THE ADVANCEMENT OF RELIGION IN A PLURALIST SOCIETY
Donovan Waters, Q.C., of Counsel, Horne Coupar, Victoria, B.C.;
Professor Emeritus, University of Victoria
1.
Introduction
There are few people who do not think back to at least one person in past life who
in retrospect can be seen to have made a lasting impact on them in them in the years to
come. Sometimes it is an experience that has this effect.
Memory for the present writer goes back to a choir long ago. The choir was that
of an Anglican parish church in England, when it was an achievement indeed to be
accepted as a member. Each in cassock and surplice for the services of the church, and
boys also in white starched ruff collars, choristers to the number of twenty-five boys and
fifteen to twenty men would have been the order in those days, instructed and led by a
distinguished ‘choirmaster’ and organist. The tradition still lives; the Christmas Eve
carol service of the choir of King’s College, Cambridge, will have been shared through
radio and television by many Canadians. In such a choir a boy learns not only how to
sing, but church music from the Elizabethan composers William Byrd and Thomas Tallis
onwards. In the days that memory recalls Henry Purcell, William Boyce and George
Handel of the seventeenth and eighteenth centuries brought post-Tudor and baroque
music into the choir’s repertoire. And the music of Stainer, Goss and Sullivan, to name
but a few of the English nineteenth century composers of anthems and canticles for the
cathedral or large parish church choir, was scheduled frequently. Newly admitted boys
learned how to chant the Psalms of David for the offices of Matins and Evensong, and the
sung Psalms were in the lyrical English biblical translation of the Tudor cleric, Bishop
Coverdale. From lectern and sanctuary a boy heard the King James Bible of 1610,
especially the Gospels, read aloud so often that those same cadences of Shakespearian
English might well become for him words and sentences that sang rather than be the
creatures of speech alone. Those were memorable days, whose values never leave those
who were part of that life. Much later as a law student reading for the first time Lord
Atkin’s celebrated judgment in Donoghue v. Stevenson 1 on the duty of care in tort law,
memory recalls for me hearing again the overtones of Tudor and Stuart clerics in the
words, “The rule that you are to love your neighbour becomes in law, you must not injure
your neighbour.” “Who then, in law, is my neighbour?” The syntax itself was
reminiscent of 1610.
It would have surprised many of those on the street outside that parish church of
long ago to learn that those singing within were carrying out a charitable act. The
average passer by would probably have associated charity with helping the poor, the sick,
* For assistance with materials my considerable thanks are due to Geoffrey Shindler (England and Ireland),
Richard Pidgeon (New Zealand), Tony Lee and Mark Leeming (Australia), Lusina Ho (Asia), and Terrance
Carter (Canada).
1 [1932] A.C. 562, 580, [1932] All E.R. Rep. 1.
2
and others in need. The non-religious person among those passers by, if informed on the
subject of charity law, might have chosen with tongue in cheek to describe the people
within as a performing arts group, or have said that we were all engaged in an educational
activity involving instruction and appreciation in music and language. That non-believer
would only reluctantly have agreed, had a priest emerged from the church at that moment,
that in law the choristers were participating in the ‘offices’ of the Anglican Church, that
this constituted a demonstration of their faith and the worship of God. Faith was
exemplified in the words that they sang, and worship was carried out through the medium
of the Church’s liturgy. It was that faith and that worship which made their activity
charitable.
The non-religious individual, being reminded of this, and observed by all about
him, would likely have shaken his head. Concert singing and education he can
understand, he remarks, but he has always failed to see what charity has to do with a
belief of some kind in the supernatural. This paper will examine that issue. Recently,
apparently adopting the style of the Charity Commission in England, the Canada
Revenue Agency released a paper on its understanding and practice with regard to the
advancement of religion as a head of charity. 2 Discussion between the Agency and
religiously engaged charities is being sought. As an outcome of the response, guidelines
for the assistance of charities are promised in the near future. Is new thinking afoot?
Like the civil law jurisdictions of the Western European culture, the law of the
common law states and jurisdictions does indeed regard religion as a charitable object or
purpose. The ‘advancement’ of that purpose, as with all non-religious charitable
purposes, must render qualitative benefit to the public. There is also a quantitative public
benefit; there must be gain of some kind to a sufficient number of persons beyond the
immediate participating believers. It is irrelevant whether or not the public attaches value
to the particular conception of gain. The advancement of religion does not encompass
musical education, nor is it a vehicle for instructing persons in language and literature. In
any event, other charitable purposes will embrace those pursuits. As the passer by noted,
religion as a matter of law is concerned with belief, meaning a faith that relates humanity
with a conceived supernatural force. Moreover, whereas Christian belief and a personal
deity were at the base of Western civilization from at least the tenth century, religion in
the present century is no longer a recognition in law of a Christian underpinning of all
members of society. Today tenets of belief, and any conception of relationship with a
supernatural element, may qualify for charity concessions, wherever in the world the
religion in question is primarily found and practiced. Of these religions Christianity is
but one.
Why then do beliefs as to the supernatural and its part in human life form part of
the conception by the secular state of what is ‘charitable’? Following a short review of
how historically common law courts have approached religious purposes, the relationship
between religion and charity is the first inquiry of this paper. The second inquiry,
presupposing that religion in some understood sense is charitable, asks what in law
2
Notes and Questions for a Discussion on Advancement of Religion as a Charitable Purpose; Oct. 10,
2008.
3
constitutes ‘religion’. What is faith, and what behaviour is required as a consequence of
recognition by the faithful of the supernatural element? The third and final inquiry,
recognizing that the advancement of religion is a charitable activity, poses the problem of
what it means to speak of a qualitative public benefit. If religion and its advancement can
be the subject of examination in a court of law, what is there about religion that can
satisfy the law’s requirement that qualitatively the activities involved are for the benefit
of the public? The law can measure the benefit the public derives from such activities as
the relief of the poor, the education of students, and the provision of hospitals, but there is
no way in which spiritual practices can be qualitatively assessed. Yet, if there is to be the
rule of law, the courts must be able to assess ‘public benefit’ in some manner.
The twentieth century saw a steady decline in church attendance and religious
vocation in formerly predominantly Christian societies, and in the last twenty years a
growth has occurred of immigrants from Asia into those same societies, with religions
whose beliefs are distinct from those of Christianity. A new situation has arisen of many
ethno-cultures being present. Declining church going and significant immigration in
these secular, democratic societies have also coincided with a liberalism that prefers
pluralism to the ‘melting pot’ approach. This rapidly moving evolution takes the paper to
its final considerations. Where do we go from here?
2.
The law’s existing treatment of ‘the advancement of religion’
In all common law jurisdictions there has traditionally been a guiding descriptive
list of purposes that are charitable. The list is four centuries old, and is to be found in the
Statute of Charitable Uses, 1601, or the Statute of Elizabeth, as it is popularly called, of
the English Parliament. That is where all our common law textbooks start. The list is
located in the statute’s preamble, 3 and constitutes a number of workaday activities for the
benefit of the public that the Elizabethan state recognized were wholly or in part funded
by individuals and associations. These persons frequently provided assets by way of use;
they appointed feoffees to uses 4 to see that the required activities were discharged. The
repair of churches is included as one of the purposes for which ‘charitable use’ gifts
might be made, and this was because at the time of the enactment the maintenance of the
structure of the parish church was a charge on the local community which it served.
Otherwise the preamble and the 1601 Act make no reference to religion. Scott records 5
that Sir Francis Moore, a contemporary commentator on the subject of the Act, 6 was of
the view that religion was deliberately omitted. Parliament was apprehensive, Moore
thought, that a faith that is legally followed today may be declared illegal a few years
hence, and the assets held for that faith’s adherents be seized and confiscated by the state.
Moore says there was concern in 1601 that the state’s Treasury not be the ultimate
recipient of lands and funds given philanthropically to the public for the benefit of the
3
The Mortmain and Charitable Uses Act, 1880, was repealed by the Charities Act, 1960, and the 1601
preamble as s. 13(2) of the 1880 Act departed from the statute book in that repeal. However, by 1960 the
preamble case law had long since had a legal authority of its own, and simply continued.
4
I.e., property transferees charged to hold title for another’s benefit.
5
Scott on Trusts, 4th ed., Vol. IVA, para. 371.
6
That Sir Francis Moore was also a draftsman of the Act is challenged by an authoritative work on the
period, G.H. Jones, History of the Law of Charity 1532-1827, C.U.P., 1969.
4
public. Certainly the struggle in 1601 between the Established Church and other
Christian sects was still in full flood, socially, theologically and politically, but such
detachment and Parliamentary objectivity at this time are doubtful. Another view is that
religion as such was not a concern of the Act. The Act was directed to activities that
were in receipt of state subventions, or were the fiscal responsibility of local communities,
such as the maintenance of roads and poor relief. 7
At once this statutory preamble became for the courts a conception, as it were, of
what were to be regarded as ‘charitable purposes’, and proceeding by analogy to the
items on that list the courts have since built up four centuries of case law enumerating the
purposes that qualify for ‘charity’ concessions. Conclusions in each century reflect the
concerns and the community-building enthusiasms of that period, but over the centuries
there is a gradual accrual of purposes and furthering activities that will be accepted as
being within the scope of bringing about public benefit. The 1601 preamble was received
in the American colonies where it played the same measuring role, and was ultimately
accepted in all the states of the Union, some by force of local statute. It was also received
by common law Canada, New Zealand and Australia in the eighteenth and nineteenth
centuries, and by numerous territories that became subject to the common law, including
Hong Kong and Singapore. And in all these territories, save now in England and
Northern Ireland, the preamble survives to this day. So the body of case law survives.
In 1891 in the Pemsel case 8 the House of Lords had the concept of ‘charity’ under
consideration, and it was on this occasion that Lord Halsbury, thereby picking up
descriptive language of the early nineteenth century, 9 famously described charitable
purposes as being divided into four heads, of which “the advancement of religion” was
one. England for its part moved in 2006 to make statutory three of the four heads of the
Pemsel categorization. This included “the advancement of religion”. 10
In 1639, just a short number of years after the Charitable Uses Act was passed, an
English court held that a trust with the purpose of maintaining a preaching minister was a
valid charitable trust, 11 and thereafter the case law grew. No one challenged the 1639
conclusion.
The case law in English courts concerning the advancement of religion illustrates
the progression of that country from intolerance towards any religious activity other than
that of the Established Church to the liberalism that at the end of the nineteenth century
7
F.H. Newark, ‘Public Benefit and Religious Trusts’, (1946) 62 L.Q.R. 234, at 234.
Commissioners for Special Purposes of Income Tax v. Pemsel, [1891] A.C. 583.
9
Sir George Romilly, as counsel in Morice v. Bishop of Durham (1805), 10 Ves. Jun. 522, at 532, proposed
that charitable purposes could be classified under four heads, almost identical to those adopted in 1891;
relief of the indigent, and the advancement of learning, of religion, and objects of general public utility.
10
The Charities Act, 2006, c. 50, s. 2(2), also added several other specific charitable purposes, putatively
under the fourth head of charity, that contemporary English case law leaves in doubt, appears to exclude
from ‘charity’, or has never considered. This Act will be spoken to later. See for other jurisdictions
adopting the same statutory approach, post, note 59.
11
Pember v. Inhabitants of Knighton, (1639), 1 Eq. Cas. 95. See also E.B. Bromley, ‘Contemporary
Philanthropy’, Equity, Fiduciaries and Trusts 1993, ed. D.W.M. Waters, Carswell, 1993, esp. at pp. 69-71.
