July 28th 2018

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COVER STORY The Strange Case of the Vanishing Safe Schools Resources

EDITORIAL By-elections will test Shorten's 'politics of envy' strategy

ASIA-PACIFIC AFFAIRS A modest proposal for Australia's regional security

CANBERRA OBSERVED Odds are that Labor won't Albo Bill aside

TECHNOLOGY Wonder carbon material on cusp of commercialisation

ENVIRONMENT Electric vehicles still only for elitist planet savers

ENERGY SECURITY Steam rail backup could get us out of hot water

ENERGY AND ENVIRONMENT NEG papers over crisis behind energy price hikes

FOREIGN AFFAIRS Beijing goes 'boo', Qantas gets in a flap

EUTHANASIA Death with dignity, or putting Death to death?


MUSIC Aural wallpaper: The background hiss to our lives

CINEMA Ant-Man and the Wasp: Downsized superheroes

BOOK REVIEW Timely essays on religious freedom

BOOK REVIEW Fraudulent father of psychoanalysis



No question about it: the Don is in charge

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Timely essays on religious freedom

News Weekly, July 28, 2018

CHALICE OF LIBERTY: Protecting Religious Liberty in Australia

by Frank Brennan, Michael A. Casey and Greg Craven

Kapunda Press, Redland Bay
Paperback: 110 pages
Price: AUD$24.95

Reviewed by Michael Quinlan

If it is possible to identify anything positive flowing from the postal poll on redefining marriage it might be that religious freedom was, at least, mentioned by politicians and in the mainstream media. In fact, some key political figures made some very positive statements about its great importance.

Some voters were no doubt influenced by those assurances but, when it came to the passage of the legislation after the completion of the poll, the calls for amendments adequately to protect this important human right went unheeded. Rather than making changes to protect religious liberty, an inquiry chaired by Philip Ruddock was established.

At the time of writing the recommendations of that review are not available, so it is not possible to express a view on whether the creation of that panel might be another positive outcome of the poll.

The production of a book on religious freedom in Australia is timely. The authors and publishers are to be congratulated on this work. It is a concise and easy-to-read volume that will be particularly valuable to those who have not read widely on the issues surrounding religious freedom or who are unfamiliar with the constitutional and legal issues surrounding this topic in Australia.

The book consists of two essays. The first, entitled “Nine Questions about Religious Freedom”, was written by Fr Frank Brennan SJ AO and Michael Casey. Mr Casey is director of the PM Glynn Institute of ACU. The second essay is by ACU Vice-Chancellor Professor Greg Craven AO GCSG, and is entitled “Protecting Religious Freedom”.

This review will consider each of those essays separately. The book includes a short forward by Damien Freeman, who is a Fellow of the PM Glynn Institute.

Mr Freeman makes this important observation in his foreword: “Religious freedom should be a source of peace, something which deepens hope in the possibility of a world where difference does not always inevitably mean conflict, even if conflict sometimes inevitably remains.”

Nine Questions about Religious Freedom

After briefly discussing the need for diversity and religious freedom for a vibrant democracy, this essay briefly answers nine questions before setting out 10 principles.

The nine questions are:

  • Why do we need to talk about religious freedom?
  • What is religious freedom?
  • What are the limits of religious freedom?
  • How does religious freedom help build community?
  • Is religious freedom dangerous for a secular society?
  • What do Catholics believe about religious freedom today?
  • What does the law in Australia say about religious freedom?
  • Where do challenges to religious freedom issues in Australia come from?
  • Is religious freedom discriminatory?

If you are after short and clearly written answers to those questions, this essay provides them. As the essay is short it cannot delve into a great deal of deep philosophical reflection or detailed historical analysis. But it can help readers get a grasp of the basics of these issues and hopefully inspire more reading and, most importantly, action.

The authors observe that the changing religious demographic of Australia’s population is rapidly rendering the nation less Christian and less religious, while noting that the global trend is the opposite. They observe the centrality of religion to many people in both their interior life and their actions and note the substantial impact of religion in Australia in providing medical services, education and other social services.

