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Clarifying the anti-discrimination muddle

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Frank Brennan |  18 February 2013

'Discrimination' dictionary definitionThere has been some very confused debate about the Government's proposed consolidation of anti-discrimination laws. Nicola Roxon left the job unfinished and confused. Simon Crean tried to still concerns in January, saying 'the intent was never to change the laws, simply to consolidate them'.

Since then the Government has agreed to drop some of the more controversial, novel suggestions in the Exposure Draft. There is still debate about the extent to which churches discriminate, and are entitled to discriminate, in employment and service provision. There is also debate within the Catholic Church leadership about the extent to which it is desirable that religion be listed as a ground for legal objection to discrimination.

David Marr on ABC Insiders on 3 February 2013 spoke of the challenges confronting the new Attorney General Mark Dreyfus with this legislation. He said:

There are lots of things to be tidied up. The big one now is to get out of that bill the charter that some of the most conservative leaders in some of the most conservative faiths in this country are being given ... to kick poofters, lesbians, single mothers, people living in de facto relationships ... kick 'em around in employment and do it with public money. This is not medieval Spain; this is Australia in 2013.

Marr was conflating two issues: employment and service delivery in education, and employment and service delivery in health and aged care.

Church schools are entitled to adopt employment practices requiring teachers not to flaunt or ridicule Church teachings to their students.

The Church continues to teach that sexual relations should be confined to marriage and open to procreation. This is not a teaching that commands broad compliance even within the Catholic community. It would be wrong for a Catholic school to dismiss a homosexual teacher for public non-compliance with Church teaching unless a heterosexual teacher was also liable to dismissal for the same public flaunting of that teaching.

Everyone knows there are teachers in Catholic schools who are homosexual, not married, practise contraception, have had abortions or used IVF. State intervention to prohibit discriminating employment practices informed by adherence, silence or respectful questioning of Church teaching would be an unwarranted interference with freedom of religion. Why not leave the law as it is, as Crean said the Government was committed to doing?

The issue in relation to Church health and aged care services is much simpler. It is a bureaucratic beat-up. Catholic Health Australia (CHA) has made it clear that Catholic health providers pride themselves on non-discrimination on the grounds of sexual orientation and gender, in both employment and service delivery.

A week after Marr's call to arms, I visited Gorman House at St Vincent's in Darlinghurst, a live-in facility for alcohol and drug dependent persons. The manager showed us some new single rooms with the observation: 'At last we are able to accord transgender people the dignity and respect they deserve.' That sentence summed up for me the tenor of health care informed by gospel values — without intervention by the nanny state.

CHA has recommended to its constituent members seeking any written policy on these matters:

Catholic hospitals and aged care services do not discriminate in who they employ, provide care to, or accommodate as residents within their facilities. People who identify as lesbian, gay, bisexual, transgender, or people of indeterminate gender will be cared for within Catholic hospitals and aged care services with respect, compassion, and sensitivity.

The Attorney General's Department has focused on the provision of Church aged care services, prohibiting any discrimination in services that receive Commonwealth funding, making the unfounded observation: 'There was significant feedback during the consultations of the discrimination faced by older same-sex couples in accessing aged care services run by religious organisations, particularly when seeking to be recognised as a couple.'

Fr Brian Lucas, Secretary of the Australian Catholic Bishops Conference (ACBC) gave evidence to the Senate Committee this month, making it clear that this was not an issue in Catholic facilities but for a couple of sensible exceptions to which the drafters had not adverted.

For example the Church conducts some aged care facilities exclusively for aged religious sisters. A non-discriminatory admissions policy would preclude the exclusion of men from such facilities. The Church also conducts some facilities for old, alcoholic men. Why would you use the blunt instrument of a universal anti-discrimination law to insist that women be admissible to such facilities?

