The following text is from Frank Brennan's That's Life Week lecture 'How Can the Catholic Church Contribute to a Better Culture for Life?', Mercy Lecture Theatre, Australian Catholic University, 17 March 2013.
Lessons from the papal paradigm shift
Last night at my regular parish mass in Canberra, I greeted the congregation with these words, 'Good evening. My name is Frank and I am a Jesuit. I've had a good week. I hope you have too.' I have been overwhelmed by the positive response by all sorts of people to the election of the first Jesuit pope. I have happily received the congratulations without quite knowing what to do with them, nor what I did to deserve them! Even at the masses at the Canberra prison this afternoon, prisoners were expressing their delight at what they saw of this new pope on the television. Perhaps this new pope's manner and mode of communication hold a key for us wanting to engender a better culture for life in the public square, and in the hearts and minds of all people of good will.
Last night Pope Francis ended his address to the journalists in Rome with a blessing with a difference. He said:
I told you I was cordially imparting my blessing. Since many of you are not members of the Catholic Church, and others are not believers, I cordially give this blessing silently, to each of you, respecting the conscience of each, but in the knowledge that each of you is a child of God. May God bless you!
Respect for the conscience of every person, regardless of their religious beliefs; silence in the face of difference; affirmation of the dignity and blessedness of every person; offering, not coercing; suggesting, not dictating; leaving room for gracious acceptance. These are all good pointers for those of us dedicated to a culture of life.
On hearing this blessing from our new pope, I recalled the declaration of resignation of our previous pope. Just a month ago, Benedict announced that 'having repeatedly examined my conscience before God, I have come to the certainty that my strengths, due to an advanced age, are no longer suited to an adequate exercise of the Petrine ministry'. He noted the strengths and gifts needed to discharge the office 'in today's world, subject to so many rapid changes and shaken by questions of deep relevance for the life of faith'. Having recognized his 'incapacity to adequately fulfill the ministry entrusted' to him, he renounced it 'with full freedom'. Freedom, conscience, change, and demands exceeding capacities — these all played a role in a man of profound faith deciding that he could no longer discharge an office to which he had committed himself for life. He had the humility to admit the need for change.
And change is upon us as a Church. Just recall the scene when the new pope emerged on the Vatican balcony the other night. He appeared with none of the papal trimmings of office on his plain white robe. He commenced with silence, followed by a simple 'Good evening', and then, God help us, a joke about his brother Cardinals having gone to the other end of the earth to find a Bishop of Rome. He asked everyone to pray for his predecessor Benedict. But not once did he refer to the papacy, the Petrine Office, or the pope. He deliberately referred to Benedict as 'our Bishop Emeritus'. He spoke of 'the Church of Rome which presides in charity over all the Churches'. He spoke of the 'journey of fraternity, of love, of trust among us'.
He offered the simple prayers known to all Catholics: the Our Father, the Hail Mary and the Glory Be. The accompanying Monsignor was keen that he don the papal stole before offering any prayer. The stole remained in the good Monsignor's hands. Then the Pope asked the people a favour: 'I ask you to pray to the Lord that he will bless me: the prayer of the people asking the blessing for their Bishop. Let us make, in silence, this prayer: your prayer over me.' You could hear a pin drop in that crowd of 100,000 by candlelight. This was a Copernican revolution for the hierarchical Roman Church. Only after receiving the people's blessing did the Pope don the stole and proclaim the formal papal blessing. Immediately, he then removed the stole. The surrounding Cardinals thought the paraliturgy now complete. But no, the pope called again for the microphone. There was an embarrassed flurry of activity as they retrieved the microphone and turned on the sound system again. He returned to the familiar way of conversation with which he started the proceedings: 'Brothers and sisters, I leave you now. Thank you for your welcome. Pray for me and until we meet again. We will see each other soon. Tomorrow I wish to go and pray to Our Lady, that she may watch over all of Rome. Good night and sleep well!'
