The CIS vs religious freedom

The Centre for Independent Studies has just issued a report about Australian public attitudes to religious freedom. I’m happy to say that the majority (64 per cent) attitude coincides almost exactly with the one I’ve expressed here, namely that

within very broad limits, what we do and say in our own time is no business of the boss.

That cuts both ways: both offering protection to people whose religious expression offends the boss, and preventing religious organizations from discriminating against employees whose beliefs or life choices aren’t consistent with the religion in question. There are limits of course, most obviously in relation to people whose job it is to represent the organization and its beliefs. But these should be the exception not the rule.

Given its history, (the CIS used to be the leading centre of ibertarian thought in Australia) one might imagine that the poll results would be reported as good news. But this is not the case.

Taking a corporatist line, the CIS argues that individual freedom should be subordinated to the collective rights of organizations to enforce their beliefs, even when they are engaged in in providing publicly-funded services.

The contortions required to reach this point reflect the basic problem underlying this legislation. From the point of view of the proponents, it isn’t about protecting religious belief and expression (what individuals want), it’s about establishing a special, and protected status, for religion.

That is not only contrary to public opinion, but runs directly against the spirit of our constitution, which states (s116)

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

In line with its appalling performance on most issues, the High Court has read s116 down into insignificance. But there is nothing to stop the Commonwealth from prohibiting or severely constraining religious tests, and it should do so, particularly in relation to publicly funded organizations.

21 thoughts on “The CIS vs religious freedom

  1. The lead article in this month’s Quadrant has the title, paraphrasing, The Folly of Legislating for Religion Freedom. (I haven’t read it.)

    It seems that within the Right there is no set view on the legislation. It’s not hard to see why. Once governments start writing down what is protected, then what is not written down is not protected and what is protected can be whittled away by amendment. Then you run into the problem that protecting religious freedom generally means protecting the freedom of religions you don’t like for political and cultural reasons. (No prizes for guessing which one that might be.) It’s no wonder that the legislation is headed to the too hard basket.

    It’s best to apply the p*rnography test to religious freedom: you can’t define it, but you know it when you see it.

  2. The ARU and Israel Folau have settled their case on confidential terms. How very unsatisfying. The fact that they settled suggests the legal issues were finely balanced.

  3. “Taking a corporatist line, the CIS argues that individual freedom should be subordinated to the collective rights of organizations to enforce their beliefs, even when they are engaged in providing publicly-funded services.”

    Disgraceful. The CIS should be investigated to see whose paying their bills. These corporations are artificial persons and they pick up a fractional reserve subsidy extorted from the public. They should be seen as an imposition on the free market. I am not even sure they are a necessary imposition any more.

  4. On a more optimistic interpretation, if this case was finely balanced, most workers should be protected from being dismissed on grounds of religion. Folau was a public face of the business, and his comments were extreme and repeated.

  5. While the ARU said much about how abhorrent they found Folau’s comments, he was dismissed for breaching his contract, which explicitly prohibited him from saying the things he said because they were offensive, not expressing religious views as such. At least, that’s what the ARU’s case was. Because the case was settled, we really aren’t the wiser about whether workers can be dismissed on the grounds of religion and we won’t be until another case comes up and a judge tells us what the law is.

  6. Lets not be poopy pants about this. Should I have wanted him to be sacked for what he said about drinkers? He was quoting someone else. I know its not gay men making a fuss about this except for Joyce. Its the oligarchy itself that is using them as a control mechanism. An avante-garde. But if it were gay men making the complaint we’d just have to tell them to be men about it. Men and not girly-men.

    We know some people have developmental disorders but do we really need these pushed down our throats by CEO’s? Out where I am I can see the oligarchies gay mental pollution has had a terrible and visible effect on the kids. Now I walk past the rugby grounds and I only ever see the young girls playing rugby. What male could ever play rugby again with the current mental pollution being put upon the kids? This is child abuse. They shouldn’t have to see men with dresses and beards on their television screen all the time. Very sick stuff. And in no way consumer driven.

  7. It is wrong to think that an out of court settlement means a civil case must be finely balanced. As I discovered with my wife’s unloseable fair work case, both parties have a powerful incentive to settle out of court, that being the horrendous cost of litigation. Literally 98% of fair work cases settle out of court and I understand the percentage is similarly high for other types of civil cases.

    Ordinarily I don’t think someone’s expression of contentious religious views should be a legitimate ground for their dismissal from employment but I think professional sportspersons are reasonably expected to be ambassadors for their sport and accordingly their private conduct can reasonably be grounds for dismissal if it is against the codes policies or hurts its image.

