8 October 2021
When it comes to freedom of expression, I live by a very basic credo: I will respect your opinions and beliefs (even if I disagree with, or am offended by, them) unless and until you impose those opinions or beliefs on me.
‘Respect’ is not the same as ‘agree’ or ‘accept’. It means that I believe you have a right to speak, and that that right should not be removed, just because your opinions and beliefs are different to mine, and/or are repugnant, offensive, hurtful, or just plain dumb. By extension, I also believe that others, who may wish to hear or understand your views, should not themselves be silenced (or face some other form of censure merely for listening, or giving on outlet, to those opinions or beliefs).
However, my credo comes with an important caveat: respect is a two-way street. You must respect my right to my opinions and beliefs, including those which are expressed in response to your opinions and beliefs.
Australia’s federal government has indicated that it intends to progress its proposed religious freedom laws; I use ‘freedom’ advisedly (read on). Significantly, this new law (if passed) will override State laws purporting to regulate discrimination on religious grounds. Much of the legislation is modelled on federal anti-discrimination laws in place to outlaw discrimination on the grounds of a person’s disability and sexuality. In very ‘dumbed-down’ terms, such legislation prescribes broad prohibitions against discrimination on the grounds of religious belief, but also contains a range of exceptions that permit ‘discrimination’ in particular contexts.
I say, ‘much of the legislation’, because the new laws go beyond merely prohibiting discrimination based on a person’s belief. In effect, the laws elevate a person’s religious belief above other statutory rights enjoyed by Australians such that an individual and his/her associates (which, by definition, extends to corporations and entities, like churches) may not only express freely their religious beliefs in a manner which is discriminatory, and potentially harmful to the wellbeing of others, but also be protected from operation, not only of the new religious discrimination laws, but also other laws that prohibit discrimination on the basis of race, disability and/or sexuality.
For balance, I must acknowledge that the laws offer protection for ‘non-religious’ statements of belief as well. This post is not a legal analysis essay, but suffice to say that, as drafted, those who seek protection under these laws for promoting ‘non-religion’ or making criticisms of others based on their beliefs are in for a tougher time – in a practical sense – if faced with claims of discrimination against them. Therefore, for me to make a non-religious statement of belief in relation or response to your religious belief, I have to establish that my particular view is one that others of a similar non-religious view might hold in order to have the same protection that your statement of belief enjoys.
I have two key objections to these proposed laws. First, I question why ‘religious’ belief is deserving of special treatment.
Race, ethnicity, disability (of all forms) and/or sexuality are not (despite what many of a religious bent might suggest) matters of choice. These are elements of a person’s life either that they inherit (by virtue of his or her parents), are a result of matters beyond their control (accident, natural disaster, illness) or the way their brains are wired.
Religion and religious belief are not things that are similarly intrinsic. No doubt, many will argue that they ‘had no choice’ but to adopt a particular religion due to parental direction or influence, cultural practice or even state dictate. At best, that argument has a limited shelf life. A belief is, ultimately, something you choose, affirm, or reject, at some point. Beliefs do not exist inherently in our psyche. As intelligent (relative to other creatures on Earth) beings, humans learn about a belief (and the rules that go with it) and have the capacity to decide whether to adopt, not adopt, or reject, that belief; it is not hard-wired on our brains. You don’t wake up one morning and say ‘well I’m a Christian/Muslim/Buddhist today’. It is something that you come to, learn about, and then decide to follow – or to not follow, as the case may be.
But humans with a disability cannot choose to reject their disability, people of colour cannot choose not to be a different colour, people of an ethnicity cannot choose for their ancestry to disappear, and, while they may try or be forced to do so, people cannot choose their sexuality. Prejudice and discrimination because of race, ethnicity, disability and/or sexuality are inherently unjust because the individual who is discriminated against cannot separate him or herself from his/her race, etc., cannot remove his/her disability or sexuality by choice or design.
Therefore, I struggle to see how one’s religious belief is equated with race, ethnicity, etc. and indeed, in the case of this proposed law, elevated not just above other beliefs but above elements of an individual’s being that are intrinsic to them. Yet, this legislation will allow a religious adherent to say to a person suffering a disability that their disability is due to their own sin or unwillingness to follow that adherent’s particular brand of religious practice or code, or that of their parents, and, if that view is said to be ‘genuinely held’ and one that others of the same religious brand would also hold, then this new law grants them impunity to do so. Similarly, it will be permissible for religious adherents to declare that LGTBI people are inherently sinful (or worse) and will experience eternal damnation. That is hard enough to hear for a relatively strong adult, but imagine what such statements do to a child, or someone who is not so strong.
