The Intolerance of Religious Tolerance Laws

The Intolerance of Religious Tolerance Laws:
A Critical Analysis of the Postmodern Foundations of Religious Vilification Laws in Australia  

By Augusto Zimmermann

To speak of the intolerance of religious tolerance laws may seem as meaningless as to talk about the blackness of white or the hotness of cold.^[1] However, it seems to me that these laws may not promote the level of tolerance their advocates aspire for. Instead, they may generate a more litigious society by allowing religionists to use the court system to silence criticism of their religious beliefs.

Anti-vilification laws such as the Victorian Racial and Religious Tolerance Act (2001) (hereafter “Victorian RRTA”) have become a permanent invitation to fundamentalists to avoid debate of their beliefs by claiming that they, rather than their beliefs, have been attacked. Ironically, the more a religion warrants debate and discussion, the more protection such religion appears to receive from this kind of legislation.

Tolerance: Old and New

In the Oxford English Dictionary the verb “to tolerate” means “to endure, sustain (pain or hardship)”. One is tolerant if he or she, while perhaps holding strong convictions, insists that others must have the right to dissent and to argue their cases freely. This meaning of tolerance implies that objective truth exists and can be known, although the best way to achieve truth is by means of a spirit of mutual understanding and open-mindedness; for whilst objective truth might eventually be discovered, the wisest and least malignant course of action is always a “benign tolerance” grounded in intellectual modesty that recognises our own human limitations. ^[2] Since our Western traditions consider that truths can be known, freedom of speech is therefore approached as an important mechanism by which truth can be attained and falsehood can be eliminated.

However, given the cultural relativism of our time, the old meaning of tolerance is becoming obsolete and it is being replaced by a new approach, which denies the attainment of the absolute truth. To be “tolerant”, therefore, no longer implies a certain attitude of intellectual modesty in which one learns through trial and error. On the contrary, this “new tolerance” now operates under a postmodern assumption that “truth” is subjective and all beliefs have equal validity. We have moved away from a culture of free expression of contrary opinions to the acceptance of all opinions. Accordingly, it is morally wrong to claim that there might be only one possible truth.^[3] The new approach changes the meaning of tolerance from an attitude of permitting the articulation of beliefs that we may not agree with, to asserting that all beliefs and claims are equally valid. As result of such remarkable transformation, D.A. Carson in The Intolerance of Tolerance (2012) observes:

Intolerance is no longer a refusal to allow contrary opinions to say their piece in public, but must be understood to be any questioning or contradicting the view that all opinions are equal in value, that all worldviews have equal worth, that all stances are equally valid. To question such postmodern axioms is by definition intolerant. For such questioning there is no tolerance whatsoever, for it is classed as intolerance and must therefore be condemned. It has become the supreme vice.^[4]

The “new tolerance” decrees that all values and beliefs are positions worthy of respect. One may ask if this should apply for Nazism, Stalinism or cannibalism. Whereas the “old tolerance” proclaimed objective standards of truth, the “new tolerance” argues from a morally relativistic perspective in which no values and beliefs should be challenged. Thus the meaning of “tolerance” implies a psychological attitude that conveys not only a sense of identity or empathy but the tacit consent with all values and beliefs.[5] In sum, desperate straits are no longer required for an individual to claim the emotional status of being a victim of “intolerance”, because all that is required is often “the vaguest notion of emotional distaste at what another has said, done, proposed, or presented”. [6]

In short, the old link between tolerance and judgment has been lost due to our cultural obsession with being non-judgmental.[7] When the meaning of tolerance can be distorted to such an extent that it now signifies the impossibility of making reasonable judgment, one may conclude that “tolerance” has ceased to be a real virtue to become what Frank Furedi calls “the superficial signifier of acceptance of affirmation of anyone and everyone”.[8] Of course, real or authentic tolerance has a completely different meaning. It demands an attitude of critical reflection, personal restraint, and the respect for the right of other individuals to find their own way and their own truth. This so being, Furedi correctly points out:

The most troubling consequence of the rhetorical transformation of this term has been its disassociation from discrimination and judgment. When tolerance acquires the status of a default response connoting approval, people are protected from troubling themselves with the challenge of engaging with moral dilemmas.[9]

The Irrelevance of Truth

Three Australian states have introduced legislation aiming to support “religious tolerance”: Queensland[10], Tasmania[11] and Victoria. These laws are sufficiently similar so as to merit the discussion of one to encompass all. The 2001 Victorian RRTA will be taken as representative.

