made on the other side. For one thing, if all employers were left totally unconstrained in prohibiting burqas in their workplaces, it might have the effect of leaving conservative Muslim women unemployable. That would be undesirable for them and probable for society as a whole. At the same time, some jobs more than others involve soft people skills and significant affective communication. In the end, anti-discrimination law is a matter of weighing secular interests and employing craftsmanship. It is not a matter of requiring all employers to put up with all sorts of behavior, no matter how detrimental, so long as it has religious motivations.

That is pretty much my point of view. As with everything, there is a balancing exercise. The State cannot ban certain religious practices, but nor does it follow that it needs to endorse such practices either. Carefully crafted laws (with an emphasis on the careful) can maintain the balance.

I particularly enjoyed Chapters 2 and 3 the book, which charted the history giving rise to our present primarily secular viewpoint. I was really stoked that Blackford cited an Australian High Court Case when discussing the definition of “religion” for the purposes of the book – Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120 – a case we used to teach in Trusts, no less!

For the rest of this post, I’m going to indulge myself a little by tracing the history of charitable trusts in the light of the rise of secularism. As Blackford notes, in Europe the view was initially that the State could (and did) enforce a particular Christian faith as the one true faith. In terms of charitable trusts, in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 53, it was decided (by a majority) that there were four possible bases on which a charitable trust could be upheld:

  1. Relief of poverty
  2. Advancement of education
  3. Advancement of religion; and
  4. Other purposes beneficial to the community

[my emphasis added]

Pemsel took these four broad categories from the introduction to a very old statute, known as the Preamble to the Statute of Charitable Uses 1601. Yes, this statute was enacted in the reign of Elizabeth I. The need for it arose after the enclosure of the commons, when poverty became more widespread and it became necessary to provide for needy people. During the time of Elizabeth I, it was assumed that there was one true faith, viz. the Church of England. As it happens, there had been some controversy on that matter, with Elizabeth’s father, Henry VIII, famously splitting from the Catholic Church after it would not let him divorce his first wife and marry Anne Boleyn. His daughter Mary restored the Catholic faith after Henry VIII’s immediate successor, Edward VI died, and Elizabeth restored the Church of England once Mary died. Various people had been burned at the stake or persecuted for failing to adhere to the true faith of the particular ruler at the time, which gives you a clue into precisely why one might want to separate out faith and government!

Locke wrote his A Letter Concerning Toleration in 1689. Blackford argues that thinkers such as Locke were influenced by the terrible religious conflict of the Thirty Years’ War, which had ended in 1648. Additionally, the English Civil War was also rooted in religious conflict. It ended in 1651, but not before Britain had been engulfed in bloody civil war, Charles I had been beheaded, and Oliver Cromwell had attempted various divinely inspired methods of rule (various Parliaments and a religiously inspired autocracy). Locke’s theories were intended to prevent a recurrence of these kinds of dispute. He knew that the attempts of government to force people to believe particular varieties of Christianity could result in great misery for all, and thus he thought that the spiritual realm should be entirely divorce from government.

Let us now turn to Thornton v Howe (1862) 31 Beav 14; 52 ER 1042, a fascinating case involving a will trust for “printing, publishing and propagating the sacred writings” of Joanna Southcote. This occurs almost 200 years after Locke’s Letter. And, as we can see from the case, the message of the Letter seems to be percolating through society.

Southcote was originally a Methodist but became convinced that she had supernatural powers, and made prophecies in rhyme. After announcing that she was going to give birth to the new Messiah (at the age of 64) she died. The testatrix had been one of Southcote’s adherents. The testatrix’s niece challenged the will on the basis that Southcote’s writings were blasphemous. Romilly MR said that Southcote’s writings were “very foolish”, although he also said that he did not doubt she was a devout Christian who believed sincerely that she was the mother of the new Messiah. Importantly, and crucially for present purposes, he continued:

…I am of the opinion that the Court of Chancery makes no distinction between one sort of religion and another. They are equally bequests which are included in the general term of charitable bequests.

Neither does the Court, in this respect, make any distinction between one sect and another.

