AND SO IT BEGINS …
Kevin Simington
Craig Campbell, a Western Australian teacher who recently admitted to being homosexual, has been removed from the casual teaching roster of South Coast Baptist College, WA, because his sexuality contradicts the moral teaching of the school. This has created a furor in the media this week, with calls for faith-based schools, institutions and churches to be stripped of their right to discriminate in employment on the basis of sexuality. It is precisely this controversy that church lobby groups were seeking to avoid by asking the government to clarify and refine religious freedom legislation as an adjunct to the legalising of same sex marriage.
The right of a religious organisation to teach their religious views and to employ people who conform to those views is currently based upon a loose interpretation of Section 116 in our Constitution, concerning the freedom to practice religion. The exercise of that freedom is, of course, subject to and qualified by the criminal and civil laws of the land. For example, a religion can’t currently practice polygamy or go around beheading people!
Subsequent to the legalising of same-sex marriage and the resulting legitimisation of homosexuality, the question now arises as to whether religious organisations who refuse to employ homosexuals could actually be guilty of discrimination. Currently, anti-discrimination laws are state-based, with each state having significantly divergent legislation. Western Australia, for example, has an exemption clause in its anti-discrimination laws allowing schools like South Coast Baptist College the right to reject employment applications from people who do not conform to their beliefs[i]. Tasmania, on the other hand, does not have such exemption clauses. This means that Tasmanian churches and religious organisations cannot refuse employment to someone simply because the applicant’s views contradict the beliefs and morals of the organisation. Furthermore, in Tasmania anyone who even speaks out against homosexuality or advocates heterosexuality as the only acceptable form of union is liable to prosecution.
For example, in 2015, Tasmanian Catholic Archbishop, Julian Porteous, was summoned to the Anti-discrimination Tribunal because he openly preached that traditional marriage is the only form of marriage acceptable to God. Similarly, in July 2017, proceedings were commenced against two Christian preachers in Tasmania for preaching against homosexuality on the basis of the Bible’s teaching. These cases highlight a serious dilemma; our Constitution’s guarantee of religious freedom is not being uniformly upheld and applied by state-based anti-discrimination legislation. It is precisely this problem that occupied the minds of evangelical Christians in the lead up to the same-sex marriage plebiscite, and continues to concern them in its aftermath. Pleas by Christian lobby groups for the formation of clear, uniform national legislation on the matter have, to date, been met with condescending platitudes by the majority of politicians, along with false assurances that religious freedom is not under threat.
Anti-discrimination lawyer, Mark Fowler, of Brisbane firm Neumann & Turnour, says that if uniform legislative change at the state level does not occur in order to clarify the rights of religious institutions, the Commonwealth would need to introduce its own laws invalidating state-based regimes, using section 109 of the Constitution.[ii]
University of Newcastle associate professor Neil Foster has also voiced his concern that no serious thought has been given to correcting the disparity of legislation at state level. He says, “I am very concerned that this is an area that has not been thought through.”[iii]
Similarly, University of Sydney law professor, Patrick Parkinson, advocates for the establishment of new federal laws that would override “crazy” situations such as that in Tasmania, where it is currently illegal to voice an alternate moral viewpoint. He says, “Tasmania has the most far-reaching laws restricting freedom of speech of any state in Australia. They need to be reviewed because they are incompatible with Australia’s international human-rights provisions.”[iv]
Recently, politicians who called for legislative reform to clarify and refine the laws regarding religious freedom were accused of “trying to muddy the waters”[v]. Yet the opposite is actually true. The waters are already well and truly muddied, and what is desperately needed is clarity and uniformity!
The pre-plebiscite pleas of church leaders and Christian lobbyists, together with the concerns of many in the legal profession, have apparently fallen on deaf ears. As we hurtle down the same sex marriage track, many are wondering whether the same fate awaits us as befell schools and churches in other countries. In Canada, for example, faith-based schools were given vague assurances, prior to the legalising of same sex marriage, that their right to teach their own beliefs and morals would not be compromised. Subsequent to the legalising of sex marriage, however, it has become mandatory for all Canadian schools, including faith-based schools, to teach homosexuality as a valid and acceptable form of sexuality. Exactly the same thing occurred in the United Kingdom, with the result that one Jewish school is now threatened with loss of funding and closure because of its refusal to teach homosexuality to its students.
As well as the right to freely teach one’s faith-based beliefs and morals, religious organisations also face deep uncertainty concerning their continued right to insist that employees share the same ideology. The previously mentioned instance of South Coast Baptist College no longer employing Craig Campbell because of his openly admitted homosexuality is a case in point. Will we reach a juncture whereby a religious organisation cannot refuse employment to someone who openly opposes the fundamental tenets of their faith? Surely this would be a farcical development! A Muslim school should not be forced to seriously consider my application to teach at their institution if I am an evangelical Christian who openly disagrees with their belief system! Similarly, I should not expect my application to work for a LGBTQI organisation to be taken seriously if I openly adhere to a belief system that maintains that homosexuality is a sin against God! Indeed, I would be foolish in the extreme to even consider applying for such positions. The fact that Craig Campbell seemed surprised and hurt by the refusal of further employment by a Baptist school shows remarkable naivety on his part. The publicity it generated for the LGBTQI cause was also a very conveniently timed piece of political maneuvering.
The current push by the LGBTQI movement to force the whole of society to conform to, and actively promote, their moral viewpoint demonstrates gross intolerance. Approximately 38% of Australians disagree with them, and that significant minority are entitled to their beliefs. Insisting on ideological conformity, and outlawing the expression of alternate viewpoints, is in direct contravention of the International Bill of Human Rights and the International Covenant on Civil and Political Rights.[vi] As an evangelical Christian, I respect the right of the LGBTQI movement to hold a different viewpoint, as well as their freedom to express it, even though I disagree strongly with it. I do not expect to force my views upon them. This is what it means to live in a free society. It seems, however, that this attitude of tolerance is not reciprocated.
Forced ideological conformity is the mark of oppressive fascist regimes, not a characteristic of a society that values free speech and upholds the rights of individuals to hold divergent views. A nation that values these basic human rights must call upon its leaders to protect those rights as a matter of the highest priority.
[i] The Anti-discrimination Act of Western Australia, 1984, Section 73 (3).
[ii] Quoted in The Australian – http://www.theaustralian.com.au/national-affairs/state-politics/religious-rights-threat-in-state-discrimination-laws/news-story/374ab0b9dbad65dfe173ef39668ac115
[iii] IBID
[iv] IBID
[v] Statement made by Christopher Pyne towards Tony Abbott, quoted in The Australian, opp. Cit.
[vi] The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly with resolution 2200A (XXI) on 19 December 1966,The right to freedom of thought, conscience and religion is recognised in Article 18 of the ICCPR. Article 18 protects not only the ‘traditional’ religious beliefs of the major religions, but also non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The right recognised in Article 18 is simultaneously an individual right, and a collective right. It has both an ‘internal’ dimension (the freedom to adopt or hold a belief), and an ‘external’ dimension (the freedom to manifest that belief in worship, observance, practice or teaching). While the internal dimension is absolute, the external dimension can be subject to certain limitations (on the strictly restricted grounds specified in Article 18(3)).