BY ALEX DEAGON
Dr Alex Deagon is a Senior Lecturer in the Faculty of Law at the Queensland University of Technology.
This article was first published in St Mark’s Review #247, Religious Freedom in Australia. Available for purchase.
During the 2017 same-sex marriage debate, those with religious or conscientious objections to same-sex marriage raised religious freedom as an issue.1 This resulted in the Prime Minister establishing an expert panel led by former Government minister Philip Ruddock (the “Ruddock Review”) to examine whether Australian law adequately protects freedom of religion.2 After a delay of more than six months, the Prime Minister released the Report from the Expert Panel, which (among other things) recommended that schools should be allowed to continue to rely on religious exemptions under the Sex Discrimination Act 1984 (Cth) to select and regulate students and staff, but should also have a publicly available policy on the matter.3 Unfortunately, these recommendations were leaked early without the context of the full report.4 The resulting outrage indicated that people were not aware these exemptions existed, and there were claims that the exemptions are unduly discriminatory, damaging, and should be removed.5 The Parliament is currently in the process of considering a bill proposed by Federal Labor Senator Penny Wong (the “Wong bill”) to remove the exemptions.6
However, this article argues that simply removing the exemptions without inserting equivalent protections for religious schools is to dismiss and undermine an important principle of religious freedom: that as a function of promoting a truly democratic and diverse society, religious associations should be provided with the legal protection necessary for them to maintain a distinct religious ethos while providing a service to the community.7 Ensuring a religious school can select and regulate students and staff consistent with their ethos is an essential aspect of that protection. This is recognised as part of the human right to religious freedom as protected by international law, and has constitutional protection as section 116 indicates a preference for religious liberty over anti-discrimination. Hence, this article sets out that theoretical, international and, constitutional context before considering the current status of the Ruddock Review recommendations and the Wong bill.
Though there is some agreement that the exemptions framework is not ideal, that is not a sufficient case for simply eliminating them without equivalent protection. Instead, the best way forward is a principled and considered legislative approach that provides schools with associational autonomy in this matter, in the form of positive powers to select and regulate staff and students, as a function of religious freedom in a pluralist democracy.
In the 2017 Frank Walker Memorial Lecture, Senator Wong argued that one of the foundations of liberal democracy is that human beings are equal to each other, and “discrimination against people on the basis of an innate characteristic, like sexual orientation, is anti-liberal and anti-democratic.”8 The implication is that religious freedom should not be used as an excuse to discriminate in a secular liberal democracy. In this context, some have advocated reducing anti-discrimination exemptions for religious organisations because religion should not be a reason to discriminate in a secular state.9 However, this approach could undermine fundamental freedoms of religion and association by failing to properly consider how anti-discrimination laws might unfairly compel religious educational institutions to receive staff or students who actively undermine the religious ethos of the school. This, in turn, allows actions that violate their religious convictions, preventing them from holistically participating in a democratic society, and undermining freedom and equality for these citizens and communities.10 Thus, broad anti-discrimination exemptions for religious organisations are necessary to preserve religious freedom and religious diversity in a liberal democracy.11
Political theorist Veit Bader develops an argument that “associational governance” of religious diversity is the most appropriate mechanism of governance in conditions of increased religious pluralism and fragmentation of organised religion, especially compared to the more traditional secularist model that strictly separates “state and politics from organised religions.”12 This associative democracy is a “specific variety of liberal-democratic institutional pluralism” which involves power-sharing through formally recognising and integrating the existing plurality of groups and organisations into the political process, along with a principle of decentralisation and self-determination. It supplements representative democracy and is “driven by the conviction that all those relevantly affected by collective political decisions are stakeholders, and thus should have a say.”13 “This promotes strong interpretation of associational freedoms and the proposals to represent the interests of different minority groups in the political process.”14 For example, all states (including those with strict-separation ideologies such as the US and France) “recognise organised religions either legally or administratively . . . by granting them, and not others, many exemptions.”15 Bader’s fundamental point is that secularist separation is neither desirable nor practical. A truly democratic society needs a system of governance that promotes equal representation of religious and non-religious perspectives in accordance with constitutional prescriptions.
