Moreton Bay, 1862. Captain Louis Hope grows the nation’s first successful crop of sugarcane. By the end of the century it was an important export industry threatened by just one thing, native beetle larvae that ate at the cane’s roots. By the 1900s Queensland scientists set to work identifying the pest, and proposing a solution.
Cairns, 1935. Scientists released the Great Mexican Toad, Bufo marinus, in the hope that they would eat up cane larvae. They didn’t.
Suffering almost zero predation, however, they have since plagued northern Australia, devastating countless beautiful native species. The failed pest-controller became a far more menacing pest.
This is I believe a prophetic fable of what we are on the cusp of doing with the proposed “religious freedom laws.” These laws will prove to be a pest, devouring much of what is natural and beautiful, and creating a problem far larger and more insidious than that which it attempts to address.
I write as Christian leader, representing many who are intended to be protected by this legislation. I write also as someone against whom existing anti-discrimination action has been brought, a mildly annoying ordeal that the new legislation attempts to mitigate. I have considerable public and personal interest in this legislation.
I begin by identifying some of the more glaring problems with the draft legislation, before describing its unintended but ineluctably catastrophic effects. I then outline a harder but better approach to the existing problem, and conclude by showing the ultimate futility of religious freedom laws.
There are at least five obvious problems with the draft Religious Discrimination Bill 2019.
(1) The legislation is reactionary rather than principled
The convoluted Section 8 of the draft states that “an employer conduct rule that […] would have the effect of restricting or preventing an employee of the employer from making a statement of belief at a time other than when the employee is performing work on behalf of the employer; is not reasonable unless compliance with the rule by employees is necessary to avoid unjustifiable financial hardship to the employer.” This manifestly reacts to the notorious Israel Folau case.
Section 41 states that a statement of belief does not “contravene subsection 17(1) of the Anti-Discrimination Act 1998 of Tasmania.” This curiously specific reference to a state act manifestly reacts to the Julian Porteous case, the Catholic Archbishop prosecuted for distributing a booklet summarising his own church’s teaching about marriage. It touches also upon my own case, for this was the same act that was used to prosecute me for statements I made in defence of marriage in 2011.
Laws that react to hard cases, rather than being built on basic principles, are bound to be too narrowly focussed, too prone to pleasing whatever interest group is loudest at the moment, and too prone to being written according to political expediency or gain, rather than sound general principles.
(2) The legislation will require civil courts to undertake theological analysis
Section 3 states that an object of the Act is “to ensure that people can, consistently with Australia’s obligations with respect to freedom of religion and freedom of expression, and subject to specified limits, make statements of belief.” Section 5 defines a statement of belief as a statement that “may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion.”
This is a question of theology. Will our judges decide on these matters of theology? Will they call in expert theologians? If a purported “Christian” statement is being assessed, will they call in Catholic or Protestant theologians? Liberal or conservative? Confessional or charismatic?
The need to determine a statement’s “accordance” with the speaker’s purported “religion” will require a curious new Inquisition, which no one expects (according to Monty Python).
(3) The legislation will not prevent Christian business owners from being coerced against their conscience
Section 10 provides that “Religious bodies may act in accordance with their faith”, but then excludes from this “a body that engages solely or primarily in commercial activities.” Page 5 of the Outline of reforms explains that “a Christian bookstore, or a Muslim florist, would not be covered by this definition.”
So far the legal standing of Christian bakers, florists, photographers, and reception centre owners, who may refuse to provide their goods and services to events that offend their Christian convictions and conscience, remains untested. These so-called “religious freedom protections” will remove all uncertainty by compelling them to act against their conscience.
(4) The legislation will put religious freedoms under the uncertain protection of a “Freedom of Religion Commissioner”
Section 36 states that a proposed Freedom of Religion Commissioner will have the power, “by notifiable instrument,” to grant “to a person or body an exemption from the operation of a provision of Division 2 or 3.” Division 2 pertains to discrimination in work, qualifying bodies, registered organisations, and employment agencies. Division 3 covers education, access to premises, provision of goods, services, and facilities, and accommodation. In effect, the whole substance of the Act can be set aside at the discretion of the Commissioner.
Furthermore, although Commissioners will be nominally appointed by the Governor-General, practically they will be assessed and chosen by “the Minister” (Section 45.4). Nothing will prevent a future government which is hostile to religious freedom, hard as such a government is to imagine, from appointing a like-minded Commissioner who might exempt the Act into irrelevant nothingness.
(5) The bill will transform a human right into a legal right.
The Outline says that the Bill “will not create a positive right to freedom of religion.” Practically, it does precisely that. The Bill legislates for what I can and cannot say, and how I can and cannot act. It does this with good intentions, to protect me from harm. But at a tremendous cost.
Article 18 of The United Nations 1948 Declaration of Human Rights acknowledges that “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
The UN did not legislate, but instead declared my right to freedom of thought, conscience, and religion. It recognised then declared these things as mine by virtue of birth, mine for no other reason than that I am a human being.
Religious freedom is not the Australian government’s gift to give. I have it already.
But this Religious Discrimination Act will in effect transform my human right into legislative permission. And what the government gives, the government can take away.
