In my previous post I introduced the question of religious freedom and discussed Israel Folau's case from the point of view of Christian teaching. Now, on to the heart of the matter. Whether or not Israel Folau has accurately represented the Christian faith, he has clearly presented his own deeply held personal belief. So much so that he has refused any kind of compromise. He is not prepared to make any kind of apology, even a half-hearted one, nor to take down the post, because to do so would go against his own conscience. So it is arguable that his religious freedom is being infringed. This is the argument he appears set to make in his potentially eye-wateringly expensive crowd-funded legal challenge.
So how should we view this claim? To assess it properly we need to think about how human rights work. This is rather complex in Australian law because our human rights legislation is very piecemeal, split across various State and Commonwealth statutes that operate in various different ways and recognise different rights. I am hardly qualified to wade into this legal minefield, and I think it is more helpful to step back a pace.
The foundation of Australian human rights law is found in the various international covenants on human rights of which Australia is a signatory. The basis for these is the Universal Declaration of Human Rights, declared by the UN General Assembly in 1948, elaborated and operationalised in various covenants. The most significant of these from our point of view are the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both of which were adopted by the UN General Assembly in 1966 and came into force with the gathering of sufficient signatures in 1976.
These documents outline a number of rights which are held to be universal, to apply to all people everywhere. These include such things as the right to life, freedom from slavery, ownership of property, equality before the law, presumption of innocence and freedom from arbitrary detention. They include a number of political rights, including freedom of assembly, freedom of 'thought, conscience and religion', freedom of speech or expression and the right to take part in the government of the nation. They also include more difficult and controversial rights, like the right to seek asylum, freedom of movement across borders, the right to employment, social security and an adequate income, and the right of access to education.
In the more detailed covenants a number of rights are elaborated that pertain directly to our current debates. These include freedom of conscience and religion, freedom of speech and expression, and freedom from discrimination on the basis of sex, race and various other criteria. Various clarifications over the years have made clear that freedom of religion includes the freedom to have no religion (that is, it is the freedom to hold any belief) and that freedom from sexual discrimination includes discrimination based on gender or sexual orientation. To put it simply, you have the right to believe whatever you choose to believe, the right to say what you think, and the right to choose your own mode of life including the right to be gay, lesbian or whatever else you may be - along with a wide range of other rights.
Although these covenants are not strictly enforceable in Australian law, our status as a signatory includes a commitment to enact them into the law of our country. We have done this, more or less, in various pieces of Commonwealth and State anti-discrimination legislation, and in the establishment of the Australian Human Rights Commission to uphold human rights law and investigate and address various breaches. However, as its investigations in recent years into aspects of immigration law show, the power of this body is strictly limited, Furthermore, while some of the rights are reasonably clearly articulated or implemented in Australia - for instance, the right to education, social security and freedom from gender discrimination - others are either patchily covered or not covered at all, including the right to freedom of conscience/religion and the rights to employment and housing, not to mention freedom to cross borders and seek asylum.
When it comes to human rights law, listing the rights people should have is the easy bit. Very few of the rights I have listed above would draw a great deal of controversy in a country like Australia, even though their practical application can be highly controversial at times. The really difficult part of human rights law comes when rights come into conflict.
Article 29 of the Universal Declaration of Human Rights reads as follows,
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
This suggests two things - that these rights take place in the context of community, not in the context of individuals as isolated individuals, and that some rights may be limited to prevent them interfering with other rights. This where things get complicated.
Of course some limitations on freedom are not controversial. For instance, Australian readers will be aware of The Family, a religious cult led by a woman called Anne Hamilton-Byrne who claimed to be the Messiah and ran a secretive cult in which children were illegally adopted and subjected to various forms of abuse and torture. Hamilton-Byrne is free to declare herself to be the Messiah if she wishes, and other people are free to believe her. However, this freedom did not prevent the police from raiding cult headquarters, removing all the children from her care and prosecuting her for various crimes. Their rights to liberty and freedom from torture and abuse trumped her right to freedom of conscience.
