Right to free religious expression

Why are we talking about "exemptions" rather than our right to free religious expression?

Religious freedom - why are we talking about "exemptions" rather than our right to free religious expression? These “exemptions” are actually not exemptions at all, but are legitimate expressions of our religious freedom. We need to completely rethink the way that we approach these issues – allowing faith-based schools to hire staff who operate in accordance with their beliefs should not be a controversial topic. If society continues to vilify our expressions of religious freedom, we will be heading down a very dangerous path.

Mark Fowler sums it up perfectly when he says, “To fail to recognise the rights of faith-based institutions would strip the wider community of the unique voice of such bodies.” This is exactly what proponents of removing religious “exemptions” are trying to do. They are desperately trying to silence our unique voices and keep our worship private, so that one day, there will be no dissenting voices left to their contested ideologies.  


Opinion: Why are we talking about "exemptions" rather than the right to free religious expression?

Posted Thu 18 Oct 2018 ABC Online

The twenty recommendations of the Expert Panel on Religious Freedom are now public. While they are wide ranging, attention thus far has focussed on the "exemptions" granted to faith-based schools. Prime Minister Scott Morrison has committed to reforming the provisions that concern gay students. The Greens have now responded by introducing a Bill that would abolish the remaining "exemptions" for schools in their entirety.

Existing Commonwealth law permits faith-based schools to retain staff who are able to manifest the school's religious beliefs. This gives effect to the international human rights law that Australia has ratified, including the right of religious bodies to "establish and maintain appropriate charitable or humanitarian institutions." These "exemptions" are one of the most hotly contested expressions of religious freedom in our community. But the call for their removal arguably run counter to what the European Court of Human Rights has termed the "guaranteed right to think freely" ― the human right that protects against state-imposed uniformity and guarantees pluralism in the provision of education.

Groups are only able to convey their identity through the collective character and efforts of the individuals who comprise them. A failure to grant "exemptions" would compel a body to forego the ability to define its character, goals and imperatives. Ultimately, it would remove the identity of the institution and deprive society of its unique voice. In effect, it would breach the right "to establish and maintain" the institution as a religious institution.

Although to avoid confusion I have employed the standard "exemption" phraseology here, the language of "exemptions" contains some beguiling and at times untested philosophical presumptions. What are termed religious "exemptions" are not true exemptions at all, but are legitimate expressions of religious freedom rights. We do not say, for instance, that the right of the press to free speech is an "exemption" from majoritarian imposed control. It is a legitimate stand-alone right. Similarly, we do not say the citizen's freedom to associate around common interests is an "exemption" granted by the state from compelled forms of association. Why is it that religious freedom is singled out for such laden terminology?

International law recognises that differential treatment will not be unlawful where a distinction is legitimate, reasonable and to pursue a recognised human right. The European Court of Human Rights has recognised that the autonomous ability of religious bodies to retain staff who can convey their identity "is indispensable for pluralism in a democratic society." Such freedoms are reasonable and legitimate components of a free and open society. This is not the language of exemptions; this is the language of interfacing and equally valid freedoms.

Ironically, the removal of "exemptions" from faith-based institutions, including schools, would cleave them from the very foundational convictions that inspired their establishment. In 2008 a Queensland Tribunal held that the Society of St. Vincent de Paul (SVDP) was not able to require that a President of a local conference be a Catholic. This was, in part, based on the conclusion that SVDP was not a "body established for religious purposes" because of its primary welfare charitable purpose. For many, that is an outcome lacking in basic intuitive common sense. Yet, the same principle will apply to all faiths. Why should believers ― be they Islamic, Jewish, Protestant, Hindu or any other faith ― be prevented from coming together with their fellow believers to act upon the dictates of their faith that encourage humanitarian concern? No similar limitation is proposed for persons who are motivated to humanitarian acts absent religious compulsion. It's a bizarre conclusion, and it represents a form of discrimination on the basis of religious belief.

To fail to recognise the rights of faith-based institutions would strip the wider community of the unique voice of such bodies. It is no understatement to say that in the Western tradition associational freedom has been the single greatest preserve of the equality rights of the individual. It is precisely the freedom of individuals to aggregate around common concerns and elect leaders who are able to articulate their unique view to the majority that has given birth to the fundamental freedoms we enjoy today. Individual equality is best preserved by a plurality of institutions, whose capacity to advocate for the fundamental rights of their members enjoys strong protection at law. In modern Australia it is the practical, granular terms and scope of the exemptions in anti-discrimination law that determine whether these foundational freedoms are maintained. Calls to defund faith-based charities fail to consider democratic government's obligation to preserve pluralism and autonomous choice for those individuals seeking charitable support. They fail to appreciate that to defund faith-based charities is to endorse a form of state-enforced monochromaticity.

Another untested assumption lurking behind calls to restrict or remove existing "exemptions" is the Enlightenment distinction between public action and private worship. Here the reasoning is that liberal societies adequately accommodate religion by protecting freedom of choice within a private sphere. The modern invention of private and public domains permits a theoretically constructed secular realm vacated of religious expression. However, this reasoning offers a tin ear to the teachings of the majority of the world's religions. For those religious believers who conceive their private religious convictions to be constitutive of identity and comprising of public consequence (including their charitable works), the private/public distinction presents an existential challenge that has the potential to rend asunder spirit from action.

Mark Fowler is a Partner at Prolegis Lawyers and an Adjunct Associate Professor at Notre Dame Law School in Sydney.

 

Article Published online at: https://www.abc.net.au/religion/not-exemptions-but-right-to-free-religious-expression/10391540

 


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