The Misguided Faith in Legislated Religious Freedoms

Talking on the subject of toleration, one day when some friends were with him in his study, he made his usual remark, that the State has a right to regulate the religion of the people, who are the children of the State. A clergyman having readily acquiesced in this, Johnson, who loved discussion, observed, “But, Sir, you must go round to other States than our own. You do not know what a Bramin has to say for himself. In short, Sir, I have got no further than this: Every man has a right to utter what he thinks truth, and every other man has a right to knock him down for it. Martyrdom is the test.”        —James Boswell, Life of Johnson

It will help you in understanding my arguments, I think, if I tell you a little about myself.

I’m not a churchman. I’m not sure there are churchmen any more, except those who inhabit old J. Arthur Rank films or Dorothy L. Sayers stories. I’m certainly not a theologian either, though I know they are still around, or were until recently at least, because I saw so many of them relentlessly spruiking homosexual “marriage” on the ABC before the postal vote.

However, I have been admitted to membership of the Christian Church. The sacrament of baptism was administered to me by Father Keith at the beginning of last year in a ceremony described in the Book of Common Prayer as one “for those of riper years”. That’s me.

This essay appears in December’s Quadrant.
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I have read the Bible, both Testaments, not all the Books seriatim, don’t get me wrong, but I know who the major and the minor prophets are and I know what is meant by Jesus being the root of Jesse and I know that the Assyrians invaded Israel a century or so before Nebuchadnezzar and that it was Chaldeans who carried Judah away into captivity. I know that Hannah was Samuel’s mother and what she asked God for in that song she sang to Him, that Stephen was the first martyr and I know which of the apostles is the best candidate to be Jesus’s brother and why. How am I doing?

I think I know how I am expected to behave and refrain from behaving now that I have made this claim to be a Christian. The essentials are not hard to discern. The world I grew up in gave me the chance to learn about them.

I drank in the history and the magnificence of our Anglo-Saxon version of Christianity with every episode of Robin Hood on our black-and-white tele­vision; Tales of the Early Martyrs was in my primary school library, and so was a colourfully illustrated edition of Bede’s Ecclesiastical History of England. Religiously literate Hollywood films like Ben Hur and Quo Vadis and The Song of Bernadette were our staple Easter entertainment. I remember that the epilogue on Channel Nine at twelve o’clock each night gave me my first regular experience of the glories of religious art and the sounds of masses and requiems. All of us knew by Grade 7 what claiming sanctuary in a church entailed and (in half-intuited form) the nature of the life to which a nun was dedicate. I had aunties and uncles who went to church or convened it in their own home. Schoolmates went to confirmation classes and some took their faith very seriously. I was proselytised by more than one. A Christian heaven did indeed lie about me, and not just in my infancy.

When I became a man I came to see how the Christian faith of the West infused every aspect and was actually constitutive of its institutional and cultural grundnorms. I am not seeking here to persuade anyone about this. I am saying that to me it is plain.

So while I see myself now as a Christian believer, or adherent, I am also a denizen of a land with an incontestable specifically Christian heritage. I am a Christian by choice but one also by virtue of simply being an insider here, in my own land, among my own people.

Then why do I feel as if I am living in exile?

Let me answer that plainly: I say that the political, educational, cultural and media ascendancies in Australia, as elsewhere in the West to a greater or lesser degree, have set out deliberately in the last half-century to make our own land uninhabitable to practising Christians or even to those who merely wish the Christian character of their polity and culture to subsist (one might refer to the last group as auxiliary Christians).

I say uninhabitable because I can’t read a newspaper or watch the television or visit the cinema or ride a bus or walk the dog or enter a store or pay for a licence or listen to Parliament or visit a school or a gallery or prison or enter a courtroom or call the police or speak to my neighbour without confronting the unutterable vulgarity and conceit of this malign post-Christian dispensation.

I am settled in my own mind and heart now, after a long time, that I know the honourable response this despoliation of my Christian heritage requires of me. All Christians and many auxiliaries will have to confront that same question, and soon I think.