The Australian Catholic bishops have been in a muddle about the issue of religious freedom for the last 25 years. In 1988, the Hawke Government proposed a referendum which would have extended constitutional protection of religious freedom such that it could not be impacted by state governments nor the Commonwealth government, and would be preserved from adverse impact by policies and actions as well as by laws made by the parliaments.

The bishops' primary concern was that any amendment of the existing limited constitutional provision might result in a renewed challenge to state aid to church schools. Rather than enlarging the scope of judicial review of government actions impacting on religious freedom, the bishops said that 'freedom of religion ... is best protected through the democratic process in the Federal Parliament'.

They rejected the proposed amendment put forward by the Constitutional Commission chaired by Sir Maurice Byers. The Commission noted:

The values that underlie our political tradition demand that every individual be free to hold and to manifest whatever beliefs and opinions that person's conscience dictates. So long as an individual doesn't transgress the reasonable limits established in a free and democratic society, his or her freedom of religious belief and practice should not be fettered. Religious freedom is the paradigm freedom of conscience.

The Commission intended to extend the freedom from state as well as Commonwealth actions, and from governmental actions of an executive and administrative kind as well as enacted laws of the Parliaments. The ACBC opposed such an extension of religious freedom. In the present debate, it has continued to argue that religion should not be listed as a protected attribute in the new anti-discrimination law.

It is pleasing to note that Cardinal Pell and Bishop Fisher have broken ranks and acknowledged the need for religion to be so listed. Unless we insist on further legal and even constitutional protection of religious freedom, it will continue to be classed simply as an exception in discrimination law, rather than a human right.

Religious freedom is a primary human right. In the Catholic tradition, we have held this to be true since the Second Vatican Council's Declaration on Religious Freedom. It's time for all our bishops to affirm this, and for David Marr to take a cold shower.


Frank Brennan headshotFr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.  


 



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Submitted comments

‘I saw the angel in the marble and carved until I set him free.’ Michaelangelo

Mark 18 February 2013

Come off it Frank. The freedom to believe whatever you want and the freedom to express those views in whatever way you want either personally or in the community of like-believers is fine. But when an organisation of like-believers that takes public money and/or is accredited to deliver public goods like health services or education discriminates against clients, employees or suppliers on the basis of what their personal beliefs or behaviour outside the workplace are, then the discrimination is just arrogant bloody-minded prejudice and an abuse of power.

Ginger Meggs 18 February 2013

I am a great admirer of Frank Brennan's writings, which are always based on reason, intelligence, commonsense and goodwill. I agree with the sentiments of this article. But, with respect, may I suggest to him that the word he probably intended instead of 'flaunt' is 'flout'. It is only right that Catholic teachers should flaunt (display) Catholic teachings, and not flout (disregard)them.

MC 19 February 2013

Your suggestion to David Marr to "take a cold shower", by which I take it you mean for him to "let go of his anger" on this issue, worries me just a little! When a minority has been persecuted for time immemorial, those who are part of that minority, may find patience an increasingly difficult thing to practise. If, say, a homosexual person were to seek employment with a religious organisation, and if their competence in their employment is unquestioned, then they should find themselves on equal footing with any other candidate for the job. I'd agree that religious freedom is a primary human right - but so is being valued on the basis of equity and equality.

Pam 19 February 2013

Thanks MC. Point taken. Don't flaunt your personal relationship or practice at odds with church teaching, and don't flout the teaching.

Frank Brennan SJ 19 February 2013

"Unless we insist on further legal and even constitutional protection of religious freedom, it will continue to be classed simply as an exception in discrimination law, rather than a human right" is an excellent summary of the current position that religionists find themselves in, in this present debate. Marr is able to get away with what he says - and he has been saying it for years, under the guise of being hailed as 'one of Australia's foremost intellectuals' all because religionists have failed to put their case adequately and raise up prepared voices to counter populism the likes of Marr's. Are we, in our educational and health organisations within the Catholic Church, adequately equipping our employees with the reasoning behind our moral pronouncements against homosexuality and sex outside of marriage, so that the Marr's of our society won't have any evidence that we are targeting people. There is a certain intellectual laziness within all ranks in our Church that actually encourages people like Marr and, very likely, the result is that, statistically, even though Catholics would be working for him and with him and even interviewing him for his tirades, they never challenge what he says because they can't.

