I am delighted to be here on the Melbourne Campus of the Australian Catholic University to address the 2016 Freedom for Faith Conference which is focused on 'Religious Freedom in an Age of Equality'. I wonder if the conference could equally focus on 'Equality in an Age of Religious Freedom'. If not, we do have a problem. I have entitled my remarks 'Conscience and Religion, Freedom and Respect, Due Process and Contemporary Politics'. I had considered delivering an address less anchored in my own Catholic tradition and reflecting more on the challenges for an increasingly secular and religiously despising society which often caricatures Christianity (especially in its Catholic mode) while giving notional, uncritical respect to Islam and great deference to Aboriginal religions. We need to admit that there is a cultural elite in Australia some of whose members despise all religion and that then leaves them unable to distinguish the good and bad, the beautiful and the ugly in some manifestations of Islam because they can see nothing but bad and ugly in Christianity. But all of that will need to wait for another day. I think it timely to offer some specifically Catholic reflections on our topic though hopefully in terms which are comprehensible and helpful to persons of all creeds and none.
I note that Freedom for Faith is a Christian legal think tank dedicated to the protection of religious freedom in Australia. The think tank's website declares:
We believe that Australians with different views need to talk. We need to stop turning away from our differences. Especially religious differences. And even more so when it comes to politics and law. We need to hear each other. And turn towards each other in dialogue.
Thus I am honoured to share the podium with the Hon Mark Dreyfus QC, the Shadow Attorney General of the Commonwealth, and especially at this time when there is such robust debate in Australia about the relationship between religious freedom and freedom of speech, between religious freedom and equality, between religious freedom and freedom of association, between religious freedom and tolerance, respect and endorsement of the views and life choices of minorities.
As professor of law here at Australian Catholic University, I have sometimes recalled the anecdote when my father was Chief Justice of Australia. Sister Helen Lombard, then the Provost of Australia's other Catholic university, approached him at a dinner in Parliament House Canberra saying, 'Sir Gerard, I'm sure you would be very pleased to know that we are setting up Australia's first Catholic law school.' My father, a strong and committed Catholic, looked at her quizzically and asked, 'Must you?' Even within religious communities, there is plenty of room for vast differences of viewpoint as how best to nurture and share the fruits of religious insights, reflections and practices for the well-being of all citizens and for the common good.
Earlier this month, the International Consortium for Law and Religious Studies held its fourth conference at Oxford on the topic 'Freedom of/for/from/in Religion: Differing Dimensions of a Common Right?' The flyer for the conference observed:
Freedom of religion or belief (FoRB), once considered to be the 'first' freedom, has become a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.
Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognised for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one's life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called 'libertas ecclesiae') is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.
Today I would like to address the contemporary challenges in Australia for those wanting an appropriate accommodation of religion together with due respect for those with diverse views, lifestyles and beliefs.
Under the rubric of freedom of religion, I will sound a cautionary note about the limits on the competence of the present Royal Commission into Institutional Reponses to Child Sexual Abuse, suggesting that the commission has no role in seeking to reform churches in accordance with their theological teachings, while having a key role in seeking to reform churches in accordance with universally accepted community standards.
Under the rubric, freedom from religion, I will address the topic of same sex marriage, the desirability of legislative recognition, and the complexity of issues which need to be resolved should the parliament legislate that marriage may be contracted in accordance with law by two persons without distinction as to their sex.
Under the rubric of freedom for religion, I will offer an apologia for religious citizens being able and encouraged to profess their religious beliefs while paying due regard to the sensibilities, rights and entitlements of other citizens who prefer a secular view of the world and of their polity. This includes religious groups being free to associate and form and conduct institutions such as schools consistent with their religious beliefs and ethos.
Under the rubric of freedom in religion, I will conclude with a plea to my co-religionists for an appropriate zone of autonomy and freedom within religious institutions.
Freedom of Religion: The Royal Commission and the reform of churches
This week, Justice McClellan, Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse told the public:
The current breakdown of institutions in which survivors in private sessions state that they have been abused is as follows. 62 per cent of attendees reported abuse in a faith-based institution. Around 27 per cent reported abuse at government- run institutions. Abuse in Catholic institutions was reported by 40 per cent of all private session attendees, abuse in Anglican institutions by 8 per cent of attendees and abuse in Salvation Army institutions by 4 per cent of attendees.
