Freedom: Of Speech, Religion, & Discrimination – Or – In The Language Of Flowers, What Does A Pineapple Signify?

Can a florist refuse to sell flowers for a couple’s wedding because the wedding is against the florist’s religious beliefs?

The answer to that question took me on an interesting journey through the Australian Constitution, the High Court, Australian Standard 1266.0 (2011), the language of flowers, the Australian Human Rights Commission Act and the Sex Discrimination Act, and the Marriage Amendment (Same-Sex Marriage) Bill. Join me for the ride!

Whether you answer “yes”, “no”, or even “who cares”, what might seem a superficial question actually tests a number of important principles, and asks some interesting questions for Australians about freedom of speech, freedom of religion, what actually constitutes a religion, anti-discrimination, and the separation of church and state. Not bad for a bunch of flowers.

In the U.S.A. the Washington State Supreme Court  recently ruled that the answer to this question – in that state, in that country – is “no”. Somewhat bizarrely, though, that case was not just about freedom of religion, but also freedom of speech, because the florist claimed that flower arrangements constituted protected free speech.

So: if a red rose means “I love you”, and asphodel means “My regrets follow you to the grave“, and a green carnation means “I am a secret follower of Oscar Wilde“, what posy should the florist have made to say “My religion says that your gender preference allows me to discriminate against your legal marriage by refusing to sell you flowers purely on the basis of your gender preference”? I have no idea, but she clearly said a bunch…

The court, however, disagreed that flowers are protected free speech, and somewhat prosaically and unromantically ruled to that effect.

Perhaps more importantly, and more to the point the court also ruled that the florist’s freedom of religion did not over-ride the state’s anti-discrimination laws.

Now anybody who supports the notion of separation of church and state would presumably have to say “that’s entirely correct”. The laws of the state must always take precedence over whatever codes of conduct are prescribed by some arbitrary religion, yes?

Well, it seems that Liberal Senator David Fawcett thinks that the answer is “No”.

That is, he thinks that we need to amend the laws of Australia specifically to allow the prescriptions of a religion to over-ride them. (I leave it as an exercise for the reader to determine what happens if a religion specifies that the laws of the state must always be paramount, but I digress.)

Why do I care what Senator Fawcett thinks? Because Senator Fawcett is Chair of the Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill.

Senator Fawcett, in his genial, white, male, heterosexual, Christian, Baptist way believes that florists, bakers and photographers, purely on the basis of their religious beliefs, should be able to refuse to provide goods and services; in this case specifically to same-sex weddings. In fact, Senator Fawcett feels so strongly about this that he has said that pushing for same-sex marriage in the short term without further “religious protections” would “put plural and tolerant democracy at risk”.

Plural and tolerant democracy at risk. Wow. At least for florists, bakers and photographers with particular religions.

Quite apart from the violence this appears to do to the basic principle of separation of church and state, it also opens a Pandora’s Box of associated problems.

“What about wedding car chauffeurs?”, I hear you cry. “What about the printers, printing wedding invitations?”, you continue. “What about Australia Post posties, delivering the wedding invitations”, you add, as the full horror of the problem dawns on you. And that’s just the tip of the iceberg.

If some religious principles should be allowed to over-ride the law of the land in the very specific case of same-sex marriages, what other situations need to be considered? If our plural and tolerant democracy is at risk without these exemptions, where else in our existing laws should we search for religious exceptions? Our democracy may have been teetering on the brink since Federation without us realising.

Well, there is a quite well known list of prohibitions in Leviticus, which for Abrahamic religions is the usually quoted source of the religious prohibition on male homosexuality, and is presumably the basis for both the florist’s and Senator Fawcett’s tolerant dismay. However Leviticus contains a number of other prohibitions (and allowances) which presumably carry equal weight for followers of those religions. There’s a well known letter discussing this, of which I’ll quote a small sample:

d) Lev. 25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighboring nations. A friend of mine claims that this applies to Mexicans, but not Canadians. Can you clarify? Why can’t I own Canadians?

e) I have a neighbor who insists on working on the Sabbath. Exodus 35:2 clearly states he should be put to death. Am I morally obligated to kill him myself?

f) A friend of mine feels that even though eating shellfish is an Abomination ( Lev 11:10 ), it is a lesser abomination than homosexuality. I don’t agree. Can you settle this?