Gaetano Carcarello wrote poignantly about the choice he has been obliged to make as a teacher and father in October’s Quadrant in his article “Our Flight into Egypt”.

I intend to explain here why my own response will not include joining in the agitation for Parliament to legislate to protect our religious freedoms. I know that many good men and women consider it their duty to do this. But they are mistaken. They will end up more dispirited and vulnerable to persecution than they are now. If I do help them in any way it will only be for friendship’s sake because the whole enterprise is futile.

I will tell you why I say that.

Protecting statements of religious belief

We should never fight a battle on the enemy’s terms, especially in times as desperate as these. The greater part of the wan and disingenuous Bill the Liberals are putting up is a feeble gesture at muzzling the firepower that human rights/anti-discrimination tribunals have been given by the states and the Commonwealth over the last half-century. That firepower has now been turned on Christians, as Liberals were told it would be, following the desecration of the Marriage Act they facilitated.

The draft Bill announces that statements of religious belief will not hereafter constitute discrimination. But before the advent of the era of human rights tribunals who would ever have imagined that they could?

The Bill specifically over-rides only a single aspect of the power these tribunals have and then only in a single state.

In Tasmania an archbishop and street-corner evangelists expounding orthodox biblical teaching about homosexuality have been thrown into the Kafkaesque anti-discrimination system by activists who said they were, inter alia, offended or ridiculed, or insulted by their speech. This kind of definition of the threshold subjective state of mind of the complainant required to launch an action is common to all of the various anti-discrimination laws of the states and the Commonwealth.

The suggestion is that the specific Tasmanian provision be over-ridden. Similar provisions in the other states are not. Instead the Bill purports to protect someone making a statement about religion in those states by saying that such a statement will not constitute discrimination under any of their Acts.

But in reality it protects no one. It will still allow exactly the same processes to be invoked against you if the complainant says that, instead of being offended he or she was harassed or vilified, or that the words used about them were likely to incite hatred. I have learned from my time in court that very often those who resort to the human-rights complex to seek relief from their experience of the world have a very low toleration of what they perceive to be disapproval; they will have little difficulty in transforming an offensive psychological experience into one where they are convinced they suffered vilification. Financial incentives are obviously salient here too.

Worse, statements of religious belief are very narrowly defined. Before claiming any immunity from action, Christians are required to prove that they spoke “in good faith” and that what they said is “reasonably regarded” as “being in accordance” with “the doctrines of their faith” and that the belief is actually “held” by them in “good faith”. The latter means it will not be enough to assert a belief; you will have to persuade a state official that you are sincere in expressing views about which that person may be—often will be—incredulous.

No sixteenth-century catechumen was ever held to a more rigorous standard by their minister or priest. And their examiners at least shared their faith.

So the persecution of Christians who preach or speak or post about sexual sin will be authorised to continue in all of the states, with gay (and invariably it is gay) abandon. Scott Morrison and Christian Porter must be taken to be quite sanguine about that. Their Bill pretends to protect statements of religious belief but does nothing of the kind. They could have ensured it did by proposing a Commonwealth law otherwise providing, for example, that an action lay only in respect of speech intending or likely to incite violence. They were asked to do that. There was no impediment to them doing that. They have deliberately not done that.

And, of course, the power to determine whether the complainant was indeed vilified or harassed or whether the religious statement definition is satisfied—what the words used actually mean—is left in the hands of the very last category of persons who ought to be given it, namely members of tribunals. How often are the appointees to such tribunals mere party hacks or activists who are unfamiliar, sometimes even hostile, to common-law traditions? How many are simply unlettered, secular and superannuated public servants?

An appeal to a properly constituted court, obliged to act judicially, is still possible, but only if the poor soul who spoke his mind can still afford to pay the legal fees involved after he or she has been churned through the tribunal system. More importantly, it still leaves them at the mercy of a state official invested with the power to say whether a believer’s utterances about their faith will be punished or suppressed. In most cases, even where, as in Eatock v Bolt 2011 FCA 1103 the outcome is perverse, real judges carry out a more sophisticated adjudication, but it is the very process of adjudicating our speech that is the evil here. How did we become so pusillanimous as to have ever accepted it?