8
5
accepted all sectarian forms of the Christian faith, and Judaism. It was logical for liberal
democracy in the twentieth century that the Muslim religion would be added to the list,
and the yet older religions of Buddhism, Hinduism, and Taoism. Mysticism, spiritualism
and Freemasonry were issues for the twentieth century, plus the phenomenon in the
second half of the century of cults and other groups that sometimes merged codes of
behaviour for adherents with a spiritual belief element. Because the history of religion as
a charitable activity is practically as old in the United States as in England, the same
progression from tolerance to contemporary acceptance is a feature of the law in the
States, but, due to the fact that the U.S.A. was settled by so many who were seeking
religious freedom of expression, tolerance of more obscure Protestant sects, Roman
Catholicism and Judaism was ahead of the older European societies. Australia and New
Zealand received English law much later, as we have seen, but there too for not dissimilar
reasons the achievement of tolerance had an earlier appeal than in the ‘home country’.
The building and repair of churches and chapels, and now of synagogues, temples
and mosques, has proved to be the most readily accepted outcome of the charitable status
of religion. And that extends to the services and rituals, ceremony and personal
contemplative conduct carried out in these buildings. The robes of the ministers who
conduct ritualistic occasions, the costumes of those who assist in the religious activity,
such as singers and public readers of sacred texts, and the provision of accoutrements
such as musical instruments, sheet music, bells, sacred vessels, candles, seating for
ministers, choirs and the faithful attending services and rituals, are quite easily
recognizable as support objects to the charitable activity. Buildings not themselves used
for services and ritualistic meetings, but associated with the activities within the church,
synagogue or temple, have called for a closer inquiry. Community gathering places are
not accepted within the penumbra of advancing religion, but, if the usage of such
buildings, like a church hall, is principally concerned with activities that complement the
worship and the dissemination of the faith in the principal religiously-engaged building,
those buildings will be included.
Burial grounds are charitable as long as they are physically associated with the
religiously engaged building, 12 traditionally in England the churchyard and burial
extensions of the churchyard. This will make a gift charitable that is for the maintenance
of the entire such burial ground including specific grave sites, but the maintenance of
particular grave sites only has not been regarded as charitable. It follows that the upkeep
and repair of grave sites in a public cemetery, however involved the deceased was with a
religious faith, would not be charitable, but here Commonwealth courts seem to be of
divided opinions. 13
Gifts are frequently made, inter vivos or by will, to ministers or leaders of
religious communities. If the gift is made to the holder of office for expenditure upon a
purpose that furthers the religious activity, that will render the gift charitable, but if the
donation is personal to the minister or leader, so that it may be expended upon anything
12
Historically interment within a church, or the instalment of plaques and memorials in the church structure,
has been regarded as unquestionably charitable.
13
Re Oldfield, [1949] 2 D.L.R. 175 (Man.), followed in Re Robinson, (1976), 75 D.L.R. (3d) 532 (Ont.)
6
that the minister or leader chooses, that will not be regarded as a charitable gift.
Ministers and leaders are frequently engaged in social work in their respective local
communities. But, whatever the motivation of such a minister or leader, in the eyes of
the law this activity does not ‘advance’ faith and worship. It is evident that much will
turn on the language used by the donor as to whether the gift falls into one category or the
other. 14
Support of ministers or leaders is another potentially borderline trust purpose.
Illness or old age after many years of service to a religious community may encourage
provision of housing, furnishing, and consumables by the faithful to maintain those so
stricken. Little difficulty has been experienced by the courts in enclosing these kind of
gifts within the ringed fence of charity. But a national church, for instance, that creates
for all its clergy a defined benefit or defined contribution pension plan, the financial cost
to the national church being not insignificant, and the plan being administered by a
commercial company engaged in plan administration for employers at large, introduces
considerations for the courts that are more complex. So are they when ministers or
leaders receive competitive salaries from the faithful, or gifts that are substantial in size
in order to provide vacations, expensive cars, or luxury homes for the leader and his or
her family.
An infrastructure of staff other than ministers receiving salaries and benefits may
be appropriate given the number of the faithful engaged in the religious community, and
facilities provided for staff raise another type of problem but again these are borderline
cases. The question for the court is whether advancement of the particular creed is the
major object of what is provided.
Proselytizing or ‘spreading the word’ is a well-known feature of religious life.
Missionary work in Canada and overseas was the subject-matter of a good many cases
before the nineteenth century Canadian courts, and this activity seemed invariably to
receive the acceptance of the courts. Today education in religion, religious summer
camps for children, and group travel to foreign religious sites, such as Lourdes, are the
activities that are the vehicles for dissemination of faith and doctrine. But the element of
furtherance of the particular religion is vital, and it must be the sole or otherwise
dominant purpose of the activity.
Businesses operated by religious organizations are subject to the same test as is applied to
businesses conducted by other charitable bodies. Though the profits flow back to the
charity, and emoluments and benefits to paid staff are reasonable and appropriate, the
question is whether religion is ‘advanced’ when the activity takes the form of a
commercial-like operation conducted for profit. A convent of nuns whose purposes
include “the service of God through the assistance of the needy” may provide gratuitous
accommodation and maintenance for women who have hitherto lived abused lives. They
are also taught a trade, with which skill they can return to the community, and the
14
A gift “to Monsignor O’Sullivan for expenditure as he shall choose” will be personal; “to the priest of St.
Mary’s for expenditure as the then priest shall choose” might be charitable because of the donee being
identified as an office holder expending such funds on church purposes.
7
resultant operation, conducted on convent owned property, is commercially successful.
Though construable as being within the convent purposes, and all profits are ploughed
back into the nuns’ social work, is the operation activity sufficiently closely linked to
belief and the dissemination of the tenets of the particular faith that it can be described as
furthering belief and faith? 15
Most textbooks unavoidably carry a case law on the advancement of religion that
arose from disputes involving individuals’ gifts by will, and less frequently inter vivos
donations. This law reflects centuries of charitable uses or trusts in England, duplicated
in the wills and deeds of the common law jurisdictions overseas; through this medium
was established the meaning of what are ‘charitable purposes’, and the proper
interpretation of activities allegedly in discharge of those purposes. Today in Canada that
scene has entirely changed, and in England and other Commonwealth countries the
change appears to be the same. Nowadays gifts are made to charitable organizations, and
the donor looks for a formal receipt from the organization in order to secure to the donor
a legislatively granted income tax credit. However, the purposes of legacies, devises and
inter vivos gifts have given rise to a body of law that continues to be applied but to the
purposes, express and implied, of what in Canada are almost always incorporated
‘charities’. It is these purposes, and the activities in which the ‘charities’ engage in
pursuance of these purposes, that are the occasion for today’s litigation. The
‘advancement of religion’ is now seen through this perspective.
In summary, the place of worship, and associated with it the maintenance or
enrichment of the place, its furnishings, and its ceremonies and rituals, have been
regarded as being at the centre of what is charitable. More remote from the centre are
activities of any other kind, though all activities must be in furtherance of purpose. Here
the consistent test is whether the activity is entirely or principally concerned with
furthering the aims of the religion. If the nature of the activity appears to be too remote
from that furtherance, the activity will not be charitable. If the purpose justifying the
activity is itself non-charitable, that will not be a concern if that purpose is subsidiary to
and supportive of a major charitable purpose; the subsidiary is accepted as part of the
charitable purpose. Finally, increasing tolerance has steadily removed objections to
religious creeds and practices other than those of Anglicanism.
However, the observation must be made to which any non-religious observer
would point. The process accepted by the courts in all jurisdictions that have followed
the Statute of Charitable Uses and the Pemsel categorization was channeled until the
nineteenth century through the courts of a post-Reformation Christian society.
Historically, courts of states whose population is Christian have accepted organized
religion as being indigenous to society. As a consequence it is the Christian ethic and
faith that have been received as charitable. Post-1830 liberalism ushered in a later
twentieth century multi-culturalism that was previously unknown.
15
Probably not, and nothing like it is within the instances of ‘advancement of religion’ that the CRA
provides in its ‘Notes and Questions for a Discussion’, supra, note 2.
8
3.
The relationship of charity and religion
There is no definition of charity in the common law jurisdictions, and there never
has been. Parliament at Westminster in 2006 made charity the subject of some
clarification for England and Wales by “listing a large number of purposes that are seen
as charitable”, 16 but the list is not definitive and no one could say the 2006 Act ‘defines’
charity. 17 ‘Charity’ is a technical legal reference to the purposes of organizations, or of
the gifts of individuals, that are approved by case precedent, or statute, and are for the
public benefit. Benevolence or philanthropy is something else, with no legal meaning,
and non-profit organizations for public benefit but whose purposes are not listed are not
charitable.
What has been taking place since the nineteenth century is the enactment of
legislation and regulation on particular matters, such as income tax and local real
property taxation, where each subject matter carries its own provision for charitable
organizations. Independent statutes that provide concessions for ‘charities’ may well
dictate in each case for the particular statute’s object what ‘charity’ means. Sometimes
the case law understanding of charity is adopted, but more likely there is a list. The list
may enumerate those charitable purposes that are relevant for the particular statute.
Alternatively, if something more comprehensive is required, statute may include the
entire list of poverty relief, education and religion plus doubtfully valid purposes under
the case law. The ready example in Canada of the more comprehensive is federal income
tax legislation that relieves charitable institutions from the obligation to pay income tax
or capital gains tax, and grants tax credit to the taxpayer for gifts made inter vivos or by
will to such an institution. Provincial legislation may describe charitable purposes in its
own way in freeing real property occupied by charitable institutions from property
taxation. The particular legislature may entertain the view that only some charities, like
hospitals and places of worship, should not have to share in such costs as street lighting,
road repair and garbage collection.
Kirby J. of the High Court of Australia in an otherwise dissenting judgment 18
alluding to “charitable purposes”, recently noted concerning the meaning of these words
that, “ … absent any statutory modification or definition, the word ‘charitable’ in this
context takes on a ‘technical meaning’. It is a meaning that can be traced to the law of
trusts and, ultimately, to the preamble to the Statute of Elizabeth.” That was all that
could be said.
Then how has ‘charity’ been understood by the courts in their putting together a
body of case law, broadly categorized in the 1891 Pemsel case? It seems that in the
fourth head of Pemsel we have the closest approach to what the late Elizabethans had in
16
Supra, note 10, s. 2(m), and s. 2(4). See Ford, H.A.J., and Lee, W.A., Principles of the Law of Trusts,
looseleaf to date, para. 19.510., commenting on s. 2 of the Act.
17
Charity in England and Wales now has a statutory descriptive base. It adopts the first three Pemsel
categorizations, and in lieu of a fourth head it spells out specific further purposes as being charitable.
18
Commissioner of Taxation of the Commonwealth of Australia v. Word Investment Ltd., 2008 HCA 55,
para. 162.
9
mind when they spoke of ‘charity’. The use or purpose on which the feoffee to uses holds
must be something that seeks to enhance the wellbeing of society, and that benefit must
be intended for society at large or an appreciable section of the public making up society.