Fr Mick Mac Andrew 19 February 2013

So basically, our human civilisation through the eyes of the Catholic Church is based on the same old maxim of the US military - the DON'T ASK, DON'T TELL policy - that's basically it. Nothing to do with Catholic/Christian morality. A homosexual person could quite morally be "flaunting" a personal relationship without "flouting" church teachings (ie, engaging in "homosexual acts") If that's the level this debate has reached, then at least have the courage to state it plainly so that faithful Catholic homosexuals are not persecuted further for what is wrongfully presumed to be their flouting of Catholic teaching.

AURELIUS 19 February 2013

God's laws are to be observed completely by all. No law that is man made and goes against the Teachings of Jesus Christ can be followed. All souls need charity in our dealings with each other but no one should sit idly by while governments make laws against the Teachings of the one True Church founded by Jesus on the rock of St. Peter.

Trent 19 February 2013

Well said Frank . An interesting analysis of the material that has come from the ABC via David Marr .Unless religious freedom is recognised as a human right , rather that an exception to a particular provision in a statute ,there will be ongoing problems for Catholic organisations concerned with education , health and aged care etc. This article highlights the need for action in this regard.

Barry O'Keefe 19 February 2013

As a former teacher at a Jesuit school, I can disavow all that the Jesuits taught the Catholic line that sexual relations were confined to marriage and open to procreation. On several occasions guest speakers at professional development days, including openly gay people, denounced the Church's teaching. They spoke of homosexuality as simply another expression of human sexuality. At no point did anyone explain or defend the Church's position. The position of the Jesuits and the school executive was identical to that which Eureka Street itself has on homosexuality. It warmly promotes homosexuality and regards the Church's official line as outdated and narrow. Alternative views were not publicly aired by the any school officials.

Wellington 19 February 2013

I don't see why constitutional entrenchment of religious freedom should jeopardise state funding of Catholic schools. It seems to me that the Bishops were quite misguided and lost a golden opportunity. Constitutional protection is what we need to protect us from popularly motivated legislative incursions on the religious freedom owed to Catholic institutions. For some institutions it is a non-issue as you have helpfully clarified Fr Frank, however ther risk remains in some areas. This is not a hypocritical don't ask don't tell scenario. It is about respect for the right of a religion to proliferate.

George 19 February 2013

Frank, thanks for sending me this. You know how to do these things.

What makes this contest so bizarre is the gap which you map between the demands of your church - to have the right to sack anyone or refuse them employment on the basis of their sexual status/practice/failings - and the obviously civilised and inclusive practices of most church employers.

Why does your church demand a right so many Catholics are proud NOT to exercise?

What's wrong with gay surgeons? Of course Catholic hospitals employ gay surgeons, nurses, cleaners etc. And they know that were they to exercise their right to purge hospital staffs of all the lesbians and adulterers and divorcees, the parishes would rise up in horror.

If the church wants the right not to employ people who campaign against Catholic teaching - say gay teachers who evangelise for gay rights - then let's talk about how such an exemption from anti-discrimination laws might be framed. In fact the church aggressively demands the right to sack any teacher simply for being gay.

Sackings are rare, but no one on the payroll of a Catholic institution (and many Protestant, Jewish and Muslim institutions) will have job security under the legislation Canberra is proposing if they live outside the sex laws of that faith. They can be sacked at any time. This is not fair, not civilised.

After years of trying to make sense of this, I've come to the unhappy conclusion that what the church is demanding - and Canberra offering - is an opportunity to stigmatise and the right to use public money for the purpose. In Britain, that is forbidden: the moment a religious institution accepts public funding its employment practices must be absolutely secular.

