
Israel Folau: appeals to conscience cut both ways
ArticleReligion
BY Simon Longstaff 26 JUN 2019
Israel Folau’s now infamous post in which he called on a range of “sinners” to repent, turn to Jesus Christ and thus be saved from an eternity in Hell has had more consequences than I suspect he anticipated.
It has led to his loss of employment. It has elevated his status to that of a champion for conservative Christian beliefs.
Finally, it has prompted widespread debate about the intersection between religious belief and the world of work.
It is this last issue that deserves further discussion.
Religious freedom comes in four basic forms: freedom of belief, freedom of worship, freedom to act in good conscience (which includes freedom from coercion in matters of religion) and finally freedom to proselytise (which includes the right to educate one’s children in the faith). Folau’s case involves the third and fourth of these freedoms.
What Folau believes and how he worships have not been challenged. Rather, he has been sanctioned for what he has done and said — not as a believer, but in his role as an elite rugby player representing Australia. However, can the two roles of “believer” and “contracted player” be so easily separated? That is the question at the heart of this issue.
What are Folau’s rights?
As a committed Christian, Folau obviously feels compelled to act on his beliefs — in this case by posting tweets and instagram posts directed at those who risk damnation. Within his world view, he is simply following the scriptural injunction to: “Go into all the world and proclaim the gospel to the whole creation. Whoever believes and is baptised will be saved, but whoever does not believe will be condemned.” (Mark16:15)

So, we might ask if it is right and proper that a person of such sincere religious beliefs has lost his job and been denied at least one platform for fundraising to defend his interests before the courts.
As a general rule, there is only one group of employers — faith groups — who claim a right to dismiss people from employment because of their religious beliefs. For example, a number of religious organisations have argued that their schools should be allowed to deny employment to otherwise competent people who do not practise their religion. It follows from this that employees who renounce the faith of the school would be open to dismissal.
No other employer may discriminate against a person based on their religious beliefs. So, given that rugby is not a religion (despite what some claim), how did Folau come to lose his lucrative employment — a risk that is now faced by his wife, Maria Folau, one of Australasia’s preeminent netball athletes and a Christian who supports her husband’s views?
Brands have a right to protect their interests
In order to broaden the debate, let’s consider the case of a Christian who believes that the Pope is the Antichrist and that Roman Catholics are all destined for Hell. Such views are not “hypothetical”. They were openly held by the Northern Ireland religious and political leader, the Reverend Ian Paisley.
In 1958, he condemned Princess Margaret and the Queen Mother for “committing spiritual fornication and adultery with the Antichrist” after they met with Pope John XXIII. Thirty years later, Paisley denounced Pope John Paul II as the Antichrist — to his face — while the latter addressed the European Union Parliament.
Now suppose an employee is of a mind similar to Paisley — so publishes a tweet attacking the head of the Catholic Church and all of its adherents in equivalent terms. Suppose the employee does so on the basis of what he considers to be a well-founded and sincere religious belief. However, in this case, it’s not just a vulnerable minority group who’s affected — but more than a billion Roman Catholics and their immensely wealthy and powerful church.
Let’s suppose that the “Paisleyite” employee is a prominent brand ambassador working for a major bank. After the tweet, all hell breaks loose. Upset employees threaten to resign, customers threaten to close their accounts, investors begin to dump the stock, etc.
Would an employer be justified in calling such a person to account? Or should the bank respect the expression of sincere, religious belief and defend the right of the brand ambassador to express such views — no matter what damage is done?
It seems reasonable that employers be free to take steps to protect themselves from the kind of strategic risk caused by well-intentioned, loose cannons like the hypothetical brand ambassador sketched above.
This should allow employers to put in place measures designed to protect their interests — and then ask their employees to act accordingly.
Employees have a right to choose too
There is an important point to be noted here. The employer has a right to define how its interests are to be protected. However, it falls to the employee to accept (or not) the relevant conditions of employment.
Any person who truly feels unable to accept those conditions should either not accept an offer of employment or if already part of the organisation, then they should consider resigning in order to find a place of employment better aligned with their moral compass.
This brings us back to the ethical core of the problem raised by the Folau case. Is it ever right for an employer to demand that an employee leave their conscience at the door? I think that the answer is no.