That is to say, the purpose must in some recognized manner improve or seek to improve
the quality of life for members of the public, and its intended reach of would-be
beneficiaries must not be merely a privately associated group of persons, such as family
relatives or employees of the same employer. 19
Charity was a word familiar to the draftsmen of the Statute of 1601. The first
translation of the Bible into English had been made by John Wycliffe in the midfourteenth century, and Bishop Coverdale – when he translated the Psalms - had joined in
another English translation in the first half of the sixteenth century. It was not until 1610
that the King James Bible appeared, but already in 1601 ‘charity’ would have been the
familiar translation of Paul of Tarsus’ conception of the ‘love’ of the Christian for his
fellow men. 20 This was seen by Paul as a secular aspect of the Christian’s sense of ‘love’
for the revealed personal Supreme Being. In the Vulgate, which is the Latin translation
of the Bible used from the fourth century by the Roman ‘universal church’, the
translation of the word from the original Greek, also meaning love, was caritas. The old
French that came to England with William of Normandy in 1066 translated caritas as
charité. Paul teaches that this ‘love’ is at the centre of Christian belief; in the English
translation of his letter to the Corinthians he speaks of faith, hope and charity, and
reflects that the greatest of these is charity. 21
In the so-called Western civilization, 22 where at its inception religion in the
Judaic-Christian expression was woven with the philosophy of ancient Greece and the
legal and administrative capacities of classical Rome, it is not difficult to understand the
historical relationship of religion and charity at this point in the British Isles. In a society
that from the tenth to the eighteenth centuries was totally absorbed in Christian faith and
worship, religion itself dictated for all a code of concern for the sick, the aged, the
unlettered, and the poor. That code, drawing its authority from supernatural revelation, is
referred to as Christian ethics or moral theology. The “highest good” in a scale of ethical
principles is to be found beyond the rational in the realm of belief. 23 The Christianity
that was part of all lives was itself charitable in character, and this was the background to
the 1601 statute. No one would then have thought of drawing a line between the
Christian belief and concern for those in need in Tudor society. It was the closing and
destruction in the mid-sixteenth century of the religious houses, great and small, that
removed from the daily scene the extensive assistance that for centuries these houses had
19
So far as educational purposes are concerned, family relationship has been accepted, but this is regarded
as an exceptional situation, not to be extended.
20
An instance of modern usage is love for one’s country, meaning patriotism.
21
The First Epistle to the Corinthians, ch. 13, as it appears in the 1610 Bible, is the celebrated lyrical
expression of this meaning and significance of ‘charity’.
22
More accurately the civilization of western and southern Europe, from where it later spread across the
world. That civilization, which experienced a split by schism in 1054 from the Roman Vatican, also
includes the Christian Orthodox tradition of Greece, eastern and south-eastern Europe, and of Russia.
23
The comparison is with philosophical ethics where authority is based on reason. A supernatural or
‘revealed’ element has no counterpart in philosophy, which is entirely rational.
10
provided to those in society who were in need. Thereafter, the role of the private donor
became crucial to the state. The 1601 Act sought to steer this private philanthropy into
relieving the pocket of the state, nationally and locally, in meeting obligation and need.
Nor, of course, did charitable giving come into existence in 1601. From Saxon
times those with means gave of their wealth, and in a dichotomy of church and state as
the two authorities in the realm, the former concerned not only for the souls but the
conduct in life of the faithful, it is not surprising that considerable gifting was made to the
church. In the mediaeval or pre-Reformation period the wealthy would be much
concerned with their own salvation, and therefore gave for “pious causes”. Individual
churches, cathedrals, and abbeys would be the donees of land and of treasure. The
particular uses chosen by the donors would reflect the work and dedicatory purposes of
the donee religious organisations. 24
So in the minds of the Elizabethan faithful – and Tudor society was essentially
Christian in culture – Christian ethics and ‘charity’ were synonymous. Religious belief
and charity were one. It would not have struck any observer as odd that, only eight years
after the Act was passed, the first court case involving religion concerned a testator’s
legacy for the support of a popular preacher, and that the gift was held to be charitable.
In the post-1601 case law the courts as the secular institution would simply make no
reference to the religious motivation for ethical behaviour; the contents of the existing
ethical code would be adopted and developed without reference to the supernatural.
Whatever the actual reason for the omission of religion in the Act, it is certainly true that
it was theology and doctrine that provided the spark for sectarian controversy and
violence. Tolerance for the other’s religious belief was only achieved in the nineteenth
century, and the present day concept of freedom of religion could only be born in such an
environment as the acceptance of others. And then it took 100 years to reach today’s
human rights legislation. In the courts it was fortunate that the Christian ethical or moral
code was concerned not merely with the rigorous standards of personal conduct and
attitude of mind expected of Christians as individuals, but with service to the community.
The code was specifically concerned, as Lord Atkin in Donoghue v. Stevenson 25 was later
to imply, with assisting the ‘neighbour’ in need. For the faithful this was how ‘charity’
(or ‘love’) was to be demonstrated. The courts could take the contents of such a code,
secularize the motivation as the good neighbour concept for believers and non-believers
alike, and church and state could co-exist with ease.
24
The state in its continuing struggle with the church made periodic statutory efforts to prevent land and
treasure being left in incorporated hands, which never died and therefore deprived the state of feudal dues.
The familiar condition of the donor’s giving is that masses be said by priests of the institutional recipient
for the deceased donor, and his family members. But among donors, mediaeval and Tudor, trade guilds
also created dispositions on use for assistance towards health, education and poverty relief needs.
25
Supra, note 1.
11
4.
What does the law recognize as a ‘religion’?
This was not a question that anyone in England would have asked in 1601. The
controversy was between the breakaway English “Established Church” on the one hand
and traditional ‘universal’ Roman Catholicism on the other. There were also evangelical
divines who refused to accept the new church, and pressed that this Reformation church
adopt non-liturgical worship. Toleration for evangelical ‘nonconformist’ chapels was not
really accepted in England until the first half of the nineteenth century, and acceptance of
Roman Catholicism by the state was only introduced, by statute, in 1830. The sectarian
struggle between factions of Christianity for freedom of expression thus finally came to a
close. Shortly afterwards in 1837 a court decision accepted Judaism as a religion that
might publicly be practiced, 26 and so commenced in England - slowly at first - the
modern epoch of the state’s neutrality as between the various faiths. Judaism and
Christianity shared so much history and belief that the real impact of the state’s neutrality
was only going to be recognized in the twentieth century. The society of the original
American colonies, as earlier observed, had been built largely by dissenters from Europe,
and tolerance within Christianity of the different sects was therefore obviously accepted
more easily and sooner than was the case in English society. But the acceptance of all
‘religions’ seems also to have had a nineteenth century beginning in the U.S.A. In
Australia and New Zealand as well, though for similar reasons tolerance came more
easily than in the old European society, there too the meaning of ‘religion’ as such, i.e.,
the embracing of all major faiths, would have been more a twentieth century occurrence.
It was Christians, with Caucasian unbelievers, who opened up these countries.
In the context of charity the acceptability throughout Asia pre-Christian ‘realised’
religions, practiced by millions of people from India to Japan and Manchuria, does not
appear to have come before the Commonwealth courts, strangely enough. Had it done so,
this would have directly raised a difficulty for courts culturally accustomed to the three
Abrahamic ‘revealed’ religions of Judaism, Christianity and Islam. The question is how
one rationalizes acceptance as ‘religion’ of the older tradition of immanence or
‘realisation’ of self. This older tradition is the hallmark of Theravāda Buddhism, and a
central element of Hinduism, and Taoism. Confucianism, one would argue, is more a
philosophy of life than a concern with the supernatural; Shintoism is the ritual and
ceremonial faith. All the same, no Western common law court could surely withhold the
charity classification from any of these religions. But how that is done has never been
explained. Deity and worship are not components of this older belief system; the release
of ‘the spirit’ from mortality by a process of meditation and critical introspection is the
aim of the believer. The believer’s failure to achieve this release means that ‘the spirit’ is
reincarnated in human form. The belief element is that the achieved release is to an
eternal supernatural existence (for Buddhists to nirvana).
Instead, common law courts have been asked to consider relatively small
associations of Western located persons whose terms of association are vague as to the
supernatural, and whose activities further to their purposes appear often to be derived
from, or clearly cognizant of, one Christian form or another. The issue in these instances
26
Straus v. Goldsmit, (1837) 8 Sim. 614.
12
has been whether it is enough that the association members possess a belief of some kind
in the existence of a supernatural. They may not accept that there is any personal or
identifiable deity, but nevertheless speak of a supernatural stimulus, sometimes called a
‘god’ but more often a ‘force’ or ‘verity’ that is beyond the reach of reasoning. 27
Alternatively, the issue may be whether, though it ignores supernaturalism, the
purposeful activity can be recognized as a religion when, by way of a wholly reasoned
philosophy of life and death, the conclusion reached by its members is strongly avowed
as a persuasive response to the basic questions concerning human life. The drive the
members experience is as if they were religiously inspired. It is this driving conviction
that leads its followers to seek further followers from society at large, disseminating that
philosophical approach.
In tackling these issues the courts attempt to be neutral in whatever context the
question is raised. For instance, it is well understood that the court cannot evaluate the
validity or invalidity of religious beliefs or philosophical persuasions. It can only judge
whether purposes are of a religious nature, by comparing observable characteristics
among accepted religions. However, across the common law world some court
judgments have seen neutrality as being between religions when a particular context is
being discussed. For instance, the context may be whether an association’s beliefs or
philosophy should be recognized as coming within a constitutional declaration of
freedom of religion. This potentially is a different question from whether the association
should benefit, necessarily at others’ expense, by being exempt as a religion from
taxation of one sort or another. Other judgments claim that neutrality requires the
evaluation to be exactly the same whatever has brought the matter to court. As between
jurisdictions there are also differences of emphasis as to what constitutes ‘religion’ when,
as occurs today, the courts regard religion as a phenomenon, as opposed to being the
cultural basis that Christianity once constituted. When the supernatural has only a vague,
indefinite part in an association’s aims, or there is merely an enthusiasm of the members
for a philosophy as if supernaturally inspired, judicial attitudes have differed. For the
purpose of classification as religion most courts continue to hold to the need of a
supernatural element; others would include the purposes of associations that are not
spiritual in character but for which there is a similar inspiration. It is interesting to note
that those who look for a supernatural element in purposes, and find it absent, will often
expressly observe that in any event the association is charitable under another or other
heads of charity. The overlap of the applicable heads of charitable status thus ameliorates
the problem of taking an exclusionary position.
The case law concerning these organizations that seem to be on the cusp of
religion and philosophy, and their claim to be as religiously based as the major religions,
is varied. The three latest cases that deal with this issue, as opposed to what constitutes
the advancement of religion, are Re South Place Ethical Society 28 in England, Church of
the New Faith v. Commissioner of Pay-Roll Tax (Vic.) 29 in Australia, and Centrepoint
27
It is assumed the court has found no want of integrity in the references to the spiritual.
[1980] 1 W.L.R. 1565, (sub. nom. Barralet v. A.G.) [1980] 3 All E.R. 918 (Eng. Ch.).
29
[1983] HCA 40, (1983) 154 C.L.R. 120, 49 A.L.R. 65.
