Freedom of religion is firmly back on the agenda. But it is a Pandora’s box. Oddly enough, Barnaby Joyce got it almost right this week when he said that Rugby Australia’s sacking of Israel Folau “got a lot of people annoyed. People were a little bit shocked that someone could lose their job because of what they believe. It made everyone feel a bit awkward and uneasy.”
I say “almost right” because Folau did not get sacked because of what he believes. He got sacked for EXPRESSING what he believes. Rugby Australia does not care less what people believe or what church or mosque they go to or do not go to.
The awkwardness and unease does not arise from Rugby Australia’s sacking of Folau for his religion. Rather it comes from a big corporate employer sacking an employee for what that employee SAYS, not what religion they practice.
Folau’s case is a freedom-of-speech matter, not a freedom-of-religion matter. His Tweet about homosexuals going to hell was not an exercise in the practice of religion but an exercise in free expression. But it is being used disingenuously by some Coalition politicians as a case that illustrates the need for wider freedom-of-religion legislation.
What if Folau had been sacked for saying something like, “All climate change deniers/aherents deserve to be jailed for life.”
It is much the same thing. A big employer wants to stifle the speech of its employee.
When all the worms in this can and all the fury of this Pandora’s box are thoroughly picked over, once you protect freedom of speech, freedom of assembly and private property (within reasonable bounds) freedom of religion is automatically protected. If people are allowed to gather peaceably and express whatever thoughts they want and permit or not permit whomever they want on their private property (provided they do not unreasonably infringe the rights of others) what more do you need to protect freedom of religion?
Nothing, I say.
But some Coalition politicians want more. The questions are: How much more and on what basis do they want more?
If you want to push freedom of religion beyond free speech, assembly and property what do you accept?
What if I am a fundamentalist Mormon and say freedom of religion means I can have several wives? Australian law at present says No. What if I am a fundamentalist Rastafarian and say freedom of religion means I can possess and smoke as much marijuana as I want? Australian law at present says No. What if I am a fundamentalist Christian and say chastisement of school children by corporal punishment is acceptable? Australian law says No.
What if I am a fundamentalist Muslim school principal and say I will not employ female teachers? Australian law says that if your school is taking public money, then No.
So freedom of religion or speech or assembly must come within limits and be balanced against other freedom and rights.
Freedom of assembly does not mean 20 people can block the Sydney Harbour Bridge. Freedom of speech does not mean you can publish defamatory known falsehoods about somebody else or yell Fire in a cinema.
Freedom of contract, as Barnaby Joyce, points out should not permit an employer to prohibit the expression religious beliefs of an employee on pain of dismissal. If so, surely freedom of contract should not permit an employer to prohibit the expression of political beliefs on pain of dismissal.
So this freedom question will be a welcome debate. The Coalition politicians so far just want legislation allowing religious organisations to determine who they employ and who can be their education customers and to allow them the “freedom” – that is, to have no legislative restraint – to discriminate on grounds of sexual orientation, race or religious belief.
As an individual property owner (or lessee) I am entitled to invite or exclude whomever I want on whatever grounds I want to come on to my property. I should be entitled as a private self-funded club to do the same thing. I should not have to provide a disabled toilet in my house or club just because I invite people to dine.
But once I take money from the public purse or hold myself out to the whole world as a profit-making organisation with the benefit of publicly provided limited liability, everything changes. Taxpayers are entitled to demand that the organisations they fund or grant limited liability to meet certain standards. They cannot exclude Catholics. They cannot exclude homosexuals. An organisation that seeks to make profit under limited liability from the world at large must meet certain standards. They cannot exclude whites. They cannot exclude the disabled.
Even if you take no public money, you cannot inflict violent corporal punishment in the name of religion.
So bring on the debate. If some people fear that they cannot practise their religion let us define what the practice of that religion is. And fear is the issue.
Just as some religious minorities have fear, so do a lot of other minorities.
More important than freedom of religion, speech, assembly and property is freedom from fear.
That should be the triumph of liberal democracy – that our people are free from the fear of repression, violence and economic discrimination on the grounds of difference, whether religious, sexual or racial.
So let us not generate new and greater fears of repression, violence and economic discrimination under the guise of religious freedom. Let us not allow organisations that take public money be allowed to exclude students, customers and prospective employees or inflict corporal punishment on the grounds of religious “freedom”.
Yes, let’s open this Pandora’s box and can of worms. Let’s have a debate about freedoms. If you can gather on whatever private property you want and spout whatever doctrine you want (which you can now do in Australia) what more religious freedom do you need? None.
But we sure do need some extra freedom of speech now that the judiciary has reimposed the chill of massive defamation damages (the $2.9m Rush case) in defiance of what our elected representatives decided in 2006 to limit damages to an indexed $260,000.
If there is a freedom issue in Australia it is speech not religion, as the Folau and Rush cases amply illustrate.
This article first appeared in The Canberra Times on 1 June 2019.