The basic arguments for removing religious exemptions stem from fundamental ideas of human dignity and equality, especially when public religion might discriminate against people of particular identities. As Trigg laments, “when religion is pitted against [other] rights, religion is often sidelined.”16 Of course, it is frequently forgotten that religion too is a fundamental human right; but when two rights such as “religious freedom” and “equality” are put in conflict this way, “there seems little appetite from the standpoint of law for any reasonable accommodation. The views of the state have to be applied regardless of any conscientious dissent.”17 If there is a clash of these fundamental rights, it appears “the solution is for one to win, and not for any attempt to be made to satisfy both sides.”18 But religious freedom is a basic right that cannot be simply discarded because it competes with other rights. The idea of religious freedom is to protect religious belief and practice from any prevailing orthodoxy (e.g., equality) that might oppose it. The idea is “worthless” if it is allowed only when it fits in with that particular orthodoxy.19
This exigency makes finding some kind of reasonable balance between religious freedom and equality all the more pertinent. After all, freedom of religion “arises in its most acute form when unpopular, or unfashionable, minority positions are in question. Freedom is safeguarded only when the majority allows beliefs to be manifested of which it disapproves.”20 It is easy to talk about the freedom of those who think and act as we do. The problem is when there is fervent disagreement. Defending the right to disagree is “important for the future of democracy”, not least because one day we might be in the minority.21 As Trigg powerfully observes, “the essence of religious freedom is that people are allowed to follow their religion, even if it is a different one from that of the majority. The accommodation of minority beliefs is what distinguishes democracy from a totalitarian state.”22 We must consider whether we are willing to “take account of conscientious objection” and “find room for accommodation.”23 Though it is always simpler for a law to apply uniformly, important principles are at stake. Without exemptions, unreasonable burdens can be placed on religious communities that do not operate on non-religious communities. Therefore, “if we really value religious freedom, including the right to deny all religion, we should be concerned if its claims are simply overridden.”24 As Trigg explains, uniform treatment can make “religious people feel like they are marginalised in their own society” because they alone are subject to an unequal burden through generally applicable legislation.25 So religious people may resent their “commitments being ignored and that they are being treated unfairly and unequally. A concern for equality can visibly diminish religious freedom.”26
It is becoming well known that social divisions, differences, and fragmentation along religious and cultural lines can lead to conflict that undermines democratic freedom and equality. But this is only if the state fails to “recognise and accommodate the various ethnicities, religions, languages and values in a particular country.”27 Ten Napel proceeds to note that since “religion is of profound importance to one’s identity, from the point of view of cultural liberty, guaranteeing religious freedom in the best possible way is of foremost importance.”28 Consequently, ten Napel contends that all civil society organisations, including religious educational institutions, ought to enjoy a considerable degree of autonomy. Negotiation, reasonableness, and accommodation is needed. This “reasonable accommodation” is the way forward, including a “proportionality principle” to “weigh the seriousness of a particular infringement of a right against the importance of the conflicting private or public interest in precisely infringing upon this right”, as opposed to an “inadequately blunt” hierarchy of rights.29 In this framework, freedom is preserved by granting reasonable autonomy to religious organisations. Equality is preserved by providing religious bodies with accommodations (as a function of autonomy) to remove unreasonable burdens, while ensuring any discrimination that occurs is a proportional and reasonable exercise of that autonomy in a liberal democracy. All this entails “both the existence of rules and the provision of accommodations” for religion.30 Sadly, as ten Napel incisively observes, “what the fact that [the provision of religious accommodations] is becoming more controversial really demonstrates, therefore, is that the idea of liberal democracy as such is losing support.”31
This must not continue. Obviously there is no doubt equality legislation is an essential aspect of liberal democracy. But, if administered in a coercive fashion without due attempts at accommodation and proportionality, it will burden some in society unnecessarily and inequitably.32 It should be noted that associative religious freedom is a special right in the context of liberal democracy, outweighing freedom of opinion and expression. “Before one is able to express an opinion, one first needs to develop an idea, often in community with others. This idea, moreover, is likely to originate in a religious or non-religious worldview, which must thus be protected in order to make freedom of expression substantial.”33 So religious associations, in particular, need legal protections to maintain their distinct identity such that they can continue to develop their ideas to inform opinions and expression in the public sphere. However, at the same time, this does not mean religious freedom should be pursued at the expense of other fundamental rights such as equality. Believers must recognise and respect opposing interests in a liberal democracy, especially if these are protected as fundamental rights.34 That is why a proportionate, reasonable accommodation of difference is appropriate rather than unfettered religious freedom or pure mandated uniformity.35
This implies an accommodationist approach in the context of religious freedom that should include reasonable accommodations and exemptions for religious entities. These accommodations and exemptions provide the autonomy and freedom necessary for religious individuals and organisations to maintain distinct identities that form the basis for developing unique perspectives and modes of public expression, an essential aspect of religious freedom. The principle has particular utility in the associational context, where there is a tendency to characterise the religious freedom of associations as existing merely as a function of individual rights rather than as a right attaching to the group itself.36