However, if the conscience of an employee should be respected, then so should that of the employer. No individual or organisation is required to be complicit in conduct that it sincerely believes to be wrong.
This is the ground on which Rugby Australia and GoFundMe have both stood. They have decided not to enable the propagation of views that they hold to be ethically objectionable. Rugby Australia’s employment of Folau as one of Australia’s elite sportsmen afforded him (and his views about sin) a prominence that others do not enjoy. They have denied him access to the platform they had provided to him.
Folau was never just a player. He has always been, in part, a brand ambassador. GoFundMe denied Folau its platform after he allegedly violated its terms of service.
Folau chose religion
What both sides of this debate need to consider are the requirements for even-handedness and proportionality. Those who act in the name of conscience — employees and employers — need to be sincere. They need to protect their position with the minimal restrictions necessary. They need to be even-handed — treating like issues and persons in a like manner. And they need to accept the reasonable consequences of their actions.
Folau must have known that labelling homosexuals (among others) as sinners destined for Hell would be incendiary — and risk damaging Rugby Australia.
After all, this was not the first time he had been vocal in his views. In the end, his choice was between what he understood to be his duty to his employer and what he understood to be his duty to his God. Folau chose to put his religion first.
Conscience is not a convenient friend. It often comes with consequences; some good, some ill.
Neither Rugby Australia nor GoFundMe has silenced Folau. He is still acting and speaking in accordance with his religious beliefs. He is still able to raise funds for his defence — as demonstrated by the swift offer of support provided by the Australian Christian Lobby. Folau still has a public platform — which he continues to utilise, as is his right.
Kicked out of the temple, Israel Folau remains free to preach in the public square.
Dr Simon Longstaff originally wrote this piece for ABC News. Photo credit: David Molloy
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
14 Comments
Israel Folau has a human right to hold and advocate personal religious beliefs even if many find those beliefs repugnant. From an ethical perspective however, our human right to say and do as we like is tempered by the impact of our behaviour on the rights of others.
There is no ethical problem with Folau adopting the First-Testament as a personal life-manual. There is an ethical problem with Folau being a public figure who uses public media to issue horrific threats against millions of people who are (and who are entitled to be) same-sex attracted. Most recently, his expressed opinion was not about his personal relationship with his chosen faith, nor was it a statement of no consequence to the wellbeing of others: it was an advocacy statement affirming that, in Folau’s opinion, people who are same-sex attracted should burn in hell. Forever and ever.
On a plain reading of its component parts, Folau’s blood curdling invocation meets every test of hate speech. The damaging impact of Folau’s advocacy on the wellbeing and rights of gay people is foreseeable, probably measurable, in breach of community standards and unacceptable.
I wonder what Folau’s gay teammates thought of his comments. I wonder how they feel when they’re told that Folau’s “private” denunciations are not a workplace issue.
From reports, Rugby AU agreed to employ Folau (potentially as a national representative of Australia) on the condition that he would not moonlight as a national spokesperson for religious bigotry. I’m not a lawyer, but Folau’s subsequent and very loud promotion of religious bigotry appears to breach the contract.
Publicly calling for the eternal damnation of gay people also appears to breach the Rugby AU’s code of conduct, in particular their quite moderate Inclusion Policy (Part 4). Contract law aside, no employee is entitled to retain their employment while blatantly and persistently breaching an employer’s moderate and lawful code of conduct.
I don’t know Folau, but he presents as a restless figure who thrives on change and contest. Folau achieved at the highest level in rugby league before he switched to AFL, shortly before he switched to rugby union. Before becoming an emphatic Jehova Witness, he was an emphatic Morman. I don’t doubt Folau’s sincerity, but it’s open to speculate that, at 30 years of age, his calculated decision to again publicly attack gay people is just his way of launching another code switch; this time from contracted sports professional to first-grade public reactionary.
It doesn’t seem to me that Folau’s been denied the right – as a multi-millionaire with a big microphone – to hold fundamentalist Christian views or to proselytise the strictures of his angry God: he just isn’t allowed to do it while also getting paid millions to uphold Australian community standards on the international stage decked out in a commercially sponsored Australian football jumper.
