Free­dom of faith is the ne­glected hu­man right

The Weekend Australian - - FRONT PAGE - GREG CRAVEN

Be­cause the hard Left loathes re­li­gion as most peo­ple loathe den­tistry, any pro­posal around re­li­gious free­dom must be sunk be­fore it even sets sail.

Our ran­corous cul­tural pol­i­tics has as­cended to a new sum­mit of ab­sur­dity. For days we have been ar­gu­ing pas­sion­ately about a re­port on re­li­gious free­dom that has not even been re­leased.

Now, an instant re­ac­tion is de­manded to a full 20 leaked rec­om­men­da­tions when we do not even have the ac­com­pa­ny­ing rea­son­ing of the re­port, with all its in­evitable sub­tleties, qualifications and lim­i­ta­tions, let alone any ac­tual leg­is­la­tion ac­cept­ing, re­ject­ing and mod­i­fy­ing the rec­om­men­da­tions.

But be­cause the hard Left loathes re­li­gion as most peo­ple loathe den­tistry, any pro­posal around re­li­gious free­dom must be sunk be­fore it even sets sail, lest some­one ac­tu­ally may anal­yse it.

This ex­plains the wild sce­nar­ios swirling around the ABC and Fair­fax Me­dia in past days. Had you cred­ited them, Philip Rud­dock would be propos­ing rein­tro­duc­tion of the In­qui­si­tion and burn­ing at the stake. Prom­i­nent has been the vile sug­ges­tion that faith-based schools are de­mand­ing the right to ex­pel gay or trans­gen­der stu­dents.

No one is ar­gu­ing this. No one sup­ports it. Aus­tralian Chris­tians as a bloc would op­pose it, pre­cisely as a mat­ter of faith. But why let re­al­ity stand in the way of ven­ti­lat­ing out­right big­otry? Lis­ten­ing to the usual hobby athe­ists and faith­pho­bics, you would be­lieve the idea of pro­tect­ing re­li­gious free­dom was the most bizarre since the in­ven­tion of Big Bash cricket.

Odd, that. In the his­tory of hu­man rights go­ing back across two mil­len­nia, free­dom of re­li­gion al­ways has been front and cen­tre of any list of basic free­doms.

It is, for ex­am­ple, solemnly en­shrined in the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights, the stan­dard in­spi­ra­tion of any left-lean­ing cul­tural war­rior. Worse, it has its own de­tailed UN en­dorse­ment in the Dec­la­ra­tion on the Elim­i­na­tion of All Forms of In­tol­er­ance and Dis­crim­i­na­tion Based on Re­li­gion or Be­lief.

It ap­pears in just about ev­ery modern con­sti­tu­tion or gen­eral dec­la­ra­tion of rights from the Cana­dian Char­ter of Rights and Free­doms to the Euro­pean Con­ven­tion on Hu­man Rights. It even ap­pears in a lim­ited and some­what idio­syn­cratic form in our own un­ex­cit­ing Con­sti­tu­tion, in sec­tion 116.

In short, there is noth­ing weird about pro­tect­ing free­dom of re­li­gion. The rea­sons are ob­vi­ous.

First, the most fun­da­men­tal rights nec­es­sar­ily at­tach to things that peo­ple can­not change about them­selves even if they wanted to. Their race. Their em­bed­ded gen­der iden­tity or sex­u­al­ity. Their sin­cere, con­vinced be­lief in a par­tic­u­lar man­i­fes­ta­tion of God.

Sec­ond, a per­son who is not free to be­lieve what they be­lieve and manifest that be­lief is less than a hu­man be­ing. They are sim­ply an ob­ject of state power.

Third, as a sim­ple mat­ter of fact, more peo­ple in the course of hu­man his­tory prob­a­bly have died and con­tinue to die on the ba­sis of their re­li­gion than for just about any other rea­son, with the pos­si­ble ex­cep­tion of race.

Mike Carl­ton will never be ex­e­cuted for be­ing a left­ist bore. But Chris­tians and Mus­lims, to take two ob­vi­ous ex­am­ples, are dying in per­se­cu­tions around the world, even as the Aus­tralian loopy Left con­jures sex­ual dis­crim­i­na­tion from leaked rec­om­men­da­tions in an un­pub­lished re­port.

So it is no sur­prise free­dom of re­li­gion is a hot topic. Ev­ery­where. This is true even in Aus­tralia. Mer­ci­fully, no one is be­ing hanged or be­headed. But for a coun­try that boasts of its record on hu­man rights, our pro­tec­tion of re­li­gion is sur­pris­ingly scrappy. Hence the Rud­dock in­quiry.

It is amaz­ing how many semire­spectable lawyers will point to sec­tion 116 of the Con­sti­tu­tion and say, see, free­dom of re­li­gion. But sec­tion 116, it­self lim­ited, ap­plies only to the com­mon­wealth. Any state par­lia­ment is free to sup­press Method­ism to­mor­row. And it is in the con­text of state leg­is­la­tion that is­sues of free­dom of re­li­gion over­whelm­ingly arise. The states con­trol the crim­i­nal law. They con­trol schools and hos­pi­tals. They can leg­is­late for ev­ery­thing from eu­thana­sia to the seal of the con­fes­sional, un­con­strained.