However, religious freedom is not merely individual.37 There is a general consensus among specialist scholars in the field that the right to hold and practice religion has personal, associational, communal, organisational, and institutional dimensions.38 As Professor Carolyn Evans explains, at least at the level of international law:
While human rights belong to individuals, the right to manifest religious freedom collectively means that it has an organisational dimension. When individuals choose to exercise their religion within an organised religious group, the state must respect the autonomy of this group with respect to decisions such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.39
More broadly, as Cole Durham similarly observes:
Protection of the right of religious communities to autonomy in structuring their religious affairs lies at the very core of protecting religious freedom. We often think of religious freedom as an individual right rooted in individual conscience, but in fact, religion virtually always has a communal dimension, and religious freedom can be negated as effectively by coercing or interfering with a religious group as by coercing one of its individual members.40
As John Inazu explains, it is only instances where there are gross or substantive violations, harms, or threats to others that associational freedom should be limited.41 Since religious groups, in particular, provide the associational structures (including visionary and didactic resources) for training in discourse concerning advancement of human development and the common good, it is essential for moral engagement and civic virtue (and democracy itself) that these groups be protected by and from the state.42 As ten Napel argues, “it is precisely within such faith and other communities that mature visions of the good life can develop, which simultaneously contribute to the notion of the common good.”43 Thus, religious groups should be free to run according to their own rules. The state must have a role in preserving the freedom of such groups because of the natural human tendency to form groups with common interests and “a liberal society is itself sustained and protected by such groups.”44 The point is well summarised by Galston:
A liberal policy guided . . . by a commitment to moral and political pluralism will be parsimonious in specifying binding public principles and cautious about employing such principles to intervene in the internal affairs of civil associations. It will rather pursue a policy of maximum feasible accommodation, limited only by the core requirements of individual security and civic unity. That there are costs to such a policy cannot reasonably be denied. It will permit internal associational practices (e.g. patriarchal gender relations) of which many disapprove. It will allow many associations to define their membership in ways that may be viewed as restraints on individual liberty . . . Unless liberty individual and associational—is to be narrowed dramatically, however, we must accept these costs.45
Accepting these costs, then, the final question is what kind of specific exemptions and accommodations should exist for religious educational institutions. Answering this question turns on what religious freedom means and the particular religious convictions involved. Religious freedom extends to worship, teaching, propagation, identifying conditions of membership and standards of conduct, and appointing officers, leaders, and employees. Such practices are all protected, even if the organisations are formed for broader social or commercial purposes.46 As for religious convictions, Aroney insightfully argues that:
some people who regard themselves as religious nonetheless tend to regard their religion as one aspect of their lives among many; others see their religion as definitive of their whole lives, so that even the most mundane activities are seen in religious terms. Such people frequently gather together, not only for narrowly “religious” activities such as prayer or scriptural study, but also for what might be described as social and cultural activities, such participation in games and sports, or the provision of educational, medical or charitable services. For many such people, such activities are deeply religious.47
These insights provide a persuasive basis for allowing, for example, religious educational institutions the autonomy to choose employees who share their doctrines as part of a proportionate, reasonable accommodation. A religious educational institution may want to preserve their distinctive identity as religious in order to be a community that approaches questions of education from that particular religious perspective. Indeed, they may see the practice of education itself as a religious injunction that is to be performed in accordance with their religious convictions. Maintaining this religious identity allows them to present a unique perspective in a democracy, and legally compelling them to accept employees with views or conduct inconsistent with that perspective undermines their religious identity and, consequently, their democratic position as equal and valued citizens.48
Thus, removing exemptions would effectively prevent religious bodies from operating to provide education in accordance with their convictions. The religious body then has a choice either to continue operating in accordance with its convictions and risk suffering legal penalty, compromise its convictions, or remove itself from the area completely. The untenable nature of the first two options for many religious schools may well produce a greater proportion choosing the third. Legislation that has the effect of excluding religious bodies from the public square is not equal or inclusive, and from a purely pragmatic perspective the closing down of religious schools would cause significant logistical and financial stress for the Commonwealth and the states seeking to find new places for students and staff in the public system. In most circumstances there are other equivalent options reasonably available for those discriminated against, such as employment or enrolment in the public system or in private/independent schools that do not have incompatible religious convictions.49 The harm against religious educators and other religious members of the school community is therefore likely to be much greater than that suffered by discriminated persons.