Could not something of this new papal style help us to engage more creatively with our fellow believers and with our fellow citizens as we attempt to create a better culture for life? We come not only with authoritative teaching but with an attentive eye and ear to the experience of the people and their reflection on that experience.
Reading the signs of the times and being open to change to enhance the culture of life
For too long, the espousing of a culture for life has been seen to be the sole preserve of those Catholics who adhere to every declaration from the pope or Congregation for the Doctrine of the Faith (CDF) on moral matters, especially those pertaining to sexuality and reproduction. Some of those teachings are seen by people of good will to dictate against a culture of life, rather than for it. Tonight, I want to suggest a little controversially that it might be time to quietly ditch some CDF statements or at least quietly place them in the Archives. I have no expectation that the new pope will engage in some wholesale repacking of Catholic moral teaching. But those of us with pastoral involvements know that some of present teaching like the universal ban on in vitro fertilization (IVF) finds no resonance with most of the faithful who are seeking life and love to the full.
When head of the CDF in 1987, Cardinal Ratzinger signed off on Donum Vitae which declared that 'fertilization achieved outside the bodies of the couple remains by this very fact deprived of the meanings and values which are expressed in the language of the body and in the union of human persons.'
The CDF has long been worried that Donum Vitae was not carrying the day so they took the extraordinary step during Benedict's papacy of issuing a new instruction Dignitas Personae in 2008 stating: 'The teaching of Donum Vitae remains completely valid, both with regard to the principles on which it is based and the moral evaluations which it expresses.' Both instructions insist that in vitro fertilisation is completely banned even for a married couple when you use the gametes of the couple to achieve conception. It is said to be 'morally illicit'. And thus Catholic facilities do not provide IVF services.
The disconnect between this teaching and the sensus fidelium was nicely highlighted in January when two prominent Catholic laymen in public life expressed their views on IVF. Wisely, our bishops and moral theologians remained silent in the public square. On 6 January 2013, Tony Abbott wrote in the Sunday Telegraph:
In fact, during my time as health minister, the number of women accessing IVF and Medicare support for IVF rapidly increased. I have never opposed IVF. How could any pro-family politician not encourage people to have children and make it easier for them to do so?
A minister's job is to implement the policy of the government and to administer departmental programs. It is not to make moral decisions for people. Governments should do what's best based on expert advice and keep prudent control over expenditure, as taxpayer dollars are not inexhaustible, but otherwise leave people to decide what's right for them.
He went on to express his views about the limits on law and policy:
Australia is a pluralist democracy. It always has been and it always should be. The values that political parties and governments should uphold in a country like ours are those that can be justified on the basis of human reason and are potentially accessible to everyone.
Next day, The Australian reported that Tony Abbott's fellow Catholic Liberal frontbencher Christopher Pyne and wife Carolyn had tried to conceive through IVF for five years with well over a dozen failed cycles before they conceived twins. Pyne and Abbott had discussed the Church teaching. Pyne said:
I remember explicitly talking about the fact that the church at the time was not in favour of IVF. His view was the church's position was simply misguided and that there was nothing more important or exciting than the birth of children and if IVF could help bear children, then it was a good thing, not bad.
Having pastorally dealt with a number of couples who have rejoiced in the success of IVF, I find it difficult to disagree with Abbott and Pyne on this one. There will be Catholics of good will concerned that making an exception even for a Catholic married couple seeking IVF with the double assurance that excess embryos will not be created and that any surplus embryos will be treated respectfully will result in a chink in the edifice of Catholic moral teaching. We do not enhance the culture of life while we maintain the edifice even in the face of the couple saying they pledged their love and fidelity to each other, professing their willingness to bear children and bring them up according to the law of Christ, and all they need is a little technological assistance so that they can constitute a family. As a priest, I am not prepared to state that what Christopher and Carolyn Pyne did was morally illicit. Espousing a culture of life, I think we need to affirm their decision while expressing the necessary cautions about the wanton creation of excess human embryos. It would be downright demeaning and wrong to say to them: 'Fertilization achieved outside the bodies of the couple remains by this very fact deprived of the meanings and values which are expressed in the language of the body and in the union of human persons.' These sorts of things could only be said by celibate clergy with limited pastoral experience.
