Professor Mary Ann Glendon, of Harvard Law School, has drawn attention to one of the major problems surrounding religious freedom, namely “the persistent lack of consensus on its meaning, foundation, and relation to other rights” (1). It might be helpful to offer some brief thoughts on this problem.
The Second Vatican Council’s landmark declaration on religious freedom, Dignitatis Humanae, takes us quickly to the essential meaning of the concept. It means freedom from coercion in matters of religious belief and conscience. Everyone is “to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to forced to act in a manner contrary to his own belief, whether privately or publicly, whether alone or in association with others, within due limits” (2).
Unless it is tempered by solidarity, freedom can quickly come to be a radical assertion of the self against others. The Universal Declaration of Human Rights (1948) did not stop at declaring: “All human beings are born free and equal in dignity and rights”. The very next sentence bound this claim for freedom and legitimate personal autonomy to solidarity, declaring that we “are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (3).
What this means for religious freedom is that, like other rights, it is not unlimited. This is acknowledged in the major international human rights instruments, and also in Dignitatis Humanae. We are to exercise our rights — all rights, not just the right to religious freedom — with “respect both for the rights of others and for [our] own duties towards others and for the common welfare of all”. It is also acknowledged (as Dignitatis Humanae puts it) that “society has the right to defend itself against possible abuses committed on the pretext of freedom of religion” (4).
At the same time, as the United Nations Human Rights Council emphasised in 2010, “restrictions on the freedom to manifest one’s religion and belief” must be non-discriminatory and “applied in a manner that does not vitiate the right to freedom of thought, conscience, and religion” (5).
What religious freedom means in practice
With these principles in mind we can identify four basic points to show what religious freedom means in practice:
1. Freedom of religion is not just freedom to go to church on Sundays or pray at home. It also means being free to act on your beliefs in the public square, to speak about them and seek to persuade others. It means not being coerced or bullied into silence by speech-control and equality laws or by accusations of “Homophobe!” “Discrimination!” “Anti-Choice!” or “I’m offended!” (6).
2. Freedom of religion means being free to provide services that are consistent with the beliefs of the sponsoring religion. Neither the government nor anyone else has the right to say to religious agencies “we like your work with vulnerable women; we just need you to offer them abortion as well”; or “we really like your schools, but we can’t allow you to teach that marriage between a man and a woman is better or truer than other expressions of love and sexuality”. Our agencies are there for everyone without discrimination, but provide distinctive teachings and operations. In a wealthy, sophisticated country like Australia, leaving space for religious agencies should not be difficult.
3. Religious freedom means being able to employ at least a critical mass of employees who support the ethos of the sponsoring religion. All Catholic works are first and foremost works of religion. Our hospitals, schools, universities, welfare agencies, services for the refugees, the disabled and the homeless are established because this is what our faith in Christ the Lord impels us to do. The good people happy to help us in these works as staff or volunteers do not all need to share the faith, but they need to be happy to support it and work within it. It is also essential that a preference can be exercised for people who are actively committed to the religious convictions at the heart of these services.
It is not enough for just the CEO or the religion teacher to be Catholic. It is not unjust discrimination to prefer committed Catholics to staff Catholic services, but it is coercion to attempt to interfere in or restrict our freedom to do so. No one would dream of suggesting that (for example) the ALP [the Australian Labor Party] must employ some activist members of the Liberal Party.
4. Religious freedom and government funding. The secular state is religiously neutral and has no mandate to exclude religion, especially when a large majority of the population are Christians or followers of other major religions. Church members also pay taxes. Substantial levels of government funding are no reason to prohibit religious schools, hospitals and welfare agencies from offering services compatible with their beliefs; no sufficient reason to coerce them to act against their principles. The separation of church and state provides important protections for religious communities against the intrusions of governments. In a free society like our own, different groups have a right to make distinctive offerings, provided they are not damaging the common good. We need to foster a tolerant pluralism, not intolerant secularism.
Protecting religious freedom
This year 2013 marks 1,700 years since the Edict of Milan, when the Emperor Constantine granted religious freedom to Christians after nearly three hundred years of intermittent and increasingly ferocious persecution. This anniversary year is then a good opportunity for considering how we might strengthen respect for religious freedom as a fundamental human right, one of a handful of rights under the International Covenant of Civil and Political Rights which cannot be abrogated (“derogated”) even in a “time of public emergency which threatens the life of the nation” (7).
To conclude then, a few preliminary suggestions:
Protections, not exemptions: federal and state anti-discrimination laws usually include a range of “exemptions” or “exceptions” for religious organisations (and other groups). The purpose of these exemptions is to protect other rights, but the language of exemptions creates the impression that they are simply concessions or special permissions to discriminate granted by the state for political reasons. This is completely misleading and helpful to no one, except those who want to misrepresent the situation and remove protections for religious freedom. The language of exemptions should be replaced with the language of protections, clearly identifying the human right that is being protected.
