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Letter to Tim Wilson, Human Rights Commissioner

Letter sent to Tim Wilson, Human Rights Commissioner, regarding the proposed Roundtable on Freedom of Religion, to meet in Melbourne on 18 February 2016.

 


 

Tim Wilson
Human Rights Commissioner
Level 3
175 Pitt Streey
Sydney NSW  2000

 

Dear Commissioner Wilson,

Thank you for your letter of 3 December 2015 inviting us to the Human Rights Commission’s Roundtable.

Our small membership and the costs involved mean that no-one is available to represent the Rationalist Association of NSW on Thursday 18 February 2016.  I take the liberty to represent the views of the Rationalist Association of NSW below.

Introduction

Our position is that religion holds an unwarranted privileged position in our society, structurally through tax exemptions, and functionally through grants and privileges. Enclosed is a copy of my book, Freedom From Religion: Rethinking Article 18 that explains this. Please consider this a gift for the Human Rights Commission library.

Article 18 refers to Article 18 of the Universal Declaration of Human Rights (‘UDHR’) It promises the right for all individuals to thought, conscience and religion, and the right to ‘manifest’ their ‘religion or belief’ in ‘worship, observance practice and teaching’, with recognition of the government’s right to limit manifestation to meet ‘the just requirements of morality, public order and the general welfare in a democratic society’ (Article 29).

The UDHR has been adopted by the 195 member states of the UN and is considered the definitive statement of universally applicable human rights. It has been signed by all members of the UN: that is 195 nations, (non-states members are Taiwan, Kosovo and the Vatican). One hundred and seventy-five nations (including Australia) are signatories or parties to the International Covenant on Civil and Political Rights (‘ICCPR’). Article 18 of the ICCPR repeats the terms of Articles 18 and 29 of the UDHR. State Parties of the ICCPR undertake to adopt national legislation in accordance with these rights.

We hold that there is no need for increased exemptions from the law in the name of ‘conscience’, and that anti-discrimination law is part of the means for ensuring freedom of belief. Indeed, as I argue in my book, the accommodation of sectarian interests by government means we need freedom from the undue influence of religious doctrine and practice.

The Roundtable: underlying presumptions

We submit it is important to make the point that the Roundtable is based on two misleading presumptions, which should be recognised and dealt with:

  1. Article 18 involves freedoms relating to belief, not just religion. It is important to give adequate recognition to the fact that according to the accepted interpretation of Article 18, ‘religion’ and ‘conscience’ are in effect subsets of belief. The demand for ‘freedom of conscience’ in one’s relationship with others is therefore not an accurate representation of freedom to ‘manifest religion or belief’. For example, we submit that the Issues Paper should refer to ‘freedom of religion or belief’ as ‘freedom of belief’ not ‘freedom of religion’.

The word ‘belief’ is not specifically defined by authorities (such as the UN and European Court of Human Rights). However, official commentary indicates that it is meant to involve a personal conviction as to the meaning and purpose of life, and the necessary rules for fulfilling that purpose.

  1. It should be more clearly set out by the Commission that a major premise of the discussions is thus that, while individuals are absolutely free to think (and therefore determine worldviews and ethical codes of their own), they are not unconditionally free to act accordingly. It is not simply about ‘religious freedom’, but also the fact that freedom for all comes at a cost: that cost is bound up with the requirement for reciprocity, which is specified in the limitation provision.[1]

Commissioner Tim Wilson has called religious freedom a ‘forgotten freedom’ in a lecture at the Australian Catholic University[2]. The Commission, in its Issues Paper for this Roundtable, however, states that

‘From the consultations, the predominant attitude held by Australians was that they did not see religious freedom as a significant issue because they felt it was sufficiently protected and respected.’

Nevertheless, the Issues Paper, in its overall language, appears based on the idea that (exclusively) religious freedom is compromised, with a need to remedy this. We disagree. The issue, as we see it is not that religious influence in society is being diminished. Rather, the increasing areas of social activity in which religion seeks privilege results in the secular nature of society being diminished.

We maintain that the limitation provision of Article 18 is inadequately dealt with in the approach taken by the Commission, with its presumption that religious freedoms are lacking in Australia, and that more freedom is required. Because of the significant entanglement of government and religion, (see my book para [12.19]) and failure to understand and implement constitutional separation of religion and state (political secularism ­– see Chapter 5), in effect we need freedom from the influence of religion in government policy, not more ‘freedom of religion’.

We therefore hold that any review of laws should consider whether they unduly impose religious or other personal ethical doctrines on the general public, as well as whether they unduly restrict their manifestation according to Article 18.

The Roundtable appears based on the aim of more freedom and less regulation in relation to freedom specifically in relation to religion. We understand this to be a call for more exemptions from laws of general application to allow for the religiously-motivated to act according to their ‘conscience’. This is borne out by the Issues Paper.

