In recent years, there has been growing tension in Australia and elsewhere between Churches, other faith groups and ‘equality’ advocates concerning the reach of anti-discrimination laws.
Originally these laws ought to protect historically disadvantaged groups. They were concerned with fixed characteristics such as race, gender and disability. Over the years the scope of these laws has expanded quite dramatically to cover an ever increasing number of attributes which include not only fixed characteristics but also personal choices and histories. The law in Tasmania is an example. Among the 20 different grounds on which someone can now sue for discrimination in that State are lawful sexual activity, relationship status and personal histories such as medical history or having a criminal record.
That is, in Tasmania it would be illegal to not employ a youth worker at church based on a history of sexual activity outside of marriage. Consequently there are significant issues for faith groups who want to employ people in positions where they have a leadership or teaching role but the person does not accept or seek to live out those teachings.
NSW law still protects the right of faith based groups to select suitable candidates for paid or volunteer positions based on adherence to moral standards consistent with that faith, but for how long? The news this week that a same-sex marriage bill may well be considered by the parliament is the latest, but certainly not the last, in a series of potentially problematic laws for churches.
Advocates of these changes argue that religious organisations should not be exempt from these ‘equality’ laws—that they should not be allowed to hide behind their religious beliefs as a justification for ‘discrimination’.
However, in a multicultural society, there need to be laws that prohibit discrimination; but the law also needs to allow minority groups (and this includes religious groups) to maintain their culture and identity. That involves an acceptance that culturally or religiously specific organisations should be able to select staff who belong to that minority group or, in the case of religious groups, adhere to the beliefs and values of the faith. No harm comes to the rest of the community by so doing because typically allowing such groups to select in accordance with the mission fit of the organisation makes no appreciable difference to the rest of the population.
The language of ‘equality’ is increasingly being used as a blunt instrument to force people to fall into line with a socially and morally ‘progressive’ mindset. No divergence is allowed from that mindset and the law is used to enforce compliance.
This push for ‘equality’ creates conflict with recognise human rights. The right of freedom to educate one’s children in accordance with parents’ religious values is strongly supported in international human rights law (see e.g. Article 18(4) of the ICCPR). The UN Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief affirms the right to appoint religious personnel according to the beliefs of the religion.
And yet these right will increasingly be under threat as ‘progressive’ groups seek to impose their understanding of ‘equality’. Even the communist countries of the former Soviet bloc recognised the right of churches to organise themselves in accordance with their beliefs and traditions, subject to restrictions and monitoring by these atheist governments. And yet there are members of our parliament that would deny churches these freedoms.
One of the problems that needs to be addressed in crafting a law on discrimination which will command broad community acceptance is how to balance the rights and interests of people who hold different beliefs and values in a multicultural society. That includes respecting people‟s beliefs and acknowledging that on issues of sex and family life, there is a range of views in the community.
It is not good enough to see this issue entirely through the lens of non-discrimination, for that obscures from view the other human rights and freedoms involved. In a multicultural society, it is very important to avoid moral monoculturalism – the imposition of one set of moral values on the whole community in ways which allow no tolerance for different moral values and beliefs.
In a federation of cultures, the law needs generally to prohibit discrimination in the commons, but to protect the rights of freedom of religion and association outside of the areas of community life where any differentiation would be discriminatory. To have such a sensitive multicultural policy is to promote diversity and respect different cultures equally.
This article draws heavily from a paper by Patrick Parkinson AM, Professor of Law, University of Sydney
EXCEPTIONAL RELIGIOUS FREEDOM Paper for Conference on the Scope and Limits of Religious Freedom, University of Sydney, March 2013