They observe: “The right to freedom of religion and belief is a fundamental human right because of religion’s importance to people as a matter of deep conviction. This is why it protects not only the freedom of religious people to pray and worship, but also the freedom to live out their beliefs in the services they provide for the wider community and to operate in accordance with their beliefs. It also protects the right to publicly explain their beliefs and to propose them for the acceptance of others.” (p21)

While this is an accurate explanation of this human right, the authors observe that, in practice, Western democratic societies solve disputes between religious viewpoints and other views by treating religion as a subjective matter that ought not to find expression in public or at work. Much of the media reaction to Israel Folau’s comments about his religious faith, made after this essay was written, demonstrate just this wish.

As Brennan and Casey note: “At a time when people are disenchanted, disengaged, and increasingly divided, this is unlikely to be sustainable, for the simple reason that it trivialises what is most important to people.” (p31)

The truth of this observation is evident in Folau’s comments in Players Voice on April 16, 2018: “I would sooner lose everything – friends, family, possessions, my football career, the lot – and still stand with Jesus, than have all of those things and not stand beside Him.”

If the state and employers ignore the commitment of serious religious believers to their faith, it will inevitably create conflict – often unnecessarily so.

The 10 principles of religious freedom identified by Brennan and Casey are:

1. Freedom of religion and belief is a universal human right.

2. Religious freedom is based on respect for individual freedom.

3. Religious freedom protects human dignity.

4. Religious freedom should be exercised in solidarity with other people.

5. Religious freedom is more than freedom of worship or a right to tolerance.

6. Religious freedom allows individuals to practise their religion freely and publicly as citizens and not just in private life.

7. Religious freedom means people are entitled to live out their beliefs in the way they serve the rest of the community.

8. Religious freedom is not a claim for special treatment.

9. Religious freedom reinforces other fundamental rights.

10. Religious freedom makes democra­tic societies stronger.

In conclusion the authors call on the following words of Pope Francis given in Philadelphia on September 26, 2015, to inspire their readers actively to support freedom of religion in Australia: “In a world where various forms of modern tyranny seek to suppress religious freedom or … try to reduce it to a subculture without right to a voice in the public square, or to use religion as a pretext for hatred and brutality, it is imperative that the followers of the various religious traditions join their voices in calling for peace, tolerance and respect for the dignity and the rights of others.”

Protecting Religious Freedom

Professor Greg Craven’s essay covers some similar ground to the first essay. It starts by explaining what the human right to freedom of religion is and then considers the intersection between this right and other human rights. Professor Craven then briefly considers Australia’s legal framework, asks whether it is adequate and, after concluding that it is not, recommends some improvements.

Craven argues that the law must protect freedom of religion in at least the following contexts: belief, worship and assembly; teaching and preaching; maintaining religious institutions not just for worship but for education and other social services; and for believers living out their religious convictions in the public square.

Translating the theory of religious freedom into practice is the real challenge in a pluralist, multi-faith society like contemporary Australia. Craven gives a few examples of the sorts of protections that he has in mind:

  • Catholic health-care professionals ought not be required to participate in abortions in public hospitals (nor, presumably, in private ones).
  • Muslim women ought be able to wear modest clothing in public.
  • Jewish parents ought be able to have their children circumcised in accordance with Jewish law.
  • Jehovah’s Witnesses ought be able to door-knock.
  • Salvation Army nursing homes ought not be required to engage in euthanasia.

Professor Craven’s analysis of the intersection between freedom of religion and other human rights identifies four attributes that he believes will resonate with Australians as being at their core or giving them a sense of who they are: ethnicity, gender, sexuality and religion.

