Source: Sydney Morning Herald (13 March 2018) - Religious freedom must not be a green light to discriminate
As it ponders the role of religious freedom in Australia, the Religious Freedom Review headed by Philip Ruddock would do well to reflect on the real-life scenarios where belief collides with the rights of individuals.
Should independent schools be able to expel students with gay parents?
Should it be lawful for bakers, photographers or florists to refuse same-sex weddings?
Yes? No? And why? Providing answers would provide clarity as to the consequences of any proposed changes to the law.
Also, should the law allow:
- Christian hospitals to sack atheist doctors?
- Venues to refuse LGBTI groups or individuals?
- Welfare providers to arbitrarily sack divorcees, unwed mothers, or de facto couples?
- Religious schools to sack teachers who come out as gay on Facebook?
- Substituting sharia law in place of the common law to resolve family disputes?
- Aged care homes to deny places for same-sex couples?
- Commercial businesses to sack employees for expressing their belief in traditional marriage on Facebook?
Many Australians would answer a resounding “No!” to these questions. It’s up to the Ruddock review to answer them in a way that is consistent, and fair, as well as cognizant of societal values.
The more one thinks about it, however, the stickier the questions become. Should a printer be allowed to refuse to print pamphlets promoting gender diversity? Or alternatively, pamphlets advocating a patriarchal view of gender relations?
How to arbitrate such scenarios? While some faith-based lobbies may lean favouring faith-based beliefs in these scenarios, we can be confident they would disapprove of firing a person for expressing belief in traditional marriage or for promoting Christian values. On one hand, they would rightfully demand not to be discriminated against based on their beliefs. But on the other hand, they’d expect to retain the right to discriminate against others based on the same beliefs.
A secular company could rehearse the familiar arguments of religious lobbyists. They would like to run an organisation with a distinctive set of values, determined that their firm retains a certain character.
Similarly, a person fired from a religious school for expressing or manifesting their non-religious beliefs may rightfully wonder why their beliefs remain unprotected.
Therefore, claims for greater protections for religious beliefs stand or fall on whether one accepts that religious beliefs and religious groups are deserving of special status. Should those of faith enjoy rights and freedoms above and beyond those enjoyed by non-religious individuals and groups?
Whatever clever arguments one might procure for such a position, it is starkly at odds with the nature of religious freedom. Article 18 of the United Nations Declaration of Human Rights states that religious freedom applies to all beliefs, including atheistic and non-religious ones. Religious freedom also provides for freedom from religion.
Further, the right to hold or change one’s beliefs is absolute, while manifesting beliefs are limited by the law, the public good, or other human rights. The difference between holding and manifesting a belief is where the waters are invariably muddied. Applying the blunt instrument of the law to the myriad scenarios where the manifesting of beliefs impacts on other freedoms and rights, is fraught with exceptions to the rule and unforeseen consequences.
The increasing diversity of Australian society means that these issues must be arbitrated in a belief-neutral manner. If we were still a universally Christian country then we would retain the laws bearing biblical characteristics – such as criminalising abortion, adultery, divorce, and same sex marriage. The law has been changed because these beliefs no longer enjoy broad community support.
Further, favouring certain beliefs is patently unfair. Extending protections for all beliefs would lead to some alarming consequences. We would have to consider female genital mutilation, sharia courts, forced marriage, child marriage, withholding medical treatment, and a myriad of other manifestations of belief which are currently unlawful.
“All citizens should be equally free with respect to conscience, religion and belief”, argued Barrister Dean Stretton in a submission to the Ruddock review. Embedded in Section 116 of the Constitution, state neutrality forbids the Commonwealth from imposing religious observance, prohibiting the free exercise of religion, and providing religious tests for public office.
Despite all this, however, our discrimination laws still contain blanket exemptions exclusively for those holding faith-based beliefs. Religious groups still enjoy the right to discriminate on the basis, of sex, sexual identity, marital status, pregnancy, breastfeeding or family responsibilities. Notably, the wording in the Sex Discrimination Act 1984, refers to “the doctrines, tenets or beliefs of that religion”, or “is necessary to avoid injury to the religious susceptibilities of adherents of that religion”.
I hope the Ruddock review won’t conclude that believers should enjoy greater freedoms than non-believers. Thirty per cent of Australians, according to the last Census, may have a problem with that.
Religious freedom was founded upon the principle of protecting individuals and groups from discrimination based on beliefs. Not to sanction belief-based discrimination. Thus, the idea that religious belief provides a licence to discriminate is not just wrong, but antithetical to the meaning of religious freedom.
Hugh Harris is a board member of the Rationalist Society of Australia.