The law of defamation was constructed over several centuries by judges schooled deep in disciplines other than the law. There is a reason why cases of libel and slander have always attracted the cleverest and most respected (and expensive) of counsel; think of Sir Edward Carson KC. Defamation law is a dense but scrupulously curated forest of meaning and nuance, imputation and qualification. Damage to reputation caused by someone else’s speech must have a remedy, said the common law, but it will be very cautiously dispensed.

Statements of belief, especially about holy matters and deep convictions, are precious and sometimes volatile things. Yet state and federal laws now invest mere administrative tribunals with the power to punish the free men and women of a formerly Christian nation who choose to speak about the matters that are most important to them. The exquisitely calibrated balances of the law of defamation are abandoned when the notion of human rights is deployed; the protection of reputation on the one hand and free expression on the other ceases to be of any interest to the law. It is all about protecting these “rights” that the degraded parliaments of the last half-century have invented.

A Religious Freedom Act to protect us when we are talking about our faith would become unnecessary the moment these human-rights tribunals were abolished. Our freedom of speech when guarded by the common law was always a residual right and that was its strength. We simply exercised the right to speak our mind in our Christian commonwealths. If we said something criminal—if we sought to incite armed rebellion or the burning down of our neighbour’s home—the law dealt with us severely. The remedy of criminal libel was available in the event of serious and deliberate reputational assault.

Christians and their auxiliaries should have been agitating for the abolition of these human-rights tribunals a long time ago. We have now paid the price for our passivity. They have been the Left’s fifth column against faith for decades. They are a political rather than a legal phenomenon and will be abolished only by Christians finding the political resolve to do so, one which must be part of a radical recovery of Christian fortitude. The chilling effect on our willingness to contribute to public discussion created by the threat of activist persecution-by-tribunal, and the amplification of it by their legion of barrackers in the ABC leviathan, has intensified following the Marriage Act events. Resort to these tribunals remains a major part of the Left’s counter-insurgency strategy.

Parleying with the Liberals (whom we must always remember opened up the gates and invited the desecrators into the citadel in 2017) about the terms upon which these tribunals will be permitted to continue to silence us is no honourable way to behave. The Religious Discrimination Bill signifies the continuation of a phoney war. Its enactment would do nothing to protect Christian speech, as I have demonstrated. Further engagement in this distraction will dispirit and confound those among us, especially the young, who are ready for real resistance. I will suggest what real resistance might look like in my conclusion.

Doctors who don’t want to abort babies

I have started with the Bill’s purported attempts to shield Christians from the ordinary operation of Australian anti-discrimination laws. We have seen that people who make religious statements remain completely vulnerable.

What about doctors and nurses who won’t participate in abortions? Are they protected if hospitals or medical clinics (or the health commissions that control and fund them) direct that they can’t refuse to kill a foetus or be a participant in the killing? This is not hypothetical, and it is likely to arise much more often now that daemonic-wave feminism insists on total intolerance of dissent and as state parliaments knowingly erase the line between abortion and infanticide.

The short answer is that the proponents of this Bill run away from this issue just as politicians—male politicians especially; Liberal male politicians especially—have always run away from it. The Bill gives zero protection to those who conscientiously object to killing.

We are now in the realm of employer conduct rules, what employers can tell their staff they must do. If the conduct is an “inherent” requirement of the work, the employee has to do it. Is aborting babies an inherent requirement of working in a maternity hospital in 2019? What do you think? Or more relevantly, what do you think a tribunal member will think?