The Victorian RRTA applies to religious beliefs the same formulations often applied to racial issues. Of course, religion, unlike race, is not an immutable genetic characteristic. One should expect that the laws of democratic societies would be much less prepared to protect criticism based on voluntary life choices compared to unchangeable attributes of a person’s birth.[12] If people cannot choose the colour of their skin, religion is, to some degree at least, a matter of personal choice. In contrast to racial issues, where one finds no ultimate questions of “true” or “false”, religion involves ultimate claims to truth and error that are not mirrored in racial discourse.[13]

The Victorian RRTA states that, in determining who may have committed vilification, “it is irrelevant whether or not the person who has made an assumption about the race or religious belief or activity of another person or class of persons, was incorrect at the time that the contravention is alleged to have taken place”.[14] Once a complaint is filed, rather than staying with the person who claims to be offended, the burden of proof is inverted and it rests upon the person who has been accused. Those charged under the legislation must prove that they have not committed any such crime, or why they may qualify for any exemptions under the legislation.[15] Meanwhile, the accused bears all legal costs, while the applicant may rely upon the backing of the state, with all costs borne by the taxpayers’. Naturally, this may cause a chilling effect on people who must think twice before making any comment, because of fear of litigation and its risk of financial ruin, jail, collegial ostracism, or embarrassment.[16]

The motivation for “religious vilification” is irrelevant for the purposes of the legislation.[17] Indeed, the law explicitly states that it is irrelevant whether the statement leading to vilification is actually true. In other words, a person may be guilty of vilification “by conduct which has the effect of inciting religious hatred even where the inciter had no intention to do so”.[18] Such is the situation that unless the person falls within the exceptions of “good faith”—art, academic, religion, science, or public interest—a person is restricted in the manner in which they may express themselves. This creates an elitist distinction by which more “eloquent” forms of expression are protected whilst all the others are restricted.[19] This law therefore is anti-democratic because it supports the conception of two-tiered speech by which only the so-called disinterested “experts” or more ‘special individuals” are able to pursue ideas freely but the “irrational masses” are restrained. Cardinal George Pell criticises such an anomaly:

Citizens rightly resent any attempt to limit their free speech more than the free speech of their “betters”. It is quite unfair that the deliberate conduct of the artist or the politician is exempted but the clumsy contribution of the less educated is made criminal. If any serious movement for racial and religious persecution were to gain momentum, then no doubt it would have been led and nourished by certain misguided politicians, academics and artists.[20]

The Victorian legislation states that the truth may not be used as a legal defence against charges of religious vilification.^[21] Why would this be so? After all, the truth has always amounted to a fundamental element of defence in defamation cases, and so it should be. The answer seems to lie in the postmodern underpinnings of religious tolerance laws. According to postmodern theory, “truth” is socially constructed and so it is possible to conclude that one is “morally wrong” just for criticising someone else’s beliefs, whatever such beliefs might be. Rather, it is the criticism itself that deserves criticism, because if one agrees with the postmodern premise that truth is always relative, then it is not difficult to assume that it is indeed quite “intolerant” to criticise someone’s values and beliefs. In sum, if truth is relative to each individual and social context then, according to the postmodernist literary theorist Stanley Fish, there is “no such thing as free speech” which validates the criticism of another person’s values and beliefs.[22]

This perhaps explains why anti-discrimination laws may consider that the truth of a statement cannot be relied on as a defence against charges of vilification. These laws are sceptical of objective truth, religious or otherwise. This may mean that these laws are not really taking religious statements seriously.[23] As law professor Carl Esbeck explains, “one who has never disagreed with others about religion is not … commendably tolerant, but is treating religious difference as trivial, as if religious beliefs do not matter. That is just a soft form of religious bigotry.”^[24] Of course, atheists often would think that religion does not ultimately matter. Curiously, then, all the major postmodern philosophers have been atheists, including Foucault, Derrida,^[25] Lyotard, Bataille, Barthes, Baudrillard, Macherey, Deleuze, Guattari and Lacan^[26]. Alister McGrath speaks of the intimate relationship between postmodernism and atheism:

