As the Commonwealth Government ponders its response to the Ruddock Religious Freedom Review, it’s worth considering what people of faith may be seeking to preserve and what limits society might justifiably seek to impose.

The term ‘religious freedom’ encompasses a number of distinct but related ideas. At the core, it’s freedom of belief – in a god, gods or a higher realm or being.

Many religions make absolute (and often mutually exclusive) claims to truth, most of which cannot be proven. Religions rely, instead, on acts of faith. Next comes freedom of worship – the freedom to perform, unhindered, the rituals of one’s faith. Then there is the freedom to act in good conscience – to give effect to one’s religious belief in the course of one’s daily life and, as a corollary, not to be forced to act in a manner that would violate one’s sacred obligations. Finally, there is the freedom to proselytise – to teach the tenets of one’s religion to the faithful and to those who might be persuaded.

In a secular, liberal democracy the four types of religious freedom outlined above –  to believe, to worship, to act and to proselytise – attract different degrees of liberty. For example, people are generally free to believe whatever takes their fancy, no matter how ill-founded or bizarre. This is not so in all societies. Some theocracies will punish ‘heretics’ for holding unorthodox beliefs. Acting out of belief – in worship, deeds and proselytising – is often subject to some measure of restraint. For example, pious folk are not permitted to set up a pulpit (or equivalent) in the middle of a main road. They are not permitted to beat a woman, even if the teaching of their religion allows (or requires) her chastisement. They are not permitted to let a child die because of a religious objection to life-saving medical procedures. Nor are they able to teach that some people are ‘lesser beings’, lacking intrinsic dignity, simply because of their gender, sexuality, culture, religion, and so on. In other words, there are boundaries set for the expression of religious belief, whatever those beliefs might be.

It is precisely the setting of such ‘boundaries’ that has become a point of contention. Some Australian religious leaders claim they should be exempt from the application of Australian laws that they do not approve, like anti-discrimination legislation. This is nothing new. As it happens, in Australia, a number of religions have long denied the validity of secular law, even to the extent of running parallel legal systems.

The Roman Catholic Church regularly applies Canon Law in cases involving the status of divorcees, the sanctity of the confessional, and so on. The Government of Australia might recognise divorce, but the Church does not. The following text is taken from the official website of the Archdiocese of Sydney: A divorce is a civil act that claims to dissolve a valid marriage. From a civil legal perspective, a marriage existed and was then dissolved. The Catholic Church … does not recognise the ability of the State to dissolve a marriage. An annulment, on the other hand, is an official declaration by a Church Tribunal that what appeared to be a valid marriage was actually not one (i.e, that the marriage was in fact invalid) [my emphasis].

In a similar vein, the Jewish community maintains a separate legal system that oversees the application of Halakhic Law through the operation of special Jewish religious courts called Beth Din. Given the precedents set by Christians and Jews, it’s not surprising that adherents of other faith groups, notably Muslims, are seeking the same rights to apply religious laws within their own courts and to enjoy exemptions from the application of the secular law.

“Fundamental human rights come as a ‘bundle’. They are indivisible.”

Given all of the above, are there any principles that we might draw on when setting the boundaries to religious freedom?

Human rights

Fortunately, the proponents of freedom of religion have provided an excellent starting point for answering this question. It begins with the core of their argument – that freedom of belief (religion) is a fundamental human right. Their claim is well founded. However, those who invoke fundamental human rights cannot ‘cherry pick’ amongst those rights, only defending those that suit their preferences.

Fundamental human rights come as a ‘bundle’. They are indivisible. It follows from this that if people of faith are to assert their claim to religious freedom as a fundamental human right, then the exercise of that freedom should be consistent with the realisation of all other fundamental human rights. Religious freedom is but one. It follows from this that any legislative instrument designed to create a legal right to freedom of religion must circumscribe that right to the extent necessary to ensure that other human rights are not curtailed. For example, a legal right to religious freedom should not authorise violence against another person. Nor should it permit discrimination of a kind that would otherwise be considered unlawful under human rights legislation.

If there is to be Commonwealth legislation, then it should establish an unrestricted right of belief and a rebuttable presumption in favour of acting on those beliefs. The limits to action should be that the conduct (either by word or deed): does not constrain the liberty of another person, does not subject another person to any form of violence, does not deny the intrinsic dignity of another person and does not violate the human rights of another person. Finally, it is essential that as a liberal democracy any Australian legislation specify that the tenets of a religion only apply to those who have freely consented to adopt that religion.

So, what might this look like in practice – say, in relation to same sex marriage now that it is lawful?