I've got my health. I reckon I'm fit to sweep the floors of a Catholic old people's home. It would do my soul good if I did. But your church is demanding the right to brand me unsuitable for the work because I'm homosexual. Really?

David Marr 19 February 2013

David Marr, Thanks for commenting here so we can all consider your response. But can I ask you this: what about the right of a Catholic run hospital not to perform abortions where the life of the mother is not in jeopardy? Are you suggesting there should be no protection from anti-discrimination laws where public funding is involved? Your point about sweeping floors in an old persons home as a gay person is a compelling argument. But where is your limit? You posit an example that most reasonable people would agree with you about. That will not win the debate.

George 19 February 2013

To solve this dilemma, I propose placing CCTV cameras in the bedrooms of ALL Catholic Church employees, regardless of marital status/orientation - INCLUDING those living alone. (Remember that masturbation is just as intrinsically disordered as premarital heterosexual intercourse, contraception and bestiality).

AURELIUS 19 February 2013

There is no 'special law' protecting state governments if a school teacher starts mouthing off and evangelising for their own political/religious cause within the classroom, just a Public Service Act and a Code of Conduct to be followed, a registration system to be cleared by and an industrial system to keep things balanced if the teacher is wrongly dismissed. I'm with Marr and Meggs on this one, and the need for Australia to drop all this 'special pleading' of religions, who all feed off the taxes of decent people who can then suffer gross discrimination against them from a school or hospital, or employment agency, or old peoples home. The point Marr makes, that if you take the King's shilling you are then duty bound to serve him, seems to be overlooked when public monies are dished out to the private clubs that religions really are. Don't take the ATO money for your hospitals if you do not want to service 'God's people'. Don't take ATO money if you do not want to educate 'God's people', then there might be fewer complaints about the need for religions to discriminate to exist.

janice wallace 19 February 2013

I'd like to add my thanks to David Marr for his response. I'd also like to add that as well as being fit to sweep the floors of a Catholic old people's home, he would enliven any conversation at said old people's home with his erudite grasp of the intricacies of any anti-discrimination muddle.

Pam 19 February 2013

David Marr’s example of being refused employment as a cleaner in a Catholic health facility is a good one, if only to highlight his own confusion about the proposed law to which he objects. First, Catholic health facilities are non-discriminatory employers and proudly proclaim themselves to be. Second, the proposed law does not allow church health facilities to discriminate in employment against David in this way. Third the only discrimination which a church health facility could engage in would be discriminatory conduct which “conforms to the doctrines, tenets or beliefs of the church” or which “is necessary to avoid injury to the religious sensitivities” of Catholics. A refusal to employ someone as a cleaner simply because he was gay would be completely inconsistent with the doctrines, tenets and beliefs of the Church and there is no way that anyone could argue that such discrimination was necessary to avoid injury to religious sensitivities. My experience of church health facilities is that they are very open and welcoming to employees, patients and residents regardless of their sexual orientation. As I indicated in my piece, the matter is more problematic when it comes to employment of teachers in church schools, especially those being employed as school leaders and religious education teachers. Is it not reasonable for a church authority to be able to insist that persons employed in those positions show respect and due deference to church teachings, even those teachings about sexual conduct (rather than sexual orientation)? Equally ought they not be able to discriminate in favour of teachers who have solid theological training and who espouse social justice, a preferential option for the poor, and a universal love of all persons and creation? The only sustainable objection to employing David as a cleaner in a Church health facility would be that he would spend more time tilting at windmills than mopping the floor.

Frank Brennan SJ 19 February 2013

"what the church is demanding - and Canberra offering - is an opportunity to stigmatise and the right to use public money for the purpose" Exactly. I'm not reassured by Frank Brennan's claims that gay people are treated with wonderful respect, while at the same time regarded as intrinsically disordered.