I am one of those Catholics who has welcomed the assistance of the state to put our house in order. The repeated evidence before the royal commission has convinced me that my church has been in serious disrepair, putting at risk many victims who could have been spared lives of living hell if only appropriate safeguards had been in place. For the last two years, ever since Cardinal Pell's second appearance before the commission, I have been saying that we Catholics have to accept that the institution until at least 1996 was structured so opaquely as to work against the interests of vulnerable children. The inner sanctum of an archdiocese in those days could be so fortified and so exclusive as to shield a competent auxiliary bishop from alleged abuse by a priest in the bishop's allocated monitoring zone. That fortification was not put in place and maintained with a care for children. It was maintained without sufficient regard for the well-being of vulnerable victims whose interests were secondary to the name of the Church and the protection of its clergy. Those of us who are members of the Catholic Church must accept the blame, committing ourselves to transparency and accountability in the Church so that this sort of thing can never happen again. We, and not just the deceased bishops who occupied the inner sanctum, must accept responsibility for the harm suffered by those who would not have suffered but for the existence of such a fortified, exclusive inner sanctum. We can do this, and should do this, even while acknowledging the exhaustive work done by our leaders who have worked to clean up the unholy mess since 1996, making the Church much safer for children. Whatever the High Court ultimately rules about abuse occurring after 1996, we need to wear the rap for everything that went on before 1996 when the procedures in place were hazy, porous and totally inadequate.
On this difficult topic, there will always be those who question my motivation as a Catholic priest and there will be those who remain convinced that I lack compassion for victims. Nothing I say will change their minds about me, the Church or abuse issues. I accept that. Be assured, I hope and pray that this royal commission can help provide a safe environment for all children in Australia and some further healing and justice for those who have been victims of sexual abuse, especially those who were children violated by members of the Catholic Church in positions of trust. That is why I continue to speak on this issue. It is why I was one of the church people calling for some state intervention before the royal commission was established. The commission's prying into the past actions of church officials in no way constitutes and interference with the freedom of religion. It's spotlight is to be welcomed, provided only that it is shone on a truly representative sample of all institutions which have been found wanting.
In April 2016, the Royal Commission into Institutional Responses to Child Sexual Abuse published its Case Study 26 on the Neerkol Orphanage in Rockhampton. The Commission found that the response by the bishop and by the Sisters of Mercy to victims making complaints prior to 1996 was often inadequate and lacking in compassion. It also made a damning finding that the bishop was dishonest in a letter he sent to the diocese.
I have a problem with this commission making findings on issues like the want of compassion. When it reported on the Ellis Case, I said the royal commission (being appointed by the state rather than the church) had no business finding that Cardinal Pell 'did not act fairly from a Christian point of view'. I thought they should simply have found that the Cardinal did not act fairly. Similarly I wonder about the competence, utility and power of a royal commission to make findings on compassion. Sure, the Christian churches espouse compassion as a Christian virtue, but I don't see that it is something usefully to be assessed or mandated by a royal commission. To find how compelling the commissioners' findings on compassion were, I would first want to know how compassionate each of them is, and that's basically none of my business. They are royal commissioners performing a legal task for the state. Would the commission make findings that other institutions (like Swimming Australia or the State Department of Child Welfare) did not act compassionately? Suffice to say, they have not, and quite appropriately.
The word 'compassion' or 'compassionate' appears 21 times in the Neerkol case study report. I have no problem with church people or other individuals adversely judging church leaders for a lack of compassion. There may even be a case for politicians doing it, and then arguing the toss on whether they are more compassionate than the people they are criticising. But I don't think it's the job of a royal commission. If it is the job of the royal commission, why do they stop at compassion? Why not also offer judgments about whether the responses are loving, merciful and self-sacrificing? I think by over-reaching itself in this way, the commission actually blunts its findings about the adequacy of responses, including compliance with protocols and sensitivity to the needs of victims. The issue is not whether church leaders measured up to the ideals of the Christian virtue of compassion but whether they measured up to the standards properly expected by the Australian community, regardless of people's religious commitments and views. You would hope that church leaders would do more to assist victims than merely to comply with community standards. To date, the commission has unearthed countless instances where the church leaders have not even complied with those community standards. But I am uneasy about a royal commission making assessments about virtue which go beyond the laws and protocols which might be set down for all institutions and for all individuals. Make no mistake. I am all for compassion. But I don't think it's the domain of a royal commission.
