The Israel Folau case has brought up a crucial question our society has asked before, and will undoubtedly ask again. How tolerant should we be of intolerance?
Folau has been found guilty of a high-level breach of his contract. A penalty has not yet been handed down, but the guilty verdict means Rugby Australia (RA) is now permitted to fire him.
Folau and RA have been in the news since mid-April, after Folau posted teachings from the Bible that condemned homosexuals (among others, including drinkers and fornicators) to hell if they did not repent.
RA alleges they and Folau came to an agreement about his social media use after a similar post last year.
Several pundits have been arguing this is an issue of employment law. The argument goes: Folau breached his contract; therefore RA are well within their rights to sack him.
But the specific code Folau is found to have breached states players must not “bring you, your team, club, Rugby Body or Rugby into disrepute or discredit.” So, does Rugby Australia believe Christian teachings are disreputable?
If this is the standard, then as Wallabies Hooker Taniela Tupou asked on a Facebook post, shouldn’t Rugby Australia sack, “all the other Pacific Islands rugby players… because we have the same Christian beliefs?”
Further, the code has a provision prohibiting discrimination on the grounds “of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability.”
This is why the Folau case is important. We have an explicit example of the collision between rights based on someone’s sexual orientation and rights based on religious background.
And the reason this case has become so contentious is that RA has made a choice to preference one set of group rights over another.
Efforts to make the LGBT community feel more included are admirable. But arguments that claim RA had to act out of a commitment to diversity and inclusion come up short; because then you have to answer: diversity and inclusion of whom?
RA is a founding member of Pride in Sport, an initiative designed to make sports more LGBT inclusive.
Sportswear brand ASICS, who have dropped their sponsorship of Folau, said the relationship had become “untenable” as they “believe sport is for everyone and we champion diversity and inclusivity.”
But RA CEO Raelene Castle has assured her players she is “proud of the diverse range of religions and belief systems within the Wallabies.”
When you sanction one form of diversity while celebrating another Castle’s apparent support of religious diversity dos not mean much.
This case is messy and tricky. It has brought up a lot of complicated issues around tolerance, competing rights, diversity and inclusion. But this is not the first time we have been confronted with this problem.
Austrian-British philosopher Karl Popper, in his 1945 book The Open Society and Its Enemies, coined the phrase: the paradox of tolerance. Simply put, this theory suggests that in order for a society to be tolerant it must destroy intolerance or risk being destroyed itself.
Although theoretically sound, the paradox of tolerance becomes problematic when you start asking questions such as: who gets to decide which intolerance is impermissible.
However, the second element of Popper’s theory posited that intolerance could be permitted as long as there was a robust public sphere that could counter intolerance with reason and debate.
As British Enlightenment philosopher John Locke wrote, “it would me thinks, become all men to maintain peace, the common offices of humanity and friendship, in the diversity of opinions.”
Popper was writing about tolerance in 1945. Interestingly, during this time there was a very significant development in human rights, which reached a similar conclusion to Popper.
From 1945 to 1948, the Universal Declaration of Human Rights was being drafted. Although a much-celebrated document now, the drafting process of the UDHR reveals the countries involved had very different notions of rights, tolerance, and diversity.
When article 19, which protects “freedom of opinion and expression”, was drafted, there was a significant amount of discussion about how tolerant societies should be of intolerance.
Nations that had just been decimated by the horrors of Nazism were discussing whether freedom of expression should protect the very ideology that nearly destroyed them.
What happened next was profound. Liberal democracies involved in the drafting, such as Australia, the United Kingdom, and the United States, argued freedom of expression should permit intolerance. These countries believed the force of public opinion and debate were strong enough to overcome even the most horrific ideologies.
Time and time again, liberal democracies have concluded the best way to deal with intolerance is debate. And this conclusion is the way forward for Folau, Rugby Australia, and the rest of us.
Monica Wilkie is a policy analyst at the Centre for Independent Studies.
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