There is a judgment sitting quietly in English law that religious privilege has still not properly reckoned with.
In 2013, the UK Supreme Court ruled unanimously that Scientology qualified as a religion for the purposes of the relevant statutes. The case was Hodkin. The leading judgment was given by Lord Toulson. On its face the ruling was narrow. It concerned whether a Scientology chapel could be registered as a place of religious worship so that valid marriage ceremonies could take place there. But the implications travel well beyond the facts.
Toulson held that English law could no longer define religion by reference to a supreme deity. To do so would wrongly exclude Buddhism, Jainism and other traditions plainly functioning as religions for their adherents. He described religion, in summary, as a spiritual or non secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with that belief system. On that basis, Scientology qualified. The appeal was allowed.
Lady Hale later drew out the wider principle with unusual clarity. In the 2014 Annual Human Rights Lecture for the Law Society of Ireland, she said that the law protects all religions equally without trying to decide which are forces for good and which are not. It protects other belief systems too, including humanism and pacifism, and it protects the absence of belief. Her conclusion was devastatingly plain. The law does not give religion any special protection as such.
The law is not saying religious claims are true. It is not saying they are morally elevated, socially beneficial, or intellectually respectable. It is not offering a certificate of merit. It is saying only that people are not to be punished or disadvantaged by the state for holding such beliefs. That is a principle of liberty. It is not a tribute.
Religion has long depended on blurring those two things. It takes legal protection and speaks as though it were cultural endorsement. It takes toleration and dresses it up as esteem. But Hodkin, and Hale’s blunt explanation of what follows from it, make that manoeuvre harder to sustain. When the law places Scientology, Buddhism, Christianity and secular humanism within the same protected category, it is not blessing them all. It is refusing to rank them. The older religions are not being honoured. They are being neutralised.
And once that is understood, something else follows.
Religion has always claimed more than the right to exist unmolested. It has claimed authority. Moral authority. Social authority. Sometimes political authority. Not from public evidence, not from democratic mandate, but from revelation, sanctity, divine sanction, sacred office, and the whole familiar apparatus by which an unfalsifiable claim is turned into a licence to instruct the rest of us. That is the mechanism. Assert access to a higher source, place the claim beyond ordinary scrutiny, then demand deference on the back of it.
But a neutral state cannot validate that move. It protects belief without endorsing it. It has no official view on whether the propositions are true. It cannot have one. And if the state cannot say the claims are true, then the public authority supposedly derived from those claims is resting on a foundation the state has not in fact supplied.
That is where the real difficulty begins.
If religion is legally protected as one belief system among others, why does it still occupy institutional space as though it had proved something more?
The Church of England’s bishops sit in the House of Lords as of right. Twenty six of them. They help make the laws of a country whose legal order now presents itself as neutral between religions, between religion and non religion, and between belief and unbelief. They do not sit there because Anglican truth has been publicly demonstrated. They do not sit there because the state has concluded that their metaphysical claims are correct. They sit there because history left them in place.
That point needs to be made carefully. One may object to hereditary or appointed power on democratic grounds, and should. But bishops are a different constitutional absurdity. They sit there not merely as unelected persons, but as representatives of a truth claim the state officially refuses to affirm. The Lords Temporal may be defended, however weakly, in terms of experience, service, patronage, party balance, or constitutional habit. The Lords Spiritual are there as bishops. Their office is inseparable from the claim that religious office carries a special moral competence in public life. That claim is meant to arise from spiritual standing, sacred vocation, and custodianship of truths unavailable to ordinary democratic argument. So this privilege is not merely historical in the way other constitutional leftovers may be. It is theological in character, even when defended in cultural language. And that is precisely why it fails.
The same constitutional order still carries other religious remnants, above all in the established church’s relation to the Crown. But the bishops are the sharper case, because here religious office does not merely accompany the constitution. It legislates within it.
That matters. Because once the state stops pretending to know that one confession is true, the old privileges lose their intellectual footing. They survive, but only as leftovers. Historical sediment. Constitutional residue. Not principle. Not reason. Not merit. Just age, costume and inertia.
The defenders of establishment usually retreat at this point into culture. Religion is part of the national fabric, they say. The ceremonies matter. The continuity matters. The bishops contribute a moral seriousness that professional politicians lack.
Notice what has happened there. These are no longer arguments about truth. They are arguments about heritage, habit and institutional usefulness. They may be argued, certainly. But they should be recognised for what they are. The theological case has already been abandoned. No one is now saying, in any form the neutral state could admit, that these privileges are justified because Anglicanism is true. The claim has quietly shrunk. What remains is not “this is true and therefore should rule.” It is “this is familiar and therefore should remain.”
But familiarity is not enough here. A constitution may contain inherited forms, ceremonies, and remnants that survive for no better reason than age. That is not much of a defence, but it is at least an honest one. The bishops demand more. Their claim is not simply that they are old, but that their office contributes a distinct moral authority to public life. Yet that authority is precisely what the neutral state cannot underwrite. A state that declines to judge revelation true has no basis for giving legislators a privileged seat on the strength of their proximity to revelation.
That is where establishment now strains. It wants the prestige of sacred office after surrendering the truth claim that once made sacred office politically intelligible. It wants deference without demonstration. Rank without warrant. Survival by sentiment.
An institution that once claimed divine warrant now asks to be preserved for heritage value and public tone. It is no longer asking to be believed. It is asking to be kept.
And that is the unearned throne at the centre of the matter.
A neutral state may protect religion. It may not persecute it, penalise it, or deny its adherents equal civic standing. Good. It should do exactly that. But once the state has renounced any authority to say that religious claims are true, it has also renounced the only serious basis on which those claims could demand constitutional rank. Liberty remains. Privilege does not. What survives of religious establishment after that is not a principle worth defending. It is a relic that has outlived its argument.