It is important to note the ability to “discriminate” in this context is not only a function of religious freedom, but also preserves equality between religious and non-religious educational institutions. As I have argued previously:
Generally applicable laws, such as anti-discrimination legislation, fall disproportionately or unequally on those whose religious practices conflict with them. Those who do not engage in religious belief or practice are not subject to the same practical restrictions resulting from the laws . . . the exemptions are necessary in order to preserve equality . . . specific exemptions are required to address this specific situation where there is an unequal or disproportionate application of law.50
In other words, such exemptions are a proportionate, reasonable accommodation of difference because they mitigate the effect of anti-discrimination laws that apply unequally to (in this case) religious educational institutions.51 And as Trigg emphasises, “the idea of reasonable accommodation highlights the need to adjust rules when they bear down unfairly on some categories, including religious believers.”52 As such, the need to accommodate religious practices can be traced to equality itself. The need to respect diversity and manage peaceful co-existence of difference requires respect for religion.53 This proposition might well sit awkwardly with those who do not adhere to the doctrines of the particular religious institution. Nevertheless, if we desire a healthy democracy that genuinely and equally tolerates freedom to differ, we must allow associations the freedom to publicly conduct themselves in such a way as to maintain their unique identity on their terms.54 Only this will facilitate a robust, collective political encounter of perspectives for consideration and critique by citizens so that they are fully informed to pursue the public good.
As already alluded to, this theoretical perspective is reflected in the international context. Article 18 of the International Convention on Civil and Political Rights, ratified by Australia in 1980, states:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 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.
The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.55
This indicates freedom of religion is a right exercised by individuals and institutions, both privately and publicly.56 In particular, Article 18(4) obliges states to have respect for the liberty of parents to educate their children in conformity with religious convictions. One significant method of achieving this obligation is facilitating the ability of faith-based schools to educate in accordance with their faith-based ethos, as parents may wish to choose this. Whether framed as exemptions to discrimination or as a legal right to select, allowing faith-based schools to select staff designed to consistently uphold this ethos is an essential aspect of maintaining this ability. Though there are no limitations to this requirement in the instrument, religious freedom generally is subject only to legal limitation that is necessary (not merely reasonable) to protect public safety, order, health, morals, or fundamental rights and freedoms of others. This is a high threshold that requires substantive proof before any legal limitation is appropriate.57 In the absence of substantive proof that changes are necessary, and without inserting equivalent protections, Australia may be in breach of its international obligations if it removes religious exemptions for faith-based schools to choose staff in accordance with their religious convictions.
Furthermore, any attempt to remove the exemptions for religious educational institutions in the Commonwealth Sex Discrimination Act is likely to breach section 116 of the Constitution and consequently be invalid. The relevant clause of section 116 of the Constitution states “The Commonwealth shall not make any law . . . for prohibiting the free exercise of any religion.”
