Ryan T Anderson commentary on sexual orientation and gender identity policies and racism
Invariably in course of discussions on gender orientation and same sex marriage, one is likely to be met with the proposal along the line that says just as in the areas of racism or sexism, the law needs to catch up to treat people with different sexual orientation, equally. The above commentary discusses the differences, and why it is entirely legitimate to want to preserve the right to say one upholds traditional marriage.
Conservatives and politics
Religious Freedom in Australia
Our rancorous cultural politics has ascended to a new summit of absurdity. For days we have been arguing passionately about a report on religious freedom that has not even been released.
Now, an instant reaction is demanded to a full 20 leaked recommendations when we do not even have the accompanying reasoning of the report, with all its inevitable subtleties, qualifications and limitations, let alone any actual legislation accepting, rejecting and modifying the recommendations.
But because the hard Left loathes religion as most people loathe dentistry, any proposal around religious freedom must be sunk before it even sets sail, lest someone actually may analyse it.
This explains the wild scenarios swirling around the ABC and Fairfax Media in past days. Had you credited them, Philip Ruddock would be proposing reintroduction of the Inquisition and burning at the stake. Prominent has been the vile suggestion that faith-based schools are demanding the right to expel gay or transgender students.
No one is arguing this. No one supports it. Australian Christians as a bloc would oppose it, precisely as a matter of faith. But why let reality stand in the way of ventilating outright bigotry? Listening to the usual hobby atheists and faith-phobics, you would believe the idea of protecting religious freedom was the most bizarre since the invention of Big Bash cricket.
Odd, that. In the history of human rights going back across two millennia, freedom of religion always has been front and centre of any list of basic freedoms.
It is, for example, solemnly enshrined in the International Covenant on Civil and Political Rights, the standard inspiration of any left-leaning cultural warrior. Worse, it has its own detailed UN endorsement in the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.
It appears in just about every modern constitution or general declaration of rights from the Canadian Charter of Rights and Freedoms to the European Convention on Human Rights. It even appears in a limited and somewhat idiosyncratic form in our own unexciting Constitution, in section 116.
In short, there is nothing weird about protecting freedom of religion. The reasons are obvious.
First, the most fundamental rights necessarily attach to things that people cannot change about themselves even if they wanted to. Their race. Their embedded gender identity or sexuality. Their sincere, convinced belief in a particular manifestation of God.
Second, a person who is not free to believe what they believe and manifest that belief is less than a human being. They are simply an object of state power.
Third, as a simple matter of fact, more people in the course of human history probably have died and continue to die on the basis of their religion than for just about any other reason, with the possible exception of race.
Mike Carlton will never be executed for being a leftist bore. But Christians and Muslims, to take two obvious examples, are dying in persecutions around the world, even as the Australian loopy Left conjures sexual discrimination from leaked recommendations in an unpublished report.
So it is no surprise freedom of religion is a hot topic. Everywhere. This is true even in Australia. Mercifully, no one is being hanged or beheaded. But for a country that boasts of its record on human rights, our protection of religion is surprisingly scrappy. Hence the Ruddock inquiry.
It is amazing how many semi-respectable lawyers will point to section 116 of the Constitution and say, see, freedom of religion. But section 116, itself limited, applies only to the commonwealth. Any state parliament is free to suppress Methodism tomorrow. And it is in the context of state legislation that issues of freedom of religion overwhelmingly arise. The states control the criminal law. They control schools and hospitals. They can legislate for everything from euthanasia to the seal of the confessional, unconstrained.
True, they all have their equal opportunity and anti-discrimination legislation, and some of this legislation contains inconsistent, incomplete and glancing recognition of some of the implications of freedom of religion. But the reality is that religion receives nothing like the protection accorded to its close cousins in the complex construction of human identity, race and gender.
This, rather than any desire to impale nonbelievers, is why there recently has been a range of proposals in Australia for the better safeguarding of religious belief.
Some people would like to amend the Constitution, a pipedream considering Australia’s divisive history of failed referendums. More hope for a comprehensive, specific act of the commonwealth parliament guaranteeing religious freedom, and make that proposal to the Ruddock committee. This has merits, but also the complication of singling one right out for separate protection; doubtless this would arouse furious opposition.
Still others prefer more modest options: typically, refining the existing provisions conferring limited protection for religious persons and bodies, plus a general but limited guarantee against religious discrimination somewhere in commonwealth legislation. This seems to be pretty much where Ruddock has landed.
Sounds terrifying? No, which is why the official opposition to God has deployed every possible calumny against such a proposal, most notably that it is a weapons platform for an attack on the rights of sexual minorities generally, and the expulsion of gay students from religious schools in particular.
