Courts must go where politicians fear to tread

Israel Folau arrives ahead of his conciliation meeting with Rugby Australia at Fair Work Commission on Friday.

The punishment awaiting unrepentant fornicators remains a matter of speculation. What is not in doubt is the special kind of hell awaiting Cameron Clyne as he begins the torment of a protracted court dispute where the Israel Folau case is inevitably heading.

Rugby Australia’s chairman told The Sydney Morning Herald he found the prospect painful but the alternative would have been worse. Commercial sponsors would have walked away and bankrupted the game.

And naturally in these risk-averse times there were health and safety issues. “We would also potentially be in litigation with employees who are gay and who would say we’re not providing a workplace that is safe or respectful.” You see what’s keeping RA’s litigation team awake at night.

As if the risks to the head and spine were not enough, they run the risk of injuries caused by running into posts on social media.

RA’s treatment of Folau would be no less disagreeable if it were indeed a commercial decision. But it would at least furnish an excus­e. There is no penalty in the Corpor­ations Act for suppressing free speech but a director who allows a company to trade while insolvent can face criminal charges. But sacking Folau was not a purely commercial act, as Clyne freely admits. “It is absolute nonsense to suggest it was done at the behest of a sponsor … it’s offensive to suggest we get our moral compass from someone else.”

MORE: Rugby Australia may have inadvertently opened another legal avenue for Israel Folau to pursue | Janet Albrechtsen writes: Alan Joyce may find himself cross-examined in the witness box by Israel Folau’s crack legal team | Folau’s Sunday sermon: Steely Folau ready for ‘real warfare’ | Twitter trolls: Folau leaps to Magda Szubanski’s defence

The Folau case is not, then, an attack on religion as it first appears. It is a sectarian dispute­ between faiths. Clyne’s moral compass points in one direction, Folau’s another. Folau stands by what he believes to be reveale­d truth and thinks the postmodern cant of diversity and inclusion is mumbo jumbo. Clyne thinks the opposite. One believes the reward for unrepented sin is damn­ation. For the other it is to be cast into the darkness to dwell among the wretched who will never score a freebie to the Bledisloe Cup or a seat in the Qantas Chairman’s lounge.

Once we imagined that the decline in religious­ affiliation would end the pronounced sectarian divide that governed social­, political and workplace encounters. Instead, the 6.9 million Australians who declare­d affiliation to “no religion” in the 2016 census have coalesced into commun­ities of believers with shared moral codes frequently in conflict with established religions.

Like the 12.2 million who declared themselves Christian, only a minority are possesse­d by evangelical zeal. Most are only passively attached and have no problem rubbin­g shoulders with the other. Sectarianism has been at its weakest when this live-and-let-live attitude prevailed. Today such decis­ions are increasingly forced on the courts, where the empire of the law has been ­expanded to accommodate them.

People seem less able to work through differences. Representative democracy, which in the past could be remarkably good at settlin­g these things, has grown weaker. Matters­ of religious freedom, as Scott Morrison is finding, are devilishly difficult to settle in a parliament where passions run high on both sides and seldom obey party lines.

Israel Folau arrives for his conciliation meeting with Rugby Australia at Fair Work Commission last week.

How much easier it must seem to hand these matters to judges, who score higher than politicians on the indexes of public trust and are not constrained by the need to retain Higgins or Longman at the next election.

These trends are familiar in the US and Britain and are explored by Jonathan Sumption in this year’s BBC Reith Lectures. Sumption, a retired British Supreme Court justice, points to a growing moral and social absolutism that turns to the law to impose conformity. The courts are also the arena in which the modern fetish for safety is satisfied. Both are present in the Folau case.

For his part, Folau appears meekly to accep­t the fate of Christians across the centur­ies, a believer in but not of the world led by his own conscience. Persecution gives reason to rejoice since Jesus declared the reviled and persecuted to be blessed. The pressure to impose uniform moral judgment in areas where we once contemplated a diversity of view comes largely from secularists.

“We are afraid to let people be guided by their own moral judgments in case they arriv­e at judgments which we do not agree with,” says Sumption. The censorious instinct­s of our time are unmatched since the evangelical movement transformed the moral sensibilities of the Victorians. That was the sentiment against which John Stuart Mill was railing in On Liberty, a book often quoted in defence of the right to free speech that has been withdrawn from Folau.

Sumption notes the ability of social media to generate a powerful herd instinct that ­suppresses not only dissent but also doubt and nuance. “Public and even private solecisms can destroy a person’s career. Advertisers (pressure) editors not to publish controversial pieces and editors can be sacked for persisting … These things have made the pressure to conform far more intense­ than it ever was in Mill’s day.”

Sumption, similar to George Brandis, is a courageous champion of the rights of the bigot with little time for the concept of hate speech. “There is no nonsense that people should not be allowed to spout if they are foolish enough to want to do so,” he says.

It has been a while since I have felt compelled to recommend anything produced by my former employer, the BBC. Sumption’s lectures are a shining example of what public broadcasting was supposed to be under the model devised by John Reith, the BBC’s Scottish Presbyterian founder after whom the series is named. It is available as podcasts.

Nick Cater is executive director of the Menzies Research Centre