This article from the Summer 2020 edition of the IPA Review is written by IPA Research Fellow, Dara Macdonald.

Back in 2019, before COVID-19 dominated every news cycle, the front pages of papers were filled with the story of Israel Folau, the star rugby league footballer sacked for sharing an Instagram picture paraphrasing Corinthians. This book, Forgotten Freedom No More, grew out of the increasingly high-profile debate about the nature and place of religious freedom in Australia. The intensity of this discussion started during the same-sex marriage plebiscite and has been spurred on by subsequent events.

Like a patchwork quilt, this book is a collection of essays from people sympathetic to religious freedom but with different yet complementary insights. The first few chapters build up the themes and debate. The first, ‘Religious Freedom’s History and Future?’, starts with a history of freedom of religion by economics professor Henry Ergas—who has worked at the OECD, Australian Trade Practices Commission (now the Australian Competition and Consumer Commission) as well as consulting firms.

Threats to religious freedom are ultimately a cultural problem.

In the second chapter, ‘From Liberal Tolerance To Postmodern (In)Tolerance’, law professor Augusto Zimmermann lays out the threats to freedom. In the third chapter, Julian Porteous—the Catholic Archbishop of Hobart—described his ordeal with the Tasmanian Anti-Discrimination Commissioner as the ‘watershed’ moment for religious freedom in Australia. In ‘Freedom of Religion and Education’, theology lecturer Paul Morrissey narrows in on the issues facing religious education and independent schools. Then law dean Patrick Parkinson (‘Protecting Religious Freedom in an Age of Militant Secularism’) and law lecturer Lorraine Finlay (‘Matching Words with Action’) explore the legal issues.

The middle chapters set out perspectives on religious freedom from different traditions. Law chair James Allan (‘A Humean Take on Religious Freedom’) argues from the atheist or ‘Humean’ understanding. Theology lecturer Michael F. Bird provides an Anglican angle in ‘On Religious Freedom and its Cultural Despisers’. Benjamin Elton—chief minister and senior rabbi at the Great Synagogue in Sydney—approaches from the viewpoint of Jewish history and traditions in ‘A Jewish Perception of Religious Freedom in Australia Today’ , while psychiatrist and author Tanveer Ahmed contributes ‘Muslim Perspectives on Religious Freedom’.

In the final chapter before the coda, ‘Taking the Right Way Back’, former University of Notre Dame Australia chancellor Michael Quinlan (who died in October), concedes that threats to religious freedom are ultimately a cultural problem, contributed to by Christians.

Taken as a whole, Forgotten Freedom No More highlights the various challenges to religious freedom in Australia—be they legal, political, or cultural—but also proposes solutions. First, there is the issue of the law—or, more accurately, anti-discrimination law. Parkinson sets out ways the law could be amended, either through introducing a bill granting a positive freedom of religion or by altering the definition of discrimination to exclude the exercise of other rights such as freedom of speech or religion.

However, Finlay reminds us that where there is a problem “the default position seems to be that the parliament should do something to fix it.” Embedded in this knee-jerk reaction is the assumption a new law will fix the problem. However, a “new law is not always the answer, and will not always be the best way to deal with an issue.”

Current laws prevent religious people speaking religious thoughts and ideas.

This has certainly been the course charted thus far with federal and state governments introducing draft bills creating new anti-discrimination provisions that prevent discrimination based on religious characteristics. This tactic is understandable if every other minority attribute is given protection under the law except religion, but it is erroneous to think freedom of religion is simply the absence of discrimination. Adding to discrimination law will not solve the biggest impediment to freedom of religion, which is the current laws preventing religious people speaking religious thoughts and ideas—particularly ones antithetical to wider social norms.

Finlay argues that instead of “introducing a new law to protect religious freedom, a better approach would be to revise existing laws that are restricting it”.

Allan also takes aim at the idea that more law is required, but instead does so because of concerns about the quality of the people interpreting our laws. No matter what law is on the books, judges are going to have an increasing role in determining the extent to which freedom of religion can be exercised. Despite this, the Coalition has not made much of an attempt to engage in quality assurance while picking judges. Allan laments recent appointments:

On any scorecard of how the recent federal Coalition governments have done on this Judicial appointments front, I doubt that anything higher than a D+ could be defended—with all the massive grade inflation in today’s universities, make that a C-.

Then there are the political issues that the debate around religious liberty throws up. This ought not to be mischaracterised as the former issue (of law). But here I mean politics in the broader philosophical sense and specifically the entertaining of postmodern ideas and their activist younger sibling ‘identity politics’.