I sound this note of caution. No good will be served by a royal commission auspiced by the state telling a Church how it judges or complies with its theological doctrines and distinctive moral teachings. By all means, set universal standards of practice expected of all institutions dealing with children, but do not trespass on the holy ground of religious belief and practice.
The Commission is preparing for the so-called 'Catholic wrap up'. The Commission's Issue Paper 11 as a prelude to the Catholic Church Final Hearing invites submissions on a number of issues including:
To what extent have any of the following issues contributed to the occurrence of child sexual abuse in Catholic institutions or affected the institutional response to this abuse? The Royal Commission has identified these issues through case studies, submissions, private sessions, and a review of literature regarding child sexual abuse in Catholic institutions.
They list 12 issues, the first of which is: 'Catholic theology and doctrine insofar as it is relevant to the institutional response to child sexual abuse'.
Now some of those who have made submissions have understandably taken the opportunity to ride their favourite theological and doctrinal hobby horses. Not only is Catholic theology and doctrine beyond the competence of individual commissioners; it is beyond their jurisdiction, precisely because we are a nation under a Constitution which protects freedom of religion and we are a fairly secular pluralistic society which accords a zone of freedom to religious institutions and people exercising their religious faith. Of course, the commissioners have not only the right but also the duty to report in light of the evidence on how all institutions, including the Catholic Church, might comply with appropriate standards for the protection of children. Should the Church, like any other institution, not find itself able or wanting to comply with appropriate standards, the State would be entitled to limit the Church's role in relation to children. But the Commission cannot trespass into the realm of recommending changes to Catholic theology and doctrine, even if some Catholics and others take the opportunity to put submissions which challenge that theology and doctrine.
I happen to be one Catholic priest who has much sympathy with many of the suggested theological and doctrinal reforms suggested by some of those who have made submissions. In fact some of them are friends of mine. I too would like to see women priests in my church. I don't see the contemporary need for an enforced rule of celibacy for diocesan priests. I think the power of individual bishops is too great. Regardless of what submissions are forthcoming seeking a root and branch reform of the Catholic Church's structure, theology and doctrine, the commission will need to be very careful about taking on the mantle of royal commission infallibility and lecturing to the Church about its structure, theology and doctrine in light of contemporary secular Australian notions of truth and right. For example, Professor Patrick Parkinson who did so much to assist the Church with the development of the Towards Healing protocol rightly claims in his submission to the royal commission:
The governance system of the Church is, rather literally, medieval, notwithstanding reforms introduced by Vatican II. Its character still reflects the way in which the various kingdoms and other state entities of medieval Europe were governed before the emergence of modern democratic institutions. The Pope was once the absolute ruler of Italian territories, known as the Papal States. That territorial governance now extends only to the confines of Vatican City, in which the Pope has absolute executive, legislative and judicial authority. The model nonetheless applies beyond the walls of the Vatican. The Pope has executive, legislative and judicial authority for the Church worldwide supported by the institutions of the Vatican. He may share that authority with the Bishops collectively, to some extent, but that is more accurate as a statement of the Church's theological self-understanding, than it is of its actual governance structure. Neither the doctrine of the separation of powers nor the idea of democracy have had much purchase, even after Vatican II.
Even if all Bishops and Religious Leaders at a given date signed up to offer commitments to the Australian people, these would not, and could not, bind their successors. That is the governance problem at the heart of Catholicism.
A new system of governance for the Catholic Church is well beyond the competence of a state auspiced royal commission in Australia. We have a constitutional guarantee against an established church and thus it is not for the state to prescribe the structure nor to qualify or question the theological teachings of the Church. The commission must highlight failures in the Church to protect children and recommend standards of compliance for protection in accordance with Australian community values. But the church must be left to its own resources to see how it can best comply consistent with its own theology and doctrine. If the commission sticks to its last, everyone will be helped: victims and church administrators, the state and the church.
Freedom from religion: same sex marriage: defining civil marriage regardless of religious views of marriage
Now that the 2016 federal election is done and dusted, we need to consider what is a responsible, informed position to take on the proposed plebiscite on same sex marriage.
I uphold and continue to proclaim the Catholic Church's teaching on sacramental marriage. To quote The Catholic Catechism for convenience: 'The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament.' (#1601, see also CIC, can. 1055 § 1; cf. Gaudium et Spes 48 § 1) I don't expect people of other faiths and none so hold that view. I don't even expect them to understand it. I know that most Christians of other denominations do not have the same theological approach to marriage.