Distinguishing teaching for believers from legal prescriptions or proscriptions for all
Those of us committed to a culture of life always need to confront the issue of abortion. The issue is nowhere near as polarizing here in Australia as it is in the United States. Here on both sides of the political fence, Catholic politicians like Kristina Keneally and Tony Abbott have been able to invoke the Bill Clinton formula that abortion should be safe, legal and rare. Once again, the response from our bishops has been fairly muted, and I think their silence has been prudent rather than cowardly.
In my 1998 book Legislating Liberty, I recalled my student experience when a friend told me in strictest confidence that another friend was going to have an abortion the next day. I went home and wondered what I should do. I did nothing. I still think I was right to do nothing. If I had been told in confidence that a friend was going to commit a murder the next day, I think I would have tried to do something. In a pluralistic democratic society like Australia where most citizens take a more liberal attitude to abortion than traditional Catholics, we cannot expect the law to do any more than we ourselves are prepared to do. Since that experience, I have been of the view that the criminal law is incapable of doing anything more to protect the non-viable foetus. Confining attention to the criminal law is foolish. The law is not just a policeman; it can be a great teacher. It can help a culture of life to flourish. Catherine Kaveny in Law's Virtues writes: 'While the right to life may be 'fundamental' in the order of logic, the order of practicality demands a multifaceted strategy to protect that right in Western liberal democracies where abortion has long been legal and widely used. Recognising lawmaking's nature as a practical activity designed to further the common good leads to the insight that pro-life legislators must broaden their focus beyond the criminal law. Too narrow a strategy will backfire and end up harming rather than promoting the overall well-being of the entire community, including the elderly and the unborn. Thus efforts to use the law to inculcate the value of unborn life must widen their focus beyond the criminal code, which details only one of many types of legal norms in our complex, post-industrial society.'
Mary Anne Glendon, who has long been acceptable even to the most conservative and orthodox of Vatican theologians has written in Abortion and Divorce in Western Law that 'what is important is that the totality of abortion regulations — that is, all criminal, public health and social welfare laws related to abortion — be in proportion to the importance of the legal value of life, and that, as a whole, they work for the continuation of the pregnancy.'
Carving out a zone of privacy and conscience for individuals and groups
Professor Martha Nussbaum's book Liberty of Conscience provides a rich textured treatment of the place of religion in the public square. In her characteristic writing mode, she shares personal anecdotes - this time her conversion from Christianity to Judaism on the occasion of marriage; she treats deftly the classics, and then delves into philosophical reflection on US jurisprudence. This time she reflects on the agonising dilemma of Sophocles' Antigone when the State in the person of her uncle Creon has announced that she may not bury her brother, killed attacking the city. Her religion dictates that she must bury her brother. She speaks of Creon's alarming rigidity: 'He has defined public policy in a way that favours the interests of most people in the city. In the process, however, he has imposed a tragic burden on one person. The great Athenian statesman Pericles boasted that fifth century democratic Athens did things better, refusing on principle to put people in such dreadful predicaments. Athens, he said, pursues the good of the city, but not by requiring its citizens to violate the 'unwritten laws' of their religions.'
She nicely posits the Lockean position of state neutrality whereby 'the state is free to regulate matters concerning property or health or safety even when they bear on religious organisations — so long as it does so impartially' against the more subtle treatment of the seventeenth century American Roger Williams, founder of Rhode Island, who espoused religious accommodation with the declaration, 'It is the will and command of God that (since the coming of his Sonne the Lord Jesus) a permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, bee granted to all men in all nations and countries'.
Nussbaum concedes that there may be a need for religion to bear some burdens 'if the peace and safety of the state are really at stake, or if there is some other extremely strong state interest. But it seems deeply wrong for the state to put citizens in such a tragic position needlessly, or in matters of less weight. And often matters lying behind laws of general applicability are not so weighty; sometimes they come down to a mere desire for homogeneity and an unexamined reluctance to delve into the details of a little known or unpopular religion'.
