Ruddock’s Report – The first leak
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An Opinion on Some of The Leaked Recommendations of The Report by The Religious Freedom Review Committee, Set Up to Console Those on The Losing Side of The Marriage Equality Plebiscite.
The context against which this Report needs to be considered is the notion that everyone should be free to hold religious beliefs and to live according to them. It is long settled law in Australia that while we’re free to believe whatever we like, acting on those beliefs is restricted, being subject to laws that have the effect of restricting such freedoms. On this basis on numerous occasions, actions motivated by religious belief have been held to be unlawful.
With membership and church attendance dropping significantly, and the bare majority of Australians who identify as Christians, adopting views on family and sexuality increasingly at odds with Church leadership, it may also be appropriate to distinguish the religious views of religious institutions from their members.
A number of laws currently operate to exempt religious institutions from laws – most notably laws that prohibit discrimination on the grounds of gender, marital status, sex and sexual orientation. Nevertheless, spooked by the referendum result, conservative religious forces expressed concern at what they suggested was an erosion of their religious freedom. In typical Malcolm Turnbull style, the then PM sought to appease this conservative religious lobby by appointing Philip Ruddock, (who as John Howard’s Attorney-General, introduced the law defining marriage as a union between a man and a woman and not as one between persons of the same gender) to chair a review of religious freedom in Australia.
On the basis of information leaked to Fairfax Media, I believe we have much to be concerned about. This is bound to be a Report that tries to appease all parties, and consequently in its entirety is unlikely to win favour with anyone.
1. Religious freedom in Australia found not to be in ‘imminent peril’
One of the positives of this Report is that the committee dismisses suggestions that religious freedom is in ‘immediate peril’.
2. Wedding cakes for same-sex couples
It is also pleasing to see that common sense prevailed over emotive rhetoric, in that the Report warns against adopting the radical proposal to permit businesses to refuse goods and services to same sex couples.
3. The right of religious schools to discriminate
While Church schools already have the right to discriminate when hiring teachers, the Report recommends that this exemption from anti-discrimination laws be extended to a right to ‘turn away gay teachers’ – presumably, even if their sexual orientation is not apparent. The Report is also favourably disposed to schools being able to discriminate against prospective teachers on the grounds of ‘religious belief, ‘gender identity’ and relationship status. With respect to currently employed teachers, the Report recommends that steps be taken to ensure that same sex teachers are not discriminated against if they marry a same-sex partner.
Keeping in mind that exemptions from anti-discrimination laws given to faith-based schools are given in response to religious beliefs, it appears that the list of exclusions selectively targets certain sectors of society while leaving in place others that are clearly in breach of the relevant religious tenets. For example, why should schools ask teachers about their sexual orientation but not whether they use contraceptives. Are divorced or remarried persons hired?
Perhaps even more controversially, the Report recommends that ‘faith-based schools’ be given the right to refuse to enrol gay students, but not to discriminate on the grounds of ‘race, disability, pregnancy or intersex status’. The qualification is that this would only apply to new student enrolments.
Perhaps it’s a reflection of the extreme nature of the submissions that the Report opposes the granting of exemptions to discriminate against students on the grounds of race and disability.
I am at a loss to understand why faith based schools should be permitted to discriminate against those with same-sex orientation, but denied the right to do so on the grounds of intersex. I suspect that it may reflect the uninformed view held by some faith-based schools that only one characteristic is a matter of choice.
What had been missing from the discussion of religious schools was the distinction that needs to be drawn between the right to discriminate sought by a faith-based school, and the doctrines of the faith to which the school is allied.
The former may represent the conservative or homophobic views of the Principal or the parent-body, while the latter may have no objection to the application of existing anti-discrimination law. The need to ensure that any exemptions relate to religious doctrine, and not merely to the views of a religious school, should be at the forefront of considerations.
The Report appears to draw attention to this issue by recommending that exemptions from provisions of anti-discrimination laws ‘should be limited by the requirement that the discrimination be in accordance with a published policy which is grounded in the religious doctrines of the school.’ The Report also mentions the need for greater transparency through publication of any discriminatory policies, and recommended that in enrolling students schools should be required to ‘provide a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated.’
What had been missing from the discussion of religious schools was the distinction that needs to be drawn between the right to discriminate sought by a faith-based school, and the doctrines of the faith to which the school is allied.
The former may represent the conservative or homophobic views of the Principal or the parent-body, while the latter may have no objection to the application of existing anti-discrimination law. The need to ensure that any exemptions relate to religious doctrine, and not merely to the views of a religious school, should be at the forefront of considerations.
The Report appears to draw attention to this issue by recommending that exemptions from provisions of anti-discrimination laws ‘should be limited by the requirement that the discrimination be in accordance with a published policy which is grounded in the religious doctrines of the school.’ The Report also mentions the need for greater transparency through publication of any discriminatory policies, and recommended that in enrolling students schools should be required to ‘provide a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated.’
What will happen if differing views are held within a religion? We may have the anomaly of a priest with a same-sex orientation (but who abstains from sex), being ineligible to teach in a Catholic school. Similarly a prospective teacher may be an active church member, but as a lesbian can not be employed by a school run by the same denomination. I also suspect that altar boys are not quizzed about their sexual orientation yet could be excluded from that denomination’s schools.
While the law has been reluctant to look into religious beliefs, it may have to do so when confronted by a situation where a Church’s stance on same sex marriage or orientation is contested. Once again, I stress that it is important to distinguish discrimination required by church doctrine or belief, and the views of a religious institution, but otherwise based.
Even if on this basis alone, exemptions should be granted on a case by case basis, with the onus resting on those seeking the exemption.
4. Leasing of faith-based school facilities for same-sex marriage
The Report also confirmed that religious schools cannot be compelled to lease out their facilities for same sex marriage – ‘as long as the refusal is made in the name of religious doctrine’. This qualification, as I have already stressed, needs to be the precondition of any exemptions being granted. I would also add that the genuineness of why a religious institution or person discriminates should be in question if discrimination also called for by other doctrine is ignored.
5. Civil Celebrants
The Report recommends that whether a civil celebrant is entitled to refuse to perform a same-sex marriage should depend on whether they became a civil celebrant before or after same sex marriage was legalised. While on the surface this recommendation sounds fair, I hope that the law will also require a celebrant appointed before the legalisation of same sex marriage to establish that their refusal is based on a religious belief or doctrine that they hold and held prior to the legalisation. Without this requirement, we would be permitting a section of the community to discriminate for reasons which are not the basis for exemption from anti-discrimination law.
6. Law to protect against discrimination on the grounds of religion
On a more general level, the Report recommends legislation making it illegal ‘to discriminate on the basis of a person’s religious belief or lack thereof’.
If this is really intended to protect freedom of religion and freedom from religion, then its tenor is clearly at odds with the exemptions enjoyed in the name of religious freedom but not enjoyed by those seeking freedom from religion. With key religious leaders opposed to the notion of freedom from religion, this is one recommendation to keep an eye on.
While we await the release of the full Report, I hope that we are given the opportunity to consider whether those religious institutions that are in receipt of public funding should be required to act in accord with public standards, just as those institutions expect those working for them to act in a manner compatible with their religious dictates and ethos .
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