We see this same principle at play in various ways from the absolutely obvious to the more subtle. For instance, holding an extreme interpretation of Islam does not make it any less illegal to incite your followers to murder. Nor has the Exclusive Brethren's belief in the need for strict separation from non-believers persuaded the Family Court to prevent their children from having contact with parents who have left the sect.
In other cases religion trumps other rights. The Catholic Church's long-standing belief that only men can be ordained as priests has always been seen to override the right to freedom from discrimination based on sex or gender.
However, there are situations where the resolution is not so clear. One example is the anti-discrimination case brought by trans activist Martine Delaney against the Catholic church in Tasmania. At issue was a booklet distributed by the church to families in Catholic schools summarising Catholic teaching on marriage and the family and the church's attitude to same sex relationships. Delaney argued that this booklet vilified gay and lesbian couples. The right of freedom of religion and, perhaps, freedom of speech, was pitted against the right of freedom from discrimination on the basis of sexuality.
Christian commentators often portray this case as a threat to freedom of religion, as an attempt to prevent the Catholic church from disseminating Christian teaching. However, what Delaney actually took exception to was the particular way it was expressed. Among other things the booklet contained the expression, 'messing with marriage is messing with kids'. Delaney suggested that this phrase could be interpreted as suggesting paedophilia, and proposed an edit of the booklet which removed this and other potentially offensive statements. This edit preserved the basic teaching on the morality of same sex relationships but expressed it in 'softer' language - 'messing with kids' was replaced by 'placing the wellbeing of children at risk' - not so pithy, but presumably what the Catholic bishops meant.
Cases like this are difficult to address because they revolve around perceptions and social norms, rather than around evidence of criminality. It is not likely that the Catholic church will change the position on sexuality it has held for the past two millennia, and it represents the faith of millions of Australians. On the other hand LGBTIQ people remain vulnerable to homophobic vilification and violence, and this can imperil the mental and physical health of young people in particular. How do we make space for both communities in a diverse Australia?
These are questions of judgement. For this reason, the preferred method of resolving them in most Australian human rights and anti-discrimination systems is through conciliation - through the parties sitting down together and discussing the issue with the assistance of a mediator, in an attempt to reach agreement. In these systems, formal hearings are the exception rather than the rule.
This is what happened in the Delaney case. She and Catholic Archbishop Julian Porteous attended two sessions at which they proposed their preferred resolutions. There was no meeting of the minds and eventually Delaney withdrew her complaint with the issue unresolved. Both Porteous and Delaney expressed frustration with the process, but to my mind the lack of resolution doesn't necessarily mean the process was pointless. The two sides in this debate - not just Delaney and Porteous, but the church and the LGBTIQ community - are learning how to talk to each other and about each other, and this case has provided an avenue to further this discussion. It is not necessary for all tensions and differences to be resolved, only that we be able to continue to live together in safety.
What does concern me, however, is the response of many Christians to the case. Porteous himself was intransigent - he refused to entertain even the most minor changes to the booklet - but at least he participated in the discussion. Other Christian commentators have not even been prepared to entertain that such a discussion is needed. Furthermore, they misrepresent what is involved. For instance, Martin Sneddon in his submission to the Ruddock Review on behalf of the Institute for Civil Society says this in relation to the case.
These complaints tie up the Christian speakers for many months in a secret conciliation process, with the threat of a later tribunal hearing and an award of compensation if they don't reach a conciliated outcome. Effectively, this use of anti-vilification laws enables people on one side of a disagreement to intimidate reasonable speakers on the other side by subjecting them to the time and legal costs of defending their viewpoint in a government commission.
The use of words like 'secret' (as opposed to 'confidential'), 'threat' and 'intimidate' suggests that something sinister is going on here, rather than that we are trying to resolve important issues between people of different viewpoints. The notion of the speakers being 'tied up for many months' and being subjected to legal costs are simply misleading. Lawyers and advocates are mostly discouraged in these processes, and while the Delaney/Porteous case did take several months it only involved two meetings. Furthermore, the case took at least as much of Delaney's time as it did of Porteous', and she was acting as an individual not as the representative of a large, well-resourced institution. Is it not the role of an Archbishop to represent the church and defend its teaching? It sounds suspiciously like Sneddon doesn't think Christians should be accountable for their words and actions, and he is not alone in talking this way by a long shot.