We also note a widespread view by religious groups that requirements of the law should change to allow people to participate in discriminatory activity, rather than considering whether they should recognise the right of all citizens to equal recognition and participation in society.

The Discussion Paper (4.2 Government laws and regulations that limit the right to religious freedom) seeks comment on the role of ‘accommodating provisions in law to stop people being compelled to act against their conscience’. This presumes that people are ‘compelled’ to so act. The right to manifest one’s religion cannot be taken away, but under stipulated circumstances it can be limited.

Goods and Services

We hold that the current prohibition of discrimination on the ground of, inter alia, religious belief in the provision of goods and services is justified.

Example: Refusing to cater for lawful same-sex weddings on the basis of religiously-motivated principles. To cite one commentator’s view, anti-discrimination laws are aimed at protecting people from adverse unequal treatment on the basis of particular attributes across diverse social activities, they are not intended ‘to reinforce the understandable tendency for people to ‘choose’ employers, or goods and service providers, that are already favourable to them’.[3]

Even if discrimination by a provider were to be accepted by the same-sex partners, and they sought a caterer elsewhere, it is still discrimination, impeding the right to equal participation in lawful social activity, while caterers are not denied the right to maintain their own beliefs. A compromise may be arrived at, but the discrimination is still unlawful, and the couple stand vindicated by the law. The principle to apply here, we hold, is that the caterer should offer services to all on an equal basis, regardless of belief, or not at all. He or she can make alternative arrangements, such as limiting services to occasions other than weddings, or allocate the work to other agreeable employees.

Abortion provider argument. Some argue that the government should adopt the same approach to provision of services to the exemption of health carers to be involved in abortion. Health carers involved in reproductive medicine can refuse to carry out or assist abortions, so long as they refer the woman to a more receptive practitioner. We argue that this kind of situation is different because the service involves medical assistance.  

On a cost-benefit analysis as well, I would argue that the couple’s rights outweigh those of the caterer. If discriminated against, the couple would lose their opportunity to exercise their right to equal treatment, with its accompanying social recognition and legal benefits. It encourages division and hatred within society, and discourages division and understanding.  Even if those involved reach some sort of compromise, this does not eliminate the discriminatory refusal of service and second-class treatment that should not be condoned by the law.

As religious (or other) moral principles are personal and subjective, the number of claims based on ‘conscience’ is potentially unlimited. If recognised, people could seek any amount of exceptions to the law, e.g., refusal of chemists to dispense contraceptive products, waiters to serve divorcees or supermarket checkout operators to process particular items. Government condoning the erosion of rights fosters demand for its increased entanglement with religion. See attached Appendix for information about the growing push for exemptions from the law to discriminate on wider grounds in the US. This has led to exemption from the Affordable Health Care Act by the Supreme Court based on objection to insurance that covers any form of preventative healthcare for women (see Burwell v. Hobby Lobby Stores, and its aftermath).

Government funded religious service providers

The Issues Paper (at 4.3) asks, ‘When religious organisations receive taxpayer funding to provide services, should they also be able to claim exemption from anti-discrimination laws?’

We submit that where a religious body provides government-funded public services, these should not be allocated on the basis of religion, or subject to religiously-motivated conditions. Pastoral services based on belief should be separately funded by the body offering them, as this is not government business. This approach also applies to government schools, and would be the same for a non-religious provider of public services.

Employment

We agree with the law that prohibits employers from discriminating on the beliefs of the prospective employee unless these are a genuine occupational requirement. For example, a maths teacher, who participates in the school activities and does not openly exhibit or advocate his or her non-religious views, may well be unlawfully discriminated against if rejected solely because of beliefs. Specific consideration of circumstances may determine the best approach.

An employee, who has undertaken to perform requirements of a job, should not be entitled to exemption from the law by demanding that he or she can refuse to perform certain aspects of the work because of his or her beliefs if these are essential to the position, or would require unreasonable accommodation by the employer, such as extra staff or facilities.

We submit that religious institutions that commonly receive taxpayer funding to provide a public service should not be able to practice positive discrimination in relation to those who are of the same religious faith, unless the service is of a specifically religious nature. This applies to both the employment of staff to deliver their services and the client base, such as students, patients, welfare or recipients. It also applies to non-religious institutions.

In relation to Discussion Point 4.4, the Commission asks seeks examples where ‘Australians are discriminated against ... because they seek to act in a way that is consistent with their faith or conscience’. This indicates confusion between ‘manifesting’ religion and simply acting in a way that is consistent with a religion. As stated above, Article 18 does not condone to all religiously-motivated activity. In Freedom From Religion, examples are given of government involvement in religion that results in the undue influence of religion in public life. It is thus unreasonable for an individual’s personal belief to determine the public environment.