Similarly, the Pemsel case in 1862 involved tax concessions sought by missionaries of the Moravian Church who aimed to convert heathens to their faith. A majority of the House of Lords said that this was a charitable purpose because it fell under the ‘head’ of advancement of religion. Lord Halsbury LC and Lord Bramwell dissented and said that a purpose was not charitable unless it involved the relief of poverty. Clearly at this time, there is an assumption that advancement of religion is a good thing per se and that religious purposes have a charitable aspect even if they do not involve relief of poverty. However, also, there is no need for the church in question to be the State Church to qualify for a tax concession: the Moravian Church was a Protestant Church started by Jan Hus in Germany.

In Thornton v Howe and Pemsel, therefore, we see an increasing tendency by courts (as judicial arms of government) to refuse to distinguish between different sects of Christianity, or between different religions. They embody the spirit of Locke.

Moving to modern times, the Church of the New Faith case mentioned above involved a determination of whether Scientology was a valid religion for the purposes of charitable status. Here the question becomes more difficult, as we now have a much wider plurality of religions than we did in the 1800s, and some new ones (such as Scientology) on which there is not existing case law.

As Blackford notes, all of the High Court judges conclude that Scientology is a religion, and accordingly, it is deserving of charitable status. But the judges do note that there can be difficult cases, and that the State cannot endorse all religions, when those religions espouse conduct which is harmful in a secular sense. Wilson and Deane JJ raise the US case of Chief Boo Hoo and the Boo Hoos, saying that they consider this to represent the kind of situation where a court should not recognise a religion.

Rather than focusing on the Church of the New Faith case (which is summarised in Chapter 1 of Blackford’s book) I thought I’d look at the Boo Hoo case, partly because it amuses me. The Boo Hoos were a religious group in America, of whom the Chief Boo Hoo was the leader. One gets a sense of the nature of this religion from the case of United States of America v. Judith H. Kuch, 288 F Supp 439 (1968), where Kuch, one of the Primates of the Boo Hoos, was arrested and put on trial for possession and use of marijuana and LSD. Kuch attempted to defend this claim by saying that use of LSD was a religious sacrament according to the Boo Hoos. District Judge Gessell outlines the nature of the religion and the dilemma he faced. I am going to reproduce a large chunk of the judgment because it is worth reading:

The Neo-American Church was incorporated in California in 1965 as a nonprofit corporation. It claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area. There are some 300 Boo Hoos throughout the country. In order to join the church a member must subscribe to the following principles:

(1) Everyone has the right to expand his consciousness and stimulate visionary experience by whatever means he considers desirable and proper without interference from anyone;

(2) The psychedelic substances, such as LSD, are the true Host of the Church, not drugs. They are sacramental foods, manifestations of the Grace of God, of the infinite imagination of the Self, and therefore belong to everyone;

(3) We do not encourage the ingestion of psychedelics by those who are unprepared.

Building on the central thesis of the group that psychedelic substances, particularly marihuana [sic] and LSD, are the true Host, the Church specifies that “it is the Religious duty of all members to partake of the sacraments on regular occasions.”

A Boo Hoo is “ordained” without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a “spiritual crisis,” administers drugs and interprets the Church to those interested. The Boo Hoo of the Georgetown area of Washington, D.C., testified that the Church was pantheistic and lacked a formal theology. Indeed, the church officially states in its so-called “Catechism and Handbook” that “it has never been our objective to add one more institutional substitute for individual virtue to the already crowded lists.” In the same vein, this literature asserts “we have the right to practice our religion, even if we are a bunch of filthy, drunken bums.” The members are instructed that anyone should be taken as a member “no matter what you suspect his motives to be.”

The dividing line between what is, and what is not, a religion is difficult to draw. The Supreme Court has given little guidance. Indeed, the Court appears to have avoided the problem with studied frequency in recent years. Obviously this question is a matter of delicacy and courts must be ever careful not to permit their own moral and ethical standards to determine the religious implications of beliefs and practices of others. Religions now accepted were persecuted, unpopular and condemned at their inception.

