Churches counting on exemptions to keep preaching what they practise

Rugby international Israel Folau. Picture: Getty

The Ruddock inquiry into relig­ious freedom, instituted by the federal government in the wake of the legislation authorising same-sex marriage, has completed its work but its findings have not been made public yet. In many ways the real issue is one of freedom of speech and is not a problem confined to religious bodies.

The recent case of rugby star Isra­el Folau illustrates some of the difficulties in this area. It should be said at the outset that Folau’s public statements on the question of same-sex marriage do no more than reflect the traditional teachings of some Christian churches on this subject. They hardly constitute a form of hate speech, despite the hyperbole of some commentators. These views are no doubt uncommon today but it may be noted that the same traditional teachings regard couples of different sex in a relationship outside marriage as living in sin. Readers of Evelyn Waugh’s Brideshead Revis­ited will recall how seriously these concepts were taken at one time by members of more mainstream ­religious bodies.

It has been said that the complaints of some of the Rugby Australia sponsors about Folau’s statements raise an issue of freedom of speech. But it is a fact — sad or otherwise — of modern Australian life that a highly paid sportsman or sportswoman cannot continue to make public statements, especially unfashionable ones on moral questions, that alienate sponsors and expect to survive, given the views that dominate almost all public institutions in this country and the boards of most large corporations.

But the real issue of freedom of speech in this area is whether churches will be able to continue their traditional teachings in pulpits and schools in the light of state and territorial legislation that makes it illegal to engage in conduct that offends or otherwise injures the feelings of individuals on the basis of, for example, their participation in same-sex marriage.

Tasmanian anti-discrimination legislation is the most comprehensive of these statutes and prohibits such conduct on the basis of, among other things, sexual orientation, sexual activity, gender, gender identity, marital status and relationship status.

There is obviously considerable room here for some to be offended by what they see as the churches’ condemnation of their lifestyles and to file complaints with the anti-discrimination commissioner on the basis of sermons or teaching materials. As is well-known from the litigation of complaints under section 18C of the federal Racial Discrimination Act, there are some defences available under this kind of legislation but, even if complaints are ultimately unsuccessful, they inevitably involve the subject of the complaint in considerable time, expense and personal stress.

This is presumably one of the issues considered by the Ruddock inquiry. The reason that this question looms large is that there is no exception for religious teaching in the various statutory provisions dealing with conduct that offends individuals on the basis of conditions such as sexual preference, marital status or relationship status. Other conduct by religious institutions is normally exempted from the provisions of anti-discrimination legislation. So the Tasmanian statute allows discrimination on the ground of gender if required by the doctrines of the religious institution in question and allows discrimination in relation to employment if the ­participation of the potential ­employee in the observance or practice of a particular religion is a genuine occupational qualification or require­ment. In particular, discrimination is permitted in relation to employment in an educational institution conducted in accordance with the teachings of a religion if the discrimination is to enable the educational institution to conduct itself in accordance with those teachings.

There has been, of course, increasing opposition from some groups in the community to the existence of these exemptions but so far they largely have survived in this kind of legislation.

The provisions in anti-discrimination legislation that make offensive statements illegal do not, of course, cause a problem for relig­ious teachings only. As with section 18C, they have the potential to stifle robust public debate on a wide range of social, economic and political questions, given the readiness of some members of the community to take offence at any publications that criticise their views or activities.

Naturally this suits the guardians of political correctness who do not want public debate on many of these issues.

As for Folau, he could be worse off. He could be still playing in the AFL — the most politically correct of all the sporting bodies, and, perhaps not incidentally, the least ethnically diverse of the three codes Folau has played and the one with no international component — in which case he would already be out of a job.

Michael Sexton SC is the author of several books on Australian history and politics.