28
13
Community Growth Trust v. Commissioner of Inland Revenue 30 in New Zealand. A
United States case, Malnak v. Yogi, 31 and the conclusions there reached by Adams J.,
after considering a number of U.S. decisions, has received considerable attention in both
Australia and New Zealand. Of the three Commonwealth cases Re South Place, a first
instance decision, the court held that an association whose members strongly supported a
humanistic philosophical concept concerning the excellence of trust, love and beauty, but
not anything supernatural, was not a religion for Pemsel purposes. Religion, the court
said, requires faith and worship of a Supreme Being. The members were agnostics,
In Centrepoint Community, an
cultivating a “rational religious sentiment”. 32
incorporated community had as its purpose to advance the spiritual education and
humanitarian teachings “of all the messengers of god”, i.e., the founders of the world’s
revealed religions, a term which included the community’s own named “spiritual leader”.
In addition to its close, mutually assisting community life style, it was engaged in
counselling and psycho-therapy plus some commercial activities, the latter of which
supplied funding to the community. The first instance court found that, while some
members of the community believed in a supernatural being, others held
“a belief in the supernatural in the sense of reality beyond that which can be
perceived by the senses. An exemplification [in the witnesses’ evidence] of that
type of belief is in the expression that frequently recurs of creative energy”.
Included in these beliefs of the community members were concepts that related not only
to man’s relationship to man but also to man’s relationship to the supernatural in the
sense of a Being or of a reality beyond sensory perception. 33
Principally following the earlier Church of the New Faith decision in the High
Court of Australia, the court held that in the terms of their formal association, and in their
beliefs and practices, the members were engaged in the advancement of religion.
Of all the Commonwealth common law jurisdictions, notably England, Canada,
Australia and New Zealand, whose courts have reached conclusions on the subject of the
law’s understanding of what is ‘religion’, the three judgments given in the Church of the
New Faith decision are the most extensive on the subject. 34 They agree on the outcome,
namely, that Scientology which is modeled on Buddhism is a religion, but the emphases
each judgment gives to the various criteria applied to reach that conclusion do subtly vary.
And this is entirely understandable. The High Court is contending with a modern
problem. Religion is a phenomenon which is recognized and respected everywhere the
constitutional or human rights principle of freedom of religion is honoured, but beliefs
30
[1985] 1 N.Z.L.R. 673. For a case comment on Centrepoint Community Growth Trust, see (1984-87), 5
Auckland Univ. Law Rev. 244 (A.W. Lockhart).
31
(1979), 592 F. (2d) 197.
32
However, the association was held to be a charity under the education and ‘other public benefit’ heads of
Pemsel’s categorization.
33
Supra, note 30, at p. 698.
34
In the Centrepoint Community decision in New Zealand Tompkins J. noted that a professor of theology,
giving evidence to the Centrepoint court a year after the Church of the New Faith judgments, described this
decision as “a first class theological essay”. Supra, note 30, at p. 697.
14
and doctrine cannot be proved or disproved in a court of law. It is a phenomenon because
contemporary common law societies, save for the central United States, are for the most
part non-religious. Christianity’s theology and practice, while of central significance to
its adherents, are no longer required acceptance for anyone in society. Religion is a
freely chosen course of thinking and conduct. Nor are things different in common law
societies, both Commonwealth and United States, with respect to any religion other than
Christianity whose beliefs and practices within the last 100 years – the age of toleration have become a part of these nations’ societal life. Each demands equal treatment.
That the courts cannot assess the validity or invalidity of the doctrines or tenets
of any religion is accepted, and all three judgments appear to be in agreement that,
whether the issue is a constitutional right to freedom of religion or exemption from a
fiscal burden shared by taxpayers, the definition of religion cannot be narrowed when the
issue is fiscal exemption.
Mason A.C.J. and Brennan J. give the first judgment. They underline that the
criteria as to what constitutes a religion are drawn from the courts’ observation of
“acknowledged religions” and the “beliefs, practices and observances” of those
religions. 35 Beliefs go to make up faith. In the inquiry into the nature of man, his
relationship to, and place or purpose within, the material world, the first criterion
involves a going beyond empirical reasoning to faith in the supernatural. The belief will
be in “a supernatural Being, Thing or Principle”. 36 A supernatural principle may take the
form of a belief in the struggle of the spirit located within the human frame to reach an
ultimate state of purity when it is released forever from an otherwise recurring human
existence into the spiritual environment. The second criterion is an acceptance of canons
of conduct, which may concern the individual’s moral or ethical behaviour, as well as his
or her duties of ritual observance. For the purposes of evidence in a court, participation
in rites and ceremonies will be enough to show an adherence to these duties. These
canons grow out of and reflect beliefs. However, conduct that is permitted or mandated
by either beliefs or canons must meet the laws of the jurisdiction, and on this basis
polygamy, pacificism in wartime, and other specific types of conduct, are subject to the
prohibitions or non-recognition that affect society’s religious and non-religious members
alike. 37
In closing, this judgment emphasizes an interesting reflection. It is possible for
the leaders of a cult or group to be cynics or sham artists, but the state of mind of these
persons is irrelevant. If the followers are found to be sincere believers with regard to the
doctrines taught to them and in their practice of the required conduct, their beliefs and
practices constitute a religion.
35
Supra, note 29, at para. 11. In the HCA report each of the three judgments is separately paragraphed.
Ibid., at para. 14 (Mason and Brennan).
37
In British Columbia there is currently a challenge from a Mormon community in the province to the
prohibition of polygamous practice, and therefore to the proposed enforcement by the provincial Attorney
General of the federal Criminal Code that outlaws such practice, the defence of the community being
freedom of religion under the Charter.
36
15
Murphy J. in his, the second, judgment traces the history of the religions of the
world and the manifestations of religiosity, the achievements of religion, the ruinous wars
and the partisan-driven misery brought about in its name. However, he emphasizes that,
while some religions may claim to be the one true religion, others permit their adherents
to belong to other religions as well as follow the beliefs and practices of the former.38 He
underlines 39 that faith “has inspired concern for others which has often been reflected in
humanitarian and charitable works.” And he draws attention to the fact that all the
“traditional religions” 40 had small beginnings, when it would have been tempting to
argue that the few adherents were dreamers or mesmerized by a local inspiring leader. It
is not public acceptance that is the test of religion status, Murphy J. explains, it is
satisfaction of the criteria that the courts apply in examining a purported religion. As to
codes of conduct, he finds that “most religions contain a code of principles regulating the
spiritual and social activities of their members.” 41 In this way he comes to the
Scientology movement the High Court then had under consideration.
Wilson and Deane JJ. in the third judgment reiterate that ‘religion’ is not
exclusive to faith in and worship of a single god. Christianity is only one form of religion;
revealed godhead and a revered, obeyed, and worshipped deity is at the historic heart of
the Judaic-Christian beliefs. But in law belief in the supernatural has been accepted,
though the faith in question has no conception of a personalized god or gods and does not
follow a practice of reverence and worship. No one would suggest that Buddhism,
Hinduism, Jainism or Taoism, being historic religions of the Asian continent, are not
religions. Yet each perceives of the spirit within the individual striving on its own for
perfect purity and consequent acceptance in the supernatural. All the courts’ criteria, not
one of which is indispensable, are rough measuring devices that suggest in concert
whether the facts constitute a religion. However, the central criterion is that belief in the
supernatural constitutes “belief that reality extends beyond that which is capable of
perception by the senses. If that be absent, it is unlikely that one has a ‘religion’.” 42
U.S. courts have gone further in their recognition of what is a religion, as Wilson
and Deane JJ. note. 43 In Malnak v. Yogi Circuit Judge Adams described the criteria
developed by American courts as three in number. First, a set of ideas that deal with the
ultimate concerns of man. Secondly, ideas that in toto constitute an integrated beliefsystem. And, thirdly, forms and ceremonies that are found in accepted religions. Wilson
and Deane JJ. said their view of ‘religion’ “accords broadly with the newer, more
expansive, reading of that term” as set out by Judge Adams, 44 while Mason A.C.J. and
Brennan J. said their view, while embracing the supernatural element of Buddhism and
other Asian religions, did not extend to Judge Adams’ position. 45 Murphy J. described
38
Supra, note 29, para. 41 et seq. (Murphy)
Ibid., para. 43.
40
Ibid., para. 33.
41
Ibid., para. 32.
42
Ibid., para. 18 (Wilson and Deane).
43
Ibid., para. 20.
44
Ibid.
45
Ibid., para. 23 (Mason and Brennan).
39
16
the American courts’ position, 46 but did not take a position for himself. He was content
to say that Scientology easily fell within what is religion. 47
This difference in attitude towards Judge Adams’ opinion is interesting because it
is associated with the question of where reasoning stops and the supernatural begins. An
“integrated belief-system” arguably exists in Judge Adams’ opinion when reasoning
produces the system, but those so persuaded share with adherents of an accepted religion
an inspired conviction, in this instance impelled by the force of the reasoning, that this is
the route to understanding the “ultimate concerns” of mankind. South Place Ethical
Society in England rejected such a conclusion. There philosophic reasoning was not
accepted as being ‘religion’. On the other hand, the trial judge in South Place did not
find it necessary to undertake the in depth consideration of ‘religion’ - of reasoning and
of faith - that characterized each of the Australian High Court judgments. 48 Though it is
accepted today throughout the Commonwealth that belief in a supernatural is all but vital
in a ‘religion’, nevertheless, the relationship between reason and faith, a quarter of a
century after Church of the New Faith, remains a puzzle.
Not before time the recent Charities Act, 2006, 49 in England statutorily enlarged
English law as to religion. Section 2(3)(a) provides that “religion” includes “(i) a religion
which involves belief in more than one god, and (ii) a religion which does not involve
belief in a god”. Polytheism under (i) would include not only the ancient religions of
Greece and Rome, where a multitude of ‘guardian’ gods, each representing a concern of
mankind, such as War and Fertility, exists in a world of passions and relationship one god
with another that is human in character. It extends to the guardian deities of Hinduism
and the revered, on occasion worshipped, “enlightened being”, the various buddhas, and
the saints of some Mahāyāna Buddhism. However, does “a religion which does not
involve belief in a god” refer only to ‘realized’ religions like Theravāda Buddhism where
the spirit within each human being is striving without a deity for release into the
supernatural? Or, if it includes that meaning, and no doubt Confucianism, does it also
include the ‘faithless’ ethical association whose members possess an apparently inspired
conviction that by a process of reasoning alone they have answers to the fundamental
questions, such as the meaning of human life?
The chances in fact are probably small that the 2006 Act will be held to have
introduced the charitable status of any ethical society. It will no doubt remain that a
supernatural component is still the distinctive feature of ‘religion’. 50 It is likely also that
belief and faith will continue to be received as concepts that bespeak tenets and in-depth
doctrines that are beyond reasoning in the sense that, while they may be as real to
believers as if rational, they are not based upon empirically available evidence.
46
Ibid., para. 23 (Murphy).
Ibid., para. 48.
48
There is a passing reference to the possible nature of Buddhist belief, but no more.
49
Supra, note 10.
50
It seems likely that a similar interpretation will be given to the Charities Act (Northern Ireland) 2008, c.
12, s. 2(3)(a)(ii) – ‘religion’ includes “any analogous philosophical belief (whether or not involving belief
in a god)”.
47
17
In today’s multi-cultural societies that embrace pluralism it is not easy to induce
recent immigrants among an indigenous population to feel themselves to be a
contributing part of a larger different whole. But that must be the continuous aim of such
a society and the law. An immigrant religion will tend to emphasize to its adherents the
group’s cultural values, language and traditional expression brought from elsewhere in
the world, and one no doubt unconscious outcome of this can be the non-acquisition by
those affected of a vision of the whole of society into which immigration has taken place.
