Marion Maddox provides the third post in our book forum on Luke Beck’s Religious Freedom and the Australian Constitution. To see all posts please click here. Click through for posts by Farrah Ahmed and Alex Deagon, as well as Luke Beck‘s reply.

BY MARION MADDOX

In his book, Religious Freedom and the Australian Constitution: Origins and Future, Luke Beck calls upon his readers to think differently about the Australian Constitution’s Section 116. This provides that:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

He maintains that Section 116 should be understood as a shield against religiously intolerant legislation, and:

intolerance exists when the state attempts to change or suppress a set of religious beliefs and practices or imposes penalties for holding or following them. (p 163)

My way of putting this is that the state is not to act as theologian, asserting itself arbiter of religious orthodoxy or enforcer of doctrinal purity.

This theory should inform many contemporary debates. Beck concludes with a discussion of the National Schools Chaplaincy Program, which currently requires that chaplains, most of whom work in public schools, must be endorsed by a religious organization. This, Beck argues, amounts to the state imposing a penalty (loss of a job) for holding religious beliefs that do not conform to those of an endorsing body. As I have discussed elsewhere, the religious requirement for chaplains is both discriminatory and incoherent; Beck’s agitation for revisiting the constitutional question of state as theologian is both timely and welcome.

His interpretation’s implications reach well beyond chaplains. To take just one other example, the state “attempts to change or suppress a set of religious beliefs and practices or imposes penalties for holding or following them” in granting exemptions to religious bodies under anti-discrimination law. At Commonwealth level, religious bodies are exempted from the operation of the Sex Discrimination Act (1984) if their discrimination against a person on the basis of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, “(i) conforms to the doctrines, tenets or beliefs of that religion; or (ii) is necessary to avoid injury to the religious sensitivities of adherents of that religion.”

Australia’s version of such exemptions is unusually wide, covering discrimination against any employee, rather than applying an “inherent requirements” test so that discrimination would only be allowed if related to an inherent requirement of the person’s particular job. Defending the present system, Patrick Parkinson criticised the “fundamentalism” of insisting on equality of access to employment “even if 99.9% of other positions available in the community are open” to an applicant. But Parkinson’s figure is too fictional: the Catholic Church alone is the biggest non-government employer, with 2% of the total workforce. and 10% of the health sector. About one-third of all students attend non-government schools, of which over 90% are religious. Altogether, a substantial, and growing, segment of the labour market operates outside regular anti-discrimination protections.

Defenders of the exemptions maintain that they are seldom used; but sometimes, they are. In 2013, Penrith Christian School, a member of umbrella group Christian Schools Australia, (CSA) was at the centre of a media storm because it required parents and teachers to sign its Statement of Faith, hardly unusual in CSA schools, declaring homosexuality an “abomination unto God, a perversion of the natural order and not to be entered into.” The School Principal at first doubled down on the statement. CSA announced it would be revised due to its “potential to be misunderstood,” and describing gay and lesbian children as requiring great “care and compassion” at a “very difficult time in their lives.” (Which is worse–to be told you are an abomination, or that you require special care and compassion because of your great difficulty?) In 2017, Mandurah Foundation School in Western Australia said it would have excluded a student, had it known she had two dads. The seven-year-old was allowed to continue, as long as she never mentioned her dads; the family decided that was untenable, and removed her themselves.

In 2017, the federal government announced a review into whether Australian law adequately protects religious freedom. The review panel reported in May 2018. At the time of writing, six months on, the report has yet to be made public. Its recommendations, as leaked to the Sydney Morning Herald, include amending the Sex Discrimination Act so as to allow religious schools to continue discriminating against staff and students on the basis of “sexual orientation, gender identity or relationship status,” provided that “the discrimination is founded in the precepts of the religion,” consistent with declared policy, and carried out with due care for “the best interests of the child.”

The application of any such provision would require someone to determine what “the precepts of the religion” are. As Craig Campbell, a Christian who lost his teaching job at South Coast Baptist College in WA after being outed as gay, observed, “there’s a diversity in religious belief in the same way there’s a diversity in belief about almost anything in society.” Adjudicating within that diversity would presumably fall to a court or tribunal, putting an arm of the state in the position of attempting to “change or suppress a set of religious beliefs and practices” or impose “penalties for holding or following them.”

Moreover, discussion of the leaked recommendations revealed the theological challenges of deciding what is likely to need, or deserve, protection. Prime Minister Scott Morrison stated that no school should be allowed to exclude a student on the basis of their sexuality; however, the exemptions still apply to teachers.

The leaked recommendations also proposed abolishing “any exceptions to anti-discrimination laws that provide for discrimination by religious schools in employment on the basis of … pregnancy,” as the panel reportedly “could see no justification” for retaining them. Yet Christian schools commonly require staff to sign “lifestyle clauses” precluding extramarital sex, which can lead to sacking on grounds of pregnancy.

The panel similarly saw “no justification” for allowing discrimination on the basis of race; surely few today would disagree. But this is a relatively recent Christian consensus. In the 1970s, the US religious right was coalescing around not abortion, as per modern myth, (many, including current fierce opponents, the Southern Baptist Convention, supported Roe vs Wade), but defending racially-segregated colleges, such as Bob Jones University, which banned interracial dating among its students until 2000.

Whether or not one agrees or disagrees with any particular exemption, this general, troubling question remains: who gets to decide that it is no longer ok to discriminate against Black, brown or pregnant people in the name of some white, non-pregnant people’s “religious beliefs,” but perfectly fine, even necessary, to discriminate against gay, lesbian or transgender people in the name of some straight, cis-gendered people’s “religious beliefs”? And is not this an instance of, wittingly or not, the state attempting to “change or suppress a set of religious beliefs and practices” (for example, those of gay and lesbian Christian students), or impose “penalties for holding or following them”?

Other instances could be drawn. Beck has given us a powerful way of thinking about the place of religion, not just in our Constitution, but in our public life. I hope our leaders listen.

Marion Maddox is a Professor in the Department of Modern History, Politics and International Relations at Macquarie University, Sydney.

Suggested citation:  Marion Maddox, ‘Book Forum on Luke Beck’s Religious Freedom and the Australian Constitution‘ on AUSPUBLAW (21 November 2018) <https://auspublaw.org/2018/11/book-forum-marion-maddox/>.