We are all citizens of a pluralistic democratic society in which the law does not necessarily reflect my Church's teaching on all matters, including the sacrament of marriage. Most civil marriages contracted in Australia are not sacramental marriages celebrated or even recognised by the Catholic Church. Most marriages nowadays are performed by civil celebrants. At federation, most marriages were performed by clergymen.
It is essential that any plebiscite or law on the recognition of same sex marriage in no way interfere with the Church's role in performing or defining sacramental marriages. The civil institution of marriage already differs substantially from a sacramental marriage, being terminable on one year's notice by one of the parties, and being available to all citizens regardless of their religion or previous marital status. I recognise the right of Catholic voters and politicians to vote according to their conscience when deciding whether to expand the definition of civil marriage to include an exclusive commitment by two persons of the same sex.
In The Australian Paul Kelly writing on 23 August 2016 on the same sex marriage plebiscite said: 'Lawyer and priest Frank Brennan, who has always argued the issue should properly be decided by parliament, told this column: 'Contrary to Justice Kirby I have urged proponents of same-sex marriage to support legislation for a plebiscite because there is no other way that the matter can be resolved during the life of this parliament with Malcolm Turnbull remaining as Prime Minister.'' Let me explain.
I have always thought a plebiscite was a bad idea. There will be complexities in legislation which can only be determined by parliament. A plebiscite is not the usual Australian way for determining law or social policy. Once Tony Abbott was no longer prime minister, I pointed out to groups such as the Australian Christian Lobby that it made little sense for them to be committed to a plebiscite when the PM, the Leader of the Opposition and the Greens all held a contrary position.
I always urged a conscience vote in the parliament as the best means of resolving this issue. Once the ALP conference tinkered with the conscience vote provision, the gate was open to tinkering on the other side. It definitely reduced the compelling nature of the argument that the matter be resolved by conscience vote of the parliament.
Once Malcolm Turnbull went to the election with a commitment to legislate for same sex marriage only after the conduct of a successful plebiscite, it was inevitable that the ONLY way forward to resolving the issue during the life of this parliament would be by the parliament enacting legislation to authorise a plebiscite. In the absence of such authorising legislation, Turnbull has nowhere to go. So either he goes, or the matter gets put on hold until after the next election.
A conscience vote in the parliament during the life of this parliament, and without a plebiscite, would leave the opponents of same sex marriage rightly feeling that the government had breached an election commitment. This anxiety on their part would then build on their sense that the cultural elites are cutting corners to achieve their objective. There were unfortunate exchanges in the 2013 High Court case involving the ACT's attempt to legislate for same sex marriage when Justice Hayne made it very clear from the bench that the High Court was anxious to expand the constitutional definition of marriage to include same sex marriage even though there was no intervener to argue the contrary position. The Commonwealth was arguing that the case could be decided without the court having to rule on whether 'marriage' in the Constitution could include same sex marriage.
The Commonwealth Solicitor General had argued:
'First of all, we have put something as the better view. The ACT commends that view. The intervener enthusiastically commends that view. The Court does not have a contradictor on that question. The Court would not decide any matter merely on agreement. That is just not on, absolutely not on. If the matter needs to be decided, the Court will decide it and what I had proposed to do, given there was not a contradictor, was to identify what I will call the narrow argument and then deal with what I will call the broader argument.
'So I will seek to identify both those arguments, there being no contradictor. But I do not retreat from the proposition that because our law on any view has stayed on the right side of the relevant part of the circumference of the circle, it is either at the circumference or it is inside it. In that sense, it is not necessary to decide the constitutional question.'
The discussion culminated in Justice Hayne saying to the Solicitor General: 'If you sit on the fence too long, Mr Solicitor, it becomes deeply uncomfortable.' The bench thought the Solicitor General was fence sitting simply because he was arguing that a constitutional question could remain unanswered when the case at hand could be resolved without the question being answered, especially given that there was no contradictor at the bar table.
We need to follow due process in determining this policy question. Opponents of same sex marriage (of which I am not one) have realised that the High Court reached a decision on the matter without their having a place at the Bar table. Those opponents then engaged in an election campaign in which government at their urging pledged not to legislate without first conducting a plebiscite. In principle I thought a commitment to a plebiscite was foolish; in principle, once an election commitment is given, I think a plebiscite must be conducted during the life of this parliament prior to legislation for same sex marriage then being debated in the parliament.