The irony is that historically charity in Western civilization was just that - a product of a
conception by donating individuals as to the state of the whole. ‘My neighbour’ was
everyone who was in need of some kind. Religion knits its adherents closely together; in
this regard the law today does not ease the immigrant’s task in his or her obtaining a
sense of ‘belonging’ to the whole.
The courts appear to have approached belief and faith in the supernatural as the
identifying tag of religion, as soldiers wear uniforms. If there are persons present
wearing military uniforms, there must be an army somewhere. Religion is seen as a
mysterious mixture of knowable philosophy and unknowable belief. Everything about
religion appears to the courts to hinge on this belief as to the supernatural, and it is
therefore not enough to say that an organization that accepts and disseminates solely
reasoned propositions concerning the meaning of life is a religion.
Yet the law continues to understand belief as just one characteristic of religion,
and some judges, like Wilson and Deane JJ. in Church of the New Faith, have suggested
it is possibly dispensable if other elements are persuasive.
5.
Religion, and public benefit
That the spreading of faith by its adherents - proselytizing in acceptable forms - is
charitable has never been questioned by the common law courts. However, a century
after the 1601 Charitable Uses statute the courts began to speak of the requirement that a
charitable purpose must be for the public benefit. The benefit had to be qualitatively of a
character that advantage was rendered to the public by the pursuit of the proclaimed
purpose, and ‘public’ meant that all the people of the jurisdiction, or a significant number
or section of those people, must derive advantage from that pursuit. The character of the
benefit cannot be unlawful, contrary to public policy, or worthless, such as the dedication
of valueless furnishings as museum artifacts. Subject to exception, nor can restriction of
the advantage to such as the settlor’s family or named persons, i.e., private benefit, be
passed off as public advantage because of the would-be charitable nature of the
qualitative benefit.
However, where the relief of poverty, the advancement of education, and the
advancement of religion is concerned purposes are presumed by the charity case law to
be for the public benefit. 51 So far as the advancement of religion is concerned, unlike the
other two charity heads of poverty relief and education, it is not exactly clear what
51
Neville Estates v. Madden, [1962] Ch. 832; Re Coats Trusts, [1948] Ch. 340 (C.A.), sub nom. Gilmour v.
Coats, [1949] A.C. 426, [1949] 1 All E.R. 848 (H.L.).
18
evidence will rebut that presumption, because the courts will not inquire into the validity
or persuasiveness of beliefs. Provided an organization has beliefs, and those beliefs are
held and proselytized in a manner and theological environment that are comparable with
those of long established religions, the court is satisfied. It then turns to whether there is
also a benefit to the public in the furtherance of the religion.
The non-believer might well ask why the law should raise a presumption of public
benefit in favour of advancing religion and deny it to the furtherance of such Pemsel
‘fourth head’ purposes as hospitals or environmental protection. The answer may well be
that the common law of England and its overseas territories adopted this presumption
when Christianity was seen as the alter ego of the secular state. Who could or would
challenge prior to the nineteenth century that the Christian ethic fundamentally underlay
the laws of the English realm? Today state challenge to Christianity is ruled out by the
concepts of freedom of religion, of moral and political expression, and by human rights.
Those ‘freedoms’ may not in themselves justify the financial advantages that charitable
purposes enjoy, but they represent basic goals of democracy. For many these principles
are sufficiently close to the fiscal subsidization of religion by the state that the state
would be well advised to honour here, as it has done historically, the dichotomy of
church and state.
In the recent Canada Revenue Agency (“CRA”) release on the subject 52 the case
for the rebuttable presumption in contemporary society is put in this way:
“advancing religion is a benefit because it helps to provide people with a moral
and ethical framework for living and because it can play an important role in
building social capital and social cohesion. Religious organizations provide the
majority of rites of passage ceremonies (marriages, funerals) and many services to
the needy, marginalized and vulnerable. They also encourage volunteering time
and money to help others.”
Though to a degree this smacks of post hoc rationalization of an existing phenomenon,
and seems to enumerate the side effects of the furtherance of religion rather than explain
why faith in the supernatural earns its adherents state financial concessions for their
organizations, it is not easy to imagine what the CRA might have said otherwise if it is a
given, as it is, that the advancement of religion per se in Canada is charitable.
In 2001 the then Australian government, having earlier appointed a committee to
consider the matter, received a Charity Definition Inquiry Report. And in 2003 it
released, by way of an ‘exposure’ draft, a Bill defining ‘charity’ accompanied by a
document entitled ‘Explanatory Material’. 53 However, the government later withdrew
this Bill, and in Australia, save for four later added purposes, 54 the case law conception
52
Supra, note 2.
The CDI Report can be found on http://www.cdi.gov.au. The ‘exposure’ procedure means the Bill is not
introduced as a First Reading, but as a representation of government thinking to which interested parties
may respond with their own drafting proposals.
54
Non-profit organizations, self-help groups, closed or contemplative religious orders, and rental dwelling
provided by a charity: Extension of Charitable Purpose Act 2004 (Cth), No. 107.
53
19
of what is charitable remains in force. New Zealand adopted in 2005 a new Charities Act,
but nothing was done to move away from the Commonwealth case law. 55 Singapore and
Hong Kong also retain the case law understanding of what is charitable. 56
In 2006, on the other hand, Parliament at Westminster adopted, as previously
noted, 57 a new Charities Act which did contain a charity ‘enumeration’ clause. There has
been in England a succession of these Charities Acts that, developing and refining the
regulation, supervision and accounting of charitable organizations, commenced with the
Charities Act, 1960. 58 But now, for the first time in England since 1601, an Act
statutorily provides what purposes are charitable. 59 Nevertheless, so historic and
evolutionary is the meaning of ‘charitable’ purposes, that Parliament evidently decided to
keep the first three Pemsel headings (the prevention (this was added) and relief of
poverty, the advancement of education, and the advancement of religion), but otherwise
expand and update the law by the inclusion of revised and new specific purposes. These,
had they emerged under the former law, would probably have come under the fourth
Pemsel head of charity. 60 Since the passing of the 2006 Act, and the yet wider statutory
range of Commission duties in monitoring and assisting charities, a veritable welter of
documents has been released by the Commission in the form of guidance and discussion
documents. These documents concern the meaning of charity, the elements that must
exist before an association’s purpose or purposes can be registered as charitable, and they
explain for lay trustees and corporate directors the requirements of the 2006 legislation.
However, there was one striking innovation in the 2006 Act so far as the
advancement of religion is concerned. It followed a similar feature that had earlier been
introduced in section 8(1) of the Charities and Trustee Investment (Scotland) Act, 2005.
The same provision appears also in section 3(1) of the Charities (Northern Ireland) Act,
2008. Section 3(2) of the 2006 England and Wales Act reads:
“In determining whether [the] requirement [of public benefit] is satisfied in
relation to any … [charitable] purpose, it is not to be presumed that a purpose of a
particular description is for the public benefit.”
55
See further, D. Brown, ‘The Charities Act 2005 and the Definition of Charitable Purposes’, (2005) 21
N.Z. Universities L. Rev. 598, for a complete review of the New Zealand position. For the advancement of
religion, see pp. 621-624.
56
See Halsbury’s Laws of Singapore, vol. 9(2), ‘Equity and Trusts’, contributed by Tan Yock Lin, National
University of Singapore, 2003, Butterworth Asia, and Lawrence Yan-Kwok Ma, Equity and Trusts Law in
Hong Kong, 2006, LexisNexis, ch. 16 ‘Charitable Trusts’.
57
Supra, note 10.
58
The first such Act created in England the Charity Commission, and this Commission, created largely to
regulate the industry independently of government, now plays both a legal role as well as a de facto
community role. In addition to considering and ruling upon new applications for registration as a charitable
organization, the Commission is constantly engaged advising and, with regard to the prevailing law,
guiding existing organizations.
59
Supra, note 10, s. 2. It is in open list form. The first statutory open list of charitable purposes was in fact
introduced by the Charities and Trustee Investment (Scotland) Act, 2005 (asp 10), s. 7. This Act and the
2006 Act in England were emulated in the open list of the Charities Act (Northern Ireland), 2008, supra,
note 50, s. 2. Barbados (Charities Act, c. 243, s. 3) also open lists authorized charitable purposes.
60
The definition of ‘religion’ in the 2006 Act was previously discussed, supra, page 8.
20
The presumption that a purpose characterized as qualitatively advancing religion is for
the public benefit was abolished. It was Parliament’s opinion that all charities should be
on the same footing. The time had come, it was said at the time, to have a ‘level playing
field’. Those appearing before the Commission to commend or defend registration must
now prove their case that a purpose claimed to be for the advancement of religion,
whether of an existing faith or a new one, is not only that of a qualifying religion which
advantages a significant section of the public, but that it is qualitatively for the public
benefit.
Among registered religious organizations in England this abolition has raised
concerns as to the degree of certainty that now exists touching the charitable status of
their existing purposes. It has also given rise to apprehension that in future there will be
fewer religious purposes that satisfy the public benefit test. When Parliament was
seeking a ‘level playing field’, the reflection exists, it must have realized that the
advancement of religion satisfies the qualitative public benefit test in a much different
way from that employed by all other charities. How did the legislature intend the
charities affected should meet this demand? Religion may also generate codes of
personal discipline, of morality and ethics, the by-products of which, expressed through
the activities of religious associations, may be the relieving of poverty, the sick and
disabled, and providing for many other such needs in society. But, the religious charities
have underlined, the inspiration of these pursuits lies in faith and a belief in the reality of
the supernatural.
What then is ‘public benefit’ to mean, qualitatively, so far as the advancement of
religion is concerned? The Charities Act, 2006, in England is silent, and the Commission
has been at pains to alleviate the concerns to which the 2006 Act has given rise. Earlier,
as it happened, in section 45(1) of the Charities Act, 1961, re-enacted in 2009, the Irish
Republic had expressly retained the presumption of public benefit in the case of religious
charities and purposes. 61
However, like Scotland, and England and Wales, in
immediately preceding years, Northern Ireland in 2008 also abolished the presumption. 62
The contrast of thinking is striking. What is being implicitly said here by the two camps?
The Australian Explanatory Material 63 alludes to the 2003 Bill requiring that the
public benefit of a charitable purpose must have “a practical utility” (s. 7(1)(b)), but went
on to say, apparently intending to describe the current case law in the Commonwealth,
that “benefits are not restricted to material benefits, but include social, mental and
spiritual benefits.” That language surprisingly was not included in the Bill, and it is the
very thing that the enacted Charities Act, 2006, in England might usefully have included,
but does not. Such a move would not only have gone towards meeting the problem
created by the introduction of the ‘level playing field’, but have prevented the view being
61
Re-enacted as s. 3(4) of the Charities Act, 2009 (Irish Republic). See also, post, note 95. The Charities
Bill, 2003, in Australia statutorily defined, or rather described, charity, but section 7 ‘Public benefit’ made
no reference to the presumption. The CDI Report, 2001, supra, note 53, had recommended its retention,
and this recommendation was apparently accepted. The Explanatory Material accompanying the Bill was
silent on the burden of proof issue with public benefit.
62
Charities Act (Northern Ireland), supra, note 50, s. 3(2).
63
At para. 1.36.
21
subsequently taken by many that what public benefit means for the statute’s ends is
“material” or “tangible” benefit. Religion, aside from all its byproducts, is concerned,
one would have thought, with the abstract issues involved in discerning the meaning of
life, and its essential attribute is belief that ultimate meaning is found in the supernatural.