Too deep, way too deep… there is an anti-dote to such simple stuff…. ask what the everyday, low-paid, punter view is… It goes like this…Falau posts his message, we, the punters decide whether we agree or disagree with the message. People can like, support or otherwise… or ignore…. as I do. Rather than Rugby Australia going to a contract or a court they should just come out on the front foot and strongly dismantle the post, clearly showing that Falau doesn’t speak for their brand … In short, let them speak, and we, the everyday Aussies will decide thanks.
ReplyAbsolutely brilliant piece.
It is also an interesting point about religious employers having the right to not engage employees who do not align with their values, yet in this instance, certain advocates of that right will cry murder for what Rugby Australia and GoFundMe have done in spite of it not being half as restrictive as the rights the religious employers enjoy.
The employee should have the right to retract and “repent” too but I suspect in this instance, certain stances are irreconcilable.
ReplyAn excellent article. One aspect I would like to explore is the concept that employees have the right to choose, to either not accept employment or resign should they disagree so vehemently with the organisational values.
This is true and I feel has relevance in some more extreme contexts, but my concern is that the employer seems to have a much greater power in this relationship. An individual employee leaving or not accepting a role would appear to have a far greater impact on the individual.
This power differential is amplified as large corporations appear to be controlling an increasingly larger share of the employment market. Further, large corporations are also using their size to influence and effectively control smaller organisations that work for, or otherwise engage with them.
‘Appeals to conscience cut both ways’ – maybe, but are the cuts even.
ReplySimon L – thank you.
1.
People have differing perspectives regarding the Folau fracas – whether it turns on a work contract, ‘free speech’ or religious freedom; perhaps all three are at play in this matter?
Employer directions regarding what we can and can’t do in our personal lives may be written into a work agreement – but contracts may be illegal in the extent to which they encroach upon our personal liberties; such as ‘free speech’ and ‘religious freedom’ – and particularly if nothing we do is outside the law.
2.
Are we content to have a situation where an employer can punish (sack) an employee for what the employer decides is ‘unacceptable’ or ‘offensive’ behaviour – in the employee’s personal life away from work; even if that behaviour is not illegal?
The threat of being sacked would frighten most into submission – to obey the employer’s directions on ‘acceptable’ behaviour in their personal lives. That’s a ‘social credit’ scheme by any other name.
Howe, Like the article states. Folau had to opportunity to resign and walk if he didn’t like the ideas of selling his freedoms.
ReplyFurther to my comment above. A paper delivered by Robert French, then CJ of the High Court, on 18 November 2015 gives some indication of the type of approach the Court may consider when interpreting both the contact ( and Code of Conduct document) and whether Folau was in breach of contract. Below are some extracts from the paper:
“A high bar was reflected in the decision of the European Court of Human Rights in Handyside v United Kingdom.25The Court said that the protection of freedom of expression in Art 19 of the ICCPR applies not only to information or ideas that are favourably received or regarded as inoffensive but also ‘those that offend, shock or disturb the State or any sector of the population.’26Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.'”
“The common law directs a court interpreting statutes to a construction which has least impact on freedom of expression. That is a particular case of a general interpretive approach protective of common law rights and freedoms”
“We must be free to speak our minds and hear other people speak theirs. We must accept that we will sometimes be offended or even outraged by the things other people say about us or others or about our or their beliefs or values. At the same time we must accept that for a culturally and ethnically diverse society to work there must be an ethic of respect for the dignity of all its members. In this respect there are some very old fashioned ideas of courtesy and good manners which embody that kind of world view. They empower us to apply the art, much finer than that of giving and taking offence, of getting along together in full participation in a free and democratic society. We can perhaps borrow from Lord Birkenhead’s confronting speech at Glasgow University in 1923 to say that we are well served in this area by stout hearts and sharp swords —not real weapons but our steely determination to exemplify the great civic virtue of doing unto others as we would have them do unto us.”
The first extract picks up comments by the ECHR, a Court that is required to determine conflicts between rights. What is interesting is that the ECHR seems to view the rights conferred by treaty as values or goods for Society but places importance in balancing the claims of competing rights on the ultimate value of the continuation of a particular view of Society (“Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.'”). This he seems to adopt in a more general statement towards the end of the paper (the third extract).