Chief Justice Latham in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (“Jehovah’s Witnesses”)58 argued that since the “free exercise” of religion is protected, this includes but extends beyond religious belief or the mere holding of religious opinion; the protection “from the operation of any Commonwealth laws” covers “acts which are done in the exercise of religion” or “acts done in pursuance of religious belief as part of religion.”59 Subsequent cases noted these acts must be religious conduct, or “conduct in which a person engages in giving effect to his [sic] faith in the supernatural.”60 Religious conduct protected by section 116 extends to “faith and worship, to the teaching and propagation of religion, and to the practices and observances of religion.”61 Since staff and students of religious schools engage in, or receive at the very least, the teaching and propagation of religion, the ability of these institutions to select staff consistent with their religious convictions and regulate their teaching of students comes within the ambit of free exercise.
Furthermore, Latham CJ noted that not every interference with religion is a breach of section 116, but only those which “unduly infringe” upon religious freedom.62 At a minimum, only the narrowest limitations on the free exercise of religion are appropriate—that required for the “maintenance of civil government” or “the continued existence of the community.”63 More precisely, freedom of religion should extend to protect all external actions that are not dangerous to society or democracy, even if those views or actions are deemed unpopular according to community values.64 As Latham CJ observes, “section 116 is required to protect the religion (or absence of religion) of minorities, and in particular, of unpopular minorities.”65 Given the point above that exemptions for religious schools are unpopular according to community values (whether this unpopularity is warranted or not), this supports the argument that they should be protected by section 116.
The last time the High Court considered the free exercise clause was the 1997 case of Kruger v Commonwealth (“Kruger”).66 In Kruger, the plaintiffs argued a Northern Territory ordinance that authorised the forced removal of Indigenous children from their tribal culture and heritage was invalid as a law prohibiting the free exercise of religion. Leaving aside the court’s discussion of whether section 116 applies in the Territories, the majority held that the impugned law did not mention the term “religion” and was not “for” the purpose of prohibiting the free exercise of religion in its terms, and so the law was upheld. Only laws could breach section 116, not the administration of laws. Chief Justice Brennan, Gummow and McHugh JJ (in separate majority judgments) stated that to be invalid under section 116 the impugned law “must have the purpose of achieving an object which s 116 forbids”, and upholding the law on the basis that “no conduct of a religious nature was proscribed or sought to be regulated in any way.”67
Any proposal to remove religious exemptions for religious schools directly targets these institutions and restricts their free exercise in its terms by preventing them from selecting staff consistent with their religious convictions. Section 116 does extend to protect acts done in the practice of religion by religious bodies, and this includes teaching of students, and staff selections, of educational institutions.68 Professor Reid Mortensen articulates the relevant principles:
[O]ne inherent paradox in all discrimination laws is that, although they aim to protect social pluralism, the principles of equality they usually promote also present a threat to the protection of religious pluralism in the political sphere. This occurs when, despite the traditional recognition of rights of religious liberty, the discrimination laws apply to religious groups that deny the moral imperatives of, say, racial, gender or sexual orientation equality. In this respect, Caesar has generally been prepared to render something to God through the complex exemptions granted in the discrimination laws to religious groups and religious educational or health institutions.69
Mortensen therefore claims that to “honour rights of religious liberty, religious groups are probably entitled to broad exemptions from the operation of sexual orientation discrimination laws.”70 More emphatically, the right to free exercise in the Constitution “does not suggest a ‘balance’ to be struck between anti-discrimination standards and rights of religious liberty, but a constitutionally required preference for religious liberty.”71 Though early proposed reforms to the Sex Discrimination Act overlooked the possible constraints in section 116, preferring to focus on international conventions, they did possess generous exemptions of the kind envisaged by section 116.72 It follows from the constitutional preference for the free exercise of religion over anti-discrimination that the current anti-discrimination exemptions for religious organisations are justified, and any attempt to remove them is likely to breach the free exercise clause.
As mentioned above, the Ruddock Review recommended retaining the religious exemptions in the Sex Discrimination Act. Under section 38, educational institutions established for religious purposes can directly discriminate against staff and students if they do so in good faith and in accordance with their religion to avoid injury to the religious susceptibilities of adherents to that religion. In fact, the recommendation actually narrows the ability of faith-based schools to do this—the school must have a publicly available policy that complies with the Act, and any discrimination must be in accordance with that policy. The Wong bill seeking to remove the exemptions reflects the strong public view that religious schools should not have the ability to discriminate directly against students.