Zimmerman explains tolerance “once meant the acceptance of contrary opinions that you may particularly dislike”. Today, public institutions have redefined tolerance in an illiberal and tyrannical way. To be tolerant is now defined as acceptance and to cast judgment is to deny there is subjective or multiple ‘truths’ rather than just ‘the truth’. This shift from a classical liberal understanding of religious tolerance to a postmodern or moral relativist view of religion has resulted in a society that is censorious of religious claims to truth as they “contradict assumption that all religions are equally valid”.

This postmodern interpretation of tolerance has led to a less tolerant society. Identity politics worships diversity above all else, but only superficial diversity such as gender or race—not diversity of ideas. Peter Kurti describes this as the paradox of identity politics: “Accentuation of difference has only made it harder, rather than easier, to accommodate wider difference in society.”

The solution here is obvious, but not easy. We need to reassert Voltaire’s understanding of tolerance and be willing to defend the freedoms of people to express ideas we disagree with. We also need to emphasise what unites Australians, rather than allowing peddlers of identity politics to constantly divide us. The final and most important challenge is the cultural one. The Folau case was an entirely cultural moment for Australia. It began with a post on the footballers private Instagram account. It was the private sponsor of the football team that objected to it. It was a private company that eventually gave Folau the sack. The blurring of lines of private and public spaces and values is what is termed ‘civic totalism’. Michael J. Bird defines it as follows:

Civic totalism advocates the subordination of individual freedom, especially religious freedom, to the state and mandates social conformity to state-sponsored political principles by all tiers of society.

He goes on to argue there was “an age, not so long ago—let’s call it the 1990s—when champions of liberal democracy believed in protecting religious freedom because such freedoms were good for religion and good for a pluralistic democracy.” The idea that civil society would not just exist, but have different values to that of the state, was not only considered tolerable but good. There was a general understanding that civil society generated social capital (such as trust and cohesion) which the state regularly spent.

Blaming society for this devaluation of religion might be tempting, but Quinlan urged Christians to look to themselves:

The process of achieving genuine religious freedom—if necessary by the way of legislative reform—starts not with politicians or laws, but with everyday Christians.

Quinlan pointed to recent scandals involving high-profile Christians and institutions—particularly those highlighted by the Royal Commission into Institutional Responses to Child Sexual Abuse—as failures of Christians to live their faith. By setting out the argument that the religion that dominated the Roman Empire did so by example and not by force, he encourages Christians to find their roots again and in so doing demonstrate the civic necessity of religious freedom.

The categorisation of the themes of this book into legal, political, and cultural is of my making rather than explicit in each essay. But within these themes are the challenges that must be confronted if religious freedom is going to be not only protected but respected in Australia. In my view, culture is the most important. In a democratic country such as Australia where its direction is supposed to be determined by the people, law and politics lag behind the culture. If religious freedom is misunderstood or devalued in the wider society, changes to the political or legal structures protecting this freedom are unlikely. Similarly, if religious freedom is respected then use of laws that infringe on religious freedom will be controversial and eventually lose their fangs regardless of whether or not they are repealed. That’s why culture is the greatest bulwark against the loss of liberty.

Religious freedom requires the repeal of old laws, not more laws.

Basic freedoms such as conscience, speech, association, and religion have been slowly eroded with each new protected characteristic added into anti-discrimination laws. First, it was a flippant remark about race that would get you ordered before a commission (such as in the QUT case), then it was sexuality (as Archbishop Porteous found out). This year the sitting senator Claire Chandler received a summons for comments on gender. Ironically, passing the Religious Discrimination Bill may mean bishops but not biologists can talk about sex in binaries.

This year, COVID-19 turned the slow drip of limitations on our freedoms into a tidal wave. Courageous voices are needed to change that direction. If this year can produce anything valuable, it is recognition that a deeper discourse about basic freedoms such as speech and religion is desperately needed. Only when people recognise these freedoms can be lost will they appreciate and defend them.

We need to defend the freedoms of people to express ideas with which we disagree.

Since this book was released, coronavirus and the public policy fallout has taken up much of the newsprint in the country. Meanwhile, the less-than-inspiring answer to Australia’s religious freedom debate, the Religious Discrimination Bill, put forward by Commonwealth Attorney-General, Christian Porter, has been shelved, following queries raised even by supporters of religious freedom such as the IPA. The fact that the prospect of legislative change has received some breathing space is for the better. As detailed in a submission on the draft Bill by my colleague, Morgan Begg, religious freedom requires more thought and consideration than simply adding to the already voluminous discrimination laws or further empowering the star-chamber-like-commissions that administer them.

This is a timely book to remind us of the importance of religious freedom but also that the issues intertwined with it are far too complicated to be worked out with a flick of a pen in Canberra. Real protection of religious freedom requires the repeal of old laws rather than more laws, grassroots cultural change instead of solutions crammed down from up high, and a shift back to classical liberal values of tolerance and individual dignity.

ENDS

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