Common sense means drawing line in middle

Religious freedom is under genuine threat in Australia but responding to that threat is diabolically difficult.

This is because the essential common sense embodied in our traditions is in the process of breaking down so that many things that were once obvious must now be subject to litigation.

Attorney-General Christian Porter looks to have taken a reasonable first step in trying to address this problem.

He is right to avoid sweeping legislation with grandiloquent terms. Such legislation, no matter how euphonious its phrasing, doesn’t solve problems. It just means that courts and judges become the de facto legislators in society. This means, among other things, that courts become politicised.

Porter’s approach is cautious and incremental. Some religious groups would like something more ambitious, a positive religious freedom bill rather than a religious discrimination law. But in this area it’s better to be cautious and incremental.

Porter gave classic examples to demonstrate the need for this legislation. The Catholic Archbishop of Hobart was hauled before the state anti-discrimination body for doing nothing more than circulating a pamphlet that, in the most moderate language imaginable, reasserted the traditional church teaching that marriage is between a man and a woman.

In another case, a Queensland Baptist chief executive of a church organisation was subject to a discrimination complaint because he sent a modestly worded email supporting the no case in the same-sex marriage plebiscite.

Yet as Porter pointed out, many chief executives canvassed in favour of the yes vote. It is inherently ridiculous to hold a plebiscite and then make it effectively illegal to advocate for one side or the other (and I advocated a yes vote, as it happens).

The Hobart and Brisbane actions would not proceed under Porter’s new legislation. That is a worthwhile and serious advance on where we are today. And like much legislation, part of its effect is just stating a principle — that religious freedom is a key human right, something society takes very seriously.

Religious belief is inherent to the human condition and no person can be compelled to forsake their religious belief. Of course, that belief does not give them the right to break reasonable laws.

The bigger underlying problem is the loss of common sense, goodwill and tolerance for people who disagree with each other. It ought to be obvious that any Christian, or indeed Muslim, preacher can teach their religion’s belief that the only completely morally justified sexual practice is between a man and a woman inside marriage and that marriage necessarily involves a man and a woman.

It ought to be equally obvious that no one has a right to say, for example, that homosexuals are inferior human beings. Common sense requires drawing a line somewhere in the middle.

It is also the case that many things that are disagreeable and foolish ought not to be illegal. One of the greatest achievements in Christianity in the Middle Ages was to separate the concept of sin from the concept of crime. Thus St Augustine and Thomas Aquinas both believed that prostitution should not be illegal because while it was immoral it was inevitable, and the state should not try to enforce every moral dictum.

Some similar level of sense and restraint has to be applied in regulating speech that somebody may find offensive but which is not truly hate speech.

Porter is also right to identify an emerging huge problem, the overweening and undemocratic tendency for big employers to enforce social media policies of inane political correctness on their employees that prevent them exercising their normal freedom of speech and freedom of religion. But this is a vexed area of policy and legislation.

There will be a lot more conflict ahead. This draft legislation seems a good start.