In 1598 King Henri IV of France, first of the Bourbon Kings, granted religious freedom to his Huguenot subjects, some ten percent of the population. Henri was himself a recent convert from Protestantism to Roman Catholicism, and his religious freedom bill seemed generous. Protestants were granted houses of worship, safe cities, and their own courts of justice. Pastors were even guaranteed a stipend.
Henri’s magnanimous protections unwittingly established the grounds by which, in less than a century, the Protestant faith was destroyed in law and practice.
The successor of Henry IV, Louis XIII, was appalled that such a large minority of his subjects did not share the same faith as him. He forbade the building of new churches and then began to demolish existing churches. He restricted Protestant marriage rites and employment in certain professions. Louis XIV, the Sun King, finished his father’s work by revoking the Edict of Nantes altogether in his 1685 Edict of Fontainebleau. The practice of Protestantism was rendered illegal with harsh penalties attached.
The lesson from history is commonsensical. Take a natural human right and turn it into a legal right. Then simply repeal the legal right and, voilà, the right has vanished altogether.
History never repeats?
Consider the problem that the Religious Discrimination Act is trying to solve. Julian Porteous was harassed for distributing Catholic teaching. Israel Folau was sacked for posting his own beliefs in his own time. Christian and other religious schools are unsure whether they can employ whom they want to employ.
The problem is this: people are prevented from, or are being punished for, exercising their human right to “manifest their religion or belief in teaching, practice, worship and observance.”
What is the cause of the problem? In the case of Julian Porteous and religious schools it is state-based “anti-discrimination” acts. For example the Tasmanian Anti-Discrimination Act 1998 Section 17 (1) says that “A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16 in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.” Section 16 lists twenty-two protected attributes. Everyone is represented on that list many times over.
According to this criteria, broad as a dictator’s grin, anyone may make a complaint against everyone. And, as I discovered in my own case, the Tasmanian Anti-Discrimination Commissioner’s bar of acceptance scrapes very low. There is no cost for making a complaint, no penalty for complaints that prove to be frivolous, no consequences for withdrawing a complaint at any time for any reason, and no recourse for an innocent defendant to recover legal expenses.
If we have a problem with religious freedom, then these anti-discrimination acts are it.
The way to deal with this problem is not by trying to mitigate such acts with ever more flawed, inconsistent, and complicated discrimination acts, that will transform a natural human right into a legal permission, that will, ultimately, in a turn of brilliantly unconscious Machiavellianism, destroy religious freedom.
Let us learn from the fable of the cane beetles and cane toads. That particular solution to a problem was reactionary, lazy, reckless, and deeply short-sighted. The problems caused by the solution have monstrously surpassed the problems they were meant to solve.
If you find that you have been walking up the wrong track, the solution is not to compound the problem by blundering off in a different direction. You must retrace your steps to the place where you went wrong, and then taking the right path from there. This is what we must now do.
The way to deal with the religious freedom problem, if we believe that such a problem exists, is to do the hard work of going back to first principles and basic freedoms, and working things out from there.
We must go back to the undeniable basics, to freedom of conscience, freedom of expression, and freedom of assembly. These are the freedoms that tyrants loathe, and that all just and humane societies have sought to establish and protect. Our very humanity rises or falls with these freedoms..
We must go back to these basic freedoms, and then ask, “Do our discrimination laws, no matter their intention, hinder these freedoms? Though they were meant to do good, have they unwittingly exposed us to evil?” If so, they must be erased, or at least changed to the extent that basic human freedoms are left unmolested.
Christians should stand firm
I conclude by showing that classical Christian political theology determines that the standing of Christians in the community, and their conduct in relation to government, cannot and never will be changed by any supposed religious freedom bills.
The Christian affirms that God has established governing authorities of different kinds upon earth, and that it is our duty to respect and obey these authorities, to pay taxes, and to pray for them
The Christian affirms nonetheless that the world as it is today is in a fallen condition, whereby humanity more-or-less refuses to recognise and obey Christ as Universal King. Consequently, earthly governing authorities can and do stray into various degrees of foolishness and tyranny, making correspondingly foolish and tyrannous laws.
Under such imperfection Christians must disobey human laws that compel one to disobey Christ’s laws, or prevent one from keeping Christ’s laws. At this point today’s Christian must say, as the Apostles did, “We must obey God rather than human beings”, and then accept whatever civil penalty may arise.
This was Shadrach, Meshach, and Abednego in Babylon, who were willing to be thrown into Nebuchadnezzar’s fiery furnace rather than disobey the Lord by worshipping the king’s idol. This was Daniel in Persia, who was willing to be thrown into the lions’ den rather than disobey the Lord by withdrawing from his prayers. This was the example of the apostles in Jerusalem, who were willing to be flogged rather than disobey Christ by self-gagging their witness to his resurrection.
The proposed religious discrimination laws are cane toads. The solution is worse than the problem. Its authors mean well but they transform unbreakable human rights into erasable legal permissions. Ultimately they fight annoying laws with tyrannical laws. In the end these laws will not change Christian behaviour by an iota.
This needs a serious rethink.
Campbell Markham is Pastor of Cornerstone Presbyterian Church in Hobart.