Nussbaum nicely posits the Lockean position of state neutrality whereby 'the state is free to regulate matters concerning property or health or safety even when they bear on religious organisations — so long as it does so impartially' against the more subtle treatment of the seventeenth century American Roger Williams, founder of Rhode Island, who espoused religious accommodation with the declaration, 'It is the will and command of God that (since the coming of his Sonne the Lord Jesus) a permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, bee granted to all men in all nations and countries'.
Nussbaum sets down six normative principles, which I find useful in scrutinising laws and policies that impact on the free exercise of religion and on the broader freedom of conscience. Section s.8(1)(b) of the Victorian Abortion Law Reform Act is a case in point. The issue is not the legality or desirability of abortion on demand. The issue is whether the law ought provide for compulsory referral by a conscientious objector. S. 8(1)(b) provides:
If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.
Justice Scalia has pursued the Lockean position on the US Supreme Court, as have groups such as Liberty Victoria in pursuing the enactment of the recent Victorian abortion law including this novel clause stipulating compulsory referral by a conscientious objector. The Williams approach finds expression in the judgments of Justice O'Connor on the US Supreme Court and in the criticisms offered by some of the faith based groups critical of s.8(1)(b) of the Victorian abortion law. The supporters of clause 8 would be surprised to learn they are ad idem with Justice Scalia who has said, 'we have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.'
Australia is a signatory to the International Covenant on Civil and Political Rights. The terms of that Covenant provide a convenient benchmark for most individuals and groups who espouse human rights. The freedom of conscience and religion is one of the few non-derogable rights in the Covenant. This means that a signatory may not interfere with the exercise of the right even during a national emergency -whereas other rights in the Covenant can be cut back during times of public emergency which threatens the life of the nation — but only to the extent strictly required by the exigencies of the situation and provided that that cut back applies in a non-discriminatory way to all persons. Furthermore the freedom or thought, conscience and religion is one of the few rights, which can be confined only if it be necessary 'to protect public safety, order, health, or morals or the fundamental rights and freedoms of others'.
Let's consider Nussbaum's principles:
- The equality principle: all citizens have equal rights and deserve equal respect from the government under which they live
- The respect conscience principle: providing protected space within which citizens may act as their conscience dictates. All citizens enter the public square on equal conditions
- The liberty principle: respect for people's conscientious commitments requires ample liberty — and not just a regime of equal constraint in which nobody has much religious freedom
- The accommodation principle: sometimes some people (usually members of religious minorities) should be exempted from generally applicable laws for reasons of conscience.
- The non-establishment principle: the state does not operate so as to set up and in-group and an out-group.
- The separation principle
Nussbaum concedes that there may be a need for religion to bear some burdens 'if the peace and safety of the state are really at stake, or if there is some other extremely strong state interest. But it seems deeply wrong for the state to put citizens in such a tragic position needlessly, or in matters of less weight. And often matters lying behind laws of general applicability are not so weighty; sometimes they come down to a mere desire for homogeneity and an unexamined reluctance to delve into the details of a little known or unpopular religion'.
It is useful to compare the UK and Australian responses to compulsory referral clauses placed in laws dealing with the delivery of medical services in morally contested fields. The UK has more of a culture and architecture for discussion of rights and their limits than we do, and that is because they have had a Human Rights Act for 15 years and they have been subject to human rights jurisprudence from Strasbourg for decades.
When Lord Joffe's Assisted Dying for the Terminally Ill Bill was first drafted in the United Kingdom it contained a clause similar to section 8 of the Victorian Abortion Law Reform Act 2008. The original Joffe Bill imposed a duty on physicians who invoked their right to conscientiously object, to 'take appropriate steps to ensure that the patient is referred without delay to a physician who does not have such a conscientious objection'.
