Australia's Prime Minister, Scott Morrison has been progressing a new piece of federal legislation - labelled the Religious Discrimination bill - that would "attempt to secure extra protections from state-based discrimination laws. In recent years, many states in Australia have passed, or are due to pass various pieces of legislation strengthening protections for minority views from discrimination - in the view of Mr Morrison's Federal Government, these pieces of law have come at the expense of individual's right to make statements of religious belief.
What prompted the legal clarification?
As is often the case, a high profile sports player is involved. Over a period of years, multi-sports professional Israel Folau made a series of judgemental public statements on LGBTQI and other issues via Twitter and other platforms. In response to each, his then employer, Rugby Australia, initiated code of conduct proceedings. First he was warned not to make similar statements again or risk being in breach of contract, later they culminated in the termination of his contract. The termination resulted in loss of direct earnings, as well as the cancellation of sponsorship arrangements - the ultimate value of which went into the tens of millions of dollars.
The final straw, as it was, for Rugby Australia was a tweet Folau made in response to a law change in Tasmania, which made provision for individuals to amend the gender reported on their birth certificate: "The devil has blinded so many people in this world. Repent and turn away from your evil ways. Turn to Jesus Christ who will set you free". The seemingly personal statement on his feelings about the law change resulted in a predictable media storm, Folau doubled down on Instagram, posting a meme miss-quoting 1 Corinthians 6:9-10 "WARNING Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators HELL AWAITS YOU. REPENT! ONLY JESUS SAVES. Folau's position was that he was making "statements of faith" and thus not discriminating as defined in his code of conduct. Rugby Australia, who were seeking to expand their game to attract LGBTQI players at the time, thought otherwise.
During the public legal proceedings that followed his sacking, there was intense public debate over the nature of his statements, and whether an individual can, as a public facing representative of a business or organisation, express sentiments that go against the code of conduct of that organisation or business without consequence. The public debate reached fever pitch. But the ultimate compromise settlement between Rugby Australia and Folau placed blame on neither party and otherwise kept the settlement private. It left neither party entirely happy, and didn't resolve the issue in the eyes of the public.
What's in the law
The new legislation would seek to formalise and safeguard an individual's right to make genuine statements or expressions of religious belief. It would clarify exactly where and how statements of genuine faith can and can't be considered discriminatory. "For example, the bill says it wouldn't be discrimination if a religious primary school required all of its students and staff to practise its particular religion, meaning it could turn away people who don't." the same rules would apply to other institutions such as universities or hospitals which are owned or managed by a religious body and to those whom profess atheism or other variations of non-specific-religious belief. On the other hand, the new bill also clarifies what a statement of belief might legitimately be "It wants to make sure "statements of belief" are not considered discriminatory, as long as they don't threaten, intimidate, harass or vilify a person or would be considered malicious to a "reasonable person". An early draft of the bill, would have explicitly given protection to someone in Folau's place, who might be sacked for making a statement of belief. But that element has since been removed after significant public backlash from minority rights groups.
Say no to gay cake.
The case echoes the Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case in the US - which tested limits to the free exercise of religion where a business sought to actively discriminate whom they offered services to based on a religious belief. The supreme court ruled in favour of the business over the Colorado Civil Rights Commission, and noted that the Commission had not been maintaining neutrality towards religious belief.
The debate over the case in Australia has referenced the US Supreme Court decision. But while there are elements within Australia's various constitutional frameworks that reflect similar ethics to the First Amendment, most are conventions rather than specific rights - there is no direct parallel. The new legislation seeks to draw a clear line where a religious belief can and can't be the basis of discrimination - while ironically not addressing the specific circumstances that led to it's creation. It also doesn't address areas where its provisions might conflict other workplace legislation, and as such, may in reality achieve little. I'm not convinced the legislation is necessary, as the original Folau case resulted in a settlement which justified existing legal checks and balances, but as the Masterpiece Cakeshop case illustrated, when governments seek to over-control freedoms they do overreach and I'm wary of state laws to protect relatively recently enfranchised groups, if they disenfranchise others.
A couple of questions:
This is an international forum, and there are numerous examples of how religious freedoms are permitted or protected around the world. While the US Constitution is the most obvious example of the enshrinement of free expression, even there we're now seeing conversations that certainly weren't envisaged by its writers - it is still the living document that all others are compared to, and thanks to a robust courts system, will continue to be the benchmark. Are there better constitutional protections elsewhere?
In general, how should we define the grey areas where one person's freedom of expression might actively harm or prevent another's?
Should corporations and businesses have the right to influence what their spokespersons do or say in public?