Baking cakes

Nobody should be compelled to believe that same sex marriage is ‘moral’. That is a matter of personal belief unrelated to the law. Second, it should be permissible to teach, to members of one’s faith group, and to advocate, more generally, that same sex marriage is immoral (a view I do not hold). The fact that something is legal leaves open the question of its morality. Third, no person should be required to perform a marriage if to do so would violate the dictates of their conscience. Roman Catholic priests refuse to marry heterosexual divorcees. Such marriages are allowed by the state – yet no priest is forced to perform such a marriage because to do so would make them directly complicit is an act their religion forbids. Such an allowance should only extend to those at risk of becoming directly complicit in objectionable acts. For example, such an allowance should not be granted to a religious baker not wanting to provide a wedding cake to a gay couple. Cakes play no direct role in the formalities of a civil marriage. So, unlike a pharmaceutical company that might justifiably object to becoming complicit through the supply of drugs to an executioner, a baker is never going to be complicit in the performance of a marriage. As such, a baker should be bound by law to supply his or her goods on a non-discriminatory basis. Of course, there will always be some who feel obliged to put the requirements of their religion before the law.

To act according to one’s conscience in an honourable choice. But only do this if you are willing to bear the penalty.

Dr Simon Longstaff is Executive Director of The Ethics Centre: www.ethics.org.au

It’s probably the biggest phenomenon of calling out we’ve ever seen. On 15 October last year, in the wake of Harvey Weinstein being accused of sexual harassment and rape, actress Alyssa Milano tweeted:

“If all the women who have been sexually harassed or assaulted wrote ‘Me too.’ as a status, we might give people a sense of the magnitude of the problem.”

The phrase and hashtag ‘Me too’ powerfully resonated with women across the globe and became one of the most viral occurrences in social media history. Not only did the campaign become a vehicle for women to share their stories of sexual abuse and harassment, it had real world consequences, leading to the firing and public humiliation of many prominent men.

One of the fall outs of the #MeToo movement has been a debate about “call out culture”, a phrase that refers to the practice of condemning sexist, racist, or otherwise problematic behaviour, particularly online.

While calling out has been praised by some as a mechanism to achieve social justice when traditional institutions fail to deliver it, others have criticised call outs as a form of digital mob rule, often meting out disproportionate and unregulated punishment.

Institutional justice or social justice

The debate around call out culture raises a question that goes to the core of how we think justice should be achieved. Is pursuing justice the role of institutions or is it the responsibility of individuals?

The notion that justice should be administered through institutions of power, particularly legal institutions, is an ancient one. In the Institutes of Justinian, a codification of Roman Law from the sixth century AD, justice was defined as the impartial and consistent application of the rule of law by the judiciary.

A modern articulation of institutional justice comes from John Rawls, who in his 1971 treatise, A Theory of Justice, argues that for justice to be achieved within a large group of people like a nation state, there has to be well founded political, legal and economic institutions, and a collective agreement to cooperate within the limitations of those institutions.

Slightly diverging from this conception of institutional justice is the concept of social justice, which upholds equality – or the equitable distribution of power and privilege to all people – as a necessary pre-condition.

Institutional and social justice come into conflict when institutions do not uphold the ideal of equality. For instance, under the Institutes of Justinian, legal recourse was only available to male citizens of Rome, leaving out women, children, and slaves. Proponents of social justice would hold that these edicts, although bolstered by strong institutions, were inherently unjust, built on a platform of inequality.

Although, as Rawls argues, in an ideal society institutions of justice help ensure equality among its members, in reality social justice often comes into conflict with institutional power. This means that social justice has to sometimes be pursued by individuals outside of, or even directly in opposition to, institutions like the criminal justice system.

For this reason, social justice causes have often been associated with activism. Dr Martin Luther King Jr’s march in Montgomery, Alabama to protest unfair treatment of African American people in the courts was an example of a group of individuals calling out an unjust system, demanding justice when institutional avenues had failed them.

Calling out

The tension between institutional and social justice has been highlighted in debates about “call out culture”.

For many, calling out offends the principles of institutional justice as it aims to achieve justice at a direct and individual level without systematic regulation and procedure. As such, some have compared calling out campaigns like #MeToo to a type of “mob justice”. Giles Coren, a columnist for The Times of London, argues the accusations of harassment should be handled only by the criminal justice system and that “Without any cross-examination of the stories, the man is finished. No trials or second chances.”

But others see calling out sexist and racist behaviour online as a powerful instrument of social justice activism, giving disempowered individuals the capacity to be heard when institutions of power are otherwise deaf to their complaints. As Olivia Goldhill wrote in relation to #MeToo for Quartz:

“Where inept courts and HR departments have failed, a new tactic has succeeded: women talking publicly about harassment on social media, fuelling the public condemnation that’s forced men from their jobs and destroyed their reputations.”

