Government and courts in the West are too often trying to impose a certain world view, especially regarding relationships, family and sexuality, on the one hand and abortion and reproductive technology on the other, and thus challenges to religious freedom in these countries — even if not now a matter of life and death — are nonetheless serious.
This was a reflection offered by Cardinal George Pell last week at the annual lecture on religious freedom at the University of Notre Dame Australia School of Law.
Cardinal Pell offered a context for the challenges faced in Australia and in most Western countries by considering the startling statistics about people who are giving their lives for their faith today.
“However the estimates might be drawn up, it seems clear that more Christians were killed for their faith in the 20th century ‘than in the previous 19 centuries
combined,'” he noted, while also mentioning adherents of other faiths who in many countries also are facing and have faced violent persecution.
“Thankfully, in Australia and most Western countries religious freedom is not a matter of life or death. The challenges we face are of a different order altogether, but nonetheless serious,” the cardinal said.
Diversity and tolerance
He noted discrimination in the UK and US, where “it is no longer unusual” for people “to be penalized or dismissed from their jobs, excluded from providing services to children and counseling, and dragged through human rights, employment and anti‐discrimination tribunals simply for holding to, or merely expressing, their religious and conscientious convictions about issues such as abortion, marriage and sexuality.”
“In this situation,” Cardinal Pell observed, “religious freedom issues arise not from violent persecution but from the determination of government authorities, courts and tribunals to enforce a particular world view, especially in two closely related areas: relationships, family and sexuality, on the one hand; and abortion and reproductive technology on the other.”
The Sydney prelate noted that these sorts of attacks, whether they come directly or with what he called “salami tactics — slice by successive slice,” are generally promoted under the banner of “diversity, tolerance and human rights.”
“However the diversity that is sought seems to be more about enforcing compliance with the objectives of an imperialistic concept of secularism,” Cardinal Pell said. “The tolerance that is preached seems to be limited to allowing Christians to think differently if they really must, as long as they keep these thoughts to themselves and under no circumstances seek to act upon them. Human rights arguments invoking equality and freedom end up in practice treating some rights as being strong enough to extinguish other rights.”
The cardinal noted the benefit of being able to learn from trends in other countries, saying that still in Australia, there is still time to “make a noise about it.” In this context, he encouraged greater religious cooperation to defend common values, as is happening in other countries. He noted, by way of example, Baptist and Catholic opposition to the US contraception and sterilization mandate.
Cardinal Pell went on to note “four basic points” to show what
religious freedom means in practice:
“1. Freedom of religion is not just freedom to go to church on Sundays or pray at home. It also means being free to act on your beliefs in the public square, to speak about them and seek to persuade others. It means not being coerced or bullied into silence by speech‐control and equality laws or by accusations of “Homophobe!” “Discrimination!” “Anti‐Choice!” or “I’m offended!”
“2. Freedom of religion means being free to provide services that are consistent with the beliefs of the sponsoring religion. Neither the government nor anyone else has the right to say to religious agencies “we like your work with vulnerable women; we just need you to offer them abortion as well”; or “we really like your schools, but we can’t allow you to teach that marriage between a man and a woman is better or truer than other expressions of love and sexuality”. Our agencies are there for everyone without discrimination, but provide distinctive teachings and operations. In a wealthy, sophisticated country like Australia, leaving space for religious agencies should not be difficult.
“3. Religious freedom means being able to employ at least a critical mass of employees who support the ethos of the sponsoring religion. All Catholic works are first and foremost works of religion. Our hospitals, schools, universities, welfare agencies, services for the refugees, the disabled and the homeless are established because this is what our faith in Christ the Lord impels us to do. The good people happy to help us in these works as staff or volunteers do not all need to share the faith, but they need to be happy to support it and work within it. It is also essential that a preference can be exercised for people who are actively committed to the religious convictions at the heart of these services. It is not enough for just the CEO or the religion teacher to be Catholic. It is not unjust discrimination to prefer committed Catholics to staff Catholic services, but it is coercion to attempt to interfere in or restrict our freedom to do so. No one would dream of suggesting that (for example) the ALP must employ some activist members of the Liberal Party.
“4. Religious freedom and government funding. The secular state is religiously neutral and has no mandate to exclude religion, especially when a large majority of the population are Christians or followers of other major religions. Church members also pay taxes. Substantial levels of government funding are no reason to prohibit religious schools, hospitals and welfare agencies from offering services compatible with their beliefs; no sufficient reason to coerce them to act against their principles. The separation of church and state provides important protections for religious communities against the intrusions of governments. In a free society like our own, different groups have a right to make distinctive offerings, provided they are not damaging the common good. We need to foster a tolerant pluralism, not intolerant secularism.”
Edict of Milan
Cardinal Pell noted this year’s 1,700th anniversary of the Edict of Milan and Constantine’s granting of religious freedom to Christians after the persecution faced by the Church in her first 300 years. He said that this anniversary is a good opportunity to strengthen religious freedom, and he offered these suggestions:
— Protections, not exemptions: federal and state anti‐discrimination laws usually include a range of “exemptions” or “exceptions” for religious organizations (and other groups). The purpose of these exemptions is to protect other rights, but the language of exemptions creates the impression that they are simply concessions or special permissions to discriminate granted by the state for political reasons. This is completely misleading and helpful to no one, except those who want to misrepresent the situation and remove protections for religious freedom. The language of exemptions should be replaced with the language of protections, clearly identifying the human right that is being protected.
— Exercising other rights is not discrimination: Professor Nicholas Aroney and Professor Patrick Parkinson have suggested that the prohibition of unlawful discrimination ought to be drafted in such a way that when a right to freedom of religion, association or cultural expression is being legitimately exercised, this cannot be seen or judged to be unlawful discrimination. They are not the first to make suggestions along these lines, and I think they are worth serious consideration. Treating these rights as exemptions reinforces the strong impression that anti‐discrimination is more important than other rights and will always trump them. John Finnis has observed that antidiscrimination law is concerned with whether differential treatment is justified. Using the language of “discrimination” is dangerous because it suggests that differential treatment is not justified, even when it is “exempted”.
— Protection for individuals as well as groups: individuals are the bearers of rights, and it is strange that protections for religious freedom in antidiscrimination laws focus on groups and institutions rather than on individuals. As always, the rights of others to goods and services have to be protected, but there should be explicit scope to provide protections for individuals so that they are not coerced to act against their beliefs in their work or businesses.
— Legislate conscience protections: Rather than coercing people to act against their religious or conscientious convictions, as the Victorian Abortion Law Reform Act does, the states and commonwealth should legislate protections for them, perhaps along the lines of the resolution adopted by the Parliamentary Assembly of the Council of Europe in 2010. While requiring states to ensure timely access to “lawful medical care”, it also holds that “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist, or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.”
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