Dangerous protections: how some ways of protecting freedom of religion may actually diminish religious freedom

Australia is one of the most free countries in the world for the holding and expressing of religious beliefs and behaviours, especially when compared with the widespread denials of religious freedom of in so many nations today.

In the past 50 years we have witnessed a remarkable growth in laws purporting to protect religious freedom in Western countries as part of the increased interest in human rights since the horror of the last world war. Yet a number of recent proposals for human rights legislation have represented real threats to the freedom of religion in this country. Fortunately, after significant outcries, final outcomes have been much less problematic than first proposals. But the threat to freedom represented by law reform commissions and anti discrimination boards should be of concern to lovers of liberty, irrespective of religious convictions or their absence.

I wish to draw attention to two features of religious freedom that are most difficult to accommodate in modern society. Real freedom of religion includes the freedom to discriminate and to act in a way that may offend. As giving offence and discriminating seem unworthy activities, why should we accept that the right so to do is integral to religious freedom?

Freedom to discriminate under certain circumstances is integral because in some contexts there is the need to make distinctions between people on religious and moral grounds to protect the integrity of the religious community. Religion is rarely simply a matter of private and personal issues alone. It involves communities and institutions and thus the need to give shape to the distinctive identity of those communities and institutions. Religious groups need to be able to chose their leaders, other workers and members on explicitly "moral" or religious grounds that may not otherwise be acceptable or even lawful. For example, many religious groups discriminate according to the sex of their leaders and the behaviour and belief of adherents.

I believe Salman Rushdie was correct when he once declared that there is no such thing as the right not to be offended. On the contrary, to act in a way that may give offence is an inevitable consequence of the right to organise religious life and belief in a diverse society like ours. The issue here is not the intention to injure others, but the unintended consequence of seeking to persuade people to adopt a religion or to teach adherents the faith. This is true simply because the beliefs of a number of religions are offensive to some who do not share them. But because what is offensive is as much due to the sensibilities of the "offended" party as the motives or intentions of the "offender", the simple declaration of one person’s sincere "truth" can be another’s deep offence. I am not defending proselytising that is coercive but I am defending proselytising that is persuasive in character. To deny the freedom to act in way that may give offence is thus restrictive of the freedom publicly to espouse beliefs.

It is appropriate at this point to stress that the largest Christian churches in this country have not had a good record over the centuries in regards to religious freedom. The long partnership between Church and government in Europe has lead to basic denial of many freedoms. Speaking as an Anglican I need only draw your attention to the substantial domination of national life by the established Church of England until the nineteenth century.

In modern times we have witnessed a widespread conversion - including by the mainstream churches - to the principle of the freedom of religion. This is a real change, though we must make sure we are not just adapting to the new circumstances out of self interest. The test will be our attitude to the few relics left, like the existing law against blasphemy, which is defined as "a publication containing contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, the Bible or the formularies of the Church of England which are calculated to provoke outrage in the feelings of any sympathiser or believer in Christianity" and is still (surprisingly) common law in this country. There can be no justification of this law or anything like it. There must be no special protection to Christians (or even Anglicans!) from being offended at the statements and views of others.

The matter is further complicated by some changes in the past 20 years. One is the advent from 1973 of multiculturalism as government policy. This ideology is in practice a somewhat half-baked guiding philosophy to help manage our diverse social reality. As an ideology, multiculturalism involves much more than recognising the fact of Australia’s racial and cultural diversity and the very laudable aim that we should all live in harmony. It is based on three key concepts: maintenance of social cohesion, equality, and especially respect for cultural identity. The agenda has moved to protecting cultural identity and values, which, because religion is vitally important in the history of some cultures, has involved religious belief and practice.

The ideology of multiculturalism assumes that culture is static and therefore ultimately makes religious identity hereditary. Such attitudes regard religious freedom primarily in terms of the freedom to engage in one’s particular religious tradition and rituals. On the other hand, any activities which are intended to persuade others to change their religion or even adopt a religion are treated with suspicion and even hostility.

I believe that the only solid justification of religious freedom is that it is an essential condition of a free society, not just a harmonious one. A free society is one in which people can search for truth without compulsion, legal or otherwise. As Attilio Tamburrini demonstrates in the preface to the Report 2000 On Religious Freedom In the World nothing less than the right to search for truth is at stake in such freedom.

The problem for Western societies is that we no longer define religious freedom as dependent on our freedom to search for truth. Instead we put the emphasis upon creating a social, harmonious and multicultural community. As a result, our governments will tend to enact laws that restrict activities of religious groups which challenge such harmony, and thus restrict the religious freedom of our society. It is on this basis that policy makers feel compelled to restrict religious groups from saying or doing things which cause offence or to discriminate.

I will take two examples of proposed changes in the law which cause unease about freedom.