True, they all have their equal op­por­tu­nity and anti-dis­crim­i­na­tion leg­is­la­tion, and some of this leg­is­la­tion con­tains in­con­sis­tent, in­com­plete and glanc­ing recog­ni­tion of some of the im­pli­ca­tions of free­dom of re­li­gion. But the re­al­ity is that re­li­gion re­ceives noth­ing like the pro­tec­tion ac­corded to its close cousins in the com­plex con­struc­tion of hu­man iden­tity, race and gen­der.

This, rather than any de­sire to im­pale non­be­liev­ers, is why there re­cently has been a range of pro­pos­als in Aus­tralia for the bet­ter safe­guard­ing of re­li­gious be­lief.

Some peo­ple would like to amend the Con­sti­tu­tion, a pipedream con­sid­er­ing Aus­tralia’s di­vi­sive his­tory of failed ref­er­en­dums. More hope for a com­pre­hen­sive, spe­cific act of the com­mon­wealth par­lia­ment guar­an­tee­ing re­li­gious free­dom, and make that pro­posal to the Rud­dock com­mit­tee. This has mer­its, but also the com­pli­ca­tion of sin­gling one right out for sep­a­rate pro­tec­tion; doubt­less this would arouse fu­ri­ous op­po­si­tion.

Still oth­ers pre­fer more modest op­tions: typ­i­cally, re­fin­ing the ex­ist­ing pro­vi­sions con­fer­ring lim­ited pro­tec­tion for re­li­gious per­sons and bodies, plus a gen­eral but lim­ited guar­an­tee against re­li­gious dis­crim­i­na­tion some­where in com­mon­wealth leg­is­la­tion. This seems to be pretty much where Rud­dock has landed.

Sounds ter­ri­fy­ing? No, which is why the of­fi­cial op­po­si­tion to God has de­ployed ev­ery pos­si­ble calumny against such a pro­posal, most no­tably that it is a weapons plat­form for an at­tack on the rights of sex­ual mi­nori­ties gen­er­ally, and the ex­pul­sion of gay stu­dents from re­li­gious schools in par­tic­u­lar.

If you can­not make a sen­si­ble ar­gu­ment on a basic ques­tion of hu­man rights, why not evoke an ut­ter fan­tasy of pro­jected per­se­cu­tion to dis­tract the elec­torate from the real de­bate?

The cen­tral fal­lacy here is that in modern iden­tity pol­i­tics, rights dis­course is ab­so­lute. You have a right. I am a rights de­spoiler. You win. But al­most all gen­uine hu­man rights is­sues in­volve the bal­anc­ing of two ad­mit­ted rights. I have my free­dom of speech. You have your right not to be racially abused.

Just so with free­dom of re­li­gion. Many re­li­gions have their own schools. Within them, they pro­claim and live their be­liefs. They love their gay brothers and sis­ters, but their views on sex­u­al­ity very of­ten dif­fer. Can those schools still freely preach and teach? What if the re­li­gion teacher wants to tell his charges that Catholic or Is­lamic sex­ual mores are bol­locks? These are the real-life is­sues, not man­u­fac­tured creed-li­bels about per­se­cu­tion and dis­crim­i­na­tion.

So let’s take these real is­sues head-on. If a re­li­gion chooses to run schools based on a re­li­gious premise, to which like-minded par­ents choose to send their chil­dren, surely le­git­i­mate free­dom of re­li­gion en­ti­tles them to teach their faith. Fur­ther, if a per­son is em­ployed at such a school specif­i­cally in a job that in­volves the teach­ing or ex­pres­sion of that faith, surely they do not have a right to rub­bish it, for what­ever rea­son. Still fur­ther, if we ac­cept the no­tion of Chris­tian and Is­lamic schools as a mat­ter of free­dom of re­li­gion, equally surely those schools must be free to hire peo­ple who will sup­port their mis­sion, not un­der­mine it.

It is this point of com­mit­ment, not the re­lent­less neg­a­tiv­ity about “sack­ing” and “dis­crim­i­na­tion”, that is the crux of the de­bate. If you re­spect re­li­gious free­dom, you must re­spect the right of re­li­gious bodies to hire peo­ple who will sup­port their mis­sion. This is ex­actly what Rud­dock’s hugely lim­ited rec­om­men­da­tion that re­li­gious schools should be able to “dis­crim­i­nate” in the em­ploy­ment of staff means. For dis­crim­i­nate, read hire on mis­sion align­ment.

