Right to religious freedoms can play havoc with new laws

The most recent decision of the US Supreme Court has reignited debate in America about the fundamental human right to freedom of religion.

Faced with an obligation under Obamacare that was contrary to its faith values, the family-run Hobby Lobby chain of stores challenged the Obama administration all the way to the Supreme Court.

Now a sharply divided court has ruled 5-4 in favour of allowing companies a religious exemption from rules requiring them to include contraceptive care in employee health policies.

The majority of the justices have made a stand for freedom of religion by upholding the right of faith-based employers to make decisions freely about the provision of employee benefits.

But questions of religious freedom do not only arise in the US. Australian courts have also had to address religious liberty. Here, though, they have taken a more restrictive approach.

Earlier this year the Victorian Court of Appeal upheld a decision which found a Christian youth camp liable for declining a booking from a homosexual support group.

One of the most important components of the decision was that all three justices denied any distinction between homosexual orientation and homosexual behaviour.

The youth camp’s policy was intended to uphold its view of Christian standards of behaviour. Instead, it was found to have discriminated against the persons involved themselves.

In Australia the right to order one’s affairs according to one’s religious beliefs and to enjoy certain exemptions is recognised in every state by anti-discrimination legislation.

These exemptions do not exist simply to justify what would otherwise be unlawful discrimination. Rather, they are there to protect the right to religious liberty.

Rights and freedoms in a liberal society must be capable of coexisting. Exemptions under anti-discrimination legislation are about striking that balance.

But once claims about discriminatory behaviour or beliefs are presented as assaults upon the person, those rights become non-negotiable.

One judge in the youth camp’s case, Neave JA, said there could be no exemption for religion in situations “where it is not necessary for a person to impose their own religious beliefs upon others.”

This test invites scrutiny of a wide range of religious practices including marriage. Would the refusal of a minister of religion to perform a same-sex marriage amount to such an unnecessary imposition of religious belief?

Only last week the Danish parliament passed legislation denying such an exemption and forcing churches belonging to the state Lutheran Church to conduct same sex marriages on their premises.

The legislation allows individual clergy to refuse to conduct the ceremony but they cannot forbid it from taking place in their church building.

Whenever the state steps in to enshrine equality in all human interactions by attempting to regulate matters of faith and conscience, religious liberty is threatened.

In Australia the roots of this threat can be traced directly to the Whitlam Government’s Racial Discrimination Act 1975 which expressed an enthusiasm for imposing the virtue of equality.

Intended as a means to eradicate racism, the act has long been the cornerstone of the campaign to purge Australian society of the secular sin of discrimination on the basis of race, gender or sex.

The mark of the good citizen used to be the display of personal conviction. Now it is the ostentatious display of open-mindedness often resulting in traditional religious beliefs being swept aside.

Instead of allowing greater freedom to express religious belief in the public sphere, the effect of anti-discrimination legislation has been to confine religious faith to the realm of subjective opinion.

But religious belief is not something that can simply be confined to the realm of the mind. Belief and practice are inseparable. Freedom to believe must surely be accompanied by the freedom to speak.

If we understand religion as the awareness of a supreme being that manifests itself in some form of dutiful obedience, we can say that freedom of religion is a freedom given to fulfil that duty.

But those whose ways of life are guided by the search for ultimate meaning and a solemn obligation to live dutifully are likely to clash with the values of the secular state.

For example, if the search for ultimate truth leads an individual to the sincerely-held belief that homosexuality is immoral, she or he may face accusations of hate speech and homophobia.

Yet these are the very circumstances in which religious believers may demand the freedom to express their religiously inspired views about human sexuality in public.

It is not difficult to see that if those actions are met with the coercive force of the state, broader rights of freedom of association and freedom of expression are bound to be put at risk.

Peter Kurti is a research fellow with The Centre for Independent Studies and author of The Forgotten Freedom: Threats to Religious Liberty in Australia, published this week by CIS.