Many postmodern writers are, after all, atheist (at least in the sense of not actively believing in God). The very idea of deconstruction seems to suggest that the idea of God ought to be eliminated from Western culture as a power play on the part of churches and others with vested interests in its survival.^[27]

Postmodern philosophy states that what one takes for religious truth is no more than a Christian perspective, a Jewish perspective, a Muslim perspective, a Hindu perspective, and so forth. Each of these religious “perspectives” is equally valid so that any claim to “truth” should be dismissed as naive at best, and deceptive at worse, in such case as an attempt to “impose” one’s religious perspective upon others. Such premise which reduces religion to a private preference has been filtered down from academy to our “un-enlightened” legislators, many of whom having embraced the postmodern premise that we must tolerate all religions because no one religion can be true.^[28] These legislators have therefore accepted the denial of religious truth, meaning that they perceive all religious claims as no more than personal preferences, rather than universal values or standards of truth.

Sharia law by stealth?

One common argument against vilification laws is that legislation of this kind can be exploited by some people in order to secure immunity from public scrutiny of their beliefs. This concern may be proven correct when one considers what took place in the Catch the Fire case in Victoria, an episode which illustrates the full potential abuse of these laws by people who are reluctant to endure any criticism of their religious beliefs.[29] The desire to shelter any religious group from public scrutiny should be of great concern to every citizen, including those of no religious persuasion. After all, it is not really clear why free speech should be restricted by the inflated sensitivities of any religious group. And yet, anti-vilification laws appear to ultimately serve as a sort of Islamic blasphemy law by stealth; a suspicion that is deeply reinforced when one considers that the Victorian RRTA was enacted at the insistence of the influential Islamic Council of Victoria.

Ayaan Hirsi Ali has said that Islam is a totalitarian religion and that many Muslims believe that blasphemers deserve punishment.[30] Whether this is true or not, the fact is that across the Islamic world accusations of insulting “the prophet” are systematically used to send people to jail and to justify death threats, beatings and assassination.[31] According to Hirsi Ali, “there is unanimity among the [Islamic] lawyers that anyone who blasphemes against Muhammad is to be put to death, although how the execution is to be carried out varies from one person to another”.[32] Hence, in The Price of Freedom Denied, Brian J. Grim and Roger Finke explain that in countries where Islam is the majority religion, “religious persecution is reported in 100 per cent of cases”.[33] As Grim and Finke point out, “religious persecution is not only more prevalent in Muslim-majority countries, but it also generally occurs at a more severe level”.[34]

Recent scholarship on the subject indicates that the execution of apostates is sanctioned by all the five dominant streams of Islamic jurisprudence, namely the Hanafi (Sunni), Shafi’i (Sunni), Maliki (Sunni), Hanbali (Sunni) and Ja’fari (Shi’a) legal codes, under which the state may impose the death penalty as a mandatory punishment (hudud) against adult male converts from Islam (irtidad).[35] For adult women, death is proscribed by three of the five Islamic schools. The exceptions are Hanafi (which allows for permanent imprisonment until the woman recants), and Ja’fari (which allows imprisonment and beating with rods until death or recantation).[36] With the exception of Ja’fari, the death penalty is applied to child apostates under sharia law, with the penalty typically delayed until attainment of maturity. Even more unsettling is the reality that, under three of the five Islamic legal codes, apostasy need not be articulated verbally to incur mandatory punishment; even inward apostasy is punishable.[37]

Naturally, radical Islamists living in a Western democracy will have to discover different mechanisms in order to punish those who might “offend” their religion. They will find in anti-vilification laws a most suitable mechanism to strike fear and intimidation on the “enemies” of their faith. Indeed, one of the greatest ironies of such anti-vilification laws is that their chief beneficiaries are basically a small but vocal group of Islamic extremists, although it is certainly not clear why such people should merit any sort of statutory protection from “hate speech”.[38] Surely some of their beliefs are repulsive and deserve our most severe criticism.[39] And yet, because of anti-free-speech legislation of this nature, even the slightest indignation about their radical beliefs and statements may result in a person being dragged into the secular court and charged with “vilification”.

