Exclusion in the name of inclusion lacks coherence

Andrew Thorburn was CEO of Essendon Football Club for the briefest period. Stuart McEvoy/The Australian.

The contention over Andrew Thorburn’s dismissal as chief executive of the Essendon Football Club is but the latest irruption evidencing the tectonic shifts occurring along the fault-lines between secular and religious values within Australia. Despite the recent census showing, for the first time, that a majority of Australians do not identify as Christians, the trajectory from Israel Folau in 2019 to the Manly Seven and Thorburn in 2022 demonstrates that the potential of religious statements to cause contention will not abate.

Brian Mossop encapsulated our quasi-religious approach to sport when he described Australians as sport “devotees, fanatics, zealots and, in some cases, even worshippers”. That sport should offer the central theatre casting these societal tensions into sharp relief ­offers no small irony.

At the heart of these disagreements lies the question of whether an individual should be punished for their authentic religious convictions. As such, it presents as a test of the sincerity of our commitment to original liberal principles.

Liberalism is a philosophy for political ­engagement whose sustained provenance cannot be assumed, and for which each generation must experience its own awakening.

It can be argued that these current fissures present the latest upwellings of a deeper tension extant within liberalism from its earliest political flickerings. Liberalism emerged as a response to overweening state efforts to compel conscience during the so-called “religious wars”. In positing that the state’s legitimacy should be based upon a “social contract” between individuals, and in emphasising principles of liberty and universal equality, political liberalism posed a novel answer to the ancient but perpetual conundrum of how to enfold individual difference within community.

However, when applying these formulations to religious convictions, early liberal philosophers exhibited marked variations in their willingness to brook dissent. For John Locke, “toleration” required a limited government that would refrain from infringing on the sacred duty citizens owed to their God. At the other end of the spectrum, Jean-Jacques Rousseau said the only dogma worthy of a liberal state is that which outlaws intolerance. With no apparent sense of irony, he pronounced that citizens unwilling to ascribe to this “civil religion” would be “banished”.

Did not Thorburn’s ejection from Essendon or the exclusion of the “intolerant” Manly Seven from the field for not wearing Pride jerseys – which also cost Manly coach Des Hasler his job this week – represent the very instantiation of Rousseau’s “liberal” conception?

Coach Des Hasler and captain Daly Cherry-Evans front the media amid the Pride Jersey saga.

The increasing prevalence of such exclusion events has inspired various religious scholars to argue that the contrasts between thinkers such as Locke and Rousseau evidence a polarity in the liberal mind.

For French philosopher Pierre Manent, an “oscillation” within liberal thought questions liberalism’s commitment to, or capacity for, tolerance. Oliver O’Donovan also warns of a burgeoning authoritarianism, citing Augustine’s 5th century characterisation of earthly republics in which “if such happiness is distasteful to any, let him be branded as a public enemy; and if any attempt to modify or put an end to it, let him be silenced”.

For Locke, the radical notion that government draws its authority from the private consent of individuals did not suddenly bestow an absolute power over matters sacred. As I argued earlier this year at a London event to coincide with the International Ministerial Conference on Freedom of Religion or Belief, we must not forget that “separation of church and state” is a two-way street. Contemporary secularists have so successfully colonised this notion that we are in danger of conceiving of it as only requiring that the church keep out of the state. However, of equal importance is the requirement that the state keep out of the church, the collective expression of religious conscience. That democracy has always been exposed to the tyranny of the majority is reflected in the chilling moniker bestowed upon classical Athens by its neighbours: demos tyrannos. A winner-takes-all approach that cynically dismisses religious cries of “tyranny” as those of a vanquished former majority misses the point. Precisely because of its concern for other-worldly obligation, religious dissent from majority norms presents the ultimate litmus test of a society’s willingness to encompass the minority. As Australian High Court Justices Mason and Brennan recognised, religious freedom presents the “paradigm freedom … the essence of a free society”. Our willingness to countenance the religious voice gauges our ability to unify a disparate society.

It is here that Anthony Albanese’s election night commitment to “bring Australians together” holds powerful resonance. This emerging theme was also evident in his remarks on the Manly flare-up, affirming Ian Roberts for his “courage” while also acknowledging the need to ”respect people of faith”. Admitting the tectonic shifts within the normative structures of our society exposed by these events impels the search for a renewed compact of tolerance between secular and religious worldviews.

It is within that pursuit that Labor’s election commitment to legislate a Religious Discrimination Bill presents as a pivotal cornerstone. If the football players objections reflect an “ethno-religion”, excluding the Manly Seven could have enlivened the protections of the Commonwealth Fair Work Act. Thorburn could also argue the protections under that Act and Victorian anti-discrimination law protect him.

Under these regimes, the respondents’ substantive defence will be that an organisation can exclude persons who undermine its secular ethos. For a court to uphold such a contention would be without precedent in Australian law, effectively writing into law a new exemption for secular organisations to discriminate against religious believers. It would be an extraordinary outcome not anticipated by any legislator, nor expressed in statute.

However, while Thorburn and the Manly Seven may be protected, Labor’s election commitment recognises countless other religious adherents are not. Commencing the drafting effort with the prior government’s bill may well see the reform receive bipartisan support.

Following extensive consultation, that bill held the clear endorsement of religious leaders. The risk is that divergence from those well-ventilated and hard-pressed provisions will be seen as a withdrawal of protections. The various improvements called for by religious leaders during the bill’s parliamentary inquiries also provide further opportunities to enhance the reforms.

When contrasted against the sectarian divides that characterised the Europe from which Australia’s earliest settlers had departed, our society has been distinguished by its ability to encompass differing religious and non-religious views in the common effort of building a prosperous and successful nation. As British Prime Minister Liz Truss said at the Ministerial Conference in July, “societies that allow their people to choose what they believe are better, stronger and ultimately more successful”.

US constitution framer James Madison, influenced by Locke, described as unalienable “the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him”. This idea, enshrined at the genesis of the liberal political project, is assailed by detrimental treat­ment of those, such as the Manly Seven, who quietly refuse to affirm statements to which they conscientiously object. Disagreement on matters of deep personal conviction is not intolerance; forcing someone to ­affirm propositions that contravene their convictions is.

Notwithstanding Locke and Madison’s powerful rhetoric, these contemporary sporting field fracas serve to illustrate the fragility of the liberal consensus. It falls to each generation to affirm its adherence to religious toleration, and with it the promise that our social fabric is sufficiently strong so as to encompass difference.

As Brad Fittler said, welcoming the Manly Seven to compete in their chosen colours would demonstrate real inclusivity. Continuing Thorburn’s appointment would have achieved the same end. Excluding these men in the name of inclusion is simply lacking in intellectual coherence and candour.

Rather, their inclusion would have provided potent symbols of our ability to countenance differing views within respectful dialogue, as equal contributors to a common civic goal, absolved from Rousseau’s banishment. In such contemporary tests lies the ongoing viability of the liberal project itself, at least as Locke and Madison understood it.

Mark Fowler is principal of Fowler Charity Law and an adjunct associate professor in the law school of the University of Notre Dame Australia, and an adjunct associate professor in the school of law at the University of New England.