Pearls and Irritations

The best argument against having an explicit legislated or constitutional right of freedom of religion in Australia comes right out of the playbook of the No campaign during the referendum on a constitutional Voice for Indigenous Australians. There’s no particular problem of giving expression to one’s beliefs in this country, and almost any attempt to express such a freedom would end up creating more problems, and possibly more restrictions than it solves.

For proponents of such a right, there’s a much bigger problem. The right of freedom of religion extends to individuals. It is not a corporate right belonging to a religious group or sect, nor to any of its institutions, such as its schools, hospitals, or aged persons homes. Their officials may want, reasonably to govern them in accordance with the general principles of their faith. But that does not give them an automatic exemption from laws of general application, including laws forbidding discrimination on grounds of race, age, sex, sexual orientation, marital or relationship status, pregnancy or even gender identity.

Here’s the problem for those insisting that we need a right to freedom of religion, perhaps so as to assuage the disappointment of some religions after the people of Australia, at a plebiscite, decided that same sex marriage should be recognised in Australian law.

When Australian states and territories, and the Commonwealth legislated anti-discrimination legislation, from about 50 years ago, major religious institutions lobbied to be granted significant exemptions from the law. They were explicitly allowed to discriminate against, say, the employment of gay teachers, and to demand the resignation of single women who fell pregnant. This could happen even if they were teaching subjects that had no explicitly religious content, such as Maths. Likewise, they could expel students who came out as gay, or as gender diverse.

They could do this, they insisted, because their religion disapproved of such a state of being, and because it would undermine the authority of the school’s governing structures, and the religion itself if something seen as forbidden, sinful or improper were to be tolerated at the school.

But there is a big difference between protecting the right to freedom of beliefs and religion and protecting the right to discriminate. The former is a private right, even if it extends to being able to act in concert with others of similar beliefs, or to proclaim and proselytise beliefs in public. The latter is an activity, particularly when carried out by an institution, which affects the rights of others. One must respect the wishes of any citizens to live according to their beliefs and consciences, in an environment that gives general support to their religious principles. But that respect is not a licence to be a bigot. Nor can, or should it, give a general exemption to employment law for discriminatory conduct that would be illegal if carried out by a bank, or a shop, or perhaps government itself.

The right to believe anything, and the right to use those beliefs as an excuse to ignore general discrimination laws are two different things.

It ought to be possible to separate the right to one’s beliefs (including no religious beliefs at all) and whether the right to exercise one’s beliefs should authorise discrimination against others. That these separate concepts remain linked is more by insistence of the advocates for such rights, who fear, correctly, that any disentanglement would cause both “rights” to be watered down.

This was made clear when Scott Morrison attempted to legislate narrow views of religious freedom three years ago. Many MPs and senators, including coalition politicians, were not willing to maintain old laws which had authorised discrimination against gay students and teachers. Morrison was pushed, or shamed, to the point of agreeing to amendments which created new protections against discrimination and expulsion for homosexual students and teachers. But he propped when others wanted to prevent discrimination against trans students.

The religious institutions most strongly pushing the need for such rights eventually dropped their support once it was clear that they might score an own goal. It had become quite possible that amendments to anti-discrimination laws would seriously diminish their supposed right to enforce their own beliefs or bigotries in accepting students and appointing teachers.

That would have been a particularly pyrrhic victory if, in exchange, a hollow right of freedom of religion was enacted into law. The right to have one’s own beliefs was not under any challenge, even if some church leaders claimed that it was becoming harder and harder to get the respect and assistance they needed in the modern age.

Fewer Australians were declaring themselves as followers of any religion, and even fewer were active members. There was a time once when leaders of significant religions or sects spoke in public, they were read and heard, but increasingly they were and are being ignored. The problem was not so much active hostility to religion, or religious groups, but indifference, and, sometimes, resentment at privileges some religions continued to have.

There was also considerable public cynicism and anger at church officials over evidence which had emerged of widespread physical and sexual abuse in religious schools and institutions. The royal commission pointing this out was focused on sexual abuse, and on children as victims, in public institutions as well as religious ones.

But it became clear that the problem was pervasive and systemic, extending to adults and church activities outside of the public domain.

There were serious failures of legal and moral leadership by many of the significant church leaders. The most usual response to allegations of abuse was denial, cover-up, and sweeping problems under the carpet, including moving abusers to other locations. Records were lost, or never kept. The religious bodies were accused of acting to protect their assets rather than the victims of criminal misconduct. Compensation had been typically limited, often with non-disclosure clauses.

Billions go to the schools of religious organisations, but they want it by their own rules.

Even now, years after the royal commission report, some religious orders have reneged on promises they made about cooperation with accountability mechanisms. Sections of the Catholic Church have reverted to old legal tricks and stratagems to evade, delay and deny responsibility for sexual abuse by people under their control. Others, from some of the cultish fundamentalist American organisations, have yet to hold their leaders to any sort of account. Some have mobilised their adherents into practices of non-cooperation, social punishment of victims, and exclusion.