  8. Hugo,
    The only thing is hurts its image with who? Colin Kapernick an American football star was blackballed because he dared to kneel during the playing of the US national anthym which upset, or at least pretended to upset, closet members of the KayKayKay here in the USA. Yet for people on other sides of the political spectrum he improved the image of the US NFL.
    The owners of the NFL should not be allowed to make the call of who does and does not damage their image. They live under a national constitution that places a high, though not limitless, value on free speech. The kneeling by NFL players before the start of a football game did not delay the start of a single game. The claim that it was disruptive is bogus.
    Of course to say that the owners should not be allowed to discipline players for doing something like kneeling during the national anthym is in a sense pointless because it is so easy to do by just saying that a player is being disciplined, or fired for inadequate performance.
    I of course understand that my position means that people can use the NFL as a platform to praise war criminals. How could I not. They do that almost every weekend. So if there are some people who think that praising war criminals does not go far enough and they want to use the NFL as a platform to praise policemen who execute suspects, not only before trial, but even before they can be placed in the squad car, be my guest. Make my day. Show the world where you stand on the issue of crime and punishment. I am not a supporter of privacy. Not only does the world have a right to know. You have a duty to tell them.

  9. Hugo,
    I hope that you did not think that I was implying that you would be such a person that would praise policemen who are guilty of unproffessional behavior.

  10. If the ARU contract had clauses that are in breach of the law then those clauses, and maybe the entire contract, is null and void.

  11. Would-be theocrats might profit from reading Augustine’s City of God, and his powerful antithesis of the earthly and the heavenly cities. For instance, XV.2: “In the earthly city, then, we find two things—its own obvious presence, and its symbolic presentation of the heavenly city. Now citizens are begotten to the earthly city by nature vitiated by sin, but to the heavenly city by grace freeing nature from sin..”
    “Symbolic” here is crucial. The best earthly city cannot fully instantiate the heavenly city, and by implication should not try. The early Church made a fateful mistake when it abandoned Augustine’s reading and joined the emperors in the theocratic folly.

    Augustine was however wrong (XVI.9) to pooh-pooh the wild speculation of the existence of the Antipodes on the other side of the Earth, where men have feet back to front. Not only does Australia exist, so do its politicians.

  12. Fully 100% of Australians agree that some speech – even political speech – should lead a person to lead to informal punishment outside the legal system. The perfect example of this is anti-semitism; if Israel Folau carved a swastika in his hair or something this would be reasonable grounds for his sacking. That’s because Jews are accepted as a people with the right to be treated reasonably, a right that is legitimate but often threatened and therefore one that requires extra special protections by ordinary people. It’s also due to the ordinary and normal attitude that people should be discouraged from behaving in an extreme way.
    We can also see this applied on other ideas outside the norm in other contexts; our political system is very reluctant to grant much time to left-wing ideas, and environmentalists and Greens are routinely beaten up, shot at, threatened and refused work and so on.
    The argument is simply that homophobia ought to be considered an extreme idea, with the corollary that gay people ought to be treated as people with rights and that insults to those rights be treated as extreme. Normal Australians basically accept this argument. Unfortunately we have a political system that is not capable of setting a limit on right-wing views and is not willing to consider any genuinely reformist left-wing view basically legitimate.

  13. Hugo

    when both sides have a lot of money, as was the case here, the cost of litigation is less of an incentive to settle the case. What’s more if one side is very confident of winning, it will also be confident that it will be awarded costs. But this case was new,or newish, law and probably neither side could have been all that confident about what the judge would say. The case was also a distraction for the ARU and it was in its best corporate interests for it to go away. Folau himself was doubtless convinced of the righteousness of his cause but I suspect his lawyers told him he could well lose in which case he would get nothing, as opposed to whatever he got in the settlement and, much more important, his cause would take a beating. This way, he walks away with some money and if anything he will be emboldened to preach away about how the bushfires are God’s retribution against the sinners who brought us same sex marriage marriage, or whatever else takes his fancy. I pity the poor journalists who will be sent by their editors to sit in Folau’s church every Sunday just in case he says something juicy in his sermon.