The UK bill was eventually amended to provide that 'No person shall be under any duty to refer a patient to any other source for obtaining information or advice pertaining to assistance to die, or to refer a patient to any other person for assistance to die under the provisions of this Act' (cl. 7(3)). Under the revised UK provision, the doctor with a conscientious objection would have no additional legal duty other than 'immediately, on receipt of a request to do so, transfer the patient's medical records to the new physician'. (cl. 7(6))
Taking seriously the rights to freedom of conscience and religion
Within a pluralist, democratic society like Australia, there will be conflicting views about how best to cultivate a culture of life and respect for the human dignity of all. Without adequate constitutional or legal protection of freedom of religion, we Australians are left relying too heavily on anti-discrimination laws pleading that religious belief and practice are simply exemptions from such laws. This gives the appearance of special pleading for religion. A major contemporary mistake is the tendency for governments to take a bipolar view of social life looking only at the privacy of the individual and the power of the State. What about the place for civil society and all those voluntary associations of persons (including church communities) who want to contribute to the common good in their own distinctive way? And what about respect for freedom of conscience?
In his book Conscience and the Common Good, Robert K Vischer points out that we need to consider not just the relationship between the citizen and the state. We also need to make space in society for individuals of good conscience to form associations freely and to act on conscience individually and collectively without unwarranted interference by others who in good conscience act and live differently. We need consider only the law abiding Muslim community which wants to rely on some aspects of Sharia law when governing their own internal affairs or the Catholic hospital which reserves the right to provide what it regards as morally appropriate services while being in receipt of taxpayer funds for some service delivery. What do we say to the wedding photographer who does not wish to provide his services to same sex couples? Or to the church adoption agency which prefers to make children available for adoption to a family unit constituted by an adult male and an adult female? Or to the pharmacist who conscientiously objects to providing the morning after pill? As Vischer says:
At least from today's vantage point, it seems easier to have rooted for conscience in traditional cases, which tended to involve the courageous individual standing up to the oppressive and impersonal state. In the current wave of conflicts, not only is the cause of conscience often represented by individuals or organisations committed to moral claims that appear outdated and regressive, but, in addition, the claims are brought to bear against sympathy-inspiring individuals who seek equal treatment after longstanding marginalisation by society. In our rights-soaked legal culture, it is easy to choose sides against the state; less so against those battling discrimination.
Church groups in Australia have been engaged in a gruelling campaign to maintain what they regard as justifiable exemptions from the provisions of equal opportunity employment laws. They want to maintain the ethos of their educational institutions and remain true to their teachings on questions such as family relationships. Cardinal Pell makes the point nicely:
Should the Greens have the right to prefer to employ people who believe in climate change, or should they be forced to employ sceptics? Should Amnesty International have the right to prefer members who are committed to human rights, or should they be forced to accept those who admire dictatorships? Both cases involve discrimination and limiting the freedoms of others, and without it neither organisation would be able to maintain their identity or do their job effectively. Church agencies and schools are not exempt from anti-discrimination law in New South Wales, and the language of 'exemptions' is misleading.
While there may be strong agreement about the need to maintain a faith community's right to employ in certain positions only persons who live in conformity with religious teaching, there is plenty of room for disagreement as to how most prudently and charitably to exercise that right. It is not only secularist, anti-Church people who think that Church organisations and leaders would be displaying homophobia by singling out only gays and lesbians for exclusion from employment in some key positions when heterosexual persons are also living in what the Church might formally regard as irregular situations.
During the 2009 National Human Rights Consultation, Bob Carr (ex Premier from New South Wales) told a conference convened by the Australian Christian Lobby and the Catholic Archdiocese of Melbourne that one of the chief advantages of not having a Charter of Rights was that church leaders could deal directly with government. He told the story of the two Archbishops of Sydney coming to see him as premier when there was discussion about a proposed Bill to restrict the freedom of Churches to employ only those persons living consistently with Church teachings. He was able to give them an immediate assurance that their interests would be protected. It is a matter for prudential political assessment. I think those days have gone. It is a good thing for society that elected political leaders and church leaders are able to meet and talk confidentially. Whatever the situation in the past, it is now not only necessary but also desirable for religious leaders to give a public account of themselves when seeking protection of freedom of religion within appropriate limits, especially when they are in receipt of large government funds for the provision of services to the general community, and not just to members of their faith communities. Religious special exemptions regarding employment are all the more defensible when religious personnel including religious leaders and those with the hands-on directing of religious agencies are prepared to appear before a parliamentary committee and provide a coherent rationale for those exemptions, rather than simply cutting a deal behind closed doors with the premier or prime minister of the day.