One of the features of the Folau controversy is the incivility or intolerance of many on both sides of the dispute. A feature of our Society not as present as it was when the paper was written.
ReplyI agree with most of what you’re saying, however Folau sold these rights when he signed a contract and took the money.
ReplyTo reply to your comment quickly. I cannot say what might happen in Folau’s case as far as the law is concerned, however, in principle a court may not enforce a term in a contract if it is against ‘public policy’, for example a term amounting to an unreasonable restraint of trade will not be enforced. A moral analysis of the positions of the parties is a more difficult exercise. I think we would need to know more about the contracting parties relative positions and so forth before answering that question. Do I have the ‘right’ to agree to give up my freedom and become a slave? Do I have the ‘right’ to give up something that lies at the essence of my identity as a person? And if so, does Society have a superior ‘right’ to set such a bargain aside?
ReplyIt is also the case that he has access to a larger platform from which to speak, purely through his status as a player for Rugby Australia.
His speech has not been silenced. He has not been placed in jail. He has been sacked for breaching the players code of conduct – which formed part of his workplace contract. He has simply lost part of his platform (which realistically has been re-bolstered by other groups) and lost his lucrative playing contract (that one really should be asking why a sports player can earn that kind of money at all – but that is another topic). He can get another job – perhaps not one worth $5 million, but surely as a Christian, he is prepared to accept that for his beliefs? After all, Jesus was not interested in wealth.
ReplyMatthew 10:17-18 “Beware of men, for they will deliver you over to courts and flog you in their synagogues, and you will be dragged before governors and kings for my sake, to bear witness before them and the Gentiles.”
This is where Jesus warned His disciples that they someday, they would be arrested and taken to court and publicly flogged for proclaiming the gospel. It did happen in the early church where Peter and the disciples were charged and told to keep from speaking about Christ and then flogged. They knew they hadn’t broken any Roman laws and so they said “We must obey God rather than men” (Acts 5:29). This is happening today all around the world and it is coming to a court, I fear, near us someday.
ReplySo you can have a religion you just cannot act in it in any possible way as it may cause damage to the brand.
ReplyThis introduces another concept: secularism. Not a secularism of the nation state as we conventionally understand it but to the question of whether any other body – corporate; educational; sporting; other – should be entitled to set the terms of its membership and INVITE individuals to join it PROVIDED they are willing to BIND themselves to a particular condition. For example, pay membership fees through to not saying or doing things that are in conflict with that body in ways that are likely to bring it in to disrepute given that body’s clearly stated values. Falou knew these conditions; had been previously counselled; had it expressly included in his offer of employment contract; and, finally, freely accepted that contractual offer.
It is not therefore prohibited to share your views at a private BBQ or even in a place of worship that are in conflict with another body to which you have voluntarily bound yourself [to its rules]. But becoming clearer is that it is NOT OK to do so in a public forum such as IG or Twitter.
As Simon L says, conscience isn’t just a license to do as one wishes; it comes with duties especially when one chooses to adjoin – in this case through a contract of employment with clearly defined value expectations – another body. Excommunication, any one!?
ReplyThe article is nice and crisp, but it is, I suspect, incomplete. The use of the Paisley example creates a category ( the clearly outrageous) where most of us would agree the employer should be entitled to protect its brand, but there are surely other categories where it would be against the public interest (and unreasonable) to allow the employer to impose terms that control the actions and silence the employees expression of belief or conscience. In contract law a term in a contract may be invalid if it imposes an unreasonable restraint of trade. Is there any limit to the control over the thought and expression of an employee Society should cede to employers in the name of brand protection? And in this connection are the various Human Rights treaties adopted by Australia of any relevance in determining that limit.
A second more particular point. The Folau post, looked at in isolation, certainly does not fall into the Paisley category. Doing my best to interpret the post, and without any knowledge of Folau, I do not think it is properly regarded as homophobic, or as hate speech. Was it then unreasonable of RA to take into account unreasonable expressions of offence in determining the protection of its brand required Folau’s employment as a professional Rugby player be terminated?
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