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Religious freedom and secular society

Secularist states and religious institutions ought, perhaps, expect to find themselves in conflict. In the age of enlightenment the risks associated with too much proximity between executive and religious functions were thought to be obvious. Criticism of the one ought never to be capable of suppression as a kind of blasphemy.

This is a fundamental tenet of representative democracies. Nonetheless, governments often seek a kind of intimacy, recognising the power of the one to buttress the other.

It is sometimes overlooked that the Australian Constitution, while deliberately silent on other than Common Law or equitable protections for individual civil or human rights in our system of government, made a very significant exception in prohibiting the imposition of religious tests upon would-be holders of public office.

Even in the 19th century, when the Constitution was drafted, the iniquity of excluding not only Catholic and non-conformist Protestant but other religious adherents from public duty unless they subscribed to the 'Thirty Nine Articles' was self-evidently destructive.

This limited 'freedom of religion' right has been forgotten because society has changed and relatively few people are prepared to find it acceptable to exclude anyone from public life on the basis of private belief.

Of course, religious faith has a public aspect too: in religious dress, ceremonies, and activities such as evangelism and missionary services incorporating practical social help to the vulnerable.

Churches were actively involved in a broad range of charitable and privately-funded works. But over the years, many of these have become government activities — the care of orphans, welfare provision (once based on diocese or parish bodies) and hospitals, for instance — or government-planned and -funded services.

By the late 20th century, vastly increased migration and diversity in communities, and the horrendous evidence of the evil of religious and racial hatred — not only the persecution of Jews but also Jehovah's Witnesses and other religious sects that did not acknowledge the supremacy of the state over religious principles and values — led Australia to exempt religious institutions from many secular laws, including taxation and property laws protected by Acts of Parliament.

The rise of anti discrimination laws saw such immunity extended to the otherwise essential obligation not to discriminate against members of vulnerable groups.

In Victoria these exemptions under the Victorian Equal Opportunity Act are under review, and some of the proposals, canvassed in a Parliamentary Discussion Paper, have caused a furore. Essentially those religious institutions that have historically benefited from their privileged position vigorously oppose their reduction in any review.

Remembering that the exemption from the duty to discriminate was originally devised by governments to protect (initially) individual religious people's right to believe (private), worship and promulgate their faith (public) it makes sense that Equal Opportunity permits them to do so in many circumstances.

The recommendations canvassed by the Scrutiny of Acts and Regulations Committee of the Victorian Parliament's discussion paper have been influenced by the Victorian Charter of Rights and Responsibilities but leave the government, faith groups and the community with a need to balance.

For example, its explicit recognition of both the fundamental individual rights to freedom of thought, conscience religion and belief, but also the right of human beings not to be subjected to discrimination on any ground, including religious belief or practices and all the other protected characteristics, such as age, sex, sexual orientation and family responsibilities or marital status.

The problem arises in two aspects. One is the proposition that some 'religious' activities are actually secular activities to which exemptions should not apply, and others are 'core' or intrinsic to religious practice, such as the appointment of persons to be involved in religious ceremonies and responsibilities. This clearly covers not only selection and appointment of ministers/priests but also other lay or non-ordained or anointed participants in religious rituals.

These exemptions have been broadened and (reflecting the power of Church-established schools in the 19th and 20th centuries. Section 75 (3) of the Act, first passed in 1977, allows religious institutions to discriminate (on any ground) in employing people in educational institutions if they are directly under 'A body established for religious purposes'.

For the reasons set out below, the discussion paper suggests this exemption should be contained, as it also recommends in relation to much more recently amended Section 76, which extends the same, very broad exemption to schools established 'to be conducted in accordance with religious beliefs or principles' — but not owned or governed by a religious institution.

It's worth mentioning that this amendment was enacted after a high-performing, otherwise conformist final year high school Victorian student successfully complained against one of these 'para-religious' schools of sex discrimination (it ended in the Supreme Court) over the issue of his being victimised because his neat haircut was about as long as a female student's. This at the hands of the principal of a quasi-Anglican, publicly funded, private school that was not under a religious body's direction but valued its quasi-Anglican status.