It follows naturally that if Senator Fawcett believes that one specific part of one religious code should over-ride one specific law of the land, the basic principle is valid in other instances as well, and so far we have only considered Abrahamic religions and same-sex marriage. What about Hindu, Buddhist, Sikh, Confucian, Shinto, and Scientology religions (to name a few), and what about the rest of our legal system?

What happens when an abattoir hires a Hindu, who then explains that on religious principles he unfortunately can’t slaughter cows? “It’s ok for a florist to refuse to provide flowers for a same-sex marriage on religious grounds, so it’s ok for me to refuse to slaughter cows on religious grounds.” What if a Scientologist refuses to provide documents relating to an auditing session, claiming that they have the same privilege as the confessional? And so on. Which religious principles matter? Who gets to pick and choose which precepts of a religion (such as eating shellfish) matter more? Which laws should religious principles be allowed to over-ride? Should they differ, depending on the religion? Which ones are going to put democracy at risk?

Pandora’s Box indeed.

Let’s stand back from the problem for a moment, and consider the basic question of religion. Senator Fawcett claims that “religious freedoms” need to be protected. Clearly Senator Fawcett can’t be restricting his concerns to white male heterosexual Baptists, or even to Christians, he has to be considering all religions. But what, in Australia, constitutes a religion?

Well, I’m glad you asked.

The Australian Constitution says, on religion:

116  Commonwealth not to legislate in respect of religion

                   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.

So you’re probably pleased to know that the Commonwealth can’t establish a religion, and  can’t impose an observance. You’re probably less pleased to know that, in theory, the States can, but that’s another story.

However the Constitution doesn’t actually define “religion”. Are Jedi Knights a religion? Pastafarians? Scientologists?  If religious freedoms are at stake, what’s a religion? It has been left to the High Court to provide definitions. There have been several of these, but the case most commonly quoted and used is from 1983, here quoted from the Australian Law Reform Commission:

4.9           Mason ACJ and Brennan J proposed the following definition of religion:

[T]he criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion.[6]

4.10       Wilson and Deane JJ proposed the following definition:

One of the most important indicia of ‘a religion’ is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has ‘a religion’. Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium … is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.[7]

What I think is important to note in both of these definitions is the “supernatural”. All the judges agreed that a religion had to include a belief in something supernatural – a being, a thing, or a principle. That is, it doesn’t matter how extensive, or rigid, or strictly observed your canons or codes of conduct are, if you don’t also believe in something you can’t see, hear, smell or touch then it’s not a religion.

So what Senator Fawcett is saying is that any group with any moral code that doesn’t also believe in something invisible cannot over-ride the laws of the land, even if their moral code says so. On the other hand, any group with a moral code that also believes in something invisible can over-ride the laws of the land if their moral code says so. In this case, the law he’s talking about is that preventing discrimination on the basis of sexual preference, but who knows what’s next.

It’s worth noting at this point that the High Court case that produced the quoted definitions of religion was the case that ruled that, in Australia, Scientology is a religion.

Now Scientology was invented in 1952 by L. Ron Hubbard, so it’s a bit of a newcomer, as religions generally go, and it appears that its creator was strictly natural, not supernatural. Its adherents believe that we are all the reincarnated spirits of aliens who were annihilated in a nuclear explosion. It also has some canons of conduct, but being reincarnated aliens is the “supernatural” principle on which it is judged to be a religion, and therefore the basis on which its adherents might legally refuse to obey some Australian law if it conflicts with their beliefs.

By contrast, people who follow the same rules of conduct as Scientologists but who don’t believe we are the reincarnated spirits of annihilated aliens are not permitted to disobey the law, even if it conflicts with their rules of conduct, because their beliefs are not a religion. Simply put, it seems that Senator Fawcett believes that your freedom to believe that we are the reincarnated spirits of annihilated aliens is more important than obeying the laws of the land.

If you’re beginning to find this whole idea weird (or perhaps just ridiculous), then I share your belief, as it were.

It gets better, though (or worse). Not only is your belief in something supernatural going to be a necessary condition for flouting some laws, it turns out it’s your ticket to tax exempt status as well.

