Freedom of Religion is More Than Just Freedom of Worship

 Religious freedom is under threat from all sides, writes Aaron Lane.    

‘Regardless of whether Labor or Liberal wins the election, we still end up with a Catholic Prime Minister.’

You would think these were the words of a 1950s sectarian zealot. In fact, this was commentary on the 2016 Federal election by Victorian MP and Sex Party President Fiona Patten. In an email to supporters during the recent election campaign, Patten found it seemingly difficult to hide her intolerance, describing her party’s campaign efforts as an ‘allout- war on the Catholic Church’.

The weapons in this war are not bombs, but laws. One of the proposed laws in this arsenal would remove religious exemptions from Victoria’s anti-discrimination legislation. This is important, because the way issues are resolved will set a precedent for calls to change similar federal laws—and raises wider questions about religious freedom in Australia.

The Andrews Labor government, supported by the Sex Party and the Greens, recently introduced a bill into Victoria’s parliament scaling back religious exceptions in Victoria’s Equal Opportunity Act. Religious organisations will no longer be able to make employment decisions in line with the doctrines, beliefs or principles of their religion unless conformity is an ‘inherent requirement’ of a particular position. Christian Schools Australia chief executive Stephen O’Doherty has denounced this ‘draconian attack on religious freedom principles’.

Religious organisations are afforded exemptions to protect their religious ethos and charism. This protects the religious freedom of their members by enabling religious organisations to provide services such as education and healthcare in a way that is consistent with their beliefs and values. Political and cultural organisations receive similar protections—although curiously the government isn’t proposing removing those.

The Bill would provide exemptions to clergy, or for the selection of people to perform functions in relation to any religious observance, but this is not enough. Religious freedom is more than a freedom to worship. Religious practice might manifest itself in a number of ways—prayer, church services, and display of religious icons or symbols such as the crucifix. But participation is expressing an underlying belief, not the belief itself. Religious belief exists beyond Sunday morning, and so should the freedom to live this out within a community of believers. People cannot abandon their faith outside the sanctuary of the church any more than people without faith can abandon their lack of faith.

The balancing exercise of maintaining religious freedom with rights against discrimination will always be difficult, but the proposed changes make it prohibitively harder. The major problem with the ‘inherent requirements’ test is who must apply it.

Religious organisations already apply a version of the test when employing somebody. Take a Christian school for example. For a religious education teacher, participation in a parish community is a usual requirement. For other classroom teachers, committing to ‘support the Christian ethos of the school’ may suffice. What about administrative and support staff with limited student contact? The existing laws leave that question to individual schools reflecting on their unique circumstances. The standard that a school imposes will depend on the position’s influence over the religious ethos, and how much it might limit the number of potential of candidates for the role. When an organisation gets it wrong by making an unjust decision, the possibility of adverse publicity is a reputational issue – a natural corrective mechanism.

The proposed laws would shift the question from the organisation to the state. The Victorian Civil and Administrative Tribunal would have the impossible task of deciding on the doctrines, beliefs or principles of a religious organisation—a canon lawyers’ picnic. The tribunal would then set the ‘inherent requirements’ bar. Victorian Minister for Equality, Martin Foley, has said that ‘equality is non-negotiable’. If the tribunal shares this attitude, religious organisations are sure to be stripped of all of their religious objectives— irreparably eroding the religious identity of the school, with no obvious corrective force.

Religious organisations face a difficult task in resisting these changes—and other similar issues. Patten and others will disregard any arguments made on religious grounds. As Jesuit priest Frank Brennan pointed out in Acting on Conscience: ‘Persons with religious views…were treated as if they had no cards at all. The only cards which could be played from the hand were cards which would be valued by liberal atheists.’

The task of persuasion is made more difficult by two issues. First, most religious bodies have a poor record on religious freedom prior to the 1960s. Take the Roman Catholic Church, for example. The Second Vatican Council in 1965 taught ‘religious freedom has its foundation in the very dignity of the human person’, where the church previously held that there was no right to religious freedom—only that ‘tolerance’ towards non-Catholics was sometimes unavoidable. Second, liberal arguments for religious freedom border on relativism, which can undermine religious beliefs about an objective truth.

Reflecting on an increasingly hostile secular environment, the late Cardinal Francis George said: ‘I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilisation, as the church has done so often in human history.’

While dramatic, Cardinal George shares the perception of the escalating threats that religious organisations face from legislators who do not understand people of faith—and perhaps do not want to.

The Victorian proposal is just one example. Federal antidiscrimination and tax laws are within the secularists’ sights, and the debate about religious protection within proposed same-sex marriage laws is heating up. Recall that the Archbishop of Hobart was recently taken to Tasmania’s antidiscrimination commission for distributing a booklet promoting the church’s teaching on marriage to the families of students in Catholic schools. Although the complaint was ultimately withdrawn, the chilling effects are keenly felt.

These are the current battles. In order to win the war, however, people of faith need to advance a positive case for the protection of religious freedom in our pluralist, democratic society.