There is no good reason why the tenets of any religion should be accorded special protection from spoken hostility.[40] Laws such as the Victorian RRTA allow religious bigots to become a protected class of citizens beyond any criticism, precisely at the moment when Western democracies need to more seriously examine the implications of having admitted into their societies people with greater allegiance to their religious law than to the laws of the societies in which they have settled.[41] Of course, while the vast majority of Muslims are peaceful and law-abiding citizens, following a more moderate, non-literalist version of their religion, the potential for a more radicalised version of Islamism to foster the growth of fundamentalist variants should be of great concern to the every Australian citizen. To quote Dr Patrick Sookhdeo, an expert on the growth of such religion as a cultural force in the British Isles:

Islam is unique among major world religions in its emphasis on state structures and governance, which are considered to be of as much importance as private belief and morality (if not more). Much of Islamic teaching is concerned with how to rule and organise society within an Islamic state and how that state should relate to other states.[42]

The future in Australia of democracy and religious harmony depends on the cultivation of a more moderate, more acculturated form of Islamic expression. Of course, attacking a place of worship should not be confused with a free examination of religious doctrine. For example, to speak of “Islamophobia” is to avoid debate and maintain the crudest confusion between a specific system of belief and the faithful who adhere to it. As citizens of a liberal democracy, we should have a perfect right to reject and criticise any religion, to consider it mendacious, retrograde and mindless. Or must we re-establish the crime of blasphemy, as the Organisation of the Islamic Conference demanded in 2006, when it introduced at the United Nations a motion that would prohibit defaming religion and imposing strict limits on freedom of expression in the domain of religion?

We are seeing the fabrication of a new crime of opinion analogous to the crime that used to be committed by “enemies of the people” in the Soviet Union. This is why anti-vilification laws are so dangerous. These laws may allow some people to demarcate the things that others are allowed to say. True religious freedom, however, involves the subjection of religion to competing perspectives and critical analysis and scrutiny. This must be done in the hope that the adherents of every religion understand that the practice of their faith in Australia implies a willingness to withstand public scrutiny of the kind long endured by the Christian community. Because of the political nature of Islam, such comprehension seems all the more important since the subjugation of the political process by an extreme form of Islamic fundamentalism would be profoundly detrimental to our basic rights and freedoms.

Tolerance in “Multicultural Democracy”

The Victorian RRTA takes no account of whether vilification is committed in that state, or even if anybody from that state has seen or heard the vilification.^[43] Such law is not even concerned that violence has been incited by argument, but rather that people may be convinced or, alternatively, feel offended by the argument. In other words, for words to be considered religious vilification there is no actual need to demonstrate that anybody has been incited into action. The expression of an opinion is sufficient to be religious vilification.

This fact appears to underline the importance of the debates prior to the draft of the United Nations declarations and covenants whether there should be, when it comes to protection of freedom of expression, an exception only for “incitement for violence” or, more broadly, an exception for “incitement to hatred”, as the Soviet Union and its totalitarian bloc of communist nations maintained. For while the idea of inciting to violence links the expression of thoughts to actions, the latter formulation links the expression of thoughts to no more than just thoughts. As Chris Berg comments, the drafting history of the protection of the freedom of expression in these declarations

does not leave any doubt that the dominant force behind the attempt to adopt an obligation to resist freedom of speech under human rights law was the Soviet Union … When it came to draft the binding International Covenant on Civil and Political Rights, this was not the ascendant view. The Soviet Union proposed extending those restraints to “incitement to hatred” … Suddenly, states were responsible for the elimination of intolerance and discrimination.^[44]

The Australian drive to enact the principles of international discrimination law took place during the Labor government of Gough Whitlam, who felt it could introduce “multiculturalism” by adopting the 1966 United Nations Covenant on Civil and Political Rights. The covenant was then embraced by Immigration Minister Al Grassby in his first major statement on multiculturalism. Hence, when Whitlam introduced the 1975 Racial Discrimination Act, which adopted the principles of the convention, he made explicit reference to its harmony with the government’s multiculturalism policy.^[45] This information is relevant because, before the RRTA was passed by the Victorian parliament, then headed by Labor Premier Steve Bracks, a discussion paper commented: “Victoria’s most multicultural state and the diversity of its people is a great asset. Respect for this cultural diversity is vitally important to our community.”[46] Hence the legislation’s preamble communicates that the ultimate purpose of such legislation is to advance so-called “multicultural democracy”.[47]

