The freedom to be Catholic
Religion has long been a hot button issue and recent debates about same-sex marriage, abortion and euthanasia have forced the Church to campaign and defend its teachings.
Now the focus has shifted to religious freedom, with an exposure draft of the Australian Government’s religious discrimination bill released on August 29.
Already the battle lines are drawn.
While freedom of religion seems innocuous enough and is widely accepted – that everyone is entitled to their own belief (or non-belief) and to speak, teach and live accordingly – the question is to what degree.
Families can choose to send their children to taxpayer-funded Catholic schools but how Catholic can that school be? Can our schools insist that staff teach and support Catholic teaching, for example, that marriage is between a man and a woman? And what if staff do not?
That issue is in the spotlight with news of a test case by a former teacher at Ballarat Christian College, who claims she was discriminated against for her support of same-sex marriage.
Activist group Equality Australia is backing mother-of-three Rachel Colvin’s claim, which she lodged with the Victorian Civil and Administrative Tribunal in mid-September.
Ms. Colvin claims she was forced to leave after refusing to adhere to the school’s policy on same-sex marriage. The school’s enterprise agreement contains a clause that “all employees are expected to possess and maintain a firm belief consistent with the Statement of Faith of the college.”
In a media statement, Equality Australia CEO Anna Brown said Australians should not be “hounded out of jobs” because their religious beliefs support same-sex relationships and respect LGBTIQ people.
Ms Brown criticised the school for seeking to “impose its narrow-minded version of Christianity and control the personal beliefs of its staff.”
The government’s religious discrimination bill seeks to address some of these issues, which is not an easy task.
ACU Vice-Chancellor Prof Greg Craven wrote recently, “This is the problem with human rights, like freedom of religion. It is not whether you agree with them in abstract but which right wins when religion collides with freedom of speech, or association, or sexual expression.
“In the Western world, the practical answer is clear enough. Religion is the 12-pound weakling of human rights.
“Faced by almost any other demand, it will be sacrificed by politicians, legislators and bureaucrats, particularly if they are ‘progressively’ inclined.”
That is what most concerns the Church, that the bill downplays the centrality of faith in the multitude of rights.
Not surprisingly, Equality Australia has slammed the bill, claiming it “privileges the interests of religious institutions over the rights and freedoms of everyday Australians.”
Sydney Archbishop Anthony Fisher has warned that activist-backed legal cases threaten the future of Australia’s faith-based schools.
One in three of Australia’s 3.9 million school students attend faith-based schools. And 60 per cent of that cohort are in our 1746 Catholic schools, which shows the importance and influence of Catholic education in Australia.
Archbishop Fisher, who chairs the Bishops’ Commission for Catholic Education, called on Attorney-General Christian Porter to “urgently clarify” if faith-based schools and other institutions would be protected in such legal cases.
And he criticised both major political parties for failing on a promise to protect religious freedom after same-sex marriage became law.
“Two years later and we are still awaiting adequate religious freedom protections,” Archbishop Fisher said. “Two years later and religious schools are being subjected to exactly the sort of lawfare they said they feared and our leaders promised would be prevented.”
Archbishop Fisher slammed the Equality Australia activism which he said seemed to have been “carefully timed in an attempt to derail current efforts to protect religious freedom in Australia.”
“It is the same style of activism that sought to weaponise state anti-discrimination law against Archbishop of Hobart, Julian Porteous, for distributing pamphlets about Catholic teaching on marriage,” he said.
“This case challenges the right of religious schools to teach that marriage is between a man and a woman and to require staff not to undermine that teaching.
“It contests the right of parents to choose schools that accord with their own religious beliefs.”
* References: Institute for Civil Society (ICS) www.ic4s.com.au
The freedom to be Catholic
But there can be bad discrimination. A sex discrimination case was taken against Reg Ansett in the 1970s arguing that women should be allowed to be pilots.
In employment law, you are able to hire one person over another because that is discriminating in favour of the more qualified applicant.
However, it is bad discrimination – it is unjust – to choose or reject a candidate for a job because of a non-relevant characteristic like race or gender.
The question becomes what reasonable accommodation does anti-discrimination law make for differences, such as pregnant women and views about religion, sexual ethics and morality?
According to Australian law, we have said it is all unlawful unless there is an exception. For example, exemptions allow women and men to have separate clubs and separate sporting competitions.
But ‘progressive’ groups argue that equality is the ideal and we must remove all exemptions, labelling them a licence to discriminate.