Five things are now indisputable: (1) the government within its own ranks signed off on a Coalition agreement before the election making a plebiscite mandatory; (2) the government went to the election committing itself to a plebiscite; (3) the government was re-elected with that 'mandate'; (4) Malcolm Turnbull is a dead duck if he attempts to preside over a government which participates in a vote in the House of Representatives in favour of same sex marriage without first having a plebiscite. A vote on same sex marriage without a plebiscite is not possible during the life of this parliament with the Coalition maintaining government and being headed by Turnbull; and (5) if there is no plebiscite in February 2017, there will be no change to the Marriage Act during the life of this parliament.
The most Turnbull can now offer those supporters of same sex marriage who are at the same time opposed to a plebiscite is a promise to go the next election committed to a conscience vote in the next parliament without a prior plebiscite. If Turnbull were to attempt anything else during the life of this parliament, he would face the chopper, and so he should. So we should all prepare for a February plebiscite, hopefully with all sides being respectful of each other's views and civil in their discourse — regardless of what we think the law on 'marriage equality' should be.
A journalist for an Australian Catholic publication preparing for the plebiscite recently asked me four questions in preparation for the plebiscite. Let me share my responses.
Can you respect and care for same sex attracted people and still think marriage should only be between a man and a woman?
Yes you can. It all depends on what you mean by marriage. For example, I am a Catholic. In the Catholic Church, we have seven sacraments. 'Marriage' is one of those sacraments. It is a sign of God's grace, celebrated by the Church community. Five of the other sacraments are administered by an ordained person. Baptism, the first sacrament, can be performed by any member of the church community especially in time of emergency. The sacrament of marriage is performed by the couple. The priest is simply the official witness of the church community. Why then is marriage a sacrament? It is the celebration of grace in the life of a couple who commit themselves exclusively to each other for life and who are open to the bearing and nurturing of children who will be the future members of the church community. Thus the sacrament of marriage can be performed only between a man and a woman.
The confusion in the present discussion arises, in part, because the same word MARRIAGE is used for this sacramental bond and for the far more frequent arrangement in civil law which is available to people of all faiths and none. In Australia, you can contract a civil marriage even though you are divorced and your previous partner is still alive. You don't need to prove you're your previous marriage was invalid. You can contract the marriage firmly resolved not to have children even if you're able to. You can terminate the contract just by giving one year's notice to the other party.
So the Catholic Church's idea of sacramental marriage is already very different from the state's idea of marriage. I can understand those Catholics who would like to keep the state's idea a close as possible to the Church's idea. I readily admit that the two ideas are already very different. The extension of the definition of civil marriage to include a contract between two persons of the same sex would not change the Church's definition of sacramental marriage. I would hope that we could all respect and care for same sex attracted people, regardless of what we think should be the civil definition of marriage.
Marriage equality advocates say that a plebiscite risks endangering the mental health of already vulnerable same sex attracted people. Should such a plebiscite be conducted then? If so, how?
This is a question about politics, not about morality. Instead of asking, 'Should a plebiscite be conducted?', it's probably better to ask if there is any alternative in Australia at the moment. When Malcolm Turnbull became prime minister, the Liberal and National Parties agreed in writing to hold a plebiscite before the matter was brought to Parliament. That's the policy they took to the 2016 election. So I don't think there is any alternative during the life of this parliament and while Turnbull remains as prime minister. Most Australians favour a plebiscite. Personally, I was opposed to a plebiscite. But I don't see any political option now, other than waiting until after the next election. I do think it's time to get it over and done with. In the lead up to the February 2017 plebiscite, we should all be careful to be respectful of others, particularly of those who think differently from us and of those who live differently from us.
What will the impact of a vote in favour of marriage equality be — both on society in general and on Catholic institutions?
I have no doubt that the vote of the public and the vote of the parliament will be eventually in favour of what in now being called 'marriage equality'. The real impact of the vote will be not just increased tolerance of same sex relationships, but public endorsement of these relationships. This is the big challenge for Catholic institutions. We will now be operating in a social context where same sex relationships are endorsed and espoused. So Catholic institutions like schools will have to open their doors graciously to same sex married persons in the same way as they would to other teachers and staff who are civilly married but who are not living a sacramental marriage in the eyes of the Church.