The Bill also says, with notable half-heartedness, that if the requirement is not inherent the rule will still bind the employee if it is “reasonable” and then provides some illusory criteria for determining what “reasonable” means. Why could it not just have protected conscientious objections directly and in plain language? There is a promising heading inserted in the Draft at this point that reads: “Conditions that are not reasonable relating to conscientious objections by health practitioners”. But here is what appears immediately thereunder:

if a law of a State or Territory allows a health practitioner to conscientiously object to providing a health service because of a religious belief or activity held or engaged in by the health practitioner, a health practitioner conduct rule that is not consistent with that law is not reasonable.

This is the Commonwealth telling us that they hope that the states will have the courage to do what they could do but won’t do. If the states don’t protect the recusant doctors and nurses in the abortion wards (or in the euthanasia wards just down the track), though, how will this Bill help them?

It won’t help them at all. It says this: that an employer conduct rule imposed on a doctor or a nurse at work will not be reasonable “unless complying with it is necessary to avoid an unjustifiable adverse impact on the health” of those they are treating at the hospital or clinic.

You know as well as I do the world of pretext this kind of grammar betokens. We are very familiar with it. The purpose of it is to enable the state’s perpetual accommodation of the bad choices of its citizens, and I mean by that both poor choices and morally wrong choices. Far from protecting conscientious objection in the workplace it aims to eliminate from it the exercise of any form of moral judgment. It is this kind of language that has elicited industrial-scale abortion in our hospitals. It is the same language that has emptied classrooms of liberating discipline and courtrooms of condign punishment. Its sudden appearance in school textbooks was the subject of The Abolition of Man by C. S. Lewis seventy-five years ago.

I say that in his heart the Attorney-General knows this. His government has no intention of permitting practising Christians to sabotage the secular and feminist ascendancy in public health or in anything else. Section 109 of the Commonwealth Constitution gives him all the power he needs to provide real protection to religious adherents (that is the section which says that where state and federal laws conflict the latter prevail). He need only express himself with honesty and clarity in his Bill.

We must accept that he never intends to do that. This Bill has given good people false hope. Read it for yourself. Then sound an alarm.

Codes of conduct

Israel Folau, the international rugby player, was sacked by the administrators who control the sport because he quoted from the Apostle Paul’s letter to the Galatians, 5:19–21, in public. The quotation was a fair if modern-demotic rendering of the Koine Greek and properly included a reference to homosexual sin, along with many other varieties; he wasn’t using the language of the King James Version but when the latter translates those verses and speaks of uncleanness, adultery and lasciviousness, the intention was to encompass all unnatural vices including the love which apparently (vide sundry Sydney Morning Herald articles at the time) dare not have its name translated. The contention that homosexuality is not one of the “works of the flesh” Paul is writing about is plainly wrong and another example of Generation Woke’s remarkably conceited sense of its own exceptionalism.

Folau did this well away from his sport and in furtherance of pastoral duties in his church but nevertheless was held to have breached the speech-suppressing code the rugby union board believed they had imposed on him.

The authors of the Bill must of course pretend to address this sudden and pernicious development in employment law—that is, that our bosses are entitled to sack us for disagreeing with their opinions even when we are away from work—or otherwise their Bill will be seen as fraud, as nothing more than a posture adopted only for so long as Israel Folau remains a cause célèbre.

So the law they are proposing says that any employer conduct rule that prevents or restricts you from talking about your religious belief while not performing your work is to be regarded as not reasonable and therefore discriminatory. But the operation of that provision is then restricted in ways that mean it will never be any use to any of us. This is achieved by:

# providing that the protection won’t be available if what we say is likely to harass, vilify or incite hatred or violence; we are back again at the mercy of the agitator’s charter: will he silence us by taking us to a tribunal to punish us for eliciting his subjective response to our speech?

# allowing the employer to silence us in any event if that is necessary for him to avoid “unjustified financial hardship”;

# limiting its operation to employers with revenues of more than $50 million;

# depriving all public servants, state and federal, of the benefit of the provision.

This sham “protection” is unworthy of further analysis. Why do they mock poor Christians thus?