An idea that started out in the late 1960s and 1970s, multiculturalism initially had the reasonable goal of including minorities in Western societies. Nowadays, however, it is hard to talk so candidly about such an idea, since multiculturalism has become not just the fair understanding of different cultures, but also a radical anti-Western ideological project that is opposed to “Eurocentric concepts of democratic principles, culture, and identity”.[48] Instead of promoting the globalisation of liberal democracy and human rights, radical multiculturalists regard these values as ethnocentric products of Western history. In their place they propose a form of cultural pluralism that, although preserving a certain gloss of tolerance and respect for all cultures, stands as a form of moral relativism which refuses to admit that culture, at the extremes, may produce either a democratic society or social oppression, for example, against women and minority groups.[49]

Contrary to what the former premier of Victoria appears to believe, an authentic democracy has never required the state-controlled promotion of cultural diversity. As a matter of fact, the leading scholar on the subject of democracy, Emeritus Professor of Political Science Robert Dahl from Yale University, says democracy is far more likely to be achieved and developed in societies that are “culturally fairly homogeneous” than in those with “sharply differentiated sub-cultures”.[50] According to Dahl, “cultural diversity” may actually represent a serious threat to the realisation of democracy, because this might result in the cultivation of “intractable social conflicts” whereby democratic institutions cannot be maintained. The practical implications of the empirical fact are cogently explained by Professor Dahl:

Cultural conflicts can erupt into the political arena, and typically they do: over religion, language, and dress codes in schools, for example … or discriminatory practices by one group against another; or whether the government should support religion or religious institutions, and if so, which ones and in what ways; or practices by one group that another finds deeply offensive and wishes to prohibit, such as … cow slaughter, or “indecent” dress, or how and whether territorial and political boundaries should be adapted to fit group desires and demands. And so on. And on … Issues like these pose a special problem for democracy. Adherents of a particular culture often view their political demands as matters of principle, deep religious or quasi-religious conviction, cultural preservation, or group survival. As a consequence, they consider their demands too crucial to allow for compromise. They are non-negotiable. Yet under a peaceful democratic process, settling political conflicts generally requires negotiation, conciliation, compromise. [51] 

Because certain cultural allegiances may be regarded by the members of any particular cultural group as being “non-negotiable”, no democratic society should be radically multicultural. Rather, a truly democratic society “depends for its successful renewal across the generations on an undergirding culture that is held in common”.[52] Democracy requires a “common culture” that ideally encompasses common values and is based not only on a “good” legal-institutional framework but also on the widespread acceptance of substantive norms and conventions of behaviour that typically characterise a society based on unconditional respect to the basic rights of the individual and the fundamental rules of constitutional law.[53]

In this sense, John Stuart Mill argued that democratic government is as much a socio-political achievement as it is a matter of legal-institutional design. Democracy, Mill asserted, rests not so much on institutional framework but on values that are transmitted to citizens from generation to generation. Unfortunately, Mill also observed, some societies are not culturally prepared to accept all the moral implications of living under a democratic rule of law. He believed that the realisation of democratic government is actually “determined by social circumstances”.[54] These circumstances Mill believed to be relatively malleable so they can be changed for better or for worse. Although Mill considered that people could be taught to behave democratically, he nonetheless kept on insisting that some patterns of cultural behaviour are absolutely essential in determining the proper realisation of democracy and the rule of law. As Mill pointed out:

The people for whom the form of government is intended must be willing to accept it; or at least not so unwilling as to oppose an insurmountable obstacle to its establishment … A rude people … may be unable to practise the forbearance which … representative government demands: their passions may be too violent, or their personal pride too exacting, to forgo private conflict, and leave to the laws the avenging of their real or supposed wrongs.[55]

