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Religious freedom is not a zero-sum game



The purpose of the Ruddock review was, in part, to placate those who felt threatened by the passage of marriage equality, as illustrated by the absence of any LGBTI people on the panel. The review has undoubtedly spurred a debate about religious freedom, but it inadvertently highlighted the discrimination faced by gender and sexually diverse people to a broader audience.

A conceptual hug of porcelain with variety of colours (Karl Tapales, Getty Images)Attempts to downplay the report have instead drawn attention to the fact that religious organisations and schools are largely exempt from anti-discrimination laws, allowing them to discriminate against students and employees based on their sex, sexuality, gender identity and relationship status. Schools have used these laws to refuse students with same-sex parents, to expel gay students and to sack gay teachers.

Such laws are out of step with community values. The overwhelming majority of Australians do not support discriminating against gay students and teachers, a point summarised in a joint letter from 50 LGBTI organisations: we no longer consider it fair to treat people differently because of who they are.

The laws also harm the health and wellbeing of gay people. LGBTI Australians are more likely to experience anxiety and depression, and to self-harm and attempt suicide. These adverse health outcomes are directly related to discrimination, harassment and stigma. Fear of rejection and feelings of shame directly harm young gay people. However, the discussion has revolved around talk of religious freedoms.

Some religious leaders have insisted that the exemptions remain. Anglican Archbishop of Sydney Glenn Davies argues that 'church schools should not be forced to play by secular rules'. Of course, the freedom to adopt, practice and abandon religious beliefs is a human right. As such, it should be protected in any future bill of rights and deserves inclusion in anti-discrimination legislation.

However, as is recognised in human rights law, religious freedoms extend only so far as they do not contradict the fundamental rights and freedoms of others. While all Australians should enjoy religious freedom, they also bear the right to non-discrimination and a right to the highest attainable standard of health.

Further, it it is unclear at first glance how positive discrimination is related to practising a religion. Some, including some ALP senators, argue that it is about maintaining a shared ethos. Shared beliefs are essential to religious communities, but these arguments would only apply in a limited number of cases.


"In the end, it is not a zero-sum competition between religious groups and gay people, but instead a conversation about the kind of society we want for all Australians."


For instance, it makes sense that a religious organisation may wish to ensure that the beliefs of its priests or clerics align with doctrines of their religion as a requirement of their job. However, such an occupational requirement does not apply to education generally, ruling out discrimination against students, teachers and other employees.

Similarly, some argue that discriminating against some people is necessary to preserve a particular religious identity. However, enforcing orthodoxy in this way looks a lot like punishing apostasy and heresy, to say nothing of the logical acrobatics necessary to argue that adherents should be allowed to discriminate while faith-based discrimination should be illegal.

Interestingly, the Ruddock review suggests that schools be allowed to discriminate so long as it is in the 'best interests' of the child, begging the obvious question — when is it ever in the best interests of a child to experience discrimination? Never, arguably. Simply put, religious freedoms do not include a licence to discriminate.

The Morrison government has claimed that it will remove exemptions targeting students, and Labor has suggested amending exemptions targeting teachers. However, the issue is more significant than this: religious organisations can also turn away LGBTI people from essential resources including adoption, disability, housing and family violence services.

These are not private religious practices, but public services which religious bodies voluntarily offer. It is reasonable to expect that groups operating in Australian society should adhere to the same rules as everyone else, which means serving clients first and foremost as human beings in need. Everyone deserves to be treated fairly.

While pundits have framed the issue as a contest between religious groups and LGBTI people, this brushes aside the reality that many LGBTI people are themselves religious. After all, the most likely targets of the exemptions are people within religious organisations and schools. People should be free to engage with their community, express their faith and live openly without fear of intolerance.

The laws should be amended to narrow the exemptions, but we should also cast the net wider. Protections for gay, lesbian, bisexual, transgender and intersex people should be extended not only to students and teachers but to employees and clients more generally (priests and clerics excepted). In the end, it is not a zero-sum competition between religious groups and gay people, but instead a conversation about the kind of society we want for all Australians.