For society generally, I don't think there will be any major impact in the long run. There will be the initial flurry of celebrations and political victory laps, and I say, 'Good luck to the winners.' But I have just been visiting the USA and Spain where same sex marriage is now part of the furniture. No one is talking about it. It's a good thing in an ageing and less caring society that couples, including same sex couples can commit to looking after each other, particularly in old age. With the increasing number of children being brought up by same sex couples, it's good that those children can be given some added security.
Presumably, adoption agencies will still act in the best interests of the child. Hopefully church adoption agencies will be able to show a preference for placement in families founded on a sacramental marriage should that be the wish of the natural parent(s). With same sex male couples wanting to raise their own children, there will be additional demands for surrogacy and thus increased problems working out non-exploitative surrogacy arrangements. On all these sorts of issues, we need to be patient as we work through laws and policies which are fair and respectful to all persons. The state has an interest in overseeing and limiting assisted reproductive technology which may open the way to the creation of a child without both a genetic father and a genetic mother. But we'll cross that bridge when we get to it.
Pope Francis recently said Christians should apologise to gay people for the way they have been treated, and yet the Church has not changed its teachings around sexuality. How might relationships be reconciled without that change?
Pope Francis has been a breath of fresh air, saying 'Who am I to judge?' But he has made it clear that he is not about to change teachings by his predecessors like John Paul II and Benedict. The Catholic Church's teaching on sexual acts and practices is very counter-cultural nowadays. It's not only same sex attracted persons who find that their sexual practices do not align perfectly with church teaching. Ever since the invention of the contraceptive pill, many people, including many Catholics, do not live and espouse the unitive and procreative aspects of all sexual acts. I suspect some change to church teaching will come, but it will not be during this papacy. Meanwhile all Catholics whatever their sexual orientation are called to live their lives and conduct their relationships committed to truth, mutuality, equality, commitment, fruitfulness, and social justice.
Freedom for religion: employment of staff and selection of students/patients/clients/customers
Church groups in Australia have been engaged in a grueling campaign to maintain what they regard as justifiable exemptions from the provisions of equal opportunity employment laws. Cardinal George 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. Parliaments are obliged by international human rights conventions like the ICCPR to provide protection of religious freedom in any laws which would unfairly restrict the right of religious communities to operate their schools and services in accord with their beliefs and teachings.
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.
Here in Victoria, the Scrutiny of Acts and Regulations Committee of the Parliament conducted a lengthy review into the exceptions and exemptions to the Equal Opportunity Act 1995. As in the UK, many church personnel here presumed that the Charter (or Human Rights Act) was instrumental in calling into question the existing exemptions. That was not the case. They are quite separate statutes. A case could be made that a Charter espousing the key rights to religious freedom and conscience could assist in setting the appropriate limits on State intervention with Church organisations wanting to employ persons whose lifestyles (hopefully not just sexual) are consistent with church teaching.
During the 2009 National Human Rights Consultation which I was privileged to chair for the Rudd Government, 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 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.
Having successfully fought off the prospect of a national human rights Act, 20 key church leaders met with Prime Minister Gillard on 4 April 2011 to plead for freedom to employ in church agencies personnel living and acting in accordance with the religious beliefs of the sponsoring churches. After the meeting, Cardinal Pell briefed the media about the meeting. He was reported in The Australian having told Ms Gillard: 'We are very keen to ensure that the right to practise religion in public life continues to be protected in law. It is not ideal that religious freedom is protected by so called 'exemptions and exceptions' in anti-discrimination law, almost like reluctant concessions, crumbs from the secularists' table. What is needed is legislation that embodies and recognises these basic religious freedoms as a human right.' That sounds suspiciously like a Human Rights Act to me.
Professors Patrick Parkinson and Nicholas Aroney made a submission to the Commonwealth's 2012 abortive inquiry into the harmonisation of discrimination legislation. They observed:
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.
These dangers are real. Some advocates for reform of anti-discrimination laws have a tendency to place a very high value on 'non-discrimination' and to concede 'exceptions' based upon freedom of religion, association or cultural expression only with great reluctance, if at all. Although they sometimes recognise that there is a need to give due weight to all human rights and to find an appropriate balance between them, it is generally not acknowledged that posing the question as one of identifying exceptions to the principle of non-discrimination prejudices the inquiry in favour of the right to be free of discrimination and against the rights to freedom of religion, association and culture, understood as both individual and group rights.