The Discussion Papers' argument that religious exemptions should be limited is based on number of principles, including:

  • The need to balance tensions between freedom of religion and to equal treatment
  • The timeliness of examining whether 19th century blanket exemptions benefiting religious institutions which, for example, employ lay people on secular tasks or in schools, are appropriate in a newly diverse society in which the importance of institutional religion is much less important to a majority of the community
  • The state's increasing predisposition to contract out public services — health, welfare, employment of marginalised people, health and child protection services — funded by the state to 'religious organisations' which may not be under the direct discipline of a church or other religious group
  • The need to emphasise equality, perhaps more than heretofore, against religious privilege in such organisations.
  • The prevalence of the practice in some religious organisations to employ or dismiss any of staff on the basis of their private lives, such as de facto living arrangements, out-of-wedlock pregnancy, sexual orientation, or marital (i.e. divorcee) status. This is defended on the basis that any 'service' can be a religious vocation and that a 'religious environment' should extend to anyone in the organisation. With respect, it is difficult to see the relevance of such beliefs or lifestyles in, say, a para-religious institution that employs someone as a cleaner, gardener, housemaid or administrative clerk.
  • The concept of separating out (private) religious and (public) a religious body's' sponsorship of secular activities. The paper suggests a division between 'core' (that is, in-house) religious functions and extended or 'non-core' activities, such as publicly funded service-delivery or universal services, for which it suggests the burden of proving its 'inherent religious nature' ought to lie upon the group seeking an exemption, rather than a blanket privilege.

Here, there may be a point, but perhaps the principle is flawed. A spiritual or religious person seeks to live and work in accordance with their (private) religious beliefs, in a community that acknowledges their right to worship in public. The suggestion is that provision of services to the public is not 'core' to the demonstration of a religion in observance or practice.

Most major religions require believers to act out their faith in care for the poor, the widowed, the fatherless, the sick and refugees. Christians and Jews are told to love one another, and to 'act justly, love mercy, and walk humbly with your God'. The whole of a believer's life includes the spiritual and indivisible.

With some temerity I suggest that the true distinction between institutions entitled to blanket as opposed to merit-based religious exemption ought to lie in whether or not, on a day to day basis, it is religious values and faith upon which services are planned, provided, and evaluated, rather than meeting a contractual arrangement with a completely secular government.

On this basis, religious bodies running employment or treatment services should question whether it is a core part of their religious purposes — and if so, seek that exemption.

The Committee's discussion paper suggests, controversially of course, that 'patriarchal institutions' have contributed so powerfully to the inequitable treatment of women (not only women, of course) that they should become a little less comfortable in their protected position, to achieve socially necessary movement towards a more equitable society.

Essentially, Christian churches have voiced the loudest objections to any limits on their impunities, and argue against the Discussion Paper proposition that for example 'para-religious' organisations, such as NGOs providing aid to the distressed here and overseas, should be protected in the name of individual religious freedom.

They do not like the 'cold steel' suggestion that blanket exemptions should largely depart and that they must establish the 'reasonableness' of the proposed discrimination, that is reasonably necessary in terms of the doctrines and sensitivities of the particular religious group, vis a vis the equality objective of secular human rights laws.

What do our major religions have to fear from changes to equal opportunity law? 'Render unto Caesar that which is Caesar's, and unto God that which is God's', may we say.

The challenge is a worthy and a practical one: in what way do the activities of religious institutions actually reflect the values of their prophets and visionaries: the human beings who, in the Christian instance, chatted with a Samaritan woman at a public well, respected and placed women among his disciples, socialised with 'sinners and publicans' some of whom became his apostles, wept over the dead, and embraced and healed society's lepers and other outcasts, without discrimination.

Moira RaynerMoira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.


Topic tags: Moira Rayner, equal opportunity, victora, ngos



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