[2022 Caveat: This article was written about a previous exposure draft of the legislation. Some provisions (such as pupil expulsion) have subsequently been amended, however the fundamental philosophical rottenness remains.]
I’ve already written about religion and discrimination in Australia here and here, about the fundamentally un-Australian, constitutionally dangerous and inegalitarian nature of mixing religion with our secular law.
However the publication of the second drafts of the proposed “Religious Discrimination” legislation, and the collected examples of permitted exemptions published in The Guardian have prompted me to write for a third time, because I’m appalled at what is being proposed.
In short, if your religion says you can’t do something then that’s your problem, and if you break the law because of it, it’s still your problem. If your religion says I can’t do something that the law says I can, then your religion is trying to override the law, and that’s a big problem. This proposed legislation, in essence, says that religious laws can override secular laws so that you can do things that would otherwise be illegal, and you can stop me from doing things that would otherwise be legal.
Not only is the “Religious Discrimination” legislation before parliament attempting to allow religion to override secular law, it’s turning the notion of “discrimination” on its head and making a mockery of the concept.
The dictionary definition of “discrimination” is: the unjust or prejudicial treatment of different categories of people.
Firstly, and obviously, for something to be discriminatory it can’t apply to everyone. For example, Australian law says that it’s illegal to throw rocks at another person. That’s not discriminatory, because everyone is forbidden from stoning other people. If the law said that only Taoists were forbidden, then, yes, it would be discriminatory on the basis of a particular religion. Likewise, if it said that only atheists were forbidden, then that would be discriminatory; but it doesn’t. Everybody is forbidden equally.
Secondly, the key word there is “treatment”. Doing.
Discrimination has a subject and an object – I discriminate against you. The person doing the discrimination is the subject, the person being discriminated against is the object.
So to prevent religious discrimination, the religious person—the one being discriminated against—has to be the OBJECT, and the person doing the discrimination has to be the SUBJECT.
Seems pretty obvious, so far.
Who Is Being Discriminated Against Here?
The Guardian has published a number of examples of how this law is proposed to operate to prevent “discrimination”, and these examples are drawn from there. Let’s see how that works, and how the religious person is being discriminated against.
Let me just add a spoiler here, though, and say that the discrimination they’re complaining about appears to be asking them to obey the same laws as everybody else. Pretty rough, hey?
-
- A Christian may say that unrepentant sinners will go to hell, an example cited in the EM which mirrors the facts of Israel Folau’s case
What is the “sinner” doing to the Christian (on the basis of the Christian’s religion)? How is the Christian being discriminated against by the sinner? No discrimination here.
-
- A doctor may tell a transgender patient of their religious belief that God made men and women in his image and that gender is therefore binary (EM)
This is a conversation between the doctor and the patient. What is the patient doing to the doctor (on the basis of the doctor’s belief)? How is the doctor being discriminated against? No discrimination here.
-
- A single mother who, when dropping her child off at daycare, may be told by a worker that she is sinful for denying her child a father (Public Interest Advocacy Centre)
What is the mother doing to the worker? No discrimination here.
-
- A woman may be told by a manager that women should submit to their husbands or that women should not be employed outside the home (PIAC)
What is the woman doing to her manager? No discrimination here.
By now the pattern is probably obvious, but let’s continue, because the hypocrisy in calling this “anti-discrimination” is huge. It’s about discrimination, all right; it’s about positively discriminating in favour of people who claim to be religious, to allow them to discriminate against others in ways that otherwise would be illegal. This isn’t preventing discrimination, it’s legalising it.
Let’s keep looking, though. Perhaps one of these examples will show a real example of discrimination against a religious person by somebody else:
-
- A student with disability may be told by a teacher their disability is a trial imposed by God (PIAC)
What is the student doing to the teacher? No discrimination here.
-
- A person of a minority faith may be told by a retail assistant from another religion that they are a “heathen destined for eternal damnation” (PIAC).
What is the shopper doing to the assistant? No discrimination here.
-
- public evangelising/street-preaching – even where this is in contravention of council bylaws (EM, Just Equal).
What is the council doing to the evangelist? In this case, it has prohibited everybody from engaging in the this activity. It hasn’t singled out the evangelist on the basis of religion. No discrimination here.
-
- A Catholic doctor refusing to provide contraception to all patients (EM) or to prescribe hormone treatment for gender transition (Equality Australia, Just Equal, LGBTI
What is the patient doing to the doctor (on the basis of the doctor’s religion)? No discrimination here.
-
- A Catholic nurse who refused to participate in abortion procedures (EM) or to provide the morning-after pill to a woman admitted to hospital after a sexual assault (Equality Australia)
What is the patient doing to the nurse? No discrimination here.
-
- A pharmacist refusing to provide the pill to women for contraceptive use (EM), or hormone treatment (Public Interest Advocacy Centre, LGBTI Health Alliance)
What is the patient doing to the pharmacist? No discrimination here.
-
- A doctor could refuse to prescribe post-exposure prophylaxis (PEP) within the required 72-hour window to a patient whose condom broke during a sexual encounter on the basis of religious beliefs that forbid sexual activity outside of marriage (Equality Australia)
What is the patient doing to the doctor? No discrimination here.
-
- A psychiatrist could say to a woman with depression that “she should be looking forward to the kingdom of heaven”. Under the proposed laws, the psychiatrist could challenge their deregistration as religious discrimination, while the patient could have her disability discrimination complaint refused (Equality Australia)
What is the patient doing to the nurse? No discrimination here.
-
- A law passed by a state parliament that banned the promotion of programs that seek to “convert” LGBTIQ people could be overridden by the federal attorney general as an infringement on “statements of belief” (Just Equal).
