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.

Anti-vilification laws

Freedom of speech must be limited to certain circumstances. Freedom to manifest one’s beliefs involves freedom of speech. The International Covenant on Civil and Political Rights limits religious freedom to that which is "necessary to protect public safety, order, health or morals or the fundamental rights and freedom of others". There is rightly some limitation on speaking with the aim to inflame violence, certain kinds of dangerous panic and on certain forms of defamation. However, in recent times there has been an effort to extend these limitations under the heading of anti-vilification laws.

Certainly, severely ridiculing and insulting people is not a good thing and is not openly advocated or mandated by any religious belief I know of. The Christian faith in particular urges believers to be gentle and respectful of others. However in the light of the cultural context I have been outlining, statements of the central Christian doctrines such as the uniqueness and supremacy of Christ and the liability of unbelievers to God’s judgement and so on may easily be taken as severely ridiculing other people.

Anti-discrimination law proposals

Anti-discrimination laws also present a problem. At first it might be thought that to protect people from discrimination on religious grounds is a very good thing. However, religious communities and institutions have a problem existing in an environment with extensive anti discrimination laws as they need to preserve the right to discriminate in order to preserve their very identity and purpose. It is an established principle of anti-discrimination law to provide an exemption to religious groups. Not that this is entirely a happy position for religious groups to find themselves in. They now exist as exceptions to the norm and are positioned outside the legal (or by implication) ethical mainstream.

The Report 2000 On Religious Freedom In the World draws our attention to the tendency in some nations to give police and government agencies power to define "what are the admissible forms of religion". This endangers religious freedom, the report states, because of "an attitude that defines any 'strong' religious experience as 'sectarian'". The report expressed concern at the "worrisome symptom"of the "danger of an 'obligatory relativism' which can be perceived in some Nations". I suspect that it was anti-sect laws in some European countries which was in mind, although the comment can equally apply to tendencies here in Australia. So far the recommendations of Report 92 have not been accepted by the NSW government, and God willing, never will. Political good sense has prevailed.

Religious communities need to genuinely embrace religious freedom and not support it only as self-interest dressed up as principle. It is sad to see some religious groups in Australia defending freedom of religion while they do not do so in countries dominated by their religion. Religious groups need to be unafraid of being offended and committed to the freedom of others, to criticise them in ways that they may find unpleasant. This applies as much to the majority Christian groups as minority ones.

People of good will, of religious commitment or none, need to be committed to a society which allows genuine freedom even if at times this has tension with the good of cultural harmony.

I am particularly concerned about the danger of entrenching some of these problems through bills of rights and other forms of judicial oversight of religious freedom. A free society is not a perfect society nor is it a society which is free from the messiness of conflicting, strongly held viewpoints in the public arena.

It is much better to rely upon core cultural values in Australia such as these than create laws designed ostensibly to protect religious freedom but may turn out in the long run to be dangerous protections indeed.