However, the specific amendments proposed in the Wong bill fail to adequately protect the religious freedom of schools in several respects. First, if subsection 38(3) is repealed (removing direct discrimination), schools will only be able to generally regulate student conduct if it is “reasonable in the circumstances” under section 7B (indirect discrimination). However, unless it is made clear that this determination is up to the school, it gives secular courts effective theological power to determine if a particular school policy based in religion is “reasonable”. This is an unwise intrusion of the state in the church and consequently, it undermines religious freedom. Second, imposing a uniform rule on students that regulates their conduct may still be interpreted to be directly discriminatory. For example, a rule that a student cannot bring a same-sex partner to a school social is directed at conduct, not orientation (it applies to heterosexual students as well as homosexual ones). But, in cases such as CYC v Cobaw, courts have not made this distinction between orientation and conduct, stating that the conduct is indissolubly linked to the orientation.73 As such, under the mere protection of section 7B schools may actually not be able to impose general rules on students that are reasonably based in the religious ethos of that school. Third, the amendments have unduly broad and unforeseen repercussions that could severely undermine religious freedom in Australia. The repeal of subsection 38(3) extends to any educational institution that provides education or training, including tertiary theological colleges with an explicitly religious approach, not just religious schools. Furthermore, since section 37 deals with religious bodies, the insertion of subsection 37(3) goes far beyond educational institutions and literally extends to any body established for religious purposes that provides education, including churches. This means it plausibly covers church sermons, Sunday schools, mosques, and synagogues—any context where education and training is provided—and this amendment would prevent these bodies from legal protection in the process of providing religious education and training.
Hence, the Wong bill as it stands is clearly not the right solution.74 Nevertheless, lesbian, gay, bisexual, and transgender advocates and religious freedom advocates remain concerned about the framing of the exemptions, for different reasons. Evans and Ujvari, for example, have contended that the present exemptions go too far. While acknowledging that religious schools “play an important role” and are “deserving of some protection of their distinctive worldview”, they state that such protection is “consistent with the idea that they should be subject to more aspects of discrimination law than is currently the case in Australia.”75 In particular, the view seems to be that any permissible discrimination should not directly target people on the basis of a protected attribute such as sexual orientation, as the current exemptions allow. On the other hand, religious freedom advocates are concerned that the “exemptions” framework actually undermines religious freedom. Neil Foster has argued persuasively that framing religious freedom protection as “exemptions” from anti-discrimination laws might give the impression that powerful religious lobby groups are simply bullying politicians into giving them a special privilege to engage in otherwise unlawful conduct, and that, in general, equality is more important than religious freedom. A better approach is to “see the limits drawn around discrimination laws as an integral part of a structure designed to reflect the relevant human rights as a whole.”76 In other words, since equality and religious freedom are both positive rights under international law, and since there is no hierarchy of human rights, it is more accurate to provide positive protection for religious freedom that reflects its status as a human right alongside and not inferior to the right of equality. The concerns of both parties are legitimate and should be taken into account when considering legal reform.
Since there seems to be a common reluctance to maintain the exemptions in their current form, one other option is to remove the exemptions completely and, in their place, pass positive religious freedom rights for religious educational institutions. These would enable schools to select staff on a basis that is consistent with their religious and institutional ethos and to enforce generally applicable procedures and rules with regard to student advocacy, behaviour, conduct, dress, and so forth. Such laws will need to be drafted carefully to avoid the issues present in the Wong bill.77 For example, they should be specifically restricted to religious educational institutions, and determinations as to the reasonableness of generally applicable rules or the best interests of children should be at the discretion of the school in good faith according to their religious ethos, rather than decided by the courts. This protection is appropriate for a pluralistic liberal democracy like Australia that values religious freedom and the ability of religious associations to maintain a distinctive ethos and a beneficial contribution to the Australian community.
This article was first published in St Mark’s Review #247, Religious Freedom in Australia. Available for purchase.