Russell 19 February 2013

Wellington ...the position of the Jesuits and the school executive was identical to that which Eureka Street itself has on homosexuality? It warmly promotes homosexuality? and regards the Church's official line as outdated and narrow?.It seems to me it's always best to take full responsibility for our own words and thoughts, rather than attributing our words and thoughts, to others.

Myra 19 February 2013

Seriously? As one from the Anabaptist tradition of Christianity, I see no compelling reason to consider what Brennan says is true in relation to religious freedom and the Catholic tradition. Verbal profession on this by Catholics, including Brennan, has not translated into concrete practices as evidenced by the general presumption by Catholics to consider that they should shape the social order in according to their vision,and damned be those who do not fit within their social ordering, the unethical subsidising of Catholic churches by way of a variety of tax exemptions - the list goes on. Certainly, I think there is no problem that religious bodies should be free to practice their faith but when it comes to affecting those who are not of your faith, take a cold shower ...

Danny Klopovic 19 February 2013

"Equally ought they not be able to discriminate in favour of teachers who have solid theological training and who espouse social justice, a preferential option for the poor, and a universal love of all persons and creation?" If a religion teacher with a theology degree is the KSC, then there would be little point in a lawnmowing roundsman applying for the job would there. Is that 'discrimination' or being clear about the pre-requisite qualifications? Social justice is harder to define, given the track record of the church to date. Why prefer the poor, when the greedy rich need so much more help into Heaven? A 'universal love of all persons', except those you wish to discriminate against? Where's the overwhelming 'love of Jesus' gone?

janice wallace 19 February 2013

Marr's response to Fr Frank Brennan's attempt to raise debate on this issue to an examination of suitable constitutional recognition and affirmation of religion, religious belief and religious teachings and subsequent protections in the law of the land lacks credibility. Marr is not trying to debate on the same level as Fr Frank and that should lead us all to ask why? Is it that he can't, or he won't. Sadly, I believe that he won't because to debate Christians he would have to outline his own faith mechanism and he just refuses to allow any scrutiny of while demanding absolute scrutiny of everyone else's.

Fr Mick Mac Andrew 20 February 2013

Dear Frank,

I'll calm right down if Denis Hart puts his signature to your letter.

David Marr.

David Marr 20 February 2013

What a pity that debates generally are not conducted in the same civilised way that frank brennan and david marr have conducted this debate

jl trew 20 February 2013

Fr Brennan says," It would be wrong for a Catholic school to dismiss a homosexual teacher for public non-compliance with Church teaching unless a heterosexual teacher was also liable to dismissal for the same public flaunting of that teaching." Yet the teachings are different for homosexual and heterosexual people, are they not? Therein lies the conundrum. Not everyone is called to be celibate. The church has to somehow find a way to deal with this. Pope Benedict's brave and radical opening up for discussion of the relationship between eros and agape may be a starting point that could lead to better understanding of what still eludes us.

AURELIUS 20 February 2013

With all respect to those opposed to any exemptions for religious bodies, I think the bottom line for the good of all citizens in a pluralistic society should be that an education provider be entitled to insist that any teacher support the legitimate purposes of the school and not publicly oppose those purposes. Faith based aged care providers in allocating places in their facilities should be able to take into account the sensitivities of present residents when allocating future places, provided there are places available in equivalent non-religious facilities. To deny either of these liberties, the State would be unduly prescriptive warranting the appellation "nanny state with the big stick".