This may be the most controversial part of his essay, particularly given the use of the term “gender” in preference to “sex”, the lack of the inclusion of definitions of any of the terms besides religion, and the statement: “[W]e are in agreement that sexuality, male/female identity, questions of gender collaboration and mutuality, fundamental equality and a desire for self-expression are fundamental features of any search for a common sense of happiness and wellbeing. These are the sorts of things that one cannot change, that are fundamental to one’s sense of oneself; and disputes about which have historically led to conflict and death.” (p74)

It is not appropriate to expect a short essay to explore these questions fully. Many find them confronting and controversial. Nor is it possible in a short review to address them properly. There are real questions about the extent to which most if not all of these attributes are unchangeable. Reliance on inherency and immutability arguments, for example, to found protections of sexual minorities has been the subject of much criticism including by researchers such as L.M Diamond and C.J. Rosky, Aaron S. Greenberg and J. Michael Bailey and E. Stein.

Similarly, while claims that sexuality is unchangeable are common, they are difficult to reconcile with the evidence of significant fluidity in sexual orientation. A large number of same-sex attracted people themselves report that they have some choice in their sexual orientation.

In the recent Federal Court decision, Abboud v Minister for Immigration [2018] FCA 185 (March 2, 2018), Justice Jayne Jagot found jurisdictional error in the assumption, made by the Administrative Appeals Tribunal and Federal Circuit Court of Australia, that “a man born homosexual can never enter into a genuine spousal relationship with a woman”.

The view that gender identity is unchangeable is also difficult to reconcile with the evidence. While some children feel an inclination to identify with the sex other than their biological sex at some point in their development, most ultimately identify with their biological sex.

Professor Craven does not go so far as to suggest that religious belief is unchangeable. He suggests that “for many people membership of a religious community contributes profoundly to their sense of themselves in such a fundamental way”. (p75) St Paul described faith as a gift and a grace, which suggests something more than personal choice is involved.

As Maria Montessori recognised in 1917, observing spontaneous religious faith in the children of atheists, religious belief is not simply a matter of upbringing, culture or choice. Whether attributes of human beings including sex, ethnicity, sexuality and religious inclinations are changeable or not, are complex questions with significant consequences.

A lot more objective and empirical work needs to be done in investigating these matters. They tend to be the subject of untrustworthy and subjective politicised research.

In any event, the fixed nature of a characteristic is probably not a solid foundation on which to build rights. There are some fixed characteristics – such as a genetic disposition towards gluttony or alcoholism – which would be poor foundations for a human right.

Craven is on safer ground when he argues for the protection of religious freedom in this way: “Because of their convictions, many religious people feel compelled to help those in need, to resist injustice, and to avoid doing what they deeply believe to be wrong. In theory, they could always choose to do something else. Because of their religious convictions, however, there is no other course open to them. Religious freedom … is another way in which the law recognises that it is unfair for people to suffer a detriment or discrimination because of the convictions which have come to play a decisive part in their sense of who they are and how they should live.” (pp75–76)

After briefly reviewing the inadequacy of the present legal framework, Professor Craven makes the following recommendations for change:

  • The creation of a religious freedom commissioner and a sexual diversity commissioner for the Australian Human Rights Commission.
  • Temporary amendments consequent on the redefinition of marriage such as protections of the continued charitable status of charities which continue to hold an understanding of marriage consistent with the Christian and Western legal traditions.
  • The overhaul of existing federal anti-discrimination laws to balance them better with religious freedom.
  • Consideration of federal religious freedom legislation.

These recommendations all warrant consideration, although, whatever may be the benefits or detriments of the creation of a new sexual-diversity commissioner, doing so or not would not seem to be directly relevant to protecting religious freedom better.

In a short essay the details of reform proposals understandably cannot be developed. The issues with human rights laws tend to be in the details more than in the idea behind them.

This book is a valuable contribution to contemporary Australia. The two essays explore the terrain of religion freedom in this country plainly and clearly. Each essay will hopefully provide incentives for religious believers to seek fully to exercise their religious freedoms and to call for their greater protection.

Professor Michael Quinlan is Dean of the School of Law on the Sydney campus of the University of Notre Dame Australia.

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