Joshua BadgeJoshua Badge is a lecturer in philosophy at Deakin University. Follow him on Twitter @joshuabadge



Main image credit: Karl Tapales/Getty Images

Topic tags: Joshua Badge, freedom of religion, discrimination



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Existing comments

I'd hazard a guess that the great majority of people who commit to belonging to a religious denomination do so out of a sense of calling. That means a personal relationship with God and a desire to share joys and trials with like-minded people. Sexual orientation should not be part of that equation. And when it is it diminishes joy and exacerbates tension. All people do deserve to be treated fairly and certainly LGBTI people, not only within churches but in wider society, face discrimination. Governments can pass laws to protect people but ultimately we each have to make a choice. To be people who refuse to discriminate or not.

Pam | 18 October 2018  

According to the author, "Schools have used these laws . . . to expel gay students and to sack gay teachers." I can't speak for all schools but I can say I know of no Catholic school that has expelled a student or sacked a teacher simply on the basis of sexual orientation. Sean Slavin's reminder that the Catholic Church " . . . responded to the AIDS crisis with compassion and bravery when there was scarce of either in the mainstream community." ("The religious freedom of LBGTIQ Christians", ES, 17/10/2018) should help disperse misconceptions and allay fears of systemic homophobia or transphobia on the part of Catholic education, as should Jo Hart's alerting of resources " . . . to support schools in the pastoral care of SSAGD young people", providing them " . . . with clear policies and guidelines on how to do this in line with Catholic moral teaching." ("Catholic schools' quest for LGBTIQ inclusion", ES, 16/10/2018).

John | 18 October 2018  

Lawyer Chris Merritt wrote correctly, “Religious freedom is a right, just like any other. It is just plain wrong to treat it as we currently do: a form of discrimination that operates as an exception to the law.” Religious schools and churches should have basic freedoms in terms of who they hire and fire. A Christian school should be under no obligation to admit or retain students who defy its principles and values. Joshua Badge also calls freedom of religion “a human right.” He then diminishes that right by stating “religious freedoms extend only so far as they do not contradict the fundamental rights and freedoms of others.” And by that sweeping statement, his rights trump religious rights. Cultural Marxists and homosexual activists have long sought to neutralise Christianity, and it would be naïve to believe they will stop at students. Fortunately the Norwegian Supreme Court has just recognized a fundamental right to conscientious objection protected by international law, and the UK Supreme Court has held that people cannot be forced to act against their conscientious beliefs. But will our politicians take note or cave in to activists?

Ross Howard | 18 October 2018  

In a situation where we have one fundamental human right pitted against another fundamental human right the resolution is not an easy one.

Margaret McDonald | 19 October 2018  

Ross Howard, Nietzschke's stark pronouncement, "God is dead", is challengingly accurate insofar as it calls attention to the increasing indifference to God and religion in the post-modern West, and the Marxian substitution of activism for truth; or, in other terms, the substitution of fundamentally secular notions of social justice for faith. The lamentable failings of Church members, including some in leadership roles, but also many Catholic academics in their failure to uphold the Catholic insistence on the relationship between faith and reason that is vital in the sphere of education have contributed significantly to this sorry situation - one only recoverable, I believe, through re-discovery of that decisive relationship, along with prayer and fasting. The Norwegian Supreme Court ruling is good tidings, as is the nascent renewed interest in metaphysics heralded by writes like the Dominican Fr Thomas White. It will be a long abut more than worthwhile haul, but I think it has begun.

John | 19 October 2018  

Non-discrimination for gay students goes hand in hand with the same for gay teachers. Imagine a gay student approaching his HSC at an independent school, pondering what career he might take. He knows that being gay is no obstacle to him becoming a High Court judge, a medical specialist, an international diplomat, a member of Federal Parliament, or the CEO of a national airline. Everything is possible, except for one thing - he loves teaching. What a cruel absurdity if, no matter how brilliant a teacher he ever became, he might never be allowed to teach at his old school. The right of a gay student to attend any school is inseparable from the right of a gay teacher to teach at that school where he himself was educated.

Lee Andresen | 19 October 2018  

“Religious freedom is a right”. Definitely. It is in the Australian Constitution, one of the few rights we definitely have – freedom of and freedom from religion. Most of our “rights” have some degree of limitation based on the values of our society where they come up against other rights. The implied right to free speech is limited by laws on advertising, libel, incitement to violence and hate speech, among others. You can’t just say anything. The implied right to free association is limited by laws designed to protect us from criminals and (so we are told) terrorism and even by police “move on” powers that in some cases protect us from ourselves. The rights of parents are limited by laws designed to protect the best interests of children. Thankfully our Constitution does not have the American right to bear arms. Instead of a Bill of Rights, we have Parliaments and the Courts to clarify the extent or limits of our rights. It is a means of settling issues that works fairly well most of the time. So when someone writes that religious rights and freedoms should not be limited by the fundamental rights and freedoms of others, I have to ask why not? They are ignoring the reality that we live in a society of various beliefs and opinions. Treating religious rights in any other way would itself be an exception.