However, it is the exceptions that make the idea of equality work.
But these exceptions, according to legal expert Mark Sneddon, from the social policy think tank Institute for Civil Society, have also become the “ideological weapon to shut down views”. Disagreement is not discrimination, Mr Sneddon points out. He argues that we should focus on real harm, not a person feeling hurt or offended.
“And we need to interrogate harms,” Mr Sneddon goes on, “such as the argument against primary school children taking religious texts into the classroom because it may harm other children.” “We need to promote all interests, providing no one is being practically excluded.”
This means that Catholic adoption agencies in Victoria are able to refuse adoption services to same-sex couples, but the key point is that those couples are able to access other services, so they are not excluded.
Freedom of religion protections are strong in international law, but weak in Australian law. Article 26 of the International Covenant on Civil and Political Rights (ICCPR) states “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Article 18 (1) provides that the right to “freedom of thought, conscience and religion” includes a freedom to adopt a religion or belief of one’s choice and a freedom to demonstrate religion or belief in worship, observance, practice and teaching.
But in Australia, these protections mostly fall under anti-discrimination law, which ACU Vice-Chancellor Prof Greg Craven describes as “dud rights protection”.
The system works by protecting other rights, usually against some form of discrimination, but allowing an ‘exemption’ in favour of action taken on religious grounds.
“No one is going to be particularly satisfied being stigmatised a ‘licensed religious discriminator’, unethical but excused,” Prof Craven wrote in The Australian recently.
“This has led to a whole new way of conceptualising legislative freedom of religion, which pretty much has coincided with the current Australian political debate.
“Instead of casting the contest as one between a right and an exemption, why not present it as right versus right?
“Under this approach, freedom of religion legislation would contain a big, bold right to precisely that. This right would then compete on at least an equal footing with other rights in determining legal and policy questions, in a vastly more positive atmosphere for proponents of religion.”
- The Bill protects various activities, such as employment, education and charitable work, and provides religious exemptions relating to these activities.
- Section 41 raises the threshold for complaints against religious expression (the Julian Porteous case). It protects the right to make a statement of religious belief, provided a statement is not malicious, harassing, vilifying or inciting hatred or violence. This protection covers statements of belief and non-belief and should prevail over other anti-discrimination legislation, putting an end to actions such as the Porteous case.
- Section 10 protects the right of religious bodies (educational, charitable and others performed on a religious basis) to act in accordance with their religion in conducting those activities. This should protect religious education in Catholic schools.
- The “Israel Folau” clause states that employers may restrict or prevent employees’ statements of religious belief outside work, but large companies with an annual turnover of $50m need to show “unjustifiable financial hardship.” The concern is that workers will have to watch what they say as private citizens because activists have used boycotts and social media campaigns to target and silence organisations which do not conform to their ‘progressive’ views, particularly about sexuality and marriage.
- The Australian Law Reform Commission is reviewing religious exemptions in anti-discrimination law generally, but that report is now not due until December 2020. This will shine the spotlight on issues such as whether a teacher in a Catholic school must adhere to religious teachings inside and outside the classroom.
- There is public consultation about the Bill. Submissions were due on October 2. Attorney-General Christian Porter is consulting with faith and human rights/LGBTIQ groups
“We are in favour of some type of religious discrimination act but it is important that it is a positive law, one not about exemptions. The government should go further than an exemption-based law and take a positive approach to recognise religious rights that would protect schools, hospitals and charities that adhere to church teachings.
Archbishop Peter A Comensoli, spokesman for the Australian Bishops on religious freedom
“Even if the government’s proposed Religious Discrimination Bill is passed it remains unclear whether … faith-based schools will be able to continue to employ staff who share their mission.”
Archbishop Anthony Fisher OP
“The intention of this bill is good. It’s good it’s an exposure draft because as it’s presently drafted that intention is not fulfilled. Religious freedom is an internationally recognised human right. It should be at least applied nationally in a consistent manner, which this bill fails to do.”
Professor Michael Quinlan, dean of the school of law at the University of Notre Dame
“Commonwealth law has not adequately protected religious freedom. We have robust federal and state protections to prevent sex, race and age discrimination but not religious discrimination. The Tasmanian Anti-Discrimination Act even provides exceptions to particular discrimination law for artistic, scientific, academic and research purposes, but not religion. All the federal Government is trying to do with the Religious Discrimination Bill is to more closely live up to our responsibility under International Law.”
Archbishop Julian Porteous