Exercising other rights is not discrimination: Professor Nicholas Aroney and Professor Patrick Parkinson have suggested that the prohibition of unlawful discrimination ought to be drafted in such a way that when a right to freedom of religion, association or cultural expression is being legitimately exercised, this cannot be seen or judged to be unlawful discrimination (8). They are not the first to make suggestions along these lines, and I think they are worth serious consideration.
Treating these rights as exemptions reinforces the strong impression that anti-discrimination is more important than other rights and will always trump them. John Finnis has observed that anti-discrimination law is concerned with whether differential treatment is justified. Using the language of “discrimination” is dangerous because it suggests that differential treatment is not justified, even when it is “exempted” (9).
Protection for individuals as well as groups: individuals are the bearers of rights, and it is strange that protections for religious freedom in anti-discrimination laws focus on groups and institutions rather than on individuals. As always, the rights of others to goods and services have to be protected, but there should be explicit scope to provide protections for individuals so that they are not coerced to act against their beliefs in their work or businesses.
Legislate conscience protections: Rather than coercing people to act against their religious or conscientious convictions, as the Victorian Abortion Law Reform Act does, the states and commonwealth should legislate protections for them, perhaps along the lines of the resolution adopted by the Parliamentary Assembly of the Council of Europe in 2010. While requiring states to ensure timely access to “lawful medical care”, it also holds that “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist, or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason” (10).
Last year the first lady of the United States, Mrs Michelle Obama, summed up very well what religious freedom means in practice. She told a conference of the African Methodist Episcopal Church: “Our faith journey isn’t just about showing up on Sunday. It’s about what we do Monday through Saturday as well — especially in those quiet moments, when the spotlight’s not on us, and we’re making those daily choices about how to live our lives. Jesus didn’t limit his ministry to the four walls of the church. We know that. He was out there fighting injustice and speaking truth to power every day. He was out there spreading a message of grace and redemption to the least, the last, and the lost. And our charge is to find Him everywhere, every day by how we live our lives. . . . This is how we practice our faith (11).”
As Pope Benedict XVI said in 2011, “the Church seeks no privileges, nor does she seek to intervene in areas unrelated to her mission”. All we claim is the right to carry out that mission with freedom (12). In the end, this is what religious freedom is all about.
Cardinal George Pell is the Catholic Archbishop of Sydney. This is an excerpt from an annual lecture on religious freedom at the University of Notre Dame Australia School of Law on August 22. The full text has been published in Quadrant.
(1) Pontifical Academy of Social Sciences, Universal Rights in a World of Diversity: The Case of Religious Freedom, Acta 17 (Proceedings of the 17th Plenary Session, 29 April-3 May 2011). Eds. Mary Ann Glendon & Hans F. Zacher (Pontifical Academy of Social Sciences, Vatican City: 2012), “Introduction”, 20-21.
(2) Second Vatican Council, Declaration on Religious Freedom Dignitatis Humanae (1965), §2.
(3) Universal Declaration of Human Rights (1948), Article 1.
(4) Dignitatis Humanae §7.
(5) United Nations General Assembly, Human Rights Council, “Freedom of religion or belief: mandate for the Special Rapporteur on freedom of religion or belief” (A/HRC/RES/14/11), 18 June 2010, §4.
(6) In passing I might add that as a society we need to reject more generally the notion that disagreeing with someone or even disapproving of their beliefs or conduct somehow means disrespect for them. This is emotional intimidation used as a conversation-stopper. The logic seems to be that on certain topics, anything short of complete endorsement of what someone else believes or does is a form of disparagement. Naturally, it is important to be sensitive, courteous, and to respect other people’s freedom, and it is possible to disagree or disapprove while being completely respectful. The idea that disagreeing with someone is to insult them shows just how fragile — or cynical — some who are active on particular issues have become.
(7) International Covenant on Civil and Political Rights (1966), Article 4.
(8) Patrick Parkinson & Nicholas Aroney, “Consolidation of Commonwealth Anti-Discrimination Laws”, January 2012 (www.freedom4faith.org.au).
(9) John Finnis, “Equality and Differences”, Solidarity: The Journal of Catholic Social Thought and Secular Ethics (2:1, Article 1), 16-17 & n52.
(10) Council of Europe Resolution 1763 of 2010 on The right to conscientious objection in lawful medical care, Article 1.
(11) “Remarks by the First Lady at the African Methodist Episcopal Church Conference”, Nashville, Tennessee, 28 June 2012
(12) Benedict XVI, “Address to members of the Diplomatic Corps”, 10 January 2011.