Subtle and difficult though the inquiry may be, it should not be avoided for reasons of convenience. There is need to develop a sharper line of demarkation between religious activities and personal codes of conduct that lack spiritual import. Those who seek the constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them when participating in antisocial conduct that otherwise stands condemned. In a complex society where the requirements of public safety, health and order must be recognized, those who seek immunity from these requirements on religious grounds must at the very least demonstrate adherence to ethical standards and a spiritual discipline.

The defendant has sought to have the Church designated a religion primarily by emphasizing that ingestion of psychedelic drugs brings about a religious awareness and sharpens religious instincts. There was proof offered that the use of psychedelic drugs may, among other things, have religious implications. Various writings on the subject were received in evidence and testimony was taken from two professors, not members of the Church but having theological interest in the subject, who had themselves taken drugs experimentally and had studied religious manifestations of psychedelic drug ingestion.

Just as sacred mushrooms have for 2,000 years or more triggered religious experiences among members of Mexican faiths that use this vegetable, so there is reliable evidence that some but not all persons using LSD or marihuana under controlled conditions may have what some users report to be religious or mystical experiences. Experiments at Harvard and at a mental institution appear to support this view and there are specific case histories available, including the accounts of the professors who testified as to their personal experience under the influence of psychedelic drugs. Researchers have found that religious reactions are present in varying degrees in the case of from 25 percent to 90 percent of those partaking. A religious reaction appears most frequently among users already religiously oriented by training and faith. While experiences under the influence have no single pattern, a religious reaction includes the following effects. Sometimes senses are sharpened and apparently a mixed feeling of awe and fear results. There may be mystery, peace, and a sharpening of impressions as to all natural objects, perhaps even something akin to the vision Moses had of a burning bush as described in Exodus. That there may be wholly different effects upon given individuals is equally clear. Psychotic episodes may be initiated, leading to panic, delusions, hospitalization, self-destruction and various forms of antisocial and criminal behavior, as will be later indicated in more detail.

While there may well be and probably are some members of the Neo-American Church who have had mystical and even religious experiences from the use of psychedelic drugs, there is little evidence in this record to support the view that the Church and its members as a body are motivated by or associated because of any common religious concern. The fact that the use of drugs is found in some ancient and some modern recognized religions is an obvious point that misses the mark. What is lacking in the proofs received as to the Neo-American Church is any solid evidence of a belief in a supreme being, a religious discipline, a ritual, or tenets to guide one’s daily existence. It is clear that the desire to use drugs and to enjoy drugs for their own sake, regardless of religious experience, is the coagulant of this organization and the reason for its existence.

Reading the so-called “Catechism and Handbook” of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a “martyrdom record” to reflect his arrests. The Church symbol is a three-eyed toad. Its bulletin is the “Divine Toad Sweat.” The Church key is, of course, the bottle opener. The official songs are “Puff, the Magic Dragon” and “Row, Row, Row Your Boat.” In short, the “Catechism and Handbook” is full of goofy nonsense, contradictions, and irreverent expressions. There is a conscious effort to assert in passing the attributes of religion but obviously only for tactical purposes. Constitutional principles are embraced wherever helpful to the cause but the effect of the “Catechism and Handbook” and other evidence as a whole is agnostic, showing no regard for a supreme being, law or civic responsibility.

The official seal of the Church is available on flags, pillow cases, shoulder patches, pill boxes, sweat shirts, rings, portable “communion sets” with chalice and cup, pipes for “sacramental use,” and the like. The seal has the three-eyed toad in the center. The name of the Church is at the top of the seal and across the bottom is the Church motto: “Victory over Horseshit!”. The Court finds this helpful in declining to rule that the Church is a religion within the meaning of the First Amendment. Obviously the structure of this so-called Church is such that mere membership in it or participation in its affairs does not constitute proof of the beliefs of any member, including Kuch. In short, she has totally failed in her burden to establish her alleged religious beliefs, an essential premise to any serious consideration of her motions to dismiss.