Most major faiths have little moral or political credit in the bank with the politicians. When Morrison’s plans foundered, the Labor leader Anthony Albanese promised that he would pick up the cause, even if it was clear that he would not be promoting a wide zone of permitted discrimination and bigotry. More recently, he has said that he will continue with proposals that come forward only if there is a bipartisan consensus on the matter.

In the modern era, schools and other church social services are heavily funded by the state. This was not so at the time of the writing of the constitution and the religious freedom rights in Section 116. Those then outside the (state level) public school system, such as Catholics, might have thought themselves more entitled to run their systems as they liked. But when, as now, they take the government dollar (and could not continue without it) they have less right to complain if the state insists that they conform to the ordinary laws of the nation.

A few brave folk insist that the High Court might find that existing anti-discrimination laws breach the constitutional ban on interfering with the free exercise of religion. I wish them luck with that argument, at least before the High Court of Australia. Such an argument might find support in the United States where the American Supreme Court is thoroughly politicised and partisan. An extremely conservative bench holds sway and makes up constitutional law and reasoning as it goes along. Unlike our High Court it is not a general court of appeal, a reason why our judges are of generally higher calibre.

Must we put God and the Bible in the public square? Governing Muslims, Hindus and non-believers as much as fundamentalists?

Many political and religious conservatives look to the US for their ideas on restoring God and the Bible into the public square. On religion, this sometimes seems especially odd given that the original idea of a rigid separation of church and state came from the spiritual ancestors of those now seeking coercive theocracies. The need for it was seen as the greater because many of the Christian sects which grew up there had ideas, or theories about the imminent return of God to earth that were regarded by other citizens as completely mad, even from a Biblical point of view. Be all that as it may, American cults, including Pentecostalism have only limited followings in Australia. Some may be marginally increasing their size proportionate to the numbers claiming to be Christian, given the fall-off in mainstream Christian adherence. But their proportions in the population are not increasing at anything like the rate of the numbers of Muslim, Hindu, Buddhist, or those who declare themselves of no religion at all. Imposing God’s ideas on abortion, homosexuality, pre-marital sex as law for all lacks a significant constituency in Australia. The trend is entirely in the opposite direction, as Morrison discovered three years ago.

It cannot be said that those opposed to allowing bigotry by religious organisations lack a moral, even a religious viewpoint on the laws they would support. The modern secular imperative is on human rights and dignity, and the fundamental equality of all citizens before the law. People disapproved of any attempt to create categories of citizens on the grounds of race, or sex, or sexual orientation. Many with a religious ethical base are perturbed by how modern Christianity seems to turn on restrictive ideas about sex – never a theme of Jesus Christ – and devotes little attention to wider ideas about worship, charity and tolerance to others, and good works. These don’t it seems, demand the protection of the law, the state and the broad community.

The coalition leader, Peter Dutton, has insisted that he cannot be expected to approve religious rights legislation whose form he has not even yet seen. This is straight from his playbook on the Voice vote, with many of his detractors insisting that there had never been any possibility that any concession made by Albanese could have persuaded him to commit the opposition to a Yes vote. On the religion issue, one might think that Dutton might have more inclination to push for some sort of consensus, given that the loudest voices insisting that religion is under attack come from groups that have always supported the coalition.

But Albanese might well think that he is on a hiding to nothing anyway, and ought to welcome the opportunity to walk away from his promise. He wouldn’t be at great risk if a law affirms what the constitution already effectively does – that one can have any beliefs one likes, at least until the exercise of your freedoms impinges on my exercise of my freedoms. But those demanding change don’t want a mere feel-good statement. They want relief from the shackles restricting their capacity to do what they like – and with taxpayer money at that. They want civil canonisation of their right to impose their beliefs on others. They do not have much of a case.

Dutton will demand greater scope for church discrimination. In an era when most Australians are hostile to discrimination against homosexuals, some will focus on the “right’’ to exclude trans and other gender diverse students. The extra added pain and discrimination visited on such people will serve as a statement against “woke”, political correctness, and the alleged madness and extremism of the “victimhood lobby”.

To the horror of at least some Liberals this is likely to be accompanied by divisive drumbeating about the spectre of biological males competing in and beating girls in sport (a fear that the sports lobbies do not have) and the alleged physical threat in women’s toilets allegedly posed by the gender diverse. Does the country need this debate, and the hatred and hurt it will cause?

If one hadn’t appreciated from the Voice referendum that there is no limit to the depths to which some in the debate, including Dutton are prepared to sink, one only has to look at the recent immigration debate. How much worse this could be when some of the players in this game believe themselves to be the agents of some deity, if not one known to be associated with Jesus Christ.

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