Issues Paper 4.4 As indicated, in a secular nation, religion or other beliefs should play no part in public policy, as public policy is divorced from sectarian interests. Belief freedoms are protected by anti-discrimination law. This also applies to the marketplace.

Issues Paper 4.5 Developing mechanisms to support religious inclusion and social cohesion

This language is vague and evocative, and invites the presumption that government should employ policies that give preference to religious principles. We argue that in an ‘inclusive’ society is one that recognises all beliefs by preferring none, with one law for all. This would promote inclusion in that no religious body or individuals are ‘discriminated against’, as government policy and law prevents privileged treatment of any sectarian interests.

We take issue also with the statement that ‘mechanisms should ensure religious bodies and individuals are not discriminated against’. Discrimination is a central aspect of any human activity, and what constitutes unlawful discrimination in this context is dependent on clarification of the grounds for limitation of manifestation of belief. We submit that the evocative use of undefined terms such as ‘discrimination’, like that of ‘freedom’, is used to demand the privilege of religiously motivated exception from the principles of Article 18.

Conclusion

Society must be fully secular for all to enjoy freedoms associated with their personal life stance. A secular society means:

  • No one is entitled to exemption from the law for every act motivated or inspired by a religion or belief.[4] Only those acts integral to the manifestation of belief should be exempted from the law. We argue that the religious ‘doctrines, tenets, beliefs or teachings’ test is overbroad and imprecise, as indeed is the UN’s broad interpretation of ‘manifestation of religion’, focusing on the balancing of interests between the parties (see Chapter 10). This then tends to lead to the demand for privileged treatment of customs and habits as well as personal and ethical preferences in the quest for ‘religious freedom’. Secular society requires a more limited approach to manifestation of belief to fulfil the promise of Article 18;
  • The principle of one law for all means that discrimination is not ‘partial, negotiable or temporary’;
  • Nevertheless, while personal beliefs can form the basis of public discussion, public policy (based on public morality) should not be determined by religious or other personal moral dictates, but rather a democratically determined public political conception of morality;
  • This leads to the need for secular government. We support a policy of limiting exemptions from the prohibition of discrimination on the ground of ‘religion or belief’, to activities and institutions integral to their manifestation;
  • Employers should not be required to accommodate those who object to essential conditions of work because of their religious or other beliefs, nor should they place unnecessary discriminatory conditions on service on the ground of religion or belief;

Providers of goods and services for profit should offer them on equal terms to all who lawfully seek them, or not provide those services at all.

Yours Sincerely,

 

Meg Wallace

President


Appendix

Excerpts from American United for Separation of Church and State websites

The federal government and 21 states have adopted Religious Freedom Restoration Acts (RFRAs). RFRAs authorize religious exemptions to each and every state law on the books. If any state law or policy is deemed to place a “substantial burden” on the religious beliefs of a person (and often even a for-profit corporation), the state must show that it has a “compelling interest” and that the law is “narrowly tailored” to fulfilling that interest.

The federal RFRA was enacted in 1993 with the goal of protecting religious liberty, especially for religious minorities. RFRA was broadly supported at the time, but since then RFRA (and related measures in the states) has been abused in ways its original proponents never imagined.

Many have attempted (too often successfully) to use RFRA to trump laws combating discrimination and protecting public health and safety. Indeed, attempts to pass new RFRAs in the states are now accompanied by anti-gay rhetoric and statements touting RFRA as a tool to take away other people’s rights. 

From http://www.protectthyneighbor.org/religious-freedom-restoration-acts

Example: Georgia’s proposed First Amendment Defense Act (FADA) is a copy of a federal bill that would explicitly allow private businesses, federal contractors and grantees, and even government employees to discriminate against same-sex couples, unmarried couples, married couples in which one person had been married before, single mothers, individuals who have had sex outside of marriage and others. Sen. Greg Kirk, who plans to introduce the bill, claims that FADA is more “palatable” than the state RFRA bill, but in reality, it is far more extreme.

New Mexico RFRA Expansion: New Mexico also already has a RFRA. HB 55 would make it worse by (1) allowing for-profit companies to use the RFRA to obtain religious exemptions and (2) permitting people and corporations to use RFRA against private parties rather than just the government.  Both of these changes would broaden the scope of the state RFRA and increase the ways in which RFRA will likely be used to discriminate against or otherwise harm the people of New Mexico.

From https://au.org/blogs/wall-of-separation/unfantastic-five-au-s-protect-thy-neighbor-project-announces-new-tool-to

 

 

[1]           See, e.g. Evans, Malcolm (1997) Religious Liberty and International Law in Europe Cambridge, Cambridge University Press, 300.

[4]              ECHR, Case of Leyla Şahin v. Turkey (2005) 44774/98 , para. 66; ECHR, Case of Arrowsmith v. United Kingdom (1983), 7050/75 , para. 71


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