Brett | 19 October 2018  

"What a cruel absurdity if, no matter how brilliant a teacher he ever became, he might never be allowed to teach at his old school." With the greatest respect Lee I don't see that it is, if he can no longer in conscience accept the ethos of the school as his employment agreement requires him to do. And this applies even if (or perhaps especially if?) his conscience was actually formed by his education at that very same school. The case of a same sex attracted student is entirely different unless and until he/she signs a similar undertaking. My own daughter actually declined to sign her senior school contract at a Catholic girls' college as it required her to commit to not associating with anyone engaging in particular behaviours (in this case drug taking). She argued that she could not in conscience turn her back on friends in that situation. We need as a community, especially a Christian community, to be willing to take our commitments seriously.

Margaret | 19 October 2018  

Joshua, so much of what you say is unarguable. Of course religious rights - like most other rights - have limitations. Deciding where the limit lies is the subject of ongoing dialogue within the community, and isn't a problem to be resolved by denying completely the rights of one party or another. However, the current conversation around the Ruddock Report seems to be missing the point. 'Religious rights' or 'religious freedoms' doesn't mean the same as 'freedom of religion'. Freedom of religion is one of the bulwarks of a liberal secular democracy like our own. Freedom of religion means the right to choose to think freely, choose which religion or none, freely practise your chosen religion or no religion. (The limit on this freedom is the safety of others - freedom of thought is inalienable, but freedom of action isn't. I may be a devout practising Muslim, but if I believe in beheading infidels, I may not act out of that belief in a secular democracy). Without a demonstrable commitment to religious freedom, enshrined in law, we could become Pakistan, or mediaeval England, or 17th century Spain. The problem being addressed by the Ruddock review isn't 'religions don't have enough freedom to persecute or exclude'. It's 'religious freedom in Australia has insufficient protection under the law'. One statute in the Australian Constitution, a statute that only applies to legislation made by the Federal Parliament' does not protect us from possible legislation by State parliaments. State Constitutions don't have any freedom of religion statutes. That's the problem, and if we insist on ignoring it, we leave ourselves vulnerable to parliamentary attempts to impose religions or ban them. Liberal democracy is at stake here, and that's the reason for the Ruddock inquiry.

Joan Seymour | 19 October 2018  

A reply to Margaret. In these arguments about sexuality and schooling, much turns on what we mean by the "ethos" of a school. If we regard the school as a total community of students and teachers, one evidence of an ethos would be found in the quality of relationships between members, whoever they may be, right across that community. Church leaders have said much recently about the virtue of acceptance of gay students. I understand acceptance to mean that each should see the other as fully human, equally capable of some level of good and of moral growth. However your case against gay teachers proposes a school ethos that specifically excludes teachers from demonstrating towards their own colleagues the same quality of acceptance as the school claims should nevertheless be shown towards and among students. That, to my mind, is a logical absurdity. Hence I argue that the case for acceptance of gay students is inseparable from the case for acceptance of gay teachers.

Lee Andresen | 20 October 2018  

An Education should not be refused. All parents should have full right to choose which schools they send their children to. All Catholic church schools should welcome all male, female, and LGBTIQA students. A Catholic education that 'INCLUDES' shining the light of the AVIAL of sexual abstinence, (taught and recommended also to be followed by all unmarried Catholics), as students venture through puberty, adolescence, and gradually into adulthood, is a Catholic church school's obligation. A teaching distinct from 'judging' (Matthew 7:1) the 'orientation of the student'. Whether the student eventually follows this teaching, or not is no reason, and a very, very poor excuse for not welcoming all students in the first place. To not welcome all students, is to not implement Jesus Christ's teaching.

AO | 20 October 2018  

"much turns on what we mean by the "ethos" of a school." Lee that is one of the key points: a school as an employer has an obligation to define this .And if part of that definition is couched in terms of adherence to the teaching of the Church or faith community then that may lead to non employment of a particular candidate.Equally a progressive Christian school might decline to employ as a science teacher a candidate who rejected evolution.It's not about rejecting a person but about deciding on whether they are appropriately qualified for a particular job.

Margaret | 22 October 2018  

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