In light of the judicial comments on the legal meaning of religion in the Church of the
New Faith decision in the High Court of Australia, it is interesting that the 2003 Bill (s.
12 (1)) recognizes this. It places prime emphasis on the significance of “ideas and
practices [that] involve belief in the supernatural”.
In a 2008 draft supplementary guidance document for the public entitled, ‘Public
Benefit and the Advancement of Religion’, 64 the Charity Commission in England noted
in its Foreword that “religion helps to provide a moral and ethical framework for people
to live by and can play an important part in building social capital and community
cohesion.” 65 Here again is the reference to codes of conduct and to byproducts, of which
we have previously spoken. And, reminding its readers of the “new level playing field”,
it continues, thereby simply underlining the charities’ problem, “All [religious charities]
will have to describe the impact of their beliefs, doctrines and practices and show that
they are beneficial and available to the wider community.” 66 It does conclude, however,
that “[w]e appreciate that some trustees of charities advancing religion may find it
difficult to put into words what their charity does that is for the benefit of the public.” 67
The final December guidance carries this comment a stage further.
“ … we also take non-quantifiable benefits into consideration, provided it is clear
what the benefits are. The benefits may or may not be physically experienced.
We realise that often in the case of charities whose aims include advancing
religion some of the benefits are not tangible and could be potentially difficult to
identify. However, this is not to say that a public benefit assessment would only
take account of tangible, practical benefits.” 68
The responses of the religious charities to the draft ‘guidance’ were summarized
by the Commission, 69 and the first two observations on public benefit express exactly the
difficulty public benefit creates for purposes that are religious. Whether we are speaking
of England, or other common law jurisdictions that have no statutory provision for what
64
The Charities Act, 2006, supra, note 10, at the wish of the Commission does not define ‘public benefit’.
Instead, the Commission published in early 2008 a report offering guidance on the meaning of public
benefit and how charities might meet the requirement. The final guidance documents, ‘The Advancement
of Religion for the Public Benefit’ and ‘Analysis of the law underpinning’ the previous document, appeared
on the Commission’s website in December, 2008. Guidance is provided in separate form for each of
poverty relief, religion, and education. ‘Public school’ fee-charging is also the subject of guidance.
65
This seems to have inspired the CRA later in the year. The December final document of the Charity
Commission in England is slightly different, “Where religion helps to provide a moral and ethical
framework for people to live by it can play an important part in building a better society.”
66
The December version, a trifle more emphatic but perhaps less helpful, states that “all [religious charities]
will have to demonstrate that the way in which they carry out their aims is for the public benefit, as do all
other charities.”
67
See further in this supplementary guidance, section E ‘Public Benefit – Principle 1: There must be an
identifiable benefit or benefits’, in particular subsections E1 and E2.
68
Sections D1 and D2, here quoting from D2.
69
‘Public Benefit and the Advancement of Religion: Summary of Consultation Responses’.
22
is charitable, that difficulty is present. The evident fear of the Commission’s respondents
is that religion itself will be seen as an interloper in the modern multi-cultural state’s
conception of charity. Many respondents, says the Commission, wished to see “more
positive statements in our draft guidance about the inherently beneficial nature of religion”
and “were concerned about the distinction made [by the Commission] between the
religious and the pastoral-secular work of charities advancing religion. Many commented
that it is difficult to make such a distinction.” The Commission continued, “Some also
expressed concerns that charities advancing religion might be required to undertake
secular work in order to meet the public benefit requirement, or that only the benefits of
secular work might be taken into account in any assessment of public benefit.”
Unfortunately, but perhaps inevitably – the whole exercise for the Commission is
like walking on eggshells - the Commission’s guidelines do not include any comment on
how a purpose activity put forward as providing public benefit will be assessed if it is not
measurable (or ‘quantifiable’) by the Commission or a court of law on appeal. In the
Australian Explanatory Material the statement was made, as previously mentioned, 70 that
public benefit need not be material benefit. The benefit may be “social, mental or
spiritual”. Perhaps because of Gilmore v. Coats, 71 the English Commission is ambiguous
on that subject, and one suspects that the responders to its guidelines were seeking some
assurance that spiritual benefit is enough to constitute public benefit. After all, faith and
belief in the supernatural element – the Christian idea of soul, and the immanent
religion’s idea of spirit, both seeking acceptance and translation in a discerned ‘beyond’ –
are the essence of religion. Is that recognized by the guidelines? And, if it is, how is
spiritual benefit determinable or capable of measurement by any organ of a secular state?
‘I know that my Redeemer liveth’, proclaims the Christian. The tribunal or court can
only take note of that statement having been made. How then is an existing or would-be
religious charity to demonstrate spiritual benefit?
This is not for one moment to criticize the English Charity Commission. 72
Legislation requires that it accept the advancement of religion as being charitable, and at
the same time the Commission is left to say 73 that “whether a religious organisation’s
aims are for the public benefit is a question of judgment based on factual evidence. This
means that there must be an assessment of whether the aim is for public benefit.” What
this translates into is that England, in tune with all the other common law jurisdictions,
will continue looking at long established religions - traditionally that has been
Christianity - and observe what they are doing as to the statement of their particular faith
and the advancement of that faith. These features will be required of the applicant for
registration of a new religion as a charity. Making a judgment “based on factual evidence”
seems to mean that any argument made by a religious organization as to the existence of
public benefit with regard to the carrying out of any particular purpose will be considered
70
Supra, text to note 63.
Supra, note 51.
72
The reader of the Commission’s releases will observe that the Commission is always ready to go the
extra mile. It says and reiterates that it will give every assistance to charities that do not know how to make
their public benefit case.
73
Draft guidance, section E2, page 23.
71
23
fully ‘against the background of all the facts’. The absence of any yardstick in those
words is palpable.
The Charity Law Association of England and Wales, in its Working Party
‘Response to the Charity Commission’s Consultation Public Benefit and the
Advancement of Religion’, thought it worth commenting that “if a charity carries out the
[familiar instances in which religion is recognized as being ‘advanced’] in a way that can
demonstrate that it is for the public benefit, then it is charitable.” 74 The Working Party
considered that “because of the inherent diversity and intangible nature of much religious
belief and practice, it was not easy [for the Commission] to be as clear about public
benefit as in other charitable areas. It appears that some religious activity needs to be
manifestly harmful before it can be said to be incapable of delivering public benefit.”
The conclusion one draws on putting down all the ‘guidelines’ and ‘responses’ is
that, the presumption having been abolished, public benefit is not going to be treated as
the avenue to asking what belief and faith, as the essence of religion, provide by way of
benefit in today’s multi-cultural societies. For reasons not mentioned, and it would be
interesting to know what they are, the powers that decide these things are content to look
at the phenomenon of religion, accept its historic association with charity, and emphasize
the existence of codes of personal moral discipline, and of general ethical conduct, that
adherents are to follow in their life in the community. These codes contribute, it is said,
to social structuring and cohesion, and therein is benefit. In other words, England
essentially sees no case for a change from the nineteenth century approach, when there
was both majority Christian church or chapel going, and toleration. Meanwhile, save for
a passing reference in Australia, no other Commonwealth government appears even to
have considered the case law presumption, its present working effect and de facto role.
6.
Public Benefit and Religion in a Pluralist Scene
It is clear from the case law and statutory rulings of all common law jurisdictions
that a religion qualifies for charity status if by a process of analogy it is generally in line
with the credal character, ritual expression, and forms of proselytizing of the traditional
belief systems of the world. Analogy therefore also provides the law’s test as to whether
the activity in question constitutes ‘advancement of religion’. The approach of the law
today is to stand back – to recognize freedom of belief, and to demonstrate the law’s
equality of treatment as between belief systems. That means that, if a purpose or
organization is to be held charitable, the remaining requirement of public benefit is of
crucial importance. However, in examining in what way the public of a multi-cultural
and pluralist society is benefited by the furtherance of religious purposes, we face
squarely an issue that in Western societies has been a constant since shortly after the
Second World War when large scale immigration patterns began to render formerly
homogeneous societies multi-cultural. Once religious belief is no longer held or its
rituals attended and practiced by the large majority of society, and secularism and
liberalism lead to pluralistic multi-culturalism as a principle of society, what society aims
to achieve by conferment of special status upon the furtherance of religion becomes less
74
Comment on E2, at pp. 11-12. The familiar instances are reviewed, supra, pages 3-7, of this paper.
24
clear and thus an issue. Religion brings to society purposes that are different from all
other charity purposes because they are rooted in the supernatural, yet with such a root
the consequent essential elements of faith and belief are not subject, and cannot be made
subject, to the law’s empirical assessment of validity or worth. There can be no resort to
expert evidence asserting validity or worth, because a court cannot weigh that evidence,
and the rule of law must lead government to question whether there can be any deferring
to bodies that state their purposes qualify as religion and provide public benefit.
Confined to rational processes of thought as the state is, religion is unknowable.
To ‘know’ the supernatural is to accept a metaphysical reality that is by definition at a
point beyond reason and proof. That is not in any way or to any degree to challenge the
validity of such ‘knowledge’; for believers it is ultimate reality. But for the charity law
of the state it presents a problem.
Accordingly, the abolition of religion as a head of charity has been canvassed by
commentators within more recent years. A principal concern is that, as the courts
acknowledge, principles of belief are not subject to judicial evaluation, and the modes of
assessment in fact adopted by the courts - as to whether a professed religion should be
recognized, and its purposes accepted as being beneficial to the public - are almost
impressionistic. Verbal dexterity by courts and advocates of the religious life frequently
avoids the direct question of how the public is benefited by furtherance of faith and belief
in the supernatural. Abolitionists argue that the state should not be requiring its secular
courts to judge whether the public derives benefit from the carrying out by the faithful of
their beliefs. 75 It has also been suggested that the justification for fiscal exemptions has
gone with the emergence of the modern welfare state, and there is no longer the previous
reliance upon the ‘mainstream’ religious bodies to perform other charitable tasks. 76
Those who oppose the removal of the furtherance of religion from charity status
will nevertheless likely point to the work of a material benefiting nature that in fact is
voluntarily done in society by the religious organizations. They may point to work where
little is being done by government or other charities, and supplemental efforts by
religious organizations are indispensable. They have data to confirm this contention.
And believers as members of these organizations, as has been noted, see no distinction
between their beliefs in the supernatural and their service in the community to men,
women and children in need. This argument was made by religious charities to the
Charity Commission in England. 77 These defendants of the ‘advancement of religion’ as
being charitable consider that the ethical codes of personal and group conduct - familiar
characteristics of established religion - are a potential source of inspiration for those
without faith. The Charity Commission and the Canada Revenue Agency concede in
their publications that this is so. Indeed, it is what these secular authorities chiefly
mention. And, once the inspirational effect of strict codes of conduct is accepted,
75
E.g., supra, note 30, A.W. Lockhart, (1984-87) 5 Auckland University L. Rev. 244; P.W. Edge, Religion
and Law: An Introduction, 2006, Ashgate, pp. 107-111, where in a compelling argument the author reviews
the history and present character of the inclusion of the advancement of religion within the concept of
charity, and reaches an abolition conclusion.
76
Ibid., A.W. Lockhart.
77
See, supra, p. 22 of this paper.