  14. Lt, Fred
    That is certianly an understandable reaction that if Israel Folau had carved a swastika in his hair he should be sacked. But I think that it is something that has to be educated against. If Australians or Americans ban the swastika or the stars and bars then the leaders of some countries will say look, your country has its red lines and we have our red lines and our red line is the rainbow flag, or the hammer and sycle.
    To me the red line has to be not how insulting a word or symbol is but how threatening it is. Of course the arguement could be raised that a swastika is very threatening. I would say it depends. A swawtika tatoo is a general threat. A swastika painted on the sidewalk or street in front of a jewish persons home is a specific threat. That should be punished.
    But this leads me to propose what part of a soulution could be to this nonsense of people spreading stupid ideas about other groups of people whether they be jews or gays or bahias or christian scientists, and not spreading the truth about stupid and or evil people who deserve to be punished. A first step towards a soulution is to make an eductional impact on children before they are 6 years old. Then make another emotional educational impact on children before they are 12 years old. Then make another emotional educational impact on children before they are 18 years old. These emotional educational impacts can not be left up to chance. If it is left up to the private sector it is left up to chance.
    That means mandatory government schooling for all children. Private schools should not be outlawed.
    But they must be regulated by the government. Schools not regulated by the government will certianly be outlawed. Also private schools can only operate at nights and or on weekends when government schools are closed. If children are really successfully indoctrinated with the golden rule, treat others as you wished to be treated yourself, many forms of bigotry will fade away.
    Anti semitism might be a two step process though. Because, anti semitic bigotry is driven not by the idea that jews are infirior but by the idea that jews are a threat to the rest of us. This is important. Nazis are criminally insane. But if they really believe that jews are a threat in their own mind they are not really breaking the golden rule because they think that they are defending themselves. Thier evidence of course does not hold up to scrutiny. But that is an issue seperate from treating others the way that you wish to be treated because that operates on the assumption that you are not committing a crime.
    But there is another problem that needs to be tackled to bring sanity to an insane world. That problem is news institutions that are gutters of sewage spewing forth Amazon size lies that distract and misinform masses of people who have never recieved a shred of credible training to be able to seperate facts from fiction.
    The power of these institutions and the institutions that sponsor them has to be broken if humanity is going to be able to rise out of the sesspool that it is wallowing in.
    One other thing to keep in mind is that organized religions are by and large not forces for good in the world. All religions need to be monitored by the Federal Constitution Protection Police. Privacy can go to hell. Privacy is the handmaiden of child molesters, and currency manipulators, war criminals and ciggarette manufactures.

  15. An important outcome of all this is that opposition to equal marriage has ceased to be regarded as a legitimate viewpoint on an important public issue. Rather, it’s a fringe position which is tolerated on free speech grounds, but which entails the loss of any public standing the speaker might have had.

  16. I would like to elaborate a bit futher about my comments from Dec. 5th 9:51.
    The reason that private schools can not be outlawed is that parents who are at odds with what a government is teaching their children deserve to have a chance to collectively try to counter thinking that they think may be destructive to the good order of society. It is important that niether the state nor parents have a monopoly on the rearing an education of children because history shows that both are capable of doing a really shitty job. History also shows that when one faction’s interpretattion of truth becomes dominate in a society this faction almost inevetiably begins to opress one way or another dissident factions, starting with the smallest and working their way upwards. I am not providing any citiations to prove that claim, either accept or not, be my guest.
    Let me take Germany as an example. I think that it is perfectly reasonable for the Bundes Verfassungsschutz (Constitutional Police) to send people undercover in to Islamic institutions to determine if such an institution is spreading hatred towards homosexuals. But it is not OK for them to interfer with fund raising for Islamic Extremists Jihadists who are fighting in the Middle East. Why, because homosexuals are not engaged in acts of aggression either in Germany or in the middle east.
    Islamic Extremists Fundamentalists however do have a right to defend thier homelands from outside interference and to fight for their beliefs with in their own societies. Yes those beliefs may be bigoted and barbaric by German standards but niether Germany, nor the USA, nor the west can claim universal jursidiction in supporting its own standards outside of its own terrritory.
    Therefore it is legitimate for the German government to limit the speech of Muslim fundamentalists in Germany in one of the cases above but not the other. This example also leads to a fascinating additional ethical subject. Not only that but by preventing a Muslim from spreading hatred towards homosexuals a person is actually helping them be a better Muslim, though such a person may not appreciate that at the time.
    In addition I would lke to contrast the spreading of fake Islamic ideas by Islamic insitutions with the spreading of fake news by western governments. Just as the BVS has a duty to protect homosexuals from attacks by bigots it also has a duty to protect the rest of us from attacks by our own governments on the integrity of the nations population.
    For example yesterday it was widely reported in many huge media organizations that “NATO agreed on a defensive plan for the Baltics to protect them form Russian agression”. That the Baltics are threatened by Russian aggression in the first place is a lie so big and so outrageous it is incredible to witness whole nations pretending with a straight face that this is factual news being reported rather than just a parody of news reporting. Any honest 8 year old child should be able to easily understand how stupid this claim is. They only have to look at the the comparative population and economic performance of Russia and compare that with the population and economic performance to NATO countries. If that is not easy enough they only have to know that both sides are armed with large numbers of nuclear weapons which make the outbreak of conventional military hostilities in the Baltics absurd.
    That such a huge lie is deliberately spread can not be without a good reason for those that take part in spreading it. For the rest of us it is a terrible reason. This event is clear evidence of the exsistance of a continuing criminal enterprise running the affairs of European countries. For a person not to understand that they would have to have their head really far up their ass.
    That the affairs of European countries are run by a continuing criminal enterprise has implications. First of all it justifies vigilantee law enforcement activities because their is no longer any legitimate authority that a person can turn to for a redress of grievences. Second of all it justifies remvoving the ownership and the management from all of the insititutions that have unwaveringly supported the dissemination of lies put forth by the continuing criminal enterprise that is in control of western governments.
    My next post will discuss some related issues.