What is the state doing to the conversion programs? It’s asserting its right to prevent medical procedures that have no scientific basis or validity. That ban is not applied on the basis of the religion of the practitioners, it applies to everyone. It’s applied on the basis of the scientific efficacy of the procedure, not the beliefs of the practitioners. No discrimination here.
No discrimination anywhere, unless you count being asked to obey the same laws as every other Australian, regardless of race, creed or colour as discrimination!
I’m hoping that, by now, the real intent of this legislation is blatantly obvious. It’s intended to enable the special treatment of a particular subset of society, to allow them to break laws that the rest of us have to obey.
It’s Repugnant
There are several repugnant aspects to this. The first, and most obvious, is that this legislation is discriminatory. It discriminates against atheists, for example, because no matter what your moral code, you can only be exempt from the secular law if you are religious, not because of what your moral code says, and more obviously it discriminates for only a subset of Australians. That’s a textbook definition.
The second is that, if you look at all of these examples, the beliefs or religion of the passive party in each of these examples is irrelevant. Although the legislation claims to be preventing religious discrimination, the “protection” it provides only works in one direction. What if my faith says I am allowed to be a single mother, or to use contraception, or as a woman to be equal to men? Why doesn’t my faith protect me from the discrimination of the other person?
The third is that the previous example is really a red herring. It points out the fundamental stupidity and unfairness of the law as proposed, but it’s not necessary. We are a secular society, with secular laws. The constitution forbids the government from “imposing any religious observance”, and my previous argument about competing religions is actually ridiculous, because our laws apply to everyone regardless of religion. The religion of the patient, or customer, or whatever should be irrelevant, because the law should apply to everyone.
The Pandora’s box that’s opened by allowing religious exemptions from secular law is obvious, though, from that example. The fact that the discrimination here is a positive one in favour of a particular group on the basis of their religion doesn’t alter the fact that the other person is being discriminated against in a way that otherwise would be illegal under secular law. Positive discrimination for one group entails negative, real discrimination for another. We don’t need to have a religion to be protected from discrimination; we’re already protected by secular law, or should be. What this legislation is proposing to do is to remove that protection. That’s what’s really repugnant: it’s pretending to add protections, but in reality it’s stripping them away except for a minority.
The third is that the whole enterprise is arbitrary and capricious on its face. There are many, many religions, and they have many, many beliefs and observances. The legislation, in order to obey the constitution, can’t nominate any particular religion as benefiting from “discrimination”, so how are the exempt observances decided? Why are chastity and contraception included, but adultery or menstruation not? What possible argument can be made in favour of one religion’s observances over another’s, or amongst all the observances once the door is opened to the principle at all? Why can’t we stone non-believers? Why can’t we refuse to sell cakes to people who wear clothes of mixed fibres? Why can’t we refuse medical help to people who have handled a pigskin? The list is endless and the stupidity, I hope, obvious.
Who decides which bits of which religions are more important than secular law? Should atheists be allowed to vote on this legislation? Seriously?
Further, once a particular set of exemptions is enshrined in law, what is to stop additional exemptions from being added, and on what reasonable basis could they be refused? It can’t be on “popularity”, because that would be unconstitutional as well as—wait for it—clearly discriminatory.
The last repugnant aspect is that, even though the law is superficially fair—for those of us that practice a religion and wish to be exempt from secular law—in fact it’s deeply unfair, because it enshrines the inequality of religious populations into legislated practice. In theory the law will allow Muslims or Hindus the same ability to break secular law as Roman Catholics, but this equality is illusory.
Today, more Australians have no religion than any single specific sect or type of moral code. Thirty percent of Australians in the 2016 census said they had no religion. The largest single identified religious group was Roman Catholicism, with less than twenty-three percent. However if we allow anyone claiming a religion to discriminate against someone else on the basis of religion, then the probability that we will be discriminated against by a Muslim, for example, is less than five percent, whereas the probability that some “Christian” will wish to refuse me contraceptives is potentially over fifty percent. So although in theory this is “fair”, at least to people with a religion, in reality it’s actually intended to cater to a single faith, and only extremists from that faith, quite apart from the fundamental unfairness underlying it.
For me there is no comfort at all in knowing that I can be discriminated against by both Hindus and Pentacostals, because they shouldn’t be able to discriminate against me at all, particularly since the sole basis for allowing them to do it is that they believe in something that can’t be seen, heard, or touched.
That’s by definition, because that’s what the High Court says is the key defining attribute that distinguishes a religion from a secular moral code.
It’s Rotten
I’ll leave you with two final examples of the fundamentally rotten nature of this legislation. In the current draft:
-
- An Anglican public benevolent institution could require its employees, including volunteer workers, to uphold and act consistently with Anglican doctrines and teachings at work (EM)
Note that regardless of this employer’s affiliation it is just another Australian employer, and as such subject to Australian law, except that this employer, unlike the Commonwealth, is allowed to impose a religious observance on its employees.
More importantly, this applies to volunteers as well. The government, in its wisdom, can require recipients of Newstart to provide volunteer work as a condition of receiving the allowance. How is this going to work if the government can make you work as a volunteer and then the institution in question can insist that you follow certain religious doctrines? So much for the state not imposing a religion. Never mind that you might have a choice of institutions, the simple fact that they can do this is enough.
-
- A student attends the same religious school through their primary and secondary education. At 16 they lose faith in the religion of the school and tell a teacher that they are now agnostic. The school would be able to expel, suspend or otherwise punish, for example, give detention to the student (PIAC).
Public education in Australia is secular. The state also permits schools affiliated with religious institutions to provide education, and those schools receive public funding. Are we going to make it legal for a publicly funded educational institution to punish or expel a student on the basis of faith, or lack of it?
Which way, exactly, is all the discrimination operating here? Is this how we want “everybody is equal under the law” to operate?
infinite8horizon - peter d barnes 