Professors Patrick Parkinson and Nicholas Aroney in a recent submission to the Federal Parliament said:
Great care needs to be taken to ensure that a focus on the first-mentioned right (freedom from discrimination) does not diminish the others (e.g. freedom of religion, association and cultural expression and practice). This can readily happen, for example, if freedom of religion is respected only grudgingly and at the margins of anti-discrimination law as a concessionary 'exception' to general prohibitions on discrimination. It can also happen if inadequate attention is paid to freedom of association and the rights of groups to celebrate and practise their faith and culture together.
On coming to office, the Baillieu government amended the Victorian Equal Opportunity Act. Those amendments replaced the more restrictive 'inherent requirement' test for employment which had been introduced by the Brumby Government. The Victorian law once again permits religious bodies to be discriminating in their employment practices in relation to 'religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity' provided only that the discriminatory practice 'conforms with the doctrines, beliefs or principles of the religion' or 'is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion'. The religious school can be discriminating in their employment of the gardener or maths teacher, just as they can be in their choice of the religion teacher or principal. Attorney General Robert Clark when introducing the amendments said that the 'so-called inherent requirement test would have the consequence that faith-based schools and other organisations could be forced to hire staff who are fundamentally opposed to what the organisation stands for'.
It would be regrettable if religious bodies were to exercise this liberty in a manner inconsistent with their own religious commitments to respecting the human dignity of all persons, including those who are gay or lesbian or not living in church authorised marriage relationships. The scrutiny of unauthorised sexual practices needs to be equally applied. In the parliamentary debate at least one Coalition member, Mr Newton Brown, warned, 'I would like to put on record tonight that faith-based schools should be on notice. Yes, the election commitment to remove the inherent requirements test will be realised by this bill, as was promised by the Coalition, but make no mistake: this does not open the door for schools to engage in unfettered discrimination against people that is not justified in light of an organisation's beliefs.'
When seeking to balance conflicting rights, there may be a case for permitting a fuller expression of religious liberty and preferences when alternatives exist elsewhere in society for persons seeking non-discriminatory opportunities or services. For example, the UK now insists that all registered adoption agencies, including Catholic ones, provide a non-discriminatory service such that adoption would be as readily available to a same sex couple as to a man and woman wanting to adopt a child into their family. In my opinion, it would be no interference with the rights or dignity of gay and lesbian couples if some religious adoption agencies acting on their religious beliefs gave preference to married heterosexual couples when determining adoptive parents for a child, provided always that the agency was acting in the best interests of the child. There would still be a range of non-Church adoption agencies providing services to all couples, including gay and lesbian couples. It is legislative overreach for the state to insist on uniform non-discrimination for all adoption agencies. If all schools or even the majority of schools were faith-based, there would be a stronger case for anti-discrimination provisions applying more broadly in employment situations for teachers. With the present mix, the Victorian Parliament has got the law right.
There has been some very confused debate about the Gillard government's proposed consolidation of the various anti-discrimination laws. Nicola Roxon left the job unfinished and confused. Her senior Cabinet colleague Simon Crean tried to still fears and concerns in late January telling the media: 'Let's get to the true situation because the intent was never to change the laws, simply to consolidate them.' Since then the government has agreed to drop some of the more controversial, novel suggestions in the Exposure Draft. There is still debate about the extent to which churches do and are entitled to discriminate in employment and the provision of services. There is also debate within the Catholic church leadership about the extent to which it is desirable that religion be listed as a ground for legal objection to discrimination.