25
believers do not see what is wrong with public benefit clearly including spiritual
benefit. 78
The reader of these opposing views may well see strengths in both positions, and
acquire a sense of interminable contention. However, in the Commonwealth common
law jurisdictions that have recently released material on the definition of and
requirements for charitable designation there is no evidence of any contemporary
reassessment of nineteenth century thinking on the subjects of qualifying faiths and of
public benefit. 79 The questions put are these: is the purported religion, and its
‘advancement’, analogously acceptable, and is there a benefit to the public that believers
and non-believers together can accept? Essentially what is asked remains the same as it
was in the pre-1945 world before immigration became a large scale activity. 80
It can reasonably be concluded from this situation that there is no jurisdiction in
the common law world in which abolition of the advancement of religion as a charitable
purpose is likely to occur. Nor is there any discernible move away from the above two
questions as an appropriate test of the charitable character of religious purposes.
Suggestions that attempt to encourage a new approach to the subject of public benefit in
relation to the advancement of religion 81 have seemingly gone nowhere. 82
So far as charity law and the advancement of religion are concerned, the impact of
pluralism has as yet to be considered in modern Western democracies. Religions that the
case law has in mind, it appears, are based either on belief in a personal god that is
revealed to humankind and proclaims through prophets and priests the manner in which
to enter an afterlife, or upon the perception that there is a supernatural element within
each human body seeking a release at the close of the human being’s lifetime into the
timelessness of an eternal supernatural existence. These religions are capable of
ministering to the literate and sophisticated. Each of these types of religion is likely to
possess writings that are to be studied and reverenced as speaking to ultimate truth, and
each will probably possess demanding codes of personal conduct if ‘the way’ to the
afterlife is to be followed, or the goal attained.
Is that the span of our understanding of what is religion? Suppose the courts were
to be faced with the polytheism that was familiar in the ancient classical world. The
‘gods’ were individuals who possessed supernatural powers, e.g., to transform the planet
from desert to plenitude, or change a human being into animal or vegetation life, but who
could assume human form and take part in human society. The supernatural deities were
78
See, for instance, Michael King, ‘Charitable Status for the Advancement of Religion – the Proponent’s
View’, (1995/6) 3 The Charity Law and Practice Review 179.
79
For the Australian CDI Report, see, supra, note 53. The Explanatory Memorandum in Australia
accompanied the Charities Bill, 2003, and the Charity Commission ‘guidance’ in England concluded in
Dec. 2008 with The Advancement of Religion for the Public Benefit, and an accompanying legal analysis on
this subject. See also for the Canada Revenue Agency publication, supra, note 2.
80
Gilmour v. Coats, supra, note 51, in 1949 epitomised this world.
81
J.C. Brady, (1968), 19 Northern Ireland L.Q. 357, and (1974), 25 Northern Ireland L.Q. 174.
82
It is the addition of further charitable purposes – for amateur sport there is a considerable lobby – that
attracts the attention of government. On other issues, save perhaps for tax concessions, there appears in the
majority of common law jurisdictions to be little or no interest.
26
seen as having the power with divine means to worsen or ease the lot of human life,
according to the desserts of the particular human being. In their own manner the gods
guarded those on earth. Each god represented to human beings a facet of human life, e.g.,
love and fertility, or of conduct, e.g., justice and war; each had the power to intercede in
earthly affairs. With this religion there is little philosophical element. No ‘sacred’
writing is likely to be treasured. The spoken tradition and mythology are its
characteristics. Elements of contemporary Western and Asian religions are clearly
present here, and its base is a belief in a world ‘beyond’ and controlling the present
physical experience.
Is religion of this variety conceivably recognizable by any common law
jurisdiction? It may seem a preposterous question, but it underlines the fact that, though
we have the theologically informed judgments of the Church of the New Faith, no report
has been commissioned in any jurisdiction on what place religion and belief have in a
multi-cultural, pluralist jurisdiction, even though the concern of modern society is that
‘freedom of religion’ and ‘of conscience’ be honoured. 83
The thesis of this paper is that multi-cultural immigration, together with a
twentieth century decline in Christian church attendance to minority-of-the-population
status, have caused the phenomenon of faith and belief to assume a different position
from that which in an active and Christian setting it previously possessed. 84 The drift
away from Christian church going is frequently said to have been exacerbated in the
Western culture by the vast destruction of civil societies in the Second World War, but a
similar drift in Canada is considered to have commenced in the 1970s, both in common
law Canada and Quebec. 85 And multi-culturalism is with us. Judaism and then Islam
appear next in size after the totality of Christian church affiliation, and in the 1991
Religious Census some three-quarters of a million Canadians described themselves as
members of Asian religions. This means Buddhism, Hinduism, Sikhism, Jainism, Taoism,
Confucianism, Shintoism and Zoroastrianism. The largest groups in Canada among these
religions were Buddhists, Hindus and Sikhs. 86 That was eighteen years ago.
(1)
Retaining the presumption that public benefit exists
If in the multi-cultural, pluralist state of today and tomorrow the advancement of
religion is to remain a head of charity, then what change is likely? So far as the Pemsel
test is concerned, it seems probable that this test will be popular when denials or
assertions of human rights are in issue. The nature of ‘religion’, modes of its furtherance,
and public benefit are probably going to remain the three matters that are examined.
They will be assessed with objective criteria that look only at the fringe of what is
religion and what advances faith, but at least results are likely to be predictable. After the
83
See further on this issue, post, notes 92 and100.
Perhaps the United States is the exception with its East and West Coast liberalism, joined with a vibrant
and influential evangelical Christian tradition, especially in the Mid-West.
85
M.H. Ogilvie, Religious Institutions and the Law in Canada, 2nd ed., 2005, Irwin Law, at p. 55.
86
Ibid., at p. 98. See further, the draft documents, ‘Public Benefit and the Advancement of Religion’,
Charity Commission, Feb. 2008, Section C2, pp. 15-16, speaking of the English experience. For the final
guidance documents, see, supra, note 64.
84
27
1985 Church of the New Faith decision it is arguable that non-justiciable elements are
reduced to a reasonable minimum for future courts determining what is a ‘religion’. And
the characterization of professed modes of ‘advancement’ seems tolerably handled by the
process of analogy with ‘mainline’ faiths. Because beliefs cannot be judicially validated
or assessed for worth, as can all other charitable purposes, 87 it is the requirement of
public benefit that poses a serious problem. No case is being made at government level
for the abolition of this third test.
However, as it stands, is public benefit reasonably subject to judicial assessment?
Prior to 2006 English courts were given to relying on the presumption of benefit, and
therefore asking only whether the particular purpose was harmful or contrary to law or
public policy. To the writer’s mind the presumption of benefit is particularly useful in
this respect with regard to the advancement of religion. For courts and tribunals it
reduces the criteria for assessment (law, public policy, harm inflicted) to those that are
objective in character, but at the same time does not emasculate a public benefit test for
those that consider this test crucial. From this point of view it is regrettable that, while
the case law is still ‘all over the place’ on how public benefit is demonstrated, the English
legislature in the area of faith and belief has removed the presumption. No one knows at
this point, now that the presumption is gone, how future courts in England are going to
deal with what has been called spiritual benefit.88
Like Australia and New Zealand, common law Canada retains the case law
presumption of public benefit for all purposes, so that the pre-2006 English case law will
continue to be of interest in these countries. As previously noted, the 2001 CDI Report in
Australia expressly commended the presumption. But, whichever way one turns, the
nature of the public benefit that the law requires for the advancement of religion remains
a conundrum. Public benefit is frequently said to require ‘practical utility’, and this
presumably means material or tangible advantage to the public. 89 However, the
Australian 2003 viewpoint that “[b]enefits are not restricted to material benefits, but
include social, mental and spiritual benefits” is attractive, and, if this is so, it meets the
believers’ concept of the benefiting of the public. But it is not evident, looking across the
Commonwealth, that this is exact. The decision of the House of Lords in Gilmour v.
Coats 90 , the leading case, suggests there are two objections to a gift being charitable
when it is made to or for a religious order whose members spend their lives in private
contemplation and prayer. First, there is private benefit only, the purposes of the order
being concerned solely with its own members, and secondly the court has no means of
assessing as a matter of proof what benefit arises to the public from spiritual acts, i.e., the
alleged inspiration to the public of such dedicated religious lives.
87
See, e.g., Re Pinion, [1965] Ch. 85, [1964] 1 All E.R. 890 (Eng. C.A.).
See further discussion, M. Harding, ‘Trusts for Religious Purposes and the Question of Public Benefit’,
(2008) 71 Modern Law Rev. 159.
89
The draft Charities Bill, 2003, in Australia carried this element in its s. 7(1)(b). See also, supra, note 62.
90
Supra, note 51. This decision has always been controversial, and clearly given offence to Roman
Catholic opinion. The Irish Republic has statutorily reversed this position: Charities Act, 1961, s. 45(1), reenacted as Charities Act, 2009, s. 3(4) (Irish Republic). See also Extension of Charitable Purpose Act 2004
(Cth), supra, note 54, s. 5(1)(b) (Australia) – closed and contemplative religious orders offering prayers at
the request of the public satisfy the presumption. See on public benefit, supra, text to note 61.
88
28
Public benefit as a test being so volatile and unpredictable an element, it has been
suggested that for the advancement of religion it should as a test be abolished. 91
However, there will be those who contend that religious organizations will then be able to
dictate to society and the courts what purposes are to be characterized as being charitable.
That is, qualitative public benefit will be decided by the religious organization, or the
expert witness who is probably a senior theological authority. This likely attitude has to
be taken into account. 92
(2)
The Canadian response to the advancement of religion
In these circumstances, and while debate continues as to why the advancement of
religion continues to be recognized as being charitable, it is more persuasive that Canada
retain the presumption of public benefit. This means that the court determines solely
whether the purpose or purposes in issue are contrary to the law or public policy, or are
harmful to the public. This in turn involves asking the courts to consider only that which
can be measured, e.g., whether sectarian or inter-religious violence is provoked, or the
true aim is to foment hatred towards non-believers who express criticism, or are
adherents of another religious persuasion. Political orientation of an otherwise charitable
and therefore non-political purpose may be another concern of the state. The efficacy
and value of this level of testing can be seen in the judgment of Plowman J. in the
English case of Re Watson. 93 A testatrix left a testamentary bequest for the publication
and distribution of certain contemporary religious writings. To place this fact in a
modern context, she might have left her bequest to an incorporated body of like minded
people for this task to be performed. A clerical expert in theology gave evidence that,
though these writings might inspire the religious associates of the testatrix, they were of
no value. The trial judge was nevertheless able to find no unlawfulness, no objection on
public policy grounds, and no harm being done to others. The purpose was held to be
charitable. 94
It would have been preferable surely if the cases concerning the saying of masses
in private for the soul of the deceased testator or immediate family had been dealt with in
the age of toleration in this same way. 95 As has been previously noted, 96 in the Republic
91
See, e,g, F.H. Newark, supra, note 7, at p. 234, and J.C. Brady, supra, note 81, presenting the abolition
argument.
92
The objection to the courts ‘deferring to’ the religious organizations is put forward by M. Harding, supra,
note 88. The relationship between belief organized as an ordered, preceptive and disciplining structure
governing all facets of life, and the state’s rule of law as a similar structure, but based on the equality of
persons before the law, the latter being the structure that must prevail, is discussed in Beverley McLachlin,
C.J.C., ‘Freedom of Religion and the Rule of Law’, Recognizing Religion in a Secular Society, ed. D.