If you cannot make a sensible argument on a basic question of human rights, why not evoke an utter fantasy of projected persecution to distract the electorate from the real debate?
The central fallacy here is that in modern identity politics, rights discourse is absolute. You have a right. I am a rights despoiler. You win. But almost all genuine human rights issues involve the balancing of two admitted rights. I have my freedom of speech. You have your right not to be racially abused.
Just so with freedom of religion. Many religions have their own schools. Within them, they proclaim and live their beliefs. They love their gay brothers and sisters, but their views on sexuality very often differ. Can those schools still freely preach and teach? What if the religion teacher wants to tell his charges that Catholic or Islamic sexual mores are bollocks? These are the real-life issues, not manufactured creed-libels about persecution and discrimination.
So let’s take these real issues head-on. If a religion chooses to run schools based on a religious premise, to which like-minded parents choose to send their children, surely legitimate freedom of religion entitles them to teach their faith. Further, if a person is employed at such a school specifically in a job that involves the teaching or expression of that faith, surely they do not have a right to rubbish it, for whatever reason. Still further, if we accept the notion of Christian and Islamic schools as a matter of freedom of religion, equally surely those schools must be free to hire people who will support their mission, not undermine it.
It is this point of commitment, not the relentless negativity about “sacking” and “discrimination”, that is the crux of the debate. If you respect religious freedom, you must respect the right of religious bodies to hire people who will support their mission. This is exactly what Ruddock’s hugely limited recommendation that religious schools should be able to “discriminate” in the employment of staff means. For discriminate, read hire on mission alignment.
A comparison is with political parties. Should the Greens be compelled to employ as an adviser a person whose interest in whales lies in eating them? Of course not, because such a situation would undermine freedom of political association and expression. If this is reasonable when it comes to political freedom, why is it not when it comes to religious liberty? The answer is that opponents like politics and really hate religion.
Of course, religious bodies need to be reasonable in exercising these freedoms. All of this seems explicit or implicit in the Ruddock recommendations. To pose a few blunt examples, what is to be expected of a religious education co-ordinator at a faith-based school will not be the same as the obligations of a cafe manager at a religiously based hospital.
If a religiously inspired organisation hires someone in full knowledge that their “lifestyle” may be “problematic”, they cannot ethically then sack them on that basis.
And in the context of gay and transgender people, religious types need to understand they cannot take umbrage at them, while remaining complacent about heterosexual colleagues openly contradicting their institutional mission. This really would be discrimination.
The most apparently controversial recommendation in Ruddock is that religious schools should be able to mould their enrolment of students — not expel them — by reference to their religious character. Any implementation of this proposal would require very, very serious consideration. But this unlegislated thought-capsule is profoundly qualified, most notably by the requirement that it be exercised with regard to the best interests of the child. In other words, a school cannot refuse to enrol a gay student because it does not like gays. But an Islamic school might decline an enrolment because it believed the entire belief context of the school and its community would distress and alienate a student. And the genuineness of this belief could be rigorously tested in court.
All of which practically means that for the overwhelming range of religious schools no gay student is going to be refused enrolment. This reflects the existing reality that, to the horror of the ABC, religious schools and other bodies are not the hotbeds of persecution it likes to imagine.
I hate to break it to Fran Kelly, but as a Catholic, I know lesbian couples send their kids to Catholic schools, and are embraced. Gay men are valued colleagues in Catholic education and health providers. Transgender people are employed and loved in Catholic social services. LGBTQI students are valued, respected and nurtured in every Catholic educational context. Nothing in Ruddock will change this commitment.
Of course, one standard furphy is that Australia does not need to protect religious freedom because it is not under attack.
Fact: religion and people of religion are relentlessly attacked in the correct-thought media every day. As in the present debate.
Fact: there are constant calls for the de-funding of religious health and education bodies unless they agree to abide by multifarious conditions contrary to their beliefs.
Fact: most of the states are on the way to abolishing the Catholic seal of the confessional.
Fact: under Victorian abortion legislation, health professionals with religious objections still must participate in the process of referring patients for abortion.
Fact: again in Victoria, the new assisted dying legislation allows conscientious objection by “registered health practitioners”, but other healthcare workers who might be ordered to assist in the process despite religious objections are left without protection.
These are real issues of human rights, not imaginary confabulations. They deserve to be taken seriously. Exactly how one deals with them is a genuine question. A Commonwealth Religious Freedom Act would have the benefit of packaging a fundamental human right, and giving it a visibility and dignity it does not currently share with corresponding rights.
Greg Craven is vice-chancellor of Australian Catholic University and a professor of constitutional law.
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