In the long run, values such as democracy and the rule of law depend on a firm element of public morality that incorporates a serious commitment to the protection of basic individual rights, as well as a commitment to principles and institutions of the rule of law. Samuel Huntington once commented that if popular elections were held in most countries of the Middle East, chances are that such electoral process would bring radicals into power who, by appealing to religious or ethnic loyalties, would be very inclined to deny a broad range of human rights to women and religious minorities.[56] Professor Huntington’s prediction has actually been fulfilled. The recent fall of authoritarian regimes throughout the greater Middle East has fuelled persecution of minority communities. The Pew Research Center has charted extensive government restrictions on non-Muslim religions in numerous “democratic” countries, including Egypt, Afghanistan, Pakistan, Iraq and the Palestinian territories.[57] In this context, because democracy may be “impracticable” and even “an undesirable ideal”, ‘society will quickly relapse into a state of arbitrary tyranny”.^[58]

In short, real democracy has very little or nothing to do with state-sponsored multiculturalism. Nor is democracy simply a matter of good constitutional design, because democracy can actually be achieved in a variety of legal-institutional ways. Rather, democracy ultimately is the result of an “interconnected cluster of values” that are shared by members of a particular society from generation to generation.^[59] As legal philosophy professor Jeffrie G. Murphy points out, “[democratic] values come to us trailing their historical past; and when we attempt to cut all [cultural] links to that past we risk cutting the life lines on which those values essentially depend”.[60] This therefore implies that the realisation of democracy is as much a socio-cultural achievement as it is a legal-institutional one, since democracy ultimately depends on the intrinsic values and traditions of a particular society.[61]

Conclusion

One of the goals of religious tolerance laws is to advance “multicultural democracy”. Although resting on a scepticism towards truth, so that universalistic claims about religion must be privatised as personal preferences, such laws may actually generate inter-religious strife by creating an environment of fear and intimidation among those who merely wish to express their opinions openly. Not surprisingly, many citizens are reluctant to join the public conversation, seeming to fear not only what other citizens might do to them but also what their own government might do. This leads to the self-censoring of ideas, ultimately making the secular government and its courts, according to Joel Harrison, “complicit in a process of legal silencing undertaken by rival minority groups, engaging with them in debates of truth and falsehood, good and evil. The court decides essentially theological questions in the process of finding incitement to hatred against persons”.^[62]

In a world where terrorism has become common, and where radicalised Muslims have openly expressed sympathy with terrorists, the ability of Western democracies to defend their own interests is seriously diminished by laws that make citizens unprepared to criticise or give warnings about the nature of certain religious beliefs, however well-based these warnings might be. This is the singular tragedy of so-called “multicultural societies”, which allow legislation underpinned by postmodern philosophy to reduce free speech on some of the most fundamental issues of public morality.

Augusto Zimmerman is Senior Lecturer in Law and Chair of Legal Theory, Murdoch University, School of Law. Adjunct Law Professor, Universitas Kristen Maranatha (Indonesia). President, Western Australian Legal Theory Association (WALTA). Commissioner, Law Reform Commission of Western Australia. He would like to thank Dr John Yates and Ms Monika Mecevik for their comments and suggestions on earlier drafts of this paper. A footnoted version of this paper is available at Quadrant Online.

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[1] D A Carson, The Intolerance of Tolerance (Grand Rapids/MI: William B. Eedermans Publishing Co., 2012), 2.

[2] Ibid., 6.

[3] Carson, above note 1, 11.

[4] ibid., 12.

[5] Frank Furedi, “On Tolerance” (2012) 28 Policy 30, 32.

[6] ibid, 31.

[7] ibid.

[8] ibid. 31.

[9] ibid., 32.

[10] Queensland has passed legislation introducing religion vilification laws in 2001. This Act is called the Anti-Discrimination Amendment Act 2001 (Qld). Similar to Victoria’s law, Queensland outlines that a person must not publically act in a way of which would “incite hatred towards, serious contempt for, or severe ridicule of a person or persons on the basis of their religion” (Anti-Discrimination Amendment (Qld) s124A(1)). The provision also provides the circumstances in which such an act could be legal: the act must be public, done reasonably and in good faith, for academic, artistic, scientific or research purposes; a publication of material that would be subject to the defence of absolute privilege in defamation case; or the publication of a fair report of a public act. Queensland also criminalises serious religious vilification. The section dealing with serious religious vilification is comparable to the Victorian section

[11] Section 19 of the Anti-Discrimination Act 1998 (Tas) outlines that one must not publically act in a way which would incite “hatred towards, serious contempt for, or severe ridicule of a person of persons on the basis of their religious beliefs or affiliations”.