  17. This post deals with conflcit and neutrality. The US military industrial complex supported by its government and the governments of allied countires is engaged in a war of aggression against the entire planet. That has an implication that is never talked about.
    It is that anyone who kills a US or even a NATO soldier is perfectly justified in doing so. Such a person is clearly not a terrorist. They are a legal combantant. Furthermore because the US has killed thousands if not tens of thousands if not hundreds of thousands of civilians while waging its war of aggression against the planet murderous attacks on the civiiian populations of the US, NATO countries, and other US allies including Australia are perfectly understandable.
    This also has an implication. Those who carry out such attacks for political reasons are entitled to the treatment of POWs. That has implications as well. It means that they can be put in prison with out a trial. It also means that they can be held as long as the war is ongoing. It also means that they must be held in humane conditions. That means contact with the outside world. It means no solitary confimement. It also means of course no torture.
    When the US MIC and its allies start waging war with pistols, knives, and sniper rifles only then can it claim that it is trying to avoid civiilan casualties. The current tactics of the US MIC continuing criminal enterprise are simply an effort to avoid casualties to its own mercinaries to avoid recruiting shortages.
    Staying out of other countries civil wars is a very important principle, though not one without exceptions.
    The US has totally abused the priniple of exceptions.
    That bring me to my next point. Perhaps I should not make it because it does not directly concern the population of Australia or New Zealand. But since it does not cost me anything I am going to make it anyways. That is even if the Russian did hijack the US election in 2016 and get Trump elected to the presidency no one has a right to say jack shit about it. Every nation in the world at this point has a right to interfer in the US election process.
    A reader might say, but wait Curt does that not contradict the golden rule? My answer is that in this case the Platinum Rule applies not the Golden Rule. The platinum rule is treat others the way that you see them treating others. The platinum rule is a rule that allows for the enforcement of the Golden Rule.
    An implication of that is that because Australia is a loyal US ally I am justified in trying to incite sedition in Australia.

  18. Another comment on the duplicity of the press. Millions of people have heard that two US confederates Danielle Stella and John Buck have called for Ilhan Omar to be tried for treason and hung. But not one press agency has reported that I have called for the confederates Stella and Buck to tried for treason and hung. Such utterances only serve to either appall the listener or to excite them depending upon their point of view. But the fact that the trial and exection of Omar can become a point of discussion while the trial and execution of her accusers can not show that left is engaged in a stacked game when it comes to playing in the capitalist arena.
    It is more justification for vigilantee action. But while above I said that killing US and NATO soildiers was justifiable it is clearly not a winnable strategy. A potentially winnable strategy is getting them to understand that they have been duped in to fighting a phoney enemy abroad while the real enemy devestates their famiies at home. Why has the US not won the wars that they are enaged in. Because these wars are designed to go on and on to keep the type of people who could potentially cause trouble on the home front busy overseas, if not in body then at least in mind, so that they do not see where the real enemies live.

  19. “both parties have a powerful incentive to settle out of court, that being the horrendous cost of litigation. Literally 98% of fair work cases settle out of court”

    But the settlement terms reflect the prospects if it does go to court. The 2% where it goes to court usually only happens when one side is angry (ie irrational) or has overestimated their prospects – rather like countries who go to war. Of course like countries litigants play brinkmanship games which means settlement is generally last minute.

    From a public policy POV, non-disclosure clauses of the settlement are much more damaging. This denies information to future prospective litigants and so makes misjudgements more likely.

  20. very interesting comment about non disclosure. Fits in with my perception that the idea that people have a right to privacy belongs in hell.

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