Hearing voices

In his 2009 book, The Idea of Justice, economist Amartya Sen argues a just society is judged not just by the institutions that formally exist within it, but by the “extent to which different voices from diverse sections of the people can actually be heard”.

Activist movements like #MeToo use calling out as a mechanism for wronged individuals to be heard. Writer Shaun Scott argues that beyond the #MeToo movement, calling out has become an avenue for minority groups to speak out against centuries of oppression, adding the backlash against “call out” culture is a mechanism to stop social change in its tracks. “Oppressed groups once lived with the destruction of keeping quiet”, he writes. “We’ve decided that the collateral damage of speaking up – and calling out – is more than worth it.”

While there may be instances of collateral damage, even people innocently accused, a more pressing problem to address is how and why institutions we are supposed to trust are deaf to many of the problems facing women and minority groups.

Dr Oscar Schwartz is an Australian writer and researcher based in New York with expertise in tech, philosophy, and literature. Follow him on Twitter: @scarschwartz

The exposure of Hollywood mogul Harvey Weinstein as a serial harasser and alleged rapist in October 2017 was the tipping point in an unprecedented outpouring of sexual coercion and assault disclosures.

As high profile women spoke out about the systemic misogyny of the entertainment industry, they have been joined by women around the globe using #MeToo to make visible a spectrum of experiences from the subtle humiliations of sexism to criminal violation.

The #MeToo movement has exposed not only the pervasiveness of gendered abuse but also its accommodation by the very workplaces and authorities that are supposed to ensure women’s safety. Some women (and men) have been driven to name their perpetrator via the mass media or social media, in frustration over the inaction of their employers, industries, and police. This has sparked predictable complaints about ‘witch hunts’, ‘sex panics’, and the circumvention of ‘due process’ in the criminal justice system.

Mass media and social media have a critical role in highlighting institutional failure and hypocrisy. Sexual harassment and violence are endemic precisely because the criminal justice system is failing to deter this conduct or hold perpetrators to account. The friction between the principles of due process (including the presumption of innocence) and the current spate of public accusations is symptomatic of the wholesale failure of the authorities to uphold women’s rights or take their complaints seriously.

Public allegations are one way of forcing change, and often to great effect. For instance, the recent Royal Commission into child sexual abuse was sparked by years of media pressure over clergy abuse.

While ‘trial by media’ is sometimes necessary and effective, it is far from perfect. Journalists have commercial as well as ethical reasons for pursuing stories of abuse and harassment, particularly those against celebrities, which are likely to attract a significant readership. The implements of media justice are both blunt and devastating, and in the current milieu, include serious reputational damage and potential career destruction.

The implements of media justice are both blunt and devastating.

These consequences seemed fitting for men like Weinstein, given the number, severity and consistency of the allegations against him and others. However, #MeToo has also exposed more subtle and routine forms of sexual humiliation. These are the sexual experiences that are unwanted but not illegal, occurring in ways that one partner would not choose if they were asked. These scenarios don’t necessarily involve harmful intent or threat. Instead, they are driven by the sexual scripts and stereotypes that bind men and women to patterns of sexual advance and reluctant acquiescence.

The problem is that online justice is an all-or-nothing proposition. Punishment is not dolled out proportionately or necessarily fairly. Discussions about contradictory sexual expectations and failures of communication require sensitivity and nuance, which is often lost within spontaneous hashtag movements like #MeToo. This underscores the fragile ethics of online justice movements which, while seeking to expose unethical behaviour, can perpetrate harm of their own.

The Aziz Ansari Moment

The allegations against American comedian Aziz Ansari were the first real ‘record-scratch’ moment of #MeToo. Previous accusations against figures such as Weinstein were broken by reputable outlets after careful investigation, often uncovering multiple alleged victims, many of whom were willing to be publicly named. Their stories involved gross if not criminal misconduct and exploitation. In Ansari’s case, the allegations against him were aired by the previously obscure website Babe.net, who interviewed the pseudonymous ‘Grace’ about a demeaning date with Ansari. Grace did not approach Babe with her account. Instead, Babe heard rumours about her encounter and spoke to several people in their efforts to find and interview Grace.

