(Warning: HUGE LONG blog.)
I had an enjoyable meeting and lunch with a separated brother yesterday (with whom I felt a great deal LESS “separation” than with some of my brethren and sistern with whom I am in full communion!) to talk about how Christian groups should respond to the Australian Human Rights Commission’s Freedom in Religion and Belief in the 21st Century Project. It is my understanding that the ACBC is making a submission on this on behalf of all the Catholic Churches in Australia, but also that the results will most probably filter into the whole “Charter of Rights” project – unless it finally all just falls into the “too hard” basket, which is very likely and is what happened to the HREOC’s earlier report “Article 18: Freedom of Religion and Belief” released in 1998 and the 2004 report “Religion, Cultural Diversity and Safeguarding Australia”.
I strongly suggest to you, if you want to have a fun half hour, to download and work through the “submission template” (a bit like a Women’s Weekly questionnaire only without a score sheet at the end). You will soon get the idea of where this project is headed. It is also worth reading in connection with this the Discussion Paper ““Freedom of religion and belief and physical and mental wellbeing”” – which defines religion in terms of article 18 of the International Covenant on Civil and Political Rights as interpreted by the 1998 Report:
“[R]eligion and belief should be given a wide meaning, covering the broad spectrum of personal convictions and matters of conscience. It should include theistic, non-theistic and atheistic beliefs. It should include minority and non-mainstream religions and belief systems as well as those of a more traditional or institutionalised nature. Religion or belief should be defined as a particular collection of ideas and/or practices:
– that relate to the nature and place of humanity in the universe and, where applicable, the relation of humanity to things supernatural;
– that encourage or require adherents to observe particular standards or codes of conduct or, where applicable, to participate in specific practices having supernatural significance;
– that are held by an identifiable group regardless of how loosely knit and varying in belief and practice;
– that are seen by adherents as constituting a religion or system of belief.
The definition should not apply to all beliefs but only to those that clearly involve issues of personal conviction, conscience or faith.”
The Discussion Paper is especially interesting because at first it appears to address religion as being a “health and wellbeing” issue only at the individual level. It becomes apparent, however, that it also considers the “health and wellbeing” that religious belief can bring to a particular community, but also (most importantly) for civil society as a whole. Catholics would be especially interested in the latter. It is, after all, because we are convinced that the protection of the Right to Freedom of Religion is a good for the well being of the whole of human society that we both recognise and promote this right.
My friend asked me to pen a few notes for him regarding my own take on what we as Christians should be suggesting to the Government about encouraging harmony between different belief groups in society, not just traditional religious, but also secularists and humanists and atheists etc. (Significantly, the defintion given above by the HREOC expressly includes this wide range of beliefs; the recent recongition of Humanism as a belief system for the purposes of Religious Education in Victorian schools supports this definition).
As Christians, we are united in being concerned about two forms of discrimination against religious believers today:
1) the commonly expressed expectation that opinions formed on the basis of religious belief should be excluded from political discourse in the public square on the basis of a false understanding of the “separation of Church and State”.
2) the growing encroachment of legal restrictions upon the freedom of communities and individuals to act in accord with their religious beliefs in matters of conscience.
It is our belief that neither of these forms of discrimination serves the “health and wellbeing” of Australian society as a whole.
Some time ago, I wrote a review of Martin E. Marty’s book “When Faiths Collide”. Marty’s thesis followed the idea of Georg Simmel, who wrote: “Two individuals or social groups cannot occupy precisely the same space, so the issue of exclusivity arises”. Thus, differing religious communities with differing truth claims within the same civil society will inevitably result in conflict. Simply put, his solution was in terms of the virtue of showing “hospitality to the stranger”. In my review I suggested that a better idea for the Australian context (in which we are ALL – except for the indigenous – “strangers” in this land) would be “hospitality to the neighbour”. In other words (and you can take this as one of my guiding principles) differeing religious belief systems which lay claim to “absolute truth” can coexist AS LONG AS one of those “absolute truths” is respect for the human dignity and rights of the neighbour. I believe the contemporary Catholic Church demonstrates this in bucket loads.
That being said, what line of action should we suggest the Australian Government follow to achieve optimum “health and well being” for the whole of Australian society in respect to the undeniable diversity of religion and belief that exists in our nation? The answer is surely: to grant the greatest possible degree of protection and freedom of expression equally to each and every individual AND community in Australia to live and act (publically as well as privately) in accordance with their chosen beliefs (Article 18:1). This implies, on the other hand, that the Government never enact laws that would result in an coercion of conscience with regard to such religious life and action (Article 18:2).