A com­par­i­son is with po­lit­i­cal par­ties. Should the Greens be com­pelled to em­ploy as an ad­viser a per­son whose in­ter­est in whales lies in eat­ing them? Of course not, be­cause such a sit­u­a­tion would un­der­mine free­dom of po­lit­i­cal as­so­ci­a­tion and ex­pres­sion. If this is rea­son­able when it comes to po­lit­i­cal free­dom, why is it not when it comes to re­li­gious lib­erty? The an­swer is that op­po­nents like pol­i­tics and re­ally hate re­li­gion.

Of course, re­li­gious bodies need to be rea­son­able in ex­er­cis­ing these free­doms. All of this seems ex­plicit or im­plicit in the Rud­dock rec­om­men­da­tions. To pose a few blunt ex­am­ples, what is to be ex­pected of a re­li­gious ed­u­ca­tion co­or­di­na­tor at a faith-based school will not be the same as the obli­ga­tions of a cafe man­ager at a re­li­giously based hos­pi­tal.

If a re­li­giously in­spired or­gan­i­sa­tion hires some­one in full knowl­edge that their “life­style” may be “prob­lem­atic”, they can­not eth­i­cally then sack them on that ba­sis.

And in the con­text of gay and trans­gen­der peo­ple, re­li­gious types need to un­der­stand they can­not take um­brage at them, while re­main­ing com­pla­cent about het­ero­sex­ual col­leagues openly con­tra­dict­ing their in­sti­tu­tional mis­sion. This re­ally would be dis­crim­i­na­tion.

The most ap­par­ently con­tro­ver­sial rec­om­men­da­tion in Rud­dock is that re­li­gious schools should be able to mould their en­rol­ment of stu­dents — not ex­pel them — by ref­er­ence to their re­li­gious char­ac­ter. Any im­ple­men­ta­tion of this pro­posal would re­quire very, very se­ri­ous con­sid­er­a­tion. But this un­leg­is­lated thought-cap­sule is pro­foundly qual­i­fied, most no­tably by the re­quire­ment that it be ex­er­cised with re­gard to the best in­ter­ests of the child. In other words, a school can­not refuse to en­rol a gay stu­dent be­cause it does not like gays. But an Is­lamic school might de­cline an en­rol­ment be­cause it be­lieved the en­tire be­lief con­text of the school and its com­mu­nity would dis­tress and alien­ate a stu­dent. And the gen­uine­ness of this be­lief could be rig­or­ously tested in court.

All of which prac­ti­cally means that for the over­whelm­ing range of re­li­gious schools no gay stu­dent is go­ing to be re­fused en­rol­ment. This re­flects the ex­ist­ing re­al­ity that, to the hor­ror of the ABC, re­li­gious schools and other bodies are not the hot­beds of per­se­cu­tion it likes to imag­ine.

I hate to break it to Fran Kelly, but as a Catholic, I know les­bian cou­ples send their kids to Catholic schools, and are em­braced. Gay men are val­ued col­leagues in Catholic ed­u­ca­tion and health providers. Trans­gen­der peo­ple are em­ployed and loved in Catholic so­cial ser­vices. LGBTQI stu­dents are val­ued, re­spected and nur­tured in ev­ery Catholic ed­u­ca­tional con­text. Noth­ing in Rud­dock will change this com­mit­ment.

Of course, one stan­dard fur­phy is that Aus­tralia does not need to pro­tect re­li­gious free­dom be­cause it is not un­der at­tack.

Fact: re­li­gion and peo­ple of re­li­gion are re­lent­lessly at­tacked in the cor­rect-thought me­dia ev­ery day. As in the present de­bate.

Fact: there are con­stant calls for the de-fund­ing of re­li­gious health and ed­u­ca­tion bodies un­less they agree to abide by mul­ti­far­i­ous con­di­tions con­trary to their be­liefs.

Fact: most of the states are on the way to abol­ish­ing the Catholic seal of the con­fes­sional.

Fact: un­der Vic­to­rian abortion leg­is­la­tion, health pro­fes­sion­als with re­li­gious ob­jec­tions still must par­tic­i­pate in the process of re­fer­ring pa­tients for abortion.

Fact: again in Vic­to­ria, the new as­sisted dying leg­is­la­tion al­lows con­sci­en­tious ob­jec­tion by “reg­is­tered health prac­ti­tion­ers”, but other health­care work­ers who might be or­dered to as­sist in the process de­spite re­li­gious ob­jec­tions are left with­out pro­tec­tion.

These are real is­sues of hu­man rights, not imag­i­nary con­fab­u­la­tions. They de­serve to be taken se­ri­ously. Ex­actly how one deals with them is a gen­uine ques­tion. A Com­mon­wealth Re­li­gious Free­dom Act would have the ben­e­fit of pack­ag­ing a fun­da­men­tal hu­man right, and giv­ing it a vis­i­bil­ity and dig­nity it does not cur­rently share with cor­re­spond­ing rights. Greg Craven is vice-chan­cel­lor of Aus­tralian Catholic Univer­sity and a pro­fes­sor of con­sti­tu­tional law.

For a coun­try that boasts of its record on hu­man rights, our pro­tec­tion of re­li­gion is sur­pris­ingly scrappy

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