‘Size rule’ gives relief to discrimination law

There will always be people who want to win no matter what, says David Saperstein.

David Saperstein. Picture: Getty Images

There will always be people who want to win no matter what, says David Saperstein. Especially when it comes to protecting the expression­ and structuring of their religious beliefs.

“What happens when someone’s beliefs would lead them to deny the civil rights of somebody else, how do you balance that out?” asks Saperstein, an eminent US rabbi who has served on the boards of interfaith organisations and as president Barack Obama’s ambassador at large for international religious freedom.

“Whenever you have core moral principles in tension with each other, it usually ends up with some kind of balancing act — where you try to maximise both. But there will always be people in the debate who want to win for their side, and really don’t care about the other side.”

Saperstein is coming to grips with Australia’s attempts to ­legislate protection for all to pursue­ the faith of their choice — or none at all — as promised by Scott Morrison.

Visiting Australia on a speaking tour, during which he is also meeting­ like-minded progressive Jewish community leaders, he sees firsthand the fallout from the draft religious discrimination bill that seems to please no one in its curren­t form.

Australian faith-based schools, hospitals and aged-care facilities say the bill does not protect their freedom to hire staff who share their religious views, or expect­ation that others in their domain will observe their rules.

Employers and unions, meanwhile, claim workplace harmony and tolerance for religious diversity under existing anti-discrimination laws could be in jeopardy if an addendum to the legal framework suddenly allowed vilification and hate speech to become acceptable in the interests of positive ­discrimination for exempt groups, on religious grounds.

Others — including prominent law firms, LGBTI groups and ­moderate Christian organisations — would prefer the status quo to something unreasonably discrim­inatory.

Saperstein comes to this debate as an influential rabbi, lawyer and lobbyist who has seen competing interests find common ground. In Utah, he says, the Mormon, ­Catholic and LGBTI communities reached a compromise on employment and housing. Under a “size rule”, it was agreed that owners of small boarding houses could rent rooms to those whose views aligned with theirs, including that marriage should be only between heterosexual couples. Employers with fewer than six staff could discriminat­e as well. “Not perfect — everyone is going to object to something on the other side — but it worked,” Saperstein says.

More remarkable, he found, was that “living together” led to a change in attitudes that were previousl­y fixed.

“People begin to change their attitudes about people who are gay, people who are Muslim, people­ who are Jewish, people with uncertain sexual gender identity. We found that human contact changes the way people think about issues of fundamental rights. And that happened in Utah.

“What it means is that you don’t try to resolve everything in one piece of legislation. You pick the things that you can find common ground, you live with those and you argue the rest outside.”

As an American, Saperstein speaks from a national perspective where fundamental human rights of freedom of association and freedom­ of speech are guaranteed under the US constitution and its bill of rights. He does not advocate the US way as the necessary prescription for other democracies, but he says one advantage of this constitutional heritage is that some rights cannot be overridden — except when they might clash with the security of the population.

In this regard, Saperstein argues the Morrison government’s attempt to add an additional layer of religious discrimination law on top of laws already preventing discrimination on the basis of race, gender, religion, disability, and so on, might suggest Australia is attempt­ing an affirmation of the “core right of religious freedom” that is closer to the US model, yet while still leaving some rights competing or unresolved.

Saperstein accepts it is not feasible­ for Australia to follow the US on religious freedom in private schools when most here receive significant additional government funding: the US principle is that government-funded schools must not discriminate on any grounds, while those with no taxpayer money are free to do so.

Saperstein is aware of the Israel Folau case, where the footballer argued that his termination as an international rugby union player for expressing views off the field that were consistent with faith was unreasonable, while his employer judged what he said to be a breach of his contract because of the alleged­ hurt and damage to gay people and others.

On this point, Saperstein says he “treads on very difficult ground”. He balances his opinion as an advocate of free speech under the US constitution — and as a lawyer familiar with contracts.

“I see this as a free-speech issue more than a religious-freedom issue,” he says. “I don’t think relig­ions should be treated differently in this regard — free speech in general. Again, in the United States we have a different standard than in other countries. Free speech in the US is protected, no matter how offensive it may be, unless it is going to incite violence, in an imminent sense.

“That’s the one restriction, that the safety of the citizenry is a suffic­iently compelling interest to curtail speech … but (the Folau case) also raises a different issue, in an organised professional sport, when somebody contractually enters­ into an agreement and willingly curtails certain rights that they might have in the abstract.

“We had this in the United States with the people who refused to stand for the national anthem. It was said they were bringing dis­repute on the team.”

The bottom line for Saperstein is, first, no one’s rights as a citizen should ever depend on their religiou­s identity. “You can’t have religious freedom if people are made to be second-class citizens because of beliefs that don’t interfere with other people’s rights,” he says. Second, he says, freedom of religion means the right to “live your life alone in a community with others who share your beliefs, both privately and publicly”. Third, freedom of religion must protect not only those who are religiou­s and want to live in accordance with their beliefs, but also non-believers.

As Obama’s chief diplomat on religious freedom issues, Saperstein says his most satisfying momen­t was witnessing the releas­e of Sudan’s two most prominent religious prisoners following US advocacy on their behalf. He also cherishes the results of US programs to train lawyers across the globe in religious-freedom matters, and build interfaith coalitions where none existed.

Saperstein sees evidence of a “dangerous” rise in anti-Semitism around the world, especially in the US and Europe, that he attributes to a resurgence of the far right, anti-Israel left groups that hold the Jewish state to standards not expecte­d of others, and parts of the Muslim world spreading hate speech.

He wishes the Middle East peace process was back on track. While acknowledging that most of the US Jewish community tends to be liberal and votes for the Democratic Party, and so did not want Trump in the Oval Office, he says there is appreciation of the US President’s support for Israel.

“On the other hand, Israel’s wellbeing, security, perhaps even survival, depends on the success of a two-state solution that will give to the Palestinian people the right to live with self-determination, and stable security in their own land as well,’’ he says. “I’m not convinced the Trump peace plan is real­ly taking us down that path.”