Carolyn Evans, Dean of the University of Melbourne Law School concedes in her book Legal Protection of Religious Freedom in Australia that 'the extent to which religious freedom or equality norms should prevail is a question that has proved particularly controversial in recent years in Australia.' She does not see that any resolution is likely to attract a community consensus but points to the trend overseas and concludes that 'the balance is likely to tilt more towards equality in coming years than it has previously'. The 2011 amendments to the Victorian Equal Opportunity Act by the Baillieu government pointed in the contrary direction. Those amendments replaced the more restrictive 'inherent requirement' test for employment. The Victorian law was amended back then once again to allow 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'. This meant that the religious school could 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. Then Attorney General Robert Clark when introducing those 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 should be equally applied. I note that in the 2011 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, I thought the Victorian Parliament got the law right in 2011.
As with many things in politics, the pendulum is now swinging back here in Victoria. The Andrews government is now committed to reversing the 2011 changes. It has now introduced the Equal Opportunity (Religious Exceptions) Bill 2016 in Parliament to reinstate the inherent requirements test under the Equal Opportunity Act 2010. Attorney General Martin Pakula has claimed, 'When the former Coalition Government scrapped the inherent requirements test in 2011, they left many in Victoria's LGBTI communities vulnerable to discrimination in the job market.' He says, 'We respect people's right to religious expression but not at the cost of equality' and he claims: 'This test will ensure a fairer balance between the right to equality and the right to freedom of religion.' I beg to differ.
Freedom in religion: an appropriate zone of autonomy and freedom within religious institutions.
In 1965, the Catholic Church's Second Vatican Council declared: 'that the human person has a right to religious freedom. This freedom means that all persons are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to their own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.' The Council Fathers conceded that those exercising religious freedom had to pay due regard to public order. They stated: 'Injury therefore is done to the human person and to the very order established by God for human life, if the free exercise of religion is denied in society, provided just public order is observed.' The state maintaining public order could constrain freedom of religion so as to safeguard the rights of all citizens, to maintain the public peace, and to preserve public morality. Some bishops from Communist countries, including Karol Wojtyla were wary about these state qualifications on the freedom of religion.
The drafters had to steer a middle course satisfying those who insisted on the primacy of truth as well as those suspicious of state intervention in the name of public order. Dignitatis Humanae was ultimately carried overwhelmingly on 7 December 1965 with 2308 in favour, 70 opposed, and eight votes being invalid. A year after the Council, the United Nations finalised the International Covenant on Civil and Political Rights which brings greater specificity to the right of freedom of religion than in the original declaration of human rights. This right is so cherished in international jurisprudence that the covenant states that this right cannot be restricted even in times of national emergency.
One of the key drafters of the Vatican Council's declaration was the American Jesuit John Courtney Murray who openly acknowledged that the declaration opened a Pandora's box of freedom. Ultimately the question would arise: if the human person is to be free from constraint by the state and by all human agencies, how could the person acting in good faith be constrained by the Church?
The great Dominican peritus of the Council, Yves Congar, was a member of the council's subcommission which worked on Murray's draft. He was at times critical of Murray while backing his key insights. While working on the document, Congar wrote in his diary:
In effect our Declaration—whose doctrine I accept—is going to have some unforeseen consequences over two or three centuries. I am convinced that it will bear some good fruit: it will dispel some of the accumulated distrust with regard to the Catholic Church. But we must not delude ourselves: in practice, it will cause to turn faster the mills of religious indifference and of the conviction, so widespread today, that ALL rules of morality are a matter of sincerity and subjective intention. We will not be creating this disposition: it already exists. But it is up to us, conscious of our pastoral responsibility, to do all we can to struggle against these erroneous dispositions.
As pope, Karol Wojtyla insisted that 'an honest relationship with regard to truth (is) a condition for authentic freedom'. What of the freedom of the person forming and informing their conscience, and to that conscience being true? Positing a conflict between the 'culture of life' and the 'culture of death', John Paul II led the Church in a contest with those liberals who claimed in good conscience and in fidelity to their public trust to their electors that they could withdraw legal protection for the unborn and the aged, leaving life-and-death decisions to the mother and the self-determining aged patient. This contest has been playing itself out most acutely in the United States, the original home of religious freedom and constitutional government. Whereas the Council fathers downplayed the place of conscience in the Declaration on Religious Freedom, modern church leaders sensitive to the contemporary appeal of conscience have moved it centre stage. Pope Benedict when meeting with the US bishops in 2012 spoke of the 'worrying tendency to reduce religious freedom to mere freedom of worship without guarantees of respect for freedom of conscience'. John Paul II once told European parliamentarians that the right of religious freedom was 'the litmus test for the respect of all the other human rights'. In 2012, the US bishops published a statement on religious liberty entitled 'Our First, Most Cherished Liberty' in which they followed the lead of John Paul II in asserting 'if we are not free in our conscience and our practice of religion, all other freedoms are fragile. If citizens are not free in their own consciences, how can they be free in relation to others, or to the state?'
