Israel Folau (l) and Josiah Folau (r) 

Both rugby star Israel Folau and his younger cousin, Josiah Folau, have been fired for expressing their religious beliefs. Is there a difference?

Some have argued that it is inconsistent to criticise Rugby Australia for firing Israel and then to support the Catholic school that fired Josiah. But such a position should be rejected after considering the substantial differences between these organisations.

Rugby Australia is the national governing body of rugby union in Australia. Its Strategic Plan declares that its vision is ‘to inspire all Australians to enjoy our great global game’ and that it will realise this vision through (1) making rugby a game for all; (2) igniting Australia’s passion for the game; (3) building sustainable success in the professional game; and (4) creating excellence in how the game is run.

The conduct of Israel in posting on his private Instagram account a summary of a Biblical passage declaring that idolaters, adulterers, homosexuals, thieves, drunkards and others faced hell if they did not repent was offensive to many people. However, such a position is not contrary to the declared core objectives of Rugby Australia.

In contrast, the very essence of Catholic schools is to instruct their students in the Catholic faith in an environment supportive of Catholicism. Such a position is clearly adopted by Sydney Catholic Schools, for example, in its Vision and Mission statement. The document affirms the organisation’s commitment to “developing authentic Catholic schools which are founded on the person of Jesus Christ … and imparting Catholic beliefs, values, practices and traditions within a faith-filled community”.

Josiah was reported to have said that the Catholic Church is a “synagogue of Satan” and that the Catholic mass is “a paganistic ritual rooted in heresy, evil and devil worship”. Such a position is a rejection of core elements of the Catholic faith that are essential foundations of Catholic schools.

A further distinction is the nature of the employment positions that the two men held.

Israel was employed by Rugby Australia to play rugby union while Josiah was employed to develop the knowledge, skills and character of students in the context of the Catholic faith. Josiah’s publicly expressed views about Catholicism makes him completely unsuitable for his employment position as a teacher at a Catholic school involved in the formation and spiritual guidance of students. Israel’s comments do not undermine his ability to fulfil his central contractual obligation of playing rugby union to the best of his ability.

Support for the autonomy of organisations founded on grounds such as race, sex, sexuality, and political opinion provides a further argument in favour of the defensibility of the employment decision by the Catholic school.

Few would criticise an indigenous advocacy organisation which relied on protections provided under anti-discrimination legislation to fire an employee who posted on Instagram comments critical of indigenous Australians.

Similar protections provided to gay organisations, such as the decision by the Victorian Civil and Administrative Tribunal to allow a Victorian gay club to exclude those who did not identify as homosexual males, are widely supported.

It should similarly be uncontroversial for a religious school to make employment decisions aimed at ensuring their identity and internal culture is consistent with the philosophical basis on which they were established.

Providing this protection for the employment decisions of religious schools is required from a society committed to pluralism, parental rights, religious liberty and a respect for equality that international law explicitly affirms protects the ground of religion at both an individual and organisational level.

The scope of this autonomy argument does not extend to an organisation like Rugby Australia that has the central objective of promoting rugby union rather than being an organisation established on explicitly philosophical grounds.

The comparative impact of the dismissal is another relevant consideration.

In 2011, there were 9435 schools in Australia, comprising 6705 government schools, 1710 Catholic schools and 1020 Independent schools. Josiah’s positions on Catholicism will make it hard for him to secure a teaching role at other Catholic schools. But this still leaves a majority of schools available to him where he may secure employment.

The situation confronting Israel is vastly different. Rugby Australia is the sport's national governing body and its decision to end his contract has profoundly undermined his ability to pursue his chosen career as a professional rugby union player.

Josiah may claim that he is a victim of religious discrimination but a law that prevented a religious school from removing someone so opposed to the school’s religion is also an act of religious discrimination. A school would be religious only in name if it were required to employ individuals who openly expressed their hostility to the school’s religion. Undermining the ability of religious communities to establish schools with employees committed to their faith would cause grave harm to these communities. Such harm would not only violate religious liberty but also would be an act of discrimination by violating the right to equality in its religious dimension.

The need to protect freedom of expression is another ground on which the Catholic school’s actions could be criticised. The forced inclusion, however, into an organisation of individuals who reject core elements of the organisation’s identity is itself a violation of freedom of expression. Religious schools are founded with the primary aim of supporting the school’s religion which is substantially fulfilled through the education of students by the school’s employees especially their teachers. A school’s ability to promote its religious convictions will be gravely compromised if it is forced to fill employment roles with individuals who openly reject the religion.

Considering the substantial differences between religious schools and Rugby Australia a person can reasonably support the actions of the Catholic school while criticising the decision of Rugby Australia to terminate the employment of Israel Folau.

Dr Greg Walsh is a Senior Lecturer at The University of Notre Dame Australia and author of the book ‘Religious Schools and Discrimination Law’. Commentary on the article is welcome and can be sent to greg.walsh@nd.edu.au.

Greg Walsh

I am a Senior Lecturer in the School of Law at the University of Notre Dame Australia teaching a variety of units including Human Rights Law, Legal Philosophy, and Medical Law. My previous teaching...