I acknowledge, fully, that some adherents to a religion are devout, and that their faith in their god and the teachings of their religion are so strong that they do not see themselves as ‘free’ to not believe. However, I know adherents of political and spiritual ‘isms’, of many forms, who approach their beliefs with the same devotion and fervour. Why are they less deserving of legal protection for adhering to their beliefs?
To argue that one’s religious beliefs ‘come from God’ and are thus superior to more ‘human-originated’ beliefs is, at best, self-serving and, at worst, ridiculous. If you are someone (like me) whose beliefs sit somewhere between atheist and agnostic, then someone telling you that their beliefs come from a god is a little like a child telling you that they are not going to eat their vegetables because their imaginary friend said that they were bad. Most religious devotees start with the notion that there is one true ‘God’ and that ‘he’ (it always seems to be a ‘he’) mandated the code and teachings that govern their way of life. But there are many religions, and if all of them are somehow ‘more’ divine, then that rather suggests that there are a multitude of gods (which rather undermines the ‘specialness’ of a given religion), or it suggests that the religions – other than the particular one followed by the subject adherent – aren’t worthy of any protection above and beyond a sporting club or political party, as they really only represent a community of interest or activity.
My second objection is more fundamental. If one accepts that every country or even community needs laws to govern how we deal with one another, and how decisions about all manner of things are to be made, then those laws must apply equally to all. If laws are to apply to special groups, communities, or interests, then they should govern just the interests of such groups, communities, or interests, as amongst themselves, or apply in a manner that enable that group, community, or interest to participate in the wider community in a manner that would not otherwise occur, if such laws did not exist.
Laws should not be about giving particular groups, communities or interests special rights or immunities that are not available to those who are members or participants in such groups, etc. Laws should certainly not offer individuals immunities from, or relaxations of, laws operating for the benefit of the community generally, simply because they can assert that they adhere to, or are part of, a particular section of the community identified by belief. And yet, this is exactly what the Federal government’s religious freedom/discrimination laws offer.
Australia is not a theocracy, and there is no mandated religion; we are a secular country, some of whose citizens are adherents to a religion or religious belief. We are not a country which has heresy on our statute books, and while blasphemy is part of the law in some States, no prosecutions for blasphemy have been made since the 1870s. Further, we pride ourselves on being a community of many ethnicities and cultures, which each have a place. Certainly, religion is an identifying factor in some of those cultures, but it is not the identifying factor.
While the religions and churches that operate in our society will beg to differ, it is clear from Census data that most Australians either identify themselves as non-religious or acknowledge that they are not ‘practising’ members of the religions with which they identify. Why then should a minority of people, who happen to hold religious beliefs, enjoy special benefits and immunities in the eyes of the law?
Our Parliaments and courts have, over time, made very clear that there is only one set of laws that ultimately have teeth – and they are the ones made by Parliament and through the common law. There is not a separate set of laws, applying to the faithful, that exempts them from the operation of the laws of the state, and my view is that there should not be. Laws that give particular citizens protection from sanctions and restrictions that apply to everyone else, based on something as incorporeal as a ‘belief’ or a ‘faith’ sends us on a dangerous and dark road.
For context, it should be noted that the genesis of this proposed law was the marriage equality (i.e. gay marriage) debate in Australia, and the perception by some churches and religious entities either that they faced persecution for their opposition (and thus now need some legal protection in order to continue advocating their religious faith), or that they would be ‘forced’ to accept the new reality of not being able to discriminate against those gay couples who became legally married, or sought to do so. If indeed this was the rationale for the law, then whoever agreed to it is guilty of a massive overreaction.
First of all, while marriages in Australia do take place in churches or are officiated by clergy, the state of marriage in Australia is, in fact, a civil matter: its legal status stems from statute, not church edict. The church might still be the venue for some marriages but it is not source of them. Secondly, apart from their ignorance and bigotry being pointed out, there was no persecution of religions, and there was nothing in the laws expanding the definition of marriage that gave couples a right to force any church or religious body to conduct gay marriage in their churches. Finally, the existing laws already prohibit discrimination against people, in terms of the provision of goods and services, based on their sexuality, and no religion presented any case as to why it should be exempted from this.
In the end the impression I have is that religions – for so long used to be able to dictate to its adherents and the secular community more broadly on a range of issues – now fear their impotence and minority, and the reduced influence that it has over all our lives. This legislation is some last-ditch effort to maintain some of that influence. As things sit right now, people may worship who they like and in the manner of their choosing, if it is within the laws of the land, laws made with the interests of the community as a whole in mind. I respect and support the right of each person of faith to worship and practise their religion, but I reject and oppose the notion that they may impose that worship and religion on me and those that I love, without sanction.
With any luck, this legislation will be consigned to the ‘never was’ bin in Parliament, where it belongs.
