We have heard at some length during the debate over marriage equality that there is a need to strike a ‘balance’ between ‘religious freedom’ and the rights of LGBTI people to full, fair and equal treatment under the law.
In general, in a free, fair, pluralistic, multicultural society, no one group should be given advantages over any other. Affording any group in society immunity from certain laws is clearly a very great privilege indeed, which should only be granted very rarely and with stringent safeguards.
To grant any religion these special privileges risks creating a fragmented ghettoised society in which different groups are subject to different laws, or worse, a society in which the religious laws of one group are enforced on those of other beliefs, or of no particular belief at all.
This question is most often raised in relation to Islamic schools, but it applies equally to all monotheistic educational establishments. This from Austria:
“Parents are sending their kids to establishments that ensure they are in a Muslim setting and learn a few suras (chapters from the Koran),” Mr Aslan of Vienna University told AFP.
“But they are unaware that they are shutting them off from a multicultural society.”
The danger has also been recognised in South Africa, another multicultural, multi-racial, pluralistic nation with a strong interest in creating a cohesive society. There, monotheistic schools have now been banned.
“Neither a school governing body nor a public school may lawfully hold out that it subscribes to only a single particular religion to the exclusion of others.”
Some of the problems Australia is experiencing now may be due at least in part to such a large percentage of our political class having been raised in the Catholic educational and social ghetto, giving them a set of attitudes and a view of Australia at odds with the mainstream.
This is also an issue in the wake of the reports of the Royal Commission into child abuse: the churches and other religious organisations have already had substantial freedoms, including a freedom from close scrutiny. What they did with it should surely call into question whether they should have any more privileges going forward: some would argue they should have fewer, if any.
Especially as the chair of the Royal Commission has warned us that abuse in institutions is ongoing
Justice McLellan said historical child sexual abuse was a “national tragedy” but warned it was still occurring in institutions today.
“If the problems we have identified are to be adequately addressed, changes must be made,” he said.
“There must be changes in the culture, structure and governance practices of many institutions.”
Ex-education minister Adrian Piccoli has come out swinging against the response of senior members of the Catholic Church, and criticised the “catholic mumbo-jumbo” talk surrounding the issue.
“I think the approach taken by the senior clergy around this is wrong. Nothing, absolutely nothing takes precedence over the protection of children, including the Catholic Church,” Mr Piccoli said. “Forget the God stuff, it’s a crime.”
Commentator Jane Caro writes:
“In the case of schools, at least, given how much public money they receive, the question is not how much more leeway churches should get to discriminate but the opposite. Particularly so, it must be said, given the trenchant criticism of predominantly faith-based schools and their policies and duty of care towards their students in the report from the Royal Commission into Institutional Responses to Child Sexual Abuse”
It is possible to balance religious rights in regards to marriage with LGBTI rights. Many congregations and clergy in South Africa welcome LGBTI people and would be happy to conduct same-sex weddings, even if the hierarchy of their church disapproves. So why not treat clergy who do not wish to marry same sex couples like doctors who would rather not facilitate abortion: make it mandatory for them to refer such a couple to a cleric within the same denomination who is happy to perform the ceremony.
“Many churches in South Africa still forbid pastors from officiating non-heterosexual wedding ceremonies… a strong contributor to general homophobia in the country. “If one leader of a church feels it their moral duty not to conduct a same-sex ceremony, the church should provide another leader who will. That should be mandatory,” she said. “The church will only alienate greater numbers of people over time if they persist in violating people’s rights and making them unwelcome in the church”
Religions are currently given fairly wide latitude to discriminate against LGBTI people in Australia. Religious organisations are permitted to break laws that others may not, without fear of penalty.
It is not clear what purpose this serves, other than to reinforce the segregation and ghettoization of religious communities from mainstream Australia, the perils of which were noted above. And to encourage some people to treat obedience to secular law as secondary, or even optional, according to their own personal beliefs and consciences. This is not a healthy attitude to encourage.
This unbalanced situation, in which religions single out LGBTI people for less than equal treatment, to their significant detriment, is not confined to Australia. It was starkly demonstrated in Hong Kong recently, where an LGBTI Christmas Mass was cancelled at the last minute, provoking a stinging but accurate response:
“The diocese will send priests to prisons to hold Mass for murderers, rapists and other criminals, and priests go to ‘red light districts’ to hold Mass for sex workers. Why do bishops only target homosexuals? Are homosexuals not fit to join in the annual celebrations on this peaceful and holy night of Jesus Christ’s birth?”
SPECIAL RELIGIOUS PRIVILEGES
Special religious privileges written into the anti-discrimination laws of New South Wales, Victoria, Western Australia and the Australian Capital Territory give religious organisations the freedom discriminate against LGBT people without penalty.
Section 56 of the NSW Anti-Discrimination Act 1977 is typical:
Nothing in this Act affects:
(a) the ordination or appointment of priests, ministers of religious or members of any religious order,
(b) the training or education of persons seeking ordination or appointment as priests, ministers of religious or members of a religious order,
(c) the appointment of any other person in any capacity by a body established to propagate religion, or
(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.