This contested territory is inhabited by many of the current and recent controversies around freedom of religion. For instance, the celebrated American cases of the bakers who were sued for refusing to bake for gay weddings (often cited here in Australia) demonstrate a classic tension between freedom of conscience and freedom from sexual discrimination. You might feel that the bakers, as devout Christians, have a right to follow their conscience and refuse the commission. Would you feel the same way if they were convinced white supremacists and were refusing to bake for the wedding of a mixed-race couple? Freedom of conscience does not trump everything else.
This is the same territory inhabited by Israel Folau's meme. He is expressing a deeply held belief about human sin and righteousness, including sexual righteousness. This butts up against not one but two other rights. The first is the right of LGBTIQ people to live safely and freely in the community, including being free of harassment and vilification. Israel may feel he is expressing love towards such people by calling them to repent, but others see his expression of his belief as hateful. Furthermore, for Christian young people who are same sex attracted (and yes, there are many) such uncompromising messages of condemnation can be a trigger for depression and even suicide.
The second clash is with the right of his employer to freedom to carry out its business. Rugby Australia's business model revolves primarily around sponsors and advertisers paying to be associated with the sport. To have one of its most high-profile ambassadors expressing views that alienate large parts of the community places these sponsorships at risk. This is most graphically illustrated by the fact that their current principal sponsor is Qantas, whose CEO Alan Joyce is a high profile gay rights advocate. However, the recent marriage plebiscite showed that a substantial majority of Australians favour an inclusive approach to sexual diversity. Advertisers seeking to market to this community will be reluctant to associate their brand with an organisation that appears to promote or at least tolerate the opposite, even in the name of being inclusive of religious diversity.
It is far from obvious how to resolve this tension, but in my own view it will not be resolved in any helpful way by a $2m court case at which the parties dig their heels in and fight it out. It will only be
resolved if the parties are able to sit down together and learn from one another, and to reach a way of living side by side in a diverse community. This process requires openness, tolerance and willingness to learn and grow from all sides.
LGBTIQ activists are not free from intolerance and intransigence. However, an examination of the various cases I have seen indicates that it is the religious people who seem the most intransigent. Martine Delaney was ready to accept that the Catholic church would continue to teach that same sex relationships were contrary to church teaching, as long as this teaching didn't appear to imply paedophilia. Archbishop Porteous did not appear ready to make any such concessions. Rugby Australia was clear that it had no issue with Folau's faith, only with the particular way he expressed it in public. Folau, on the other hand, was not prepared to modify anything in his communications to take account of the feedback he was being given.
It is hard not to conclude that Christians have a problem here, or at least some Christians do. The question is, how do we resolve it? And will the proposed religious freedom legislation help? This will be the subject of my next post. (And the series concludes with Part 4.)
So how should we view this claim? To assess it properly we need to think about how human rights work. This is rather complex in Australian law because our human rights legislation is very piecemeal, split across various State and Commonwealth statutes that operate in various different ways and recognise different rights. I am hardly qualified to wade into this legal minefield, and I think it is more helpful to step back a pace.
These documents outline a number of rights which are held to be universal, to apply to all people everywhere. These include such things as the right to life, freedom from slavery, ownership of property, equality before the law, presumption of innocence and freedom from arbitrary detention. They include a number of political rights, including freedom of assembly, freedom of 'thought, conscience and religion', freedom of speech or expression and the right to take part in the government of the nation. They also include more difficult and controversial rights, like the right to seek asylum, freedom of movement across borders, the right to employment, social security and an adequate income, and the right of access to education.
In the more detailed covenants a number of rights are elaborated that pertain directly to our current debates. These include freedom of conscience and religion, freedom of speech and expression, and freedom from discrimination on the basis of sex, race and various other criteria. Various clarifications over the years have made clear that freedom of religion includes the freedom to have no religion (that is, it is the freedom to hold any belief) and that freedom from sexual discrimination includes discrimination based on gender or sexual orientation. To put it simply, you have the right to believe whatever you choose to believe, the right to say what you think, and the right to choose your own mode of life including the right to be gay, lesbian or whatever else you may be - along with a wide range of other rights.