In the article, Grace described how her initial feelings of “excitement” at having dinner with the famous comedian changed when she accompanied him to his apartment. She felt uncomfortable with how quickly he undressed them both and initiated sexual activity. Grace expressed her discomfort to Ansari using “verbal and non-verbal cues”, which she said mostly involved “pulling away and mumbling”. They engaged in oral sex, and when Ansari pressed for intercourse, Grace declined. They spent more time talking in the apartment naked, with Ansari making sexual advances, before he suggested they put their clothes back on. After he continued to kiss and touch her, Grace said she wanted to leave, and Ansari called her a car.

In the article, Grace she had been unsure if the date was an “awkward sexual experience or sexual assault”, but she now viewed it as “sexual assault”. She emphasised how distressed she felt during her time with Ansari, and the implication of the article was that her distress should have been obvious to him. However, in response to the publication of the article, Ansari stated that that their encounter “by all indications was completely consensual” and he had been “surprised and concerned” to learn she felt otherwise.

Sexual humiliation and responsibility

Responses to Grace’s story were mixed in terms of to whom, and how, responsibility was attributed. Initial reactions on social media insisting that, if Grace felt she had been sexually assaulted, then she had been, gave way to a general consensus that Ansari was not legally responsible for what occurred in his apartment with Grace. Despite Grace’s feelings of violation, there was no description of sexual assault in the article. Even attributions of “aggression” or “coercion” seem exaggerated. Ansari appears, in Grace’s account, persistent and insensitive, but responsive to her when she was explicit about her discomfort.

A number of articles emphasised that Grace’s story was part of an important discussion about how “men are taught to wear women down to acquiescence rather than looking for an enthusiastic yes”. Such encounters may not meet the criminal standard for sexual assault, but they are still harmful and all too common.

For this reason, many believed that Ansari was morally responsible for what happened in his apartment that night. This is the much more defensible argument, and, perhaps, one that Ansari might agree with. After all, Ansari has engaged in acts of moral responsibility. When Grace contacted him via text the next day to explain that his behaviour the night before had made her “uneasy”, he apologised to her with the statement, “Clearly, I misread things in the moment and I’m truly sorry”.

However, attributing moral responsibility to Ansari for his behaviour towards Grace does not justify exposing him to the same social and professional penalties as Weinstein and other alleged serious offenders. Nor does it eclipse Babe’s responsibility for the publication of the article, including the consequences for Ansari or, indeed, for Grace, who was framed in the article as passive and unable to articulate her wants or needs to Ansari.

Discussions about contradictory sexual expectations and failures of communication require sensitivity and nuance, which is often lost within spontaneous hashtag movements like #MeToo.

For some, the apparent disproportionality between Ansari’s alleged behaviour and the reputational damage caused by Babe’s article was irrelevant. One commentator said that she won’t be “fretting about one comic’s career” because Aziz Ansari is just “collateral damage” on the path to a better future promised by #MeToo. At least in part, Ansari is attributed causal responsibility – he was one cog in a larger system of misogyny, and if he is destroyed as the system is transformed, so be it.

This position is not only morally indefensible – dismissing “collateral damage” as the cost of progress is not generally considered a principled stance – but it is unlikely to achieve its goal. A movement that dispenses with ethical judgment in the promotion of sexual ethics is essentially pulling the rug out from under itself. Furthermore, the argument is not coherent. Ansari can’t be held causally responsible for effects of a system that he, himself, is bound up within. If the causal factor is identified as the larger misogynist system, then the solution must be systemic.

Hashtag justice needs hashtag ethics

Notions of accountability and responsibility are central to the anti-violence and women’s movements. However, when we talk about holding men accountable and responsible for violence against women, we need to be specific about what this means. Much of the potency of movements like #MeToo come from the promise that at least some men will be held accountable for their misconduct, and the systems that promote and camouflage misogyny and assault will change. This is an ethical endeavour and must be underpinned by a robust ethical framework.

The Ansari moment in #MeToo raised fundamental questions not only about men’s responsibilities for sexual violence and coercion, but also about our own responsibilities responding to it. Ignoring the ethical implications of the very methods we use to denounce unethical behaviour is not only hypocritical, but fuels reactionary claims that collective struggles against sexism are neurotic and hysterical. We cannot insist on ethical transformation in sexual practices without modelling ethical practice ourselves. What we need, in effect, are ‘hashtag ethics’ – substantive ethical frameworks that underpin online social movements.

This is easier said than done. The fluidity of hashtags makes them amenable to misdirection and commodification. The pace and momentum of online justice movements can overlook relevant distinctions and conflate individual and social problems, spurred on by media outlets looking to draw clicks, eyeballs and advertising revenue. Online ethics, then, requires a critical perspective on the strengths and weaknesses of online justice. #MeToo is not an end in itself that must be defended at all costs. It’s a means to an end, and one that must be subject to ethical reflection and critique even as it is under way.