Frank Brennan SJ 20 February 2013

'Freedom' comes in two varieties - 'freedom TO' and 'freedom FROM'. The former is characteristic of the American approach - 'freedom TO bear arms' being perhaps the most extreme example. The latter is the more valuable, and at the same time, more challenging, because it is the more difficult to provide - 'freedom FROM hunger' is perhaps a good example. Thanks largely to the Enlightenment, when we in the West talk about religious freedom, are we are usually talking about freedom TO practice. But it wasn't and isn't always so; in other times and places it was very much about freedom FROM discrimination and persecution, often at the hands of religious or religiously motivated bodies. And while the lack of either variety of freedom is to be regretted wherever and whenever it occurs, the former is much easier to work around than the latter as, for example, in the underground Catholicism of Puritan Europe of the house churches of Communist China. It is the 'freedom FROM' discrimination and persecution that must be assiduously defended, and that includes freedom FROM discrimination by religious bodies. As Janice Wallace says in her post of 19 Feb, there are plenty of existing ways for a church or mosque to insert legitimate requirements in selection criteria without improperly discriminating; they don't need some sort of blanket exemption on the basis that they are a faith community. Religious bodies don't need any special freedom TO discriminate.

Ginger Meggs 20 February 2013

Danny Klopovic, I've worked in several Catholic schools and several Catholic welfare organizations in three different states. I've been associated with many more. I can confirm what Frank Brennan says. Their practices are proudly inclusive, and when there are unfair practices they fall on every employee regardless of religion, sexua, lthe employment of direction etc etc. The exception would be that a popular and effective teacher in a Catholic secondary school was terminated when she invited several student to her wedding to the divorced man she'd been living with. This was regarded, I believe rightly, as a public flouting of the laws of the Church. How could she be an effective role model for the girls at that point? Her practice refuted the theory she'd been teaching them, and her very popularity and effectiveness meant her influence was very strong. Yet until she openly demonstrated to her students her divergence from Church teaching, she'd been accepted and valued by the governors of the school despite her known 'extra marital' status. I passionately agree that there must be no discrimination in initial employment practices. However, once employed, the organization must be free to act against an employee who publicly works against the legitimate aims of that organization, and the Catholic school is the only place I can see that becoming an issue. (Well, unless David Marr or another staff member puts a pillow over the face of an aged care resident, which would also be against the aims of the organization, probably).

Joan Seymour 21 February 2013

Thank you, Frank, for the history lesson, which clarifies the issue for me. Now I get it! Eureka!

Joan Seymour 21 February 2013

So Joan, as Aurelius said a few days ago, whatever one does is OK so long as one is deceitful and keeps it under wraps, but if one is honest enough to come out in the open it's bad news! Surely the rationale behind the teachings of the Church are not so dodgy that the marriage of a teacher of secular subjects to a divorced man puts the rationale at any risk of being demolished. Or are you worried that her students might have been tempted to think for themselves?

Ginger Meggs 21 February 2013

i notice you didnt mention sacking female staff and hiring catholic men to run a young girls refuge out west!! -oh - they did offer some jobs back to the fems -but a 'sign the mission statement' which was catholic faith based was the barrier to getting their jobs back!! -one woman did sign to keep her job -another had to look for another job -another woman did challenge this -but settled out of court -when the church was challenged about this -they said although they do have an exemption from the discrimination act about a girls refuge -they said on that occasion they chose not to exercise it !! -maybe that refuge has boys in it too now -i see that is part of church policy -oh except for aged nuns and alcoholic men -why wouldnt the church respect the fem refuge as fem space? -if taking public money in a secular society -it is a must to keep your faith out of it

susanne 21 February 2013

Aurelius: Please clarify what you mean when you say Church teachings are different for homosexual and heterosexual people.

John 22 February 2013

Last night's discussion of discrimination and freedom of religion on the ABC program "Sunday Nights" with John Cleary commences at the 14 minute mark on http://mpegmedia.abc.net.au/local/sundaynights/201302/r1077721_12776813.mp3

Frank Brennan SJ 25 February 2013

Heterosexual people can hope to find loving fulfillment in a permanent, church recognised relationship and express this in a sexual way. Homosexual people are told they must remain celibate (unless they change their human nature and become heterosexual)

AURELIUS 27 February 2013

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