Never mind being able to ride rough-shod over the law of the land because of some belief you hold, would you like your institution to be exempt from income tax, from FBT and from GST? The Australian Tax Office says you can, so long as: you’re not-for-profit (but of course you have to pay salaries); you’re promoting religious purposes; and you’re a religion. To get the same exemptions if you’re a charity you need to have a charitable purpose, or be providing a public benefit, but if you’re a religion you just have to be spruiking your religion.

So believing in something that nobody can see or prove to exist turns out to provide quite a few benefits that are denied to people who have a moral code but only “believe” in science or the material world.

It gets worse, though (or better).

You might remember that I cited the separation of church and state as being the obvious counter to Senator Fawcett’s proposal. Well, the bad news is that in Australia there is no guaranteed constitutional separation of church and state. Yes, really; or certainly according to Justices Sir Ronald Wilson and Sir Ninian Stephen.

Max Wallace, writing in the Australian Humanist in an article titled “Is There A Separation Of Church And State In Australia And New Zealand?” said:

In analysing what section 116 meant two judges referred directly to the question of church and state. Justice Sir Ronald Wilson said:

The fact is that s.116 is a denial of legislative power to the Commonwealth and no more … The provision therefore cannot answer the description of a law which guarantees within Australia the separation of church and state.

Justice Sir Ninian Stephen said s.116:

… cannot readily be viewed as a repository of some broad statement of principle concerning the separation of church and state, from which may be distilled the detailed consequences of such separation.

In other words, no. There is in fact no guarantee in the Constitution, and moreover individual State constitutions could, if they wished, actually establish a State religion.

So the question about a religious florist reveals any number of worms…

Let’s now step away from the Constitution and definitions of religion and back to the basic statement that Senator Fawcett made. What he’s saying is that it should be permissible in a secular society for a person’s religious beliefs to allow them to break, or over-ride the law in specific circumstances, in this case the laws about discrimination.

Specifically, they’re the laws that we, as a nation, have passed that forbid discrimination. We have agreed that it’s wrong, and therefore illegal, to discriminate against people on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction, and social origin.

What Senator Fawcett is saying, then, is that it’s ok to discriminate against people on the basis of sexual orientation if you believe in something supernatural and follow a code of conduct that says such discrimination is ok.

So the law of the land says it’s not ok, and your code of conduct says it is ok; and the only reason why we should let your code of conduct over-ride the law is because you believe in something that can’t be proved to exist, and the law doesn’t believe in it.

Wowsers!

Furthermore, in the case of this specific legislation, let’s remind ourselves of the practices that caused us to agree that discrimination is A Bad Thing. Does it really matter what the motives for discrimination are, when all that ultimately matters is the end result? Whether it’s engendered by belief in the supernatural, or a theory of racial superiority, or blind prejudice, this is what happens when you allow discrimination:

Here’s one:

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Here is another:

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Here is an Australian example: in Australia, up until 1967, indigenous people were not considered part of the population and were not covered by ordinary law, and not counted in the census.

From the Australian Constitution (pre 1967):

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
(xxvi) The people of any race, other than the aboriginal people in any State, for whom it is necessary to make special laws.

127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted.

ATSI people did not have the right to vote in Commonwealth elections before 1962, and in Queensland elections before 1965. They simply didn’t exist.

Those are some of the faces of discrimination. Now Senator Fawcett is trying to convince us that we should allow this malignancy back into our legal system, but only for people who both believe in something that can’t be proved to exist, as well as believing in a discrimination our country has agreed should not exist.

In 2013 the Abbott-led opposition agreed that individuals should not be able refuse to sell goods and services based on their private religious belief,  and the Turnbull government exposure draft passed cabinet without the further exemptions to discrimination law that Senator Fawcett is now calling for. Cynics among us might believe that Senator Fawcett has suddenly raised this objection in order to throw more roadblocks in the way of legislation that is overwhelmingly supported by both the people and the parliament.

When examined more closely, it looks frankly crazy.

So how do we turn Fawcett off?

In the language of flowers, I think Senator Fawcett deserves a pineapple, and I’ll leave it to you to choose which end.

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