David Marr on ABC Insiders on 3 February 2013 spoke of the challenges confronting the new Attorney General Mark Dreyfus with this legislation. He said: 'There are lots of things to be tidied up. The big one now is to get out of that bill the Charter that some of the most conservative leaders in some of the most conservative faiths in this country are being given under that legislation to kick poofters, lesbians, single mothers, people living in de facto relationships like the Prime Minister — kick 'em around in employment and do it with public money. This is not medieval Spain; this is Australia in 2013.
Marr was conflating two issues: employment and service delivery in education, and employment and service delivery in health and aged care.
Church schools are entitled to adopt employment practices requiring teachers not to flout or ridicule Church teachings to their students, even if those teachings relate to sexual matters. The Catholic Church continues to teach that sexual relations should be confined to marriage and be open to procreation. This is not a teaching which commands broad compliance even within the Catholic community. It would be wrong for a Catholic school to dismiss a homosexual teacher for public non-compliance with Church teaching unless a heterosexual teacher was also liable to dismissal for the same public flouting or disagreement with that teaching. Everyone knows that there are teachers in Catholic schools, homosexual and heterosexual, who are not married or who practise contraception or who have had abortions or who have used IVF. State intervention to prohibit discriminating employment practices informed by adherence, silence or respectful questioning of Church teaching would be an unwarranted interference with freedom of religion. In this complex area, why not just leave the discrimination law as it is, as Simon Crean said the government was committed to doing?
The issue in relation to Church health and aged care services is much simpler. It is a bureaucratic beat-up. Catholic Health Australia has made it very clear that Catholic health providers pride themselves on non-discrimination on the grounds of sexual orientation and gender, in both employment and service delivery. A week after David Marr's call to arms, I was visiting Gorman House at St Vincent's in Darlinghurst. It is a live-in facility for alcohol and drug dependent persons. The manager showed a group of us some new single rooms with the observation: 'At last we are able to accord transgender people the dignity and respect they deserve.' That simple sentence summed up for me the tenor and approach of health care informed by gospel values — without intervention by the nanny state.
Catholic Health Australia has recommended to its constituent members seeking any written policy on these matters:
- Catholic hospitals and aged care services do not discriminate in who they employ, provide care to, or accommodate as residents within their facilities;
- People who identify as lesbian, gay, bisexual, transgender, or people of indeterminate gender will be cared for within Catholic hospitals and aged care services with respect, compassion, and sensitivity.
The Attorney General's Department has chosen to focus on the provision of Church aged care services, prohibiting any discrimination in aged care even if funded only in part by the Commonwealth, making the gratuitous and unfounded observation: 'There was significant feedback during the consultations of the discrimination faced by older same-sex couples in accessing aged care services run by religious organisations, particularly when seeking to be recognised as a couple.' Fr Brian Lucas, Secretary of the Australian Catholic Bishops Conference (ACBC) gave evidence to the Senate Committee this month, making it clear that this was not an issue in Catholic facilities but for a couple of sensible exceptions to which the drafters had not adverted. For example the Church conducts some aged care facilities exclusively for aged religious sisters. A non-discriminatory admissions policy would preclude the exclusion of men from such facilities. The Church also conducts some facilities for old, alcoholic men. Why would you use the blunt instrument of a universal anti-discrimination law to insist that women be admissible to such facilities?
The Australian Catholic bishops have been in a muddle about the issue of religious freedom for the last 25 years. In 1988, the Hawke government proposed a referendum which would have extended constitutional protection of religious freedom such that it could not be impacted by State governments nor the Commonwealth government, and such that it would be preserved from adverse impact by policies and actions as well as by laws made by the parliaments. The bishops' primary concern was that any amendment of the existing limited constitutional provision might result in a renewed challenge to state aid to church schools. Rather than enlarging the scope of judicial review of government actions impacting on religious freedom, the bishops said that 'freedom of religion...is best protected through the democratic process in the Federal Parliament'. They rejected the proposed amendment put forward by the Constitutional Commission chaired by Sir Maurice Byers. The Commission noted, 'The values that underlie our political tradition demand that every individual be free to hold and to manifest whatever beliefs and opinions that person's conscience dictates. So long as an individual does not transgress the reasonable limits established in a free and democratic society, his or her freedom of religious belief and practice should not be fettered. Religious freedom is the paradigm freedom of conscience.'
