Having looked at the Government Response to the Ruddock committee’s recommendations (Committee set up by Morrison government before 2019 election to enquire whether there was need for specific protection for religious freedom in Australian law), the Geelong Interfaith Network discussed the issue of religious freedom at its April and May meetings. One of the questions it considered was this: ‘Do you agree on the basis of your faith community’s ‘experience that the additional protections of religious freedom proposed there are needed?’
In the discussion that followed we noted that this issue has been underscored by the recent Israel Folau case (May 2019). He suffered heavy penalties from Rugby Australia, the national body governing Rugby. Although the governing body acknowledged his right to his private views on homosexuality and the other categories referred to in his tweet, they deemed it inappropriate for a player under contract to them to express publicly attitudes of this kind.
Our discussion – and some media reports – made it clear that Folau was a lay minister of his church, and as such regularly preached on religious issues. We noted also that the issue was not whether or not his contract should have been cancelled, a commercial matter, but whether his religious freedom to express/teach his belief was discriminated against by the contract itself or by its enforcement. More broadly, we asked whether this case, and our general experience, indicated the need for a specific Act of Commonwealth parliament to protect against religious discrimination.
One member thought no such Act was required because under the common law, anything not explicitly banned is regarded as permitted, and we might only further restrict religious freedom by attempting to define its content and scope.
Several members were concerned that the exercise of religious freedom should not do harm to others. In the Folau case, some were worried that by saying that gay people, among others, would go to hell unless they repent, Israel was harming greatly the formation of their identity as persons, and their establishment of their place in our society. The view was expressed that those exercising their religious freedom in this way had also to accept that such exercises entailed consequences, and society was entitled to hold them to account for those consequences. Some felt that sensitivity to the possibility of harmful consequences from the exercise of religious freedom in circumstances like the Folau case should commend restraint in its exercise.
It was pointed out, however, that a counsel to exercise restraint could not resolve the question of whether the right to religious freedom should be protected. The right to express one’s religious beliefs in word and practice is enshrined in the UN Covenant on Human Rights (Article 18 of Universal Declaration). That freedom can be legitimately limited therefore only by another right. While there is no specific protection in the international covenants of the right to sexual identity, there is nonetheless a general right of all people to be treated equally under the law.
If an argument were to be mounted then to limit the right of religious believers who condemn homosexual acts to express that belief, that argument would presumably be based on the implied right of homosexuals not to be discriminated against because of their sexual identity. One of the problems with using the Folau case to test our views about the need, or absence of such a need, for a specific Act to protect religious freedom is that this freedom could clash with assertions of rights for which we might have less sympathy. The Australian Christian Lobby (ACL) seems to be making a similar point in its submission to the Ruddock committee.
The ACL argued that, because present Australian law protected religious freedom only by making exceptions to the application to religious bodies of other Acts such as the one against sexual discrimination, this protection was insufficient. We might imagine that some woman might bring an action under the sexual discrimination Act challenging this exception as it applies for example to the Catholic church’s ban on the ordination of women on the basis that there were solid grounds in Catholic theology itself for rejecting this ban. The church might argue that its freedom to teach and practice a belief that it has defined as irreformable is insufficiently protected by a mere exception in a sexual discrimination Act.
When it was pointed out that protection from speech about religion that could be construed as ‘hate speech’ was provided by a religious vilification Act in Victoria, but that the issue under discussion in this meeting is whether faith groups needed protection of another right, namely, their freedom to express their beliefs, a response came that they did indeed need such protection. The example given of a claimed violation of this freedom was the case of Catholic Archbishop Porteous of Hobart.
When drawn into stating what his advice would be on the issue (then current) of same sex marriage, Porteous said he would offer the traditional teaching of the church on homosexual relationships. It seems that a prominent Hobart figure threatened action under discrimination laws against Porteous for his statement. Both Porteous and Catholic Archbishop of Sydney Fisher have since argued that exposure under existing law to the possibility of such action constituted a threat to the church’s freedom, and by extension to the same freedom of other faith groups, to express and teach their religious doctrines.
It was also rightly observed that the rise to prominence of the LGBQTI community in our society and their assertion of their rights marked a dramatic recent evolution in our culture and politics. This made it difficult to predict how this issue would unfold and therefore to say what protections, if any, of religious freedom would be needed. There was some sympathy for this position when it came to a straw vote on whether there was such a need, but other members thought that the right to teach and express our religious doctrines did need to be made definite in our law. Others again felt that our existing protections in the law were sufficient, and that the probable harm caused to others such as the LGBQTI community by a campaign for a new Act would be good ground not seeking further protection.
All agreed that it was a healthy feature of our life as an interfaith group that we could engage in spirited discussion of such a sensitive issue, and agree to differ on the matter at the end of it. Indeed, it is part of our purpose as an interfaith group to engage with issues that are of relevance to our groups but above all are of concern to the wider community.