Assuming, however, that the Neo-American Church is a genuine religion and that Kuch subscribes fully to its doctrines and thus may invoke the full constitutional guarantees for free religious expression, her contentions are still without merit. The Constitution protects the right to have and to express beliefs. It does not blindly afford the same absolute protection to acts done in the name of or under the impetus of religion. …

The practices of the Neo-American Church involving the use, possession, transfer and sale of marihuana and LSD are contrary to the criminal law. Starting with an acceptance of Kuch’s religious claim, it is necessary to determine whether the legislation under which defendant stands indicted unduly infringes her freedom to practice what she asserts are religious beliefs. … As the Court has instructed in the flag salute cases, freedom of worship is “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.” … This is not a precise test and only recently has the Court sought to put flesh on the bones of this doctrine. It now appears from a reading of [various cases] that claims such as claims of religious exemption will be honored unless a substantial state interest will be frustrated in a significant way.

Defendant misconceives the Constitution and the decisions when she claims in effect an unbridled right to practice her beliefs. The public interest is paramount and if properly determined the Congress may inhibit or prevent acts as opposed to beliefs even where those acts are in accord with religious convictions or beliefs. If individual religious conviction permits one to act contrary to civic duty, public health and the criminal laws of the land, then the right to be let alone in one’s belief with all the spiritual peace it guarantees would be destroyed in the resulting breakdown of society. There is abroad among some in the land today a view that the individual is free to do anything he wishes. A nihilistic, agnostic and antiestablishment attitude exists. These beliefs may be held. They may be expressed but where they are antithetical to the interests of others who are not of the same persuasion and contravene criminal statutes legitimately designed to protect society as a whole, such conduct should not find any constitutional sanctuary in the name of religion or otherwise.

Mormons were not permitted to practice polygamy. Nor would the Constitution protect the practice of religions requiring infanticide, the killing of widows, or temple prostitution, as some religions have done in the past. The vital significance of the constitutional protection of religion will be diluted by a degree of tolerance that accepts the practice of acts which leave society helpless to protect itself.

Unfortunately we have been gradually drifting away from this pristine view taken by our founding fathers that religious beliefs were to be upheld at all cost but that acts induced by religious beliefs could be prohibited where Congress spoke in the interests of society as a whole. Recent decisions of the Supreme Court suggest that there must be a balancing of the legislative end to be achieved against the effect of the legislation on practices and hence the acts of the members of a particular religion. This is but a way of saying that each case will depend on its own facts and a balancing of factors as the members of the court may see them at any given point in time. No United States District Judge who must act within the confines of a record and available judicial time has the wisdom or means of doing adequately what the cases appears to require. It is to be hoped that there will develop a constitutional doctrine in this field that more closely approximates that contemplated by the framers of the Constitution and that leaves the balancing function in all but obvious cases of clear abuse in the hands of the Congress, where it belongs. Be that as it may, the Court has carefully sought to apply prevailing doctrine in this field. The Court concludes that under any common sense view of undisputed facts the full enforcement of the statute here involved is necessary in the public interest and the unintended but obvious restrictions on the practices of defendant’s church are wholly permissible.

It can be seen that District Judge Gemmell’s judgment is appropriate from the perspective advocated by Blackford. Gemmell applies the law to all, and then considers (a) whether there are any compelling secular reasons for those laws, and (b) whether there are any compelling secular reasons for an exemption. Ultimately, he concludes that there are valid secular reasons for laws against drugs, and that there are no compelling secular reasons for allowing the Boo Hoos to have an exemption. [Incidentally, it may not surprise readers to learn that the Boo Hoos are no longer an extant religion.]

I should note that the position described by District Judge Gemmell in the final passages of his judgment is no longer the case in the US. In Chapter 6, Blackford describes a modern day equivalent of Kuch, Employment Division v Smith, 494 US 872 (1990) where the US Supreme Court essentially adopted the approach taken by Gemmell. In that case, the Supreme Court was asked to find that peyote could be lawfully used in Native American religious ceremonies. Apparently this decision has been much criticised, but Blackford argues any problems with the decision come not from the Supreme Court’s decision, which adopts a similar analysis to District Judge Gemmell, but from the State of Oregon’s sweeping legislation seeking to implement a “war on drugs”.