Thus, citizens would have a recognised right to express and act upon religious belief not only in their private lives but also in the public (political) square free of being vilified simply because their opinions are religious. Thus laws could not be enacted that would force religious believers to act against their conscience.
In other words, we as Christians could suggest to the Government that it go beyond Section 116 of the Commonwealth of Australian Constitution Act, which (in line with the American Constitution) states 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.
This is “religious freedom” expressed purely negatively. It does not address the very real responsibility that Government has toward the positive protection and support of the religions and beliefs of citizens for the good of society. Here as in the US, it actually encourages the idea that religious opinions and beliefs should be excluded from the public square (which is not, of course, what it actually says at all).
For those who fear that under such a situation Catholicism in particular or Christianity in general might lose the benefits that follow from a “priviliged” position in Australian society (if, in fact, such a position has not already been lost long ago!), I note here Cardinal Avery Dulles’ point that “If the State would simply establish conditions under which the Church could carry on its mission unimpeded, it would do more for the Church than many Christian princes had done in the past.” I believe that the protection of religious liberty for all citizens is precisely such a “condition” for the Church’s life and mission in this nation.
Of course, there are several things that follow from this, not the least that of the responsibility of religious individuals and communities to recognise that respect for the dignity of every human being is a core value of true religion. The Government would be within its rights to encourage religious individuals and communities to recognise this.
The other, more serious question is: What about limitations on the exercise of religion? Several questions in the “Submission Template” put this succinctly:
Section 7: 10. a) Are there religious groups, practices and beliefs that you think are of concern to Australians?
b) Should these be subjected to legislative control, and should they be eligible for government grants and assistance?
And in the “Discussion Paper”:
Area 3: a) Can discrimination against a religious community, under some circumstances, protect the health and wellbeing of individuals within that community?
b) Are there some instances in which the denial of religious freedoms can protect the wellbeing of religious communities?
c) Are there some instances in which the denial of religious freedoms can protect the wellbeing of the broader society?
The answer to these questions is: Of course. Only the most naive would deny that such limitations will be necessary under certain conditions. We can all imagine, at least in theory if not in practice, a religion that practiced the sacrifice of infants. Another example (far more in line with the Government’s thinking) would be religiously motivated terrorism. Of course it is conceivable that there be “religious practices” that, far from being protected by law, may, under certain circumstances, be prohibited. In general such practices would be those which offend against the human dignity and safety of our nation’s citizens.
But is the division between Religious Freedom and Legislative Limitation a “wide grey area” or a “thin black line”? The answer is somewhere in between. But the optimum would be that, legislatively speaking, we narrow down the limitations as close as possible to a line rather than a broad grey area. Article 18 suggests the following:
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Catholic social doctrine supports this. Such limitations will need to be formed upon the basis of an agreed doctrine of a “hierarchy of human rights”. Freedom of Religion is a human right, but there are other rights, such as the right to life and liberty of person, which are “higher” rights than the right to religious freedom.
Unfortunately, here in Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter of Rights’) has already shown how useless (and in fact damaging to freedom of conscience and religious liberty) it can be to make such limitations broader rather than narrower. The existence of this “Charter” did nothing to protect the coercion of Victorian doctors and nurses under the new Abortion Law Reform Bill. One suspects that this will be the area in which we religious believers will have to exercise the greatest degree of caution as the Federal Government considers the creation of a “Charter of Rights”.
And so, finally, while on that topic, allow me to express very succinctly, my personal uneasiness with such a notion. There are two main difficulties – both arising from what I understand to be the “positivist” nature of such legislation, ie. the idea that such a piece of legislation itself becomes the foundation of human rights in this country:
1) Rights, which are real human rights, might not receive sufficient (or any) recognition in the final document. For instance, the right to life of every human being from conception to natural death. The exclusion of any given right from the Charter would legally mean that appeal to that right as a right is also excluded by the Law.
2) Invented or imagined “rights”, which are not real human rights, may be included in such a document, and thus gain the legal status of “right” which may then be used to impede the religious freedom of Australian citizens. Such “rights” would include a “right to abortion” (as argued here in Victoria during the Abortion Law Reform debate), or a “right to sexual orientation” (as recently put forward by the UN).
This whole area is fraught with difficulty. One example alone will suffice. In the “Submission Template” we find the following questions:
3. How do you perceive gender in faith communities?
4. Do you believe there is equality of gender in faith communities?
5. What do you think should be the relationship between the right to gender equality and the right to religious freedom in Australia?
8. Should religious organisations (including religious schools, hospitals and other service delivery agencies) exclude people from employment because of their sexuality or their sex and gender identity?
Do you see where that is headed?