Although these covenants are not strictly enforceable in Australian law, our status as a signatory includes a commitment to enact them into the law of our country. We have done this, more or less, in various pieces of Commonwealth and State anti-discrimination legislation, and in the establishment of the Australian Human Rights Commission to uphold human rights law and investigate and address various breaches. However, as its investigations in recent years into aspects of immigration law show, the power of this body is strictly limited, Furthermore, while some of the rights are reasonably clearly articulated or implemented in Australia - for instance, the right to education, social security and freedom from gender discrimination - others are either patchily covered or not covered at all, including the right to freedom of conscience/religion and the rights to employment and housing, not to mention freedom to cross borders and seek asylum.
When it comes to human rights law, listing the rights people should have is the easy bit. Very few of the rights I have listed above would draw a great deal of controversy in a country like Australia, even though their practical application can be highly controversial at times. The really difficult part of human rights law comes when rights come into conflict.
Article 29 of the Universal Declaration of Human Rights reads as follows,
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
This suggests two things - that these rights take place in the context of community, not in the context of individuals as isolated individuals, and that some rights may be limited to prevent them interfering with other rights. This where things get complicated.
Of course some limitations on freedom are not controversial. For instance, Australian readers will be aware of The Family, a religious cult led by a woman called Anne Hamilton-Byrne who claimed to be the Messiah and ran a secretive cult in which children were illegally adopted and subjected to various forms of abuse and torture. Hamilton-Byrne is free to declare herself to be the Messiah if she wishes, and other people are free to believe her. However, this freedom did not prevent the police from raiding cult headquarters, removing all the children from her care and prosecuting her for various crimes. Their rights to liberty and freedom from torture and abuse trumped her right to freedom of conscience.
We see this same principle at play in various ways from the absolutely obvious to the more subtle. For instance, holding an extreme interpretation of Islam does not make it any less illegal to incite your followers to murder. Nor has the Exclusive Brethren's belief in the need for strict separation from non-believers persuaded the Family Court to prevent their children from having contact with parents who have left the sect.
In other cases religion trumps other rights. The Catholic Church's long-standing belief that only men can be ordained as priests has always been seen to override the right to freedom from discrimination based on sex or gender.
Christian commentators often portray this case as a threat to freedom of religion, as an attempt to prevent the Catholic church from disseminating Christian teaching. However, what Delaney actually took exception to was the particular way it was expressed. Among other things the booklet contained the expression, 'messing with marriage is messing with kids'. Delaney suggested that this phrase could be interpreted as suggesting paedophilia, and proposed an edit of the booklet which removed this and other potentially offensive statements. This edit preserved the basic teaching on the morality of same sex relationships but expressed it in 'softer' language - 'messing with kids' was replaced by 'placing the wellbeing of children at risk' - not so pithy, but presumably what the Catholic bishops meant.
Cases like this are difficult to address because they revolve around perceptions and social norms, rather than around evidence of criminality. It is not likely that the Catholic church will change the position on sexuality it has held for the past two millennia, and it represents the faith of millions of Australians. On the other hand LGBTIQ people remain vulnerable to homophobic vilification and violence, and this can imperil the mental and physical health of young people in particular. How do we make space for both communities in a diverse Australia?
These are questions of judgement. For this reason, the preferred method of resolving them in most Australian human rights and anti-discrimination systems is through conciliation - through the parties sitting down together and discussing the issue with the assistance of a mediator, in an attempt to reach agreement. In these systems, formal hearings are the exception rather than the rule.
This is what happened in the Delaney case. She and Catholic Archbishop Julian Porteous attended two sessions at which they proposed their preferred resolutions. There was no meeting of the minds and eventually Delaney withdrew her complaint with the issue unresolved. Both Porteous and Delaney expressed frustration with the process, but to my mind the lack of resolution doesn't necessarily mean the process was pointless. The two sides in this debate - not just Delaney and Porteous, but the church and the LGBTIQ community - are learning how to talk to each other and about each other, and this case has provided an avenue to further this discussion. It is not necessary for all tensions and differences to be resolved, only that we be able to continue to live together in safety.What does concern me, however, is the response of many Christians to the case. Porteous himself was intransigent - he refused to entertain even the most minor changes to the booklet - but at least he participated in the discussion. Other Christian commentators have not even been prepared to entertain that such a discussion is needed. Furthermore, they misrepresent what is involved. For instance, Martin Sneddon in his submission to the Ruddock Review on behalf of the Institute for Civil Society says this in relation to the case.
