Flat White

Religious freedom is not absolute – and neither are LGBTI rights

17 October 2018

8:30 PM

17 October 2018

8:30 PM

Last week in Australia the recommendations of the Ruddock Review into Religious Freedom were leaked, leading to media frenzy that religious schools would have enhanced powers to turn away gay students. Hence the ABC headline, Religious freedom panel recommends formalising ability for religious schools to turn away gay students.

However, it soon became apparent that anti-discrimination exemptions to religious bodies already exist federally and most states have similar exemptions, and that the Ruddock Review was actually seeking to limit the right of religious schools to discriminate against gay students. Hence another ABC headline, Ruddock report constrains, doesn’t expand, federal religious exemptions.

There is much commentary to be done on the Ruddock Review (I recommend Professor Neil Foster of the University of Newcastle for starters), for now, there are several pertinent observations we need to make about anti-discrimination law and religious freedom.

First, viewing religious freedom through the lens of anti-discrimination law is reductionistic. Certainly, freedom from discrimination is an important factor here – both freedom from religious discrimination and limits on how religious bodies can themselves discriminate – however, it is not the only factor or the single most determinative factor for my mind.

In crafting religious freedom protections, we need to take into account various factors such as international human rights declarations on religious freedom like the International Covenant of Civil and Political Rights (ICCPR), Islamophobia, the concerns of refugees who fled countries due to religious persecution like the Rohinga Muslims of Myanmar and Assyrian Christians from Syria/Iraq, the meaning and practice of secularism, and how religious freedom relates to cognate freedoms of speech, association, and conscience. The myopic focus on discrimination and religion is blinding the media and lawmakers from a wider constellation of issues that desperately need to be addressed.

Second, I’ve argued elsewhere that religious exemptions to anti-discrimination law are not ideal, but in the absence of comprehensive religious freedom protections, they are necessary to enable religious bodies to maintain their identity and ethos. In other words, without some exemptions, at least to management and faculty, you will have a situation where a Muslim school can be forced to appoint a gay Jewish atheist as its Principal.

A compromise is often sought with “inherent requirements” legislation where a religious school or charity has to justify to a government body why a certain position like principal or maths teacher needs to have a religious qualification, whereas the receptionist or janitor doesn’t need to be an adherent of that faith. That might sound like a good compromise, but practice suggests otherwise. For instance, the state of Queensland has recently passed such inherent requirement laws and as a direct result, the Anti-Discrimination Commission of Queensland’s briefing to religious schools made it clear that only positions with an explicitly religious function, such as a chaplain, a resident rabbi or Imam, need a religious person filling that position. In other words, in Queensland, you literally can force the Muslim community to appoint a gay Jewish atheist to be principal, vice-principal, RE teacher, or head of Arabic studies at a Muslim school.

Of course, for some, forcing Muslim schools to appoint a gay Jewish atheist to its faculty might seem like a victory for equality. But, apart from the fact that this would alienate and antagonize the Muslim community, it is a rather heavy-handed way of shoving equality down a religious community’s throat. A pluralistic society does not expect the diversity of society to be reflected in every constituent part. Pluralism and multiculturalism means Muslims living peacefully and side-by-side with their gay atheist Jewish neighbours, not being forced to affirm what they do not believe, and being pressed to install into their own institutions people who do not share their beliefs and values. That is not a recipe for a pluralistic society, rather, it is likely to stoke sectarian divisions.

In the case of students at religious schools, the Ruddock Review reduces the ability of schools to penalise students for their sexual orientation. Of course, it is worth pointing out that Catholic schools have protested that expelling gay students is not their policy. Archbishop Mark Coleridge, president of the Australian Catholic Bishops Conference, has stated that all people should be equally considered for employment or enrolment in Catholic organizations. The only condition is: “Once employed or enrolled, people within a Catholic school community are expected to adhere to the school’s mission and values.” Similarly, Anglican Archbishop of Sydney Glenn Davies has declared that there is no policy or intention to expel gay students from any of its schools. Strangely enough, many media outlets have been busy talking about religious communities, but never to religious communities on this subject!

Third, it is clear that religious freedom protections need to be balanced with how they can potentially infringe upon the rights of others such as gay and lesbian persons or persons of other faiths. However, any attempt to impose restrictions on a house of worship, a religious school, or faith-based charity, to bring it in line with “community expectations,” can potentially undermine religious freedom and cultural pluralism. Religious freedom can be limited but even the limitation must be conditioned by some criteria other than blandly stating “It is 2018!” A court in British Columbia decided:

A society that does not admit of and accommodate differences cannot be a free and democratic society – one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case [against Trinity Western University] demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.

Advice worth remembering.

Worth remembering too is that the ICCPR article 18 does suggest limiting religious freedom as “necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others” even while it guarantees the right to religious freedom “in community with others” and respecting “the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”

So it is not a question of LGBTI rights vs. religious communities, it is a matter of balancing equally valid rights, mitigating their ability to conflict, and having a mechanism to adjudicate fairly when they do conflict.

Fourth, we need to pay attention to how LGBTI rights can potentially be weaponised and used as a license for Islamophobia. Far-right French presidential candidate Marine Le Penn promised that only she would protect LGBT people from the Muslim menace. Similar, American alt-right agitator Milo Yiannopoulos has consistently warned about the threat posed to the gay community by Muslims. Let us remember that there has always been a paradox between the political left’s advocacy for LGBTI rights and opposition to Islamophobia; alas, I fear that a time will come when the political left will join the political far right and attack Muslim communities on the basis of their beliefs about family, marriage, and sexuality. Religious freedom protections will ensure that LGBTI rights can never be weaponised in the name of Islamophobia.

In sum, we need to de-escalate the conflict between LGBTI rights and religious freedom. We should note that religious freedom is not absolute, it has limits and boundaries, similarly, LGBTI rights should not be used as a license to undermine the identity and integrity of religious communities as religious communities.

Rather than feed the conflict of religious freedom versus anti-discrimination law, Australia needs to update its colonial era constitutional protections for religion, streamline the pastiche of state and federal protections based mostly upon anti-discrimination exemptions which nobody likes, and adopt religious freedom protections that represent internationally sanctioned human rights law.

In this sense, I concur with Michael Kellahan that the Ruddock Review is ultimately a failure to address the actual issue of religious freedom and instead remains fixated on the matter of religion versus LGBTI discrimination which is feeding a perceived conflict between faith communities and LGBTI persons. Kellahan writes:

We are disappointed that the recommendations do not establish religious freedom as a positive right to be protected in Australian law and instead maintain the existing pattern of exemptions and exceptions to anti-discrimination law. Many of the present conflicts over religious freedom arise because the exemptions are seen as grudging concessions to people of faith from otherwise applicable law. It remains our view that the better course is to have a clear commitment to religious freedom as a positive right.

Rev Dr Michael F. Bird is an Anglican Priest and theologian. He tweets @mbird12 and blogs at Euangelion.

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