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.
I applaud the Prime Minister’s statement yesterday in response to the claims by the Australian Christian Lobby about the harmful effects of homosexual relationships. I agree with Ms Gillard’s claim that ‘to compare the health effects of smoking cigarettes with the many struggles gay and lesbian Australians endure in contemporary society is heartless and wrong’.
During the 2009 National Human Rights Consultation, former NSW Premier Bob Carr 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. The Australian Catholic Bishops Conference has made a submission to the Commonwealth’s present inquiry into the harmonisation of discrimination legislation.
In another submission to the inquiry, Professors Patrick Parkinson and Nicholas Aroney observe:
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.
Last year, the new 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.
This is an extract from Frank Brennan’s speech last night at the Melbourne Law School launching of Carolyn Evans’ book Legal Protection of Religious Freedom in Australia (Federation Press). The full text is here.
Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.