Under the Commonwealth Sex Discrimination Act 1984, religious organisations can discriminate against LGBT people in all circumstances other than with respect to LGBT people accessing Commonwealth-funded aged care services (although they can still discriminate against LGBT employees in these facilities).
Queensland has the second-best protections for LGBT people against discrimination (after Tasmania) by religious organisations. They do not allow discrimination against LGBT students in religious schools, and offer some limited protections for teachers.
Queensland does not provide a general right for religious organisations to discriminate against LGBT employees, limiting this right to employees where acting, or not acting, in a particular way breaches the ‘genuine occupational requirements’ of that position.
Freely adapted from source:
Similar provisions elsewhere e.g., in UK law are more narrowly drawn:
If an employer refuses to employ you because you don’t have the required religion or belief they would have to show the following things:
- the requirement is an occupational requirement – this means it’s genuinely necessary to do this particular job
- they have a good reason or a legitimate aim for applying the requirement
- it’s proportionate to apply the requirement in this particular case – this means having the requirement is the best way to achieve the employer’s aim
- you don’t meet the requirement or the employer has reasonable grounds for believing you don’t meet the requirement.
An employer can only use this exception if their ethos or core values are based on a religion or belief.
- a Humanist or Atheist organisation could require their chief executive to be a Humanist or an Atheist
- a care home managed by a religious charity could require its care staff to have the same religion, if their duties are intended to fulfil the residents’ spiritual as well as physical needs.
The Equality Act also allows some faith schools and higher education institutions which have a religious character to require their head teacher and, in some situations, their teaching staff to be of the same religion.
The Equality Act does not define what employment for the purposes of an organised religion means. If necessary, it’s the employment tribunal which will decide if a job counts as employment for the purposes of an organised religion. Generally speaking, this will be the case where the job is for someone who’s involved in the leading of religious observance or promoting or explaining the doctrine of a religion, such as a rabbi or priest, or someone who gives guidance on how to observe the teachings of a religion.
But the employer will have to show that the requirement is being applied:
- so as to comply with the doctrines or principles of the religion, or
- to avoid conflicting with the strongly held religious beliefs of a significant number of the people who follow the religion.
For example, a Catholic church could require a new priest to be a heterosexual man who’s not married. But it wouldn’t be lawful for the church to require a cleaner or a gardener to be heterosexual or of a particular sex. (my emphases)
In other words, the job itself has to have a clearly religious character for an exemption to apply: for example, a teacher of theology, but probably not a teacher of e.g., sports, or a foreign language. This strikes the correct balance.
Not only is existing federal anti-discrimination law inadequate, but state laws do not “fill the gaps”, varying widely from one to another. There is strong case for a comprehensive federal anti-discrimination law which ensures that people receive the same treatment, and have the same means of redress, everywhere.
The notion that soi-disant ‘religious’ people should be allowed to freely act upon their prejudices in their everyday life and work is a notion imported from the USA. Such a notion is profoundly inimical to the core Australia values of neighbourliness, mateship, a fair go for all, and “live and let live”. It is a throwback to the rigid New England Puritan heritage which gave us among other things the Salem witch trials.
It would encourage the spread of ghettoization far beyond the existing enclaves of e.g., Islamic and Catholic education systems, to the corner shop and the local school. It would fuel the rise of segregation akin to that for which South Africa and the American South were once justly infamous.
This “religious liberty” is in-Australian, a foreign American import, sowing discord and division here, and does not fit with the open and tolerant nature of Australian society. This is liberty for a self-righteous few, a religious mask permitting the free expression of prejudice, as a recent study showed.
“When people are okay with refusing service to a customer because of their identity, it has very little to do with whether the refusal was motivated by religious beliefs. Instead, the individual’s own prejudices and the nature of the business doing the discriminating were more important factors.”
WEDDING CAKES & SUNDRIES
A case in point is before the US Supreme Court, regarding the Masterpiece Cake Shop. I do not propose to rehash the whole story here, but the case turns on whether a shopkeeper can refuse service to a customer because of their sexual orientation. A useful summary of what is at stake for LGBTI can be found here, which I would urge you to read https://apple.news/AbpIj9BpuSt-CMfjGNieczA. Here’s an edited extract:
The Colorado law that’s being challenged by the bakery in the Masterpiece Cakeshop case says that businesses that open their doors to the public can’t discriminate based on race, religion, sex, disability, gender identity, or sexual orientation. Laws like Colorado’s aim to make sure that when we walk through the doors of a store or hotel, we all have the same freedom to buy a cake, eat a meal, or rent a room. They say to LGBT people, “you matter, and you shouldn’t be mistreated because you are gay, lesbian, bisexual or transgender.”
Through laws like Colorado’s, we start to trust those assurances and feel more confident living our lives. But when a business owner says, “No, we won’t serve you because you’re gay,” all that humiliation resurfaces.