The Act would be an instrument of oppression, not protection

This is the most fundamental objection. A Commonwealth Act enlarging the powers of the Human Rights Commission to include the investigation of religious discrimination will provide presently unavailable opportunities for the non-Christian religious minority (and atheists) to complain about the Christian religious majority and occasion them grief, mischief and loss.

Sex Discrimination Acts have, overwhelmingly, been used by women against men. Racial Discrimination Acts—we must not be coy about this—generally, but still clearly, bring whites into the tribunals at the behest of non-whites. I am not suggesting the absence of a degree of inevitability about some aspects of this feature of the anti-discrimination industry; we are not surprised that disability discrimination targets the able-bodied respondent, for example. But it will almost always be Christians who are brought to tribunals to face the claims of members of other religions under this law; Christians will rarely be plaintiff.

It can be a daunting experience going before these tribunals. What passes for jurisprudence in this field of law has established its own esoteric procedures. A claimant for unfavourable treatment must demonstrate that he or she was treated differently than a “comparator” who must be conjured up from the legislation. If the respondent hasn’t capitulated in the investigative phase conducted by the commission then one of the federal courts can be asked to hear the case. Costs orders do not always follow if a hopeless claim is dismissed.

Senator Hanson is right to say that Muslims are likely to be the principal beneficiaries. That has been the British and continental experience of religion as a ground of complaint. Islam has shown a disposition to apprehend unfavourable treatment in the most benign and natural expressions of our own cultural preferences; their customary civil law and their treatment of women and their slaughter of animals—those issues which most account for their culture’s general inconsonance with ours—will be the very matters they will contend are the occasion for our discriminatory treatment of their religion.

The effect of this will be magnified by the Man Haron Monis syndrome that pervades our legal system. I will explain what I mean by that. Christians seeking justice in our legal system must understand how far away from its reason-for-being that system has wandered.

Only a year or two before he killed two people in Martin Place the conviction of this wretched and vicious narcissist in New South Wales on charges arising from his use of the postal and telegraphic services to send cruel messages to the grieving families of Australian soldiers killed in action in the war against Islamic terrorism was upheld in the High Court; but because only six out of the seven judges who would usually be required to hear such a case were available, the consequent three-to-three tie meant his appeal had to be dismissed. It thus may have succeeded but for the unusual circumstance of a single judge’s absence. The ground of his appeal in the High Court was that the New South Wales legislation under which he was convicted breached the implied freedom of political communication discovered by the High Court in the Australian Constitution twenty years previously.

Three judges thought that the law required Monis’s convictions to be set aside. Laws punishing his conduct in tormenting the grieving parents of our dead soldiers must be disallowed, they said, as being inconsistent with this judicially-invented implied freedom. The three included the Chief Justice.

Of course this is the same implied freedom that the High Court decided in April 2019 (seven to nil this time) was not breached by Victorian legislation criminalising respectful (and usually silent) Christian protesting within a 150-metre radius of abortion clinics.

Heydon J in the High Court described some of the communications before the court in Monis’s case thus:

One of the communications, for example, is couched in unctuous expressions of regret for the “difficult time” through which the parents are passing, “condolences for the loss of your son” and statements like “May God grant you patience and guide us all to the right path.” But it calls the son a murderer of civilians. It expresses sympathy to his parents, but not to him. It compares the son to a pig and to a dirty animal. It calls the son’s body “contaminated”. It refers to it as “the dirty body of a pig”. It describes Hitler as not inferior to the son in moral merit.

Monis was represented in the High Court by very experienced counsel; he never had trouble, it seemed, in securing such representation one way or another in all of his court appearances including those relating to many serious assaults upon women and charges of being an accessory to the murder of his ex-wife. The cost to the public of the intervention of so many state Attorneys-General in his High Court matter was perverse. While he had been granted political asylum a decade before without needing to have recourse to courts (itself a ridiculous decision) who can seriously doubt that this self-publicising Islamist would have been able to access the same high-end publicly-funded or pro bono legal resources as tens of thousands of other beneficiaries of the infeasible procedures for refugee claims demanded by the High Court during the first decade of this century?