Many people wonder how the same question cannot be asked of the Church in its dealings with members who in good conscience cannot accept particular teachings. While carving out the appropriate zone of freedom for the Church in the modern pluralist, democratic state, the bishops rightly want to maintain the role of Church authority and tradition in leading people to the truth which will set them free. For example, the US bishops object to a state mandated directive that they ensure the voluntary option of contraceptive cover being available to church employees under their health plans. It is becoming increasingly difficult to maintain that zone of state immunity from interference with religious freedom when, within that zone, members of the faithful find themselves constrained by church teachings which command little assent. It is not only non-Catholics who find forced Church compliance within the free zone of immunity from state interference a little puzzling. What of the Catholic employer who would like to offer her employees (whether Catholic or not) the free option of comprehensive health cover including contraceptives? Some employers might find support in John Paul II's 1991 World Day of Peace declaration that 'to deny an individual complete freedom of conscience — and in particular the freedom to seek the truth — or to attempt to impose a particular way of seeing the truth, constitutes a violation of that individual's most personal rights.'
Most thinking Catholics today find themselves struggling to live authentically along a spectrum. At one end of the spectrum is truth, authority, idealised tradition, hierarchy and papal primacy; at the other end is freedom, conscience, historical consciousness, community and due process. The Church, like all social institutions, falls short in charity and in truth, seeking to respect the full human dignity of those persons who hold differing beliefs as they live and move along the spectrum. Its leaders understandably tend to inhabit one end of the spectrum. But the Church is the earthenware jar which holds the treasure — that truth which sets us free. In 1993, the late Cardinal Martini told Jesuit students in Rome, 'More people today have the gift of freedom than ever before in history and my task is to evangelise this freedom.' His Jesuit brother Courtney Murray would have agreed. Dignitatis Humanae provides the belated springboard for this evangelisation of freedom. Murray accurately predicted at the end of Vatican II that the Declaration on Religious Freedom would unleash a great argument 'on the theological meaning of Christian freedom'. He opined, 'The children of God, who receive this freedom as a gift from the Father through Christ in the Holy Spirit, assert it within the Church as well as within the world, always for the sake of the world and the Church.'
The Church's view on human rights will maintain currency in the world in future only to the extent that the Church's own structures and actions reflect the rhetoric of human rights, and only to the extent that those rights are enjoyed by all within the Church. Samuel Moyn in his new book Christian Human Rights reminds us that 'Christianity is the global faith that many would like human rights to become.' Moyn provides this challenge to Church members who cherish the goal of human rights for all:
But perhaps the most fascinating barrier to the victory of human rights someday that the analogy with Christianity allows entertaining is not out in the world but in the hearts of men and women. Part of the failure that Christianity has long faced on this front is institutional: for its internal critics, its institutions have always betrayed the genius of the founder and have propagated the one true faith not merely in ways that were not heard, but that did not penetrate, washing over souls like water over rocks left dry inside. In Alfred Loisy's immortal complaint, 'Jesus Christ preached the coming of the Kingdom of God; unfortunately, it is the Church that arrived.' The message was right, but the medium failed.
There are limits to what human rights can deliver for the human person.
It was Louis Henkin who reminded us that human rights was no substitute for the old religions as human rights 'do not provide warmth, belonging, fitting, significance, do not exclude the need for love, friendship, family, charity, sympathy, devotion, sanctity, or for expiation, atonement, forgiveness.' Drawing on the Vatican Council's Declaration on Religious Freedom, my ACU colleague Michael Casey has recently observed:
For when the religious life is lived in concord with the life of reason, it helps people to become 'lovers of true freedom', who 'come to decisions on their own judgement and in the light of truth, govern their activities with a sense of responsibility,' and 'join with others in cooperative effort' to strive after what is true and right'. Religion is not the only source of these qualities, or the only source of their renewal, but it is not clear that we have such an abundance of resources for this task in that we can do without its contribution.
That's why we need to accord due respect and recognition to freedom of conscience and freedom of religion in this Age of Equality.