These complaints tie up the Christian speakers for many months in a secret conciliation process, with the threat of a later tribunal hearing and an award of compensation if they don't reach a conciliated outcome. Effectively, this use of anti-vilification laws enables people on one side of a disagreement to intimidate reasonable speakers on the other side by subjecting them to the time and legal costs of defending their viewpoint in a government commission.
The use of words like 'secret' (as opposed to 'confidential'), 'threat' and 'intimidate' suggests that something sinister is going on here, rather than that we are trying to resolve important issues between people of different viewpoints. The notion of the speakers being 'tied up for many months' and being subjected to legal costs are simply misleading. Lawyers and advocates are mostly discouraged in these processes, and while the Delaney/Porteous case did take several months it only involved two meetings. Furthermore, the case took at least as much of Delaney's time as it did of Porteous', and she was acting as an individual not as the representative of a large, well-resourced institution. Is it not the role of an Archbishop to represent the church and defend its teaching? It sounds suspiciously like Sneddon doesn't think Christians should be accountable for their words and actions, and he is not alone in talking this way by a long shot.
This contested territory is inhabited by many of the current and recent controversies around freedom of religion. For instance, the celebrated American cases of the bakers who were sued for refusing to bake for gay weddings (often cited here in Australia) demonstrate a classic tension between freedom of conscience and freedom from sexual discrimination. You might feel that the bakers, as devout Christians, have a right to follow their conscience and refuse the commission. Would you feel the same way if they were convinced white supremacists and were refusing to bake for the wedding of a mixed-race couple? Freedom of conscience does not trump everything else.
This is the same territory inhabited by Israel Folau's meme. He is expressing a deeply held belief about human sin and righteousness, including sexual righteousness. This butts up against not one but two other rights. The first is the right of LGBTIQ people to live safely and freely in the community, including being free of harassment and vilification. Israel may feel he is expressing love towards such people by calling them to repent, but others see his expression of his belief as hateful. Furthermore, for Christian young people who are same sex attracted (and yes, there are many) such uncompromising messages of condemnation can be a trigger for depression and even suicide.
The second clash is with the right of his employer to freedom to carry out its business. Rugby Australia's business model revolves primarily around sponsors and advertisers paying to be associated with the sport. To have one of its most high-profile ambassadors expressing views that alienate large parts of the community places these sponsorships at risk. This is most graphically illustrated by the fact that their current principal sponsor is Qantas, whose CEO Alan Joyce is a high profile gay rights advocate. However, the recent marriage plebiscite showed that a substantial majority of Australians favour an inclusive approach to sexual diversity. Advertisers seeking to market to this community will be reluctant to associate their brand with an organisation that appears to promote or at least tolerate the opposite, even in the name of being inclusive of religious diversity.
It is far from obvious how to resolve this tension, but in my own view it will not be resolved in any helpful way by a $2m court case at which the parties dig their heels in and fight it out. It will only be resolved if the parties are able to sit down together and learn from one another, and to reach a way of living side by side in a diverse community. This process requires openness, tolerance and willingness to learn and grow from all sides.
LGBTIQ activists are not free from intolerance and intransigence. However, an examination of the various cases I have seen indicates that it is the religious people who seem the most intransigent. Martine Delaney was ready to accept that the Catholic church would continue to teach that same sex relationships were contrary to church teaching, as long as this teaching didn't appear to imply paedophilia. Archbishop Porteous did not appear ready to make any such concessions. Rugby Australia was clear that it had no issue with Folau's faith, only with the particular way he expressed it in public. Folau, on the other hand, was not prepared to modify anything in his communications to take account of the feedback he was being given.
It is hard not to conclude that Christians have a problem here, or at least some Christians do. The question is, how do we resolve it? And will the proposed religious freedom legislation help? This will be the subject of my next post. (And the series concludes with Part 4.)
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