The Commission intended to extend the freedom from State as well as Commonwealth actions, and from governmental actions of an Executive and administrative kind as well as enacted laws of the Parliaments. The ACBC opposed such an extension of religious freedom. In the present debate, it has continued to argue that religion should not be listed as a protected attribute in the new anti-discrimination law. It is pleasing to note that Cardinal Pell and Bishop Fisher have broken ranks and acknowledged the need for religion to be so listed. Unless we insist on further legal and even constitutional protection of religious freedom, it will continue to be classed simply as an exception in discrimination law, rather than a human right. Religious freedom is a primary human right. In the Catholic tradition, we have held this to be true since the Second Vatican Council's Declaration on Religious Freedom. It's time for all our bishops to affirm this, and for David Marr to take a cold shower.
Proposing a religious basis for invoking the inherent dignity and human rights of all persons, including the most vulnerable
Speaking at the London School of Economics on 'Religious Faith and Human Rights', Rowan Williams, then Archbishop of Canterbury boldly and correctly asserted:
The question of foundations for the discourse of non-negotiable rights is not one that lends itself to simple resolution in secular terms; so it is not at all odd if diverse ways of framing this question in religious terms flourish so persistently. The uncomfortable truth is that a purely secular account of human rights is always going to be problematic if it attempts to establish a language of rights as a supreme and non-contestable governing concept in ethics.
No one should pretend that the discourse about universal ethics and inalienable rights has a firmer foundation than it actually has. Williams concluded his lecture with this observation:
As in other areas of political or social thinking, theology is one of those elements that continues to pose questions about the legitimacy of what is said and what is done in society, about the foundations of law itself. The secularist way may not have an answer and may not be convinced that the religious believer has an answer that can be generally accepted; but our discussion of social and political ethics will be a great deal poorer if we cannot acknowledge the force of the question.
Once we abandon any religious sense that the human person is created in the image and likeness of God and that God has commissioned even the powerful to act justly, love tenderly and walk humbly with their God, it may be very difficult to maintain a human rights commitment to the weakest and most despised in society. It may come down to the vote, moral sentiment or tribal affiliations. And that will not be enough to extend human rights universally. In the name of utility, the society spared religious influence will have one less impediment to limiting social inclusion to those like us, 'us' being the decision makers who determine which common characteristics render embodied persons eligible for human rights protection. Nicholas Wolterstorff says, 'Our moral subculture of rights is as frail as it is remarkable. If the secularisation thesis proves true, we must expect that that subculture will have been a brief shining episode in the odyssey of human beings on earth.'
The philosopher Alisdair McIntyre observes that we humans move along a spectrum in life. We start as irrational dependent creatures. We move towards being rational independent creatures. With the ageing of the population, an increasing number of us again end up as dependent irrational creatures. At either end of the life cycle and under the safety net of sameness in the middle of the cycle there is real work for us to do inculcating a culture of life. When debating issues such as physician-assisted suicide we need to concede that there are some of our fellow citizens who exercising their own autonomy would wish state assistance or authorisation with a quicker pain free death. The challenge is to ensure that any legal regime for assisted dying does not infringe the autonomy and dignity of the vulnerable nor undermine the common good including the provision of adequate resources for palliative care and the fostering of trusting relationships between patients and doctors who unequivocally pledge to do no harm.
We must always remain open to dialogue in the public square including with those who think we are simply religious bigots seeking to impose our own moral code on others. The dignity and rights of all persons requires nothing less. Together we might all receive that papal blessing: 'Since many of you are not members of the Catholic Church, and others are not believers, I cordially give this blessing silently, to each of you, respecting the conscience of each, but in the knowledge that each of you is a child of God. May God bless you!' Let's treat even our most vociferous opponents as children of God with consciences open to receiving grace in a moment of deep silence.
Fr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.