As an aside, I also find it quite interesting from a sociological perspective to see the vast range of new (or perhaps old but revived?) religions which have arisen and which seek charitable status. In 2010, as I have posted here, Druidry has been recognised by the British Charities Commissioner as a valid religion deserving of charitable status.

Blackford’s argument may provide a useful basis upon which courts can decide questions  in cases where the legal status of new religions and the applicability of the law to religious adherents under question. There must be a weighing up of the secular benefits of the law, and any secular reasons why the law may or may not wish to support a particular religion with charitable status. It is not for the court to make any decisions based on religious or spiritual reasons, for the State cannot know the answers to those questions, but to carefully weigh up appropriate worldly matters. And from the 1800s onwards, this appears to be the basis upon which courts decide these cases, at least in the areas which I know about.

In any case, I commend Blackford’s book to you, as it provides a very useful framework for thinking about and discussing these issues.


One of my friends has pointed out to me that there is an extra twist to Thornton v Howe. In 1736, the UK government passed the Mortmain and Charitable Uses Act (Statute 9, Geo. II). The intention of that Act was to prevent individuals from passing their property via charitable trusts to the church rather than their relatives. Consequently, courts took a very broad interpretation of charitable trusts, as they were concerned to strike down trusts in favour of the church and benefit the living relatives. The plot thickens, and the case for an increasingly secular state is backed up even further.


  1. kvd
    Posted February 9, 2012 at 12:10 pm | Permalink

    LE I hate to be the first commenting, because
    I usually find other commenters (and your reactions) quite fascinating. But you lot will keep raising these interesting subjects, so I find it hard to avoid.

    Not having read this book – so perhaps it is answered anyway? – I have always found it hard to understand the justification for any advantage to be granted by the State to any (or all) Religion. If you look at your four basic categories:
    Relief of poverty
    Advancement of education
    Advancement of religion; and
    Other purposes beneficial to the community
    you could note that it is only the ‘advancement of religion’ purpose which applies to a specific segment of a population, and grants an advantage to that segment. I don’t see any justification for so advantaging a particular religious group for any reason other than for the basic ‘freedom to so believe’.

    As far as I’ve ever read in the past it seems the main justification for differential tax status is a sort of secondary effect: “because they do good works”. Also, if you look at the four roots, the other three are outward looking – i.e. the benefit is a society benefit, not a membership benefit.

    I am wondering if you’d care to comment on this?

    Secondly, I wish the Boo Hoos had called themselves the Bonobos. ‘Cause I’d sign up to be a Primate of the Bonobos in a flash 😉

  2. kvd
    Posted February 9, 2012 at 1:48 pm | Permalink

    Thanks for that LE. I thought there may have been some sort of ‘base proof’ I am missing. While my question might have seemed ‘anti-religion’ I must stress it was not. Despite the strident claims of some atheists I am all for anything that gives solace to any human in navigating their life – myself included.

    But I do wish you’d included an image of their symbol. It sounded quite inventive, or maybe just what I would see whenever I’m not wearing my glasses.

  3. Posted February 9, 2012 at 5:54 pm | Permalink

    One can listen to Russel Blackford’s launch speech here.

  4. John Turner
    Posted February 10, 2012 at 6:06 am | Permalink

    I plead old age. I have corrected some typos.
    A long but interesting effort. I would like to read blogger’s views on the trust situation in NSW as revealed by the Roman Catholic Church’s use of the Ellis Defence in child abuse cases. I can supply some leads and links if anyone is interested. There has not been a successful case in NSW of a court case seeking damages from the church for abuse as in the Ellis case it was held that the the Church does not exist as an entity. On Line Opinion had an excellent article on the subject on 6th February. Some of the comments were both pertinent and hilarious. The same author had the highlighted letter in the Sydney Morning Herald on the same day.
    [ADMIN LE – I have deleted the earlier identical comment. Don’t worry about tpyos…unfortunately I’m prone to them… :-)]

  5. John Turner
    Posted February 10, 2012 at 8:17 am | Permalink

    Legal Eagle,
    The info at the following sites may be of help.
    Trustees of the Roman Catholic Church V Ellis & Anor [2007] NSWCA 117

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