Should a secular court have the power to decide if Izzy Folau is Christian?
That’s what may happen if the Federal government’s proposed Religious Discrimination Bill – to have been tabled in Parliament last week – becomes law [UPDATE: it will be delayed until 2020]. Of course, it won’t just impact Folau: any religious person who comes before the courts to contest their religious freedom will be affected.
Christian lawyer Mark Fowler (who deals extensively with religious freedom issues) wrote a piece in the Weekend Australian, outlining this possibility.
Here are his concerns:
1) The Proposed Religious Discrimination Bill Requires a Secular Court to Decide If a Person’s Religious Conduct ‘May Reasonably’ Be Aligned With Their Religion.
If it’s not, their religious conduct is not protected under the Bill.
Section 10 of the proposed Religious Discrimination bill includes this reasonableness test:
A religious body [or person] does not discriminate against [other] person[s]…by engaging… in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion’ (emphasis added).
Fowler unpacks what this means:
To gain the benefit of the bill’s protections, a person must convince a judge their conduct “may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of (their) religion”.
In non-legalese: a person will not be protected if a judge decides their sincerely held convictions are not an accurate interpretation of their religion.’
In other words, if Folau goes to court with this law in place, his claim of being discriminated against will stand or fall based on whether a secular judge considers his post about Christ’s love for “sinners” and ultimate role in judgment was “reasonably … in accordance with” Christian doctrine.
Considering there is a diversity of views on this amongst people identifying as ‘Christian’, it’s not a given that a judge would land on the classical Christian view. Folau would then lose his religious freedom.
But this wouldn’t just apply to Folau.
In fact, a similar situation has already happened in Victoria.
In 2007, LGBTI youth organisation Cobaw Community Health wanted to hire a campsite, owned and operated by Christian Youth Camps (CYC – linked to the Brethren denomination). The purpose of the camp was to teach that homosexuality is a normal and natural form of human sexuality.
CYC could not in good conscience accept this booking, as they felt it would be supporting a sinful cause.
After a a number of court cases, CYC lost and was fined as a result. One of the grounds on which they lost was a judge’s ruling of CYC’s religious ‘doctrine’.
The secular Human Rights Law Centre explains what took place:
Her Honour [i.e. the Judge] considered evidence from two theologians to determine the ‘doctrines’ of this religion…her Honour found that not everything in scripture amounts to ‘doctrine’. Her Honour agreed with the evidence of [liberal theologian] Dr Black that the scripture’s statements about same-sex relationships needed to be read as statements reflecting the prevailing cultural beliefs at the time, not as statements for all time.
Her Honour also placed heavy weight on the evidence that reference to marriage, sexual relationships or homosexuality is absent in the creeds or declarations of faith which adherents of the Christian Brethren are asked to affirm. Accordingly, the Tribunal held their beliefs about marriage, sexual relationships or homosexuality are not doctrines of the religion.’
So a secular Judge ruled that Christian beliefs about marriage and sexuality are not part of Christian ‘doctrine’, and so couldn’t be used to justify the behaviour of a Christian organisation.
Under the proposed Federal Religious Discrimination Bill, that’s the power secular Judges will have, not just in Victoria, but across all of Australia.
2) This Proposed Bill Weakens the Separation Between Church and State
It gives the State (unintended?) power to limit and control a religion.
For a judge to have the power to determine the ‘reasonable’ religious interpretation of a particular religion gives the state enormous power over that religion.
Believers would not be free to act against the judge’s interpretation of their religion.
And so, this would corrode freedom of religion, and move Australia in a totalitarian direction.
We need only think of countries like China, where people are free to be believers as long as they go to a state-sanctioned church, which preaches a state-sanctioned interpretation of the Bible.
In other words, the wall of separation between Church and state – meaning the wall that limits the power of the state over religious believers – would be severely weakened.
And yet, no less than Christ Jesus Himself gave the embryonic formulation of this wall of separation, when he declared ‘give to Caesar what belongs to Caesar, and to God what belongs to God’ (Matt 22:21).
Romans 13 builds on this vision, by declaring governments are authorised by God to provide public law and order, but not to coerce religious belief and practice (see also 1 Tim 2:1-2).
Secular thinkers and legal theorists have brought this Biblically-based thinking into the legal realm. As Canadian Supreme Court Justice Frank Iacobucci has said:
Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.’
When such entanglements occur – be they in a theocratic or secular state – people’s basic rights and freedoms are corroded.
So what might be a better way ahead with this bill?
3) A Better Test
See if the religious practices are genuinely held, and their restriction is necessary for the sake of law and order.
A better test than doctrinal fidelity is whether the religious belief is genuinely held by its adherents. This protects small religious organisations that have unusual or heterodox interpretations of the doctrines and beliefs of the religion with which they identify, but which are nonetheless genuinely-held religious views.
After all, religious freedom is for everyone – not just for those whose beliefs are considered orthodox by a secular court.
Secondly, such a group or person’s religious freedom should only be restricted if necessary to uphold the rights and protections of others – as per God’s mandate for government in Rom 13:1-6.
Clause 3 of Article 18 of the UN’s International Covenant on Civil and Political Rights (to which Australia is a signatory) provides this balance, where it says:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. [emphasis added].
This clause maintains a God-ordained ‘wall of separation’ between the state and religious believers. It holds the state to account: the state has to justify any restriction on religious freedom, by demonstrating the necessity of any such restriction.
That’s a much better way ahead than giving the state power to interpret religions, and thereby exert undue control over religious believers.
Delaying the Religious Discrimination Bill is the wisest course of action. I commend @ScottMorrisonMP for his careful and consultative approach. We are confident the government understands the concerns of faith groups and that a delay will ensure Australians get a better bill.
— Archbp Glenn Davies (@abpdavies) November 30, 2019