Farrow, 2004, McGill-Queen’s Univ. Press, at p. 12.
93
[1973] 1 W.L.R. 1472, [1973] 3 All E.R. 678. The CRA cites this case in its 2008 discussion paper for
Canadian religious charities. See, supra, note 2.
94
Contrast Re Pinion, supra, note 87, a gift of articles for museum showing, the articles being found
worthless. In this case, under the fourth head of charity, there was no presumption of public benefit.
95
Instead the right granted to the public to attend these otherwise private masses, and the income thereby
provided for the priests conducting these rites, have been held, somewhat tortuously, to constitute public
benefit. Ancestor reverencing and worship in Hong Kong presents the same issues for the public benefit
test.
96
Supra, note 90.
29
of Ireland legislation provides that gifts to closed, contemplative religious orders are not
to be challenged on grounds of public benefit, and Australian legislation states that such
gifts meet the public test if the order in question will offer prayers, on request, for the
public. For the rare instances in Canada in which this problem arises, it is not
unreasonable to hope that the Re Watson test of public benefit will be seen by the courts
as meeting both the concerns of Canadian society and the understandable sensitivities of
believers.
7.
Closing thoughts
How the law and society should understand the phenomenon of religion has been
debated since the nineteenth century publications of Charles Darwin. Atheists and
agnostics have at times challenged the believers’ position with passion. But, though a
spate of recent writing evidently sees a market for returning readers to the God or no God
debate, during the last sixty years the increasingly evident attitude of non-believers in
Western countries is different. They witness the faithful, and pass on their way. It is this
development, together with the continuing growth of immigrant cultures and the number
of belief persuasions in Western countries, that has led our more empirically minded and
social welfare conscious societies to ask today why religion shares charity status. What
does religion accomplish that with our present conception of charity we are not already in
a position to accomplish?
A respected Muslim theologian sets out his observations in the following way:
“… when we try to balance religion with other participants in the public realm, we often
do so with the assumption that religion per se shares nothing, as an idea or even as an
experience, with the pluralism, liberalism, and secularism that are regarded as the
mutually defining criteria of modern democratic societies. Globalism, too … [has been
perceived in a way that has] tended to relegate religion to the sidelines or to a past era.
Thus religion is seen as neither good nor bad but, rather, as irrelevant because our
understanding of it in the postindustrial world of material and social advancement does
not require it to be part of the overall human equation.” 97
The author of those remarks responds to his own diagnosis by pointing to the
moral and ethical training of the faithful by religion and the fact that the command
delivered by such precepts touches every facet of the believer’s life. He points to the
necessity of morals and ethics as constituents of all human societies if those societies are
to provide a life of any quality for their members. This, it will be remembered, is the
conclusion also of the English, Canadian and Australian governmental or quasigovernmental discussion papers as to why the furtherance of religion benefits the public.
The present paper has questioned whether such an approach is a post hoc rationalization
of existing charity status. It convinces so far as it goes. That belief and faith
organizations worldwide will likely produce benefits that a “world of material and social
advancement” can measure and appreciate, is true.
97
Prince El Hassan Bin Talal, ‘Religion in the Public Realm’, Recognizing Religion in a Secular Society,
supra, note 92, at p. 3.
30
Some might say that the irrelevance of religion, as the theologian describes
current thought, argues in favour of the state simply retaining the present mode of
accommodation of religion. To put it vulgarly, why rock the boat? Why deeply offend
believers by withdrawing charity status from religion on the basis that it is irrelevant,
which means appearing to declare that society no longer recognizes that the Christian
culture was the very progenitor of the West’s practice of charity? Even if there are fiscal
advantages at the cost of the taxpayer, is the loss to the exchequer all that significant,
given the ‘public utility’ byproducts of religious practice which the state and its courts are
content to acknowledge?
Indeed, from this paper itself the reader may conclude that what is religion, and
how it may be advanced, seem with the analogy process to work tolerably well. If the
presumption of benefit is retained, and the Re Watson approach is sanctioned by statute
or the Canadian courts, that avoids the greater part of the spiritual benefit difficulty. The
reader may conclude, ‘Why not leave things there?’
(1)
A new manner of understanding religion, and charity status
For anyone who interprets faith and belief as the raison d’etre of religion,
however, that is not enough. The present arguments of analogy and material benefit,
originating in what the organs of the state can measure, are not responding to the real
situation that exists in the pluralist democracy. Christianity in its various sectarian forms
dominates our thinking, because historically it was Europeans who followed the First
Nations into what is now Canada. Other religions have been recognized in the light of
Christian tolerance. Yet today none of Christianity, Judaism, Islam, Buddhism and
Sikhism – to take leading religions that are active in contemporary Canada – exclusively
expresses what may be called the Canadian culture. Christianity, to repeat the thought,
no longer is a religion practiced by a majority of people living in Canada. Judaism has
always been associated with a minority group in society, and Islam, Buddhism and
Sikhism reflect other cultures, namely of the Middle-East, Asia and India. If Canada is to
be truly multi-cultural - and the low birthrate of Caucasian Canadians suggests that
immigration will continue to be encouraged - we have to appreciate the civic realities in
living as we do with the phenomenon of religion, as opposed to ‘the [Christian] church on
the corner’. Moreover, each of the faiths will ‘know’ the supernatural, and consequently
determine religious expression, in its own way. Some of the religions now practiced in
Canada are not within the awareness of a great many Canadians, who also have no
present or past cultural affinity with these religions. On the other hand the evidence is
that everywhere religion not only is, but will continue to be, a head of charity.
With the number of adherents of Indian and Asian religions growing in this
country, and the adoption in Canadian society of the principle that adherents of all
religions are entitled freely to express their beliefs and to enjoy equality of treatment one
with another, it is clearly arguable that Canada should accept that the advancement of
religion is in fact the advancement of belief in the supernatural. That in the writer’s
opinion goes to the heart of religion and its whole raison d’etre. Essentially because
what is believed is not forensically capable of assessment, the time has come for the law
31
of charity to recognize the advancement of religion with a different approach from that
used for all other charitable and would-be charitable purposes.
A move to this position in Canada in fact requires little adjustment. Of the three
tests for charity status, (i) a qualifying religion, (ii) purposes that are directly concerned
with advancing the particular faith, and (iii) public benefit, requirement as to the first two
can be met with relative ease. With reference to (i) the principal need in a pluralist
society is to move from ‘the Christian sects, and other analogous religions’ to a
demonstrably neutral position. The enlightening and in-depth judgments in the Church of
the New Faith decision from the High Court of Australia allow us - in the absence of any
comparable assessment from a Canadian court - to move from analogy to a position of
formulation in list form of those characteristics or elements that will be expected of any
religion qualifying for charity recognition. No case-law-excluding code is envisaged; the
existing case law would be retained to assist the courts in the interpretation of the
statutory language. 98 Turning to (ii), above, statutory language would not list the purpose
activities that will be recognized, mostly because here the ‘Christianity and analogous
religions’ approach, perhaps unconsciously, has led the courts to look for practices that
mirror or resemble Christian activities. The Act would instead emphasize that the
relationship between purpose and beliefs held must be direct. For instance, a soup
kitchen is possibly construable as being within an organization’s purposes, but is not in
furtherance of purposes that solely envisage contemplation and prayer. The sham and the
contrived, seeking to exploit the law, would be the subject of proof as now.
With regard to (iii), the law on this subject across the Commonwealth is in such a
state of contradiction that it is best, given that belief and ‘spiritual benefit’ are not
assessable, to abolish the public benefit test.99 It is enough for rule of law purposes if the
courts make the measurable determination of whether the particular religious purpose
violates the law or public policy, and whether it encourages hatred of others or has a
harmful influence. Harmful influence can exist with regard to individuals in society or
the belief system’s own adherents.
These determinations could also be the manner in which the law would prevent
belief structures dictating to the state. It surely cannot be challenged, even in a liberal
and democratic environment, that the rule of law must prevail, though freedom of
religion and charity status are the goals of society. The essential question is what
controls the rule of law must have in order that equality before the law is maintained.
The argument developed here is that, even if, as this paper commends, faith and belief are
accepted as providing in themselves public benefit, the state must be able to assess those
features in a religious purpose that impact upon the whole of society, believers and non98
Though it is frequently criticized, some courts are notably not convinced that anything better than the
Pemsel ‘definition’ can be produced. See, e.g., Kirby J.’s concurring judgment in Central Bayside General
Practice Association Ltd. v. Commissioner of State Revenue, [2006] H.C.A. 43, paras. 110-117.
99
The Irish Republic’s solution, supra, note 61, confirming the case law presumption, seems in its
precision almost to mock charity law’s public benefit test. The 1961 Act read: “In determining whether or
not a gift for the purpose of the advancement of religion is a valid charitable gift it shall be conclusively
presumed that the purpose includes and will occasion public benefit.” The 2009 Act reads: “A gift for the
purpose of the advancement of religion shall be regarded as being of public benefit.”
32
believers alike. Independent courts are ideally positioned to balance freedom of religion
with the measurable welfare of the citizenry at large. And the Re Watson approach is
exactly what this paper has in mind as the approach the courts would take. 100
Events on the ground are moving fast. Immigration and globalization are forces
that daily are challenging age-old ideas. The conclusion reached by this paper is that an
examination is already overdue of whether religion should now be forthrightly
understood and accepted as belief and faith in the supernatural.101
DWW
100
See further, supra, note 92, concerning freedom of religion within a legally ordered society. The
Charities Act, 2009 (Irish Republic), s. 3(5), requires the courts to defer to religion. “A charitable gift for
the purpose of the advancement of religion shall have effect, and the terms upon which it is given shall be
construed, in accordance with the laws, canons, ordinances and tenets of the religion concerned.” Where
within the Republic a Re Watson approach (text to note 93) is now situated is a matter of conjecture.
101
In Waters’ Law of Trusts in Canada, 3rd ed., eds. D.W.M. Waters, M.R. Gillen, and L.D. Smith, 2005,
Thomson: Carswell, at p. 716 (ch. 14 ‘Charitable trusts’), we suggest that such a course is “questionable”.
In this paper it is argued that that questionability may now no longer exist.
33
ADDITIONAL BIBLIOGRAPHY
T.S. Carter, assisted by D.A-M. Langan, ‘Advancing Religion as a Head of Charity:
What are the Boundaries?’, C.B.A./Ontario Bar Association., 3rd National Symposium on
Charity Law, Toronto, May 6, 2005.
Ontario Law Reform Commission, Report on the Law of Charities, 1996, Toronto.
Between State and Market: Essays on Charities Law and Policy in Canada, eds. J.
Phillips, B. Chapman, and D. Stevens, 2001, McGill-Queen’s Univ. Press, ch. 10, J.
Phillips, ‘Religion, Charity, and the Charter of Rights’.
Diversity and Equality: The Changing Framework of Freedom in Canada, ed. A.
Eisenberg, 2006, UBC Press, J. Webber, ‘The Irreducibly Religious Content of Freedom
of Religion’.
Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551
Background reading and reference
Halsbury’s Laws of England, 4th ed., 2001 Reissue, vol. 5(2) ‘Charities’. Contributed by
H. Picarda, Q.C. Updated in the Current Service and annual Cumulative Supplement to
Halbury’s Laws of England.
Equity and the Law of Trusts in Ireland, Hilary Delaney, 4th ed., 2007, Thomson : Round
Hall, ch. 10 ‘Charitable Trusts’.