That’s why it’s inappropriate to tell us — as the bakery and the federal government do in this case — to just go to a different bakery. This isn’t just about the services. It’s about the harm that being turned away causes. It’s about how shame and fear prevent us from fully feeling safe and participating in public life. It’s about the pain of our children seeing us, and them, rejected, or the pain of our parents watching, unable to protect us. And it doesn’t matter if it’s just one store. Because once we are refused, every time we approach the door of a store, we wonder how we will be treated and are more likely to hide who we are. That comes at a steep cost.
It is this which we would import if we accept the case of those who argue for ‘religious’ freedom.
A WAY FORWARD
The issue is broader than the terms of this enquiry would suggest. This is not about the rights of one minority, the would-be theocrats of the evangelical right, versus another, LGBTI people.
It is about managing a country containing many minorities, defined in many ways – race, colour, creed, sex, sexuality, sexual orientation, gender identity (feel free to add your own) – in a way which is free and fair for all. In which no-one is either advantaged, or disadvantaged, by the law.
The answer is not to legitimise the free expression and exercise of prejudice under a cloak of religiosity. It is to create a federal human rights architecture for the 21st century.
One possible answer is a Bill Of Rights, a path the Greens have already indicated they will pursue. This would provide a system which dynamically balanced the rights of all.
There is no need for another enquiry, as one has already been conducted by Father Brennan. As Geoffrey Robertson wrote in 2009:
“The report’s simple finding is that our wealthy and allegedly egalitarian society disrespects many classes of its citizens. Most serious is the plight of those who “fall between the cracks” – the homeless, the aged, the mentally impaired and physically disabled, children in care and indigenous Australians living in conditions of “third world disadvantage”.”
And as Robertson points out, a Bill Of Rights cannot be conceived of as some out-there lefty plot, so this most right wing of governments should have no trouble embracing the concept.
“A bill of rights is an impeccably conservative idea. The great right-wing thinkers – going back to Edmund Burke, William Blackstone and Albert Dicey – all cherished rights that limited the power of government and were entrenched in the common law (that is, the law that is made by judges). Winston Churchill, in his impassioned speech to the Hague Conference in 1948, urged the adoption of a bill of rights for every country in Europe, “guarded by freedom and sustained by law” and ensuring that “the people own the government, not the government the people”. It was Churchill who insisted on establishing the European Court of Human Rights, building upon a proposal first made at the 1946 Paris Peace Conference by a man then recognised as a great international statesman, one Doctor Evatt.”
DISMANTLING DISCRIMINATION & DISADVANTAGE
To buy into the imported far-right theocratic American ideology of “religious freedom” would be a mistake. Rather than adding to the significant disadvantages already suffered by LGBTI people, the government should be looking to reduce, and eventually remove it.
Lest anyone is under the illusion that the near-equal marriage we now have means that LGBTI are now equal across the board, here is a list of the equalisation work that remains, in no particular. It is not to be regarded as comprehensive or exhaustive.
- Comprehensive national and state anti-vilification laws
- Easier changes to birth certificates
- Medicare funding for transgender surgeries
- An end to medically unnecessary surgery on Intersex infants
- Reform of sex and relationship to cover LGBTI relationships
- Restoration of LGBTI-specific anti-bullying programs in schools
- An end to the gay panic defence, where it still exists
- Tackling LGBTI homelessness, especially youth homelessness
- Altruistic surrogacy reforms
- LGBTI acceptance in aged care
- Reform of the national curriculum to include LGBTI specific topics in all subject, where relevant
- Ensuring that LGBTI health issues are woven through the whole of medical education
- Automatic expungement of historic convictions for gay sex offences
- National access to same sex adoption
- Free PReP nationwide
- Priority for LGBTI asylum seekers from places like Chechnya, Russia and the Islamic states
- Embassy assistance worldwide for those fleeing LGBTI persecution
- Securing and promoting LGBTI rights worldwide as a core foreign policy objective
- Require all who goods and services to the federal government to demonstrate full adherence to LGBTI inclusive policies and procedures, including anti-discrimination law
- A federal Minister for LGBTI rights and a standing Ministerial Advisory Committee
Thank you for your attention.
Not just education: let’s get these special religious privileges out of hospitals, clinics, jobfinder agencies, Weetbix manufacturers and any and all other religious owned/controlled business in receipt of taxpayer dollars. Especially as they don’t pay tax themselves.
In 2016 the US Congress passed a law protecting people with no religion equally alongside the religious. President Obama signed it into law. The Frank R. Wolf International Religious Freedom Act specifically says authorities must “protect theistic and non-theistic beliefs as well as the right not to practice any religion.
The Act states that “the freedom of thought, conscience, and religion is understood to protect theistic and non-theistic beliefs as well as the right not to profess or practice any religion.” The Act also condemns “specific targeting of non-theists, humanists, and atheists because of their beliefs” and attempts to forcibly compel “non-believers or non-theists to recant their beliefs or to convert.”
It’s a good example of the kind of balance that is often talked about in relation to religious freedom, protecting both believers and non-believers.
Address for your submissions