When human rights complicate religious freedom and secular law

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