Muslims were not the only ostensible refugees who arrived in this era of unrestrained judicial review of executive action, but they were the most numerous and their ranks included the most deadly. There is, too, it must be said, a studied cultural conceitedness that many Muslims bring with their religion which makes them peculiarly adept at promoting grievance and extracting compensation and concessions from their host nation, especially when they are permitted to arrive in high numbers. Any mind open to evidence sees that this is the plain and incontrovertible record of the experience of all Western countries in recent decades.

My point about the Monis case is that a legal system that in its most august temple facilitated, with the assistance of its most senior practitioners, the acceptance of such highly-contestable constitutional propositions in support of the unmeritorious appeal of a madman with foreign allegiance, is dangerously disoriented. We must not place any trust in it.

It is also, therefore, acutely vulnerable to being scammed and mined at will by the unassimilable Islamists and hostile activist atheists among us (the proposed law describes atheism in terms of a religion). Both groups will have Christians as their targets.

Why then allow this Religious Freedom Act to gift these folk newly-minted grounds to go after us? If I have already demonstrated that there are no gains for us to balance up against these added dangers, why would we even consider permitting this bill to be enacted?

That is the practical case for eschewing this proposed law, but a more important question for me is this: How should a Christian (or his auxiliary neighbour) respond with honour to the frenzied dismantling of the society his faith inspired that is going on all around him?

I just don’t accept that joining in a campaign to try to water down all the things that are poisoning our faith will ever be a satisfactory response; not when are living in a land that each day more closely resembles that in which the Levite and his concubine sojourned.

If we are honest we know that the Church’s worst enemies are inside its walls, not assailing it from without. We have brought this scorn and defiance, slight regard and contempt of the modern world upon ourselves. How? By relentless accommodation of secularist demands; by taking their money to carry out their misconceived social welfare programs on their terms (the Lutherans and Salvation Army the earliest examples but not the worst; the Uniting Church now being merely the Heroin Injection Room at prayer); by operating our schools with a manifestly tepid commitment to proclaiming the articles of our faith to the students who attend them; by permitting our bishops and pastors to respond to the total war waged upon public standards of decency and modesty and restraint in sexual matters with pusillanimity or, worse, by allowing only the most liberal and worldly of them to speak for us; and by acquiescing, in the 1960s and 1970s particularly, in the homosexualisation of seminaries, with Catholics and Anglicans equally guilty here.

Paradoxically, the one truth that is never told about the modern phenomenon of clerical sexual abuse is the most salient one—that it is overwhelmingly homosexual in provenance and incidence. So many young people damaged, so many millions of dollars given in compensation, so many enemies of the Christian faith energised and armed, so many court cases and royal commissions, yet this important truth is never acknowledged at synods or conclaves or conferences.

There are a thousand other instances of Christians being co-opted into the modern world’s projects and enthusiasms that we could bring to mind. Liturgy and doctrine have been coarsened and hollowed, for example, when it was the broadening of the appeal of the church to the modern temperament that was being attempted.

Tertullian said 1900 years ago that the blood of the martyrs is the seed of the Church. It was inevitable that I would reprise the expression before concluding.

Not a lot of our blood is being spilled here in the West, not yet. It has never ceased to flow of course in some parts of the world. Martyrdom in one form or another is a natural incident of faith in Nigeria and Egypt and Pakistan and China. As they suffer, Christians there would not be assuming we will be a refuge of last resort for them as they see our nation’s de-Christianisation accelerate; indeed they may well be wondering whether we too are looking anxiously about us for escape routes.

I have explained why I believe that our present parleying for false promises from the state will not help us. There does come a point when it is too late to fight. Sometimes it is reached without our knowing it.

As the protagonist in Michel Houellebecq’s Submission says to his young Jewish mistress when she announces she is fleeing France with her parents: “Where is my Israel?”

Stuart Lindsay is a retired Federal Circuit Court Judge. His most recent article for Quadrant was “An Afternoon with Anne Marie Waters” in the October issue.