[12] Rex Tauati Ahdar, “Religious Vilification: Confused Policy, Unsound Principle and Unfortunate Law” (2007) 26 The University of Queensland Law Journal 293, 301.

[13] Ivan Hare, “Crosses, Crescents and Sacred Cows: Criminalising Incitement to Religious Hatred” (2006) Public Law 521, 531.

[14] Section 9 (1) of the Racial and Religious Tolerance Act 2001 (Vic) states: “In determining whether a person has contravened section 7 or 8, the person’s motive in engaging in any conduct is irrelevant”.

[15] There is no contravention if the person is able to establish that the act was, in the circumstances, reasonable and in good faith for the purpose of genuine academic, artistic, religious or scientific interest. (Racial and Religious Tolerance Act 2001 (Vic), Section 11) And if the accused establishes that they reasonably believed that the conduct would be seen or heard only by them, they will not be held to have contravened section 8.

[16] Joel Harrison, “Truth, Civility, and Religious Battlegrounds: The Context Between Religious Vilification Laws and Freedom of Expression” (2006) 12 Auckland University Law Review 71, 79.

[17] Racial and Religious Tolerance Act 2001 (Vic), Section 9(1) and Section 10

[18] Ahdar, above n.14, 301.

[19] Harrison, above n.18, 88.

[20] The Age, March 16, 2001. Quoted in Robert Forsyth, “Dangerous Protections: How Some Ways of Protecting the Freedom of Religion May Actually Diminish Religious Freedom”. Lecture delivered at the third “Action Lecture on Religion and Freedom”, Centre for Independent Studies, September 24, 2001, 9.

[21] Berg, above n.3, 155.

[22] Postmodernist Stanley Fish comments: “When one speaks to another person, it is usually for an instrumental purpose: you are trying to get someone to do something, you are trying to urge an idea and, down the road, a course of action. There are reasons for which speech exists and it is in that sense that I say that there is no such thing as “free speech”, that is, speech that has its rationale nothing more than its own production”. – Stanley Fish, There’s No Such Thing as Free Speech (New York/NY: Oxford University Press, 1994), 104.

[23] Charles Rice argues on the absurdity of postmodern scepticism: “One who says we can never be certain of anything contradicts himself because he is certain of that proposition. If he says instead that he is not sure he can be sure of anything, he admits at least that he is sure he is not sure. Or some will say that all propositions are meaningless unless they can be empirically verified. But that statement itself cannot be empirically verified”. Charles E. Rice, 50 Questions on the Natural Law: What it is and Why We Need It (San Francisco/CA: Ignatius Press, 1999), 132.

[24] Carl H. Esbeck, “The Application of RFRA to Override Employment Nondiscrimination Clauses Embedded in Federal Social Services Programs (2008) 9(2) Engage 1, 9.

[25] Yet at times Derrida himself was more cryptic about his Atheism. Speaking before a convention of the American Academy of Religion in 2002, Derrida commented: “I rightly pass for an atheist”. However, when asked why he would not say more plainly “I am an atheist”, he replied, “Maybe I”m not an atheist”. How can Derrida claim to be and not be an atheist? Both the existence and nonexistence of God requires a universal statement about reality, but Derrida is unwilling to make such an absolute claim. In this regard Derrida’s theology is consistent with his Postmodern inclination for ambiguity. Likewise, Richard Rorty at one time admitted he was an atheist, but in a subsequent work, The Future of Religion, he says he now agrees with Gianni Vattimo that “atheism (objective evidence for the nonexistence of God) is just as untenable as theism (objective evidence for the existence of God)”. Thus, Rorty insists that atheism, too, must be abandoned in favor of something he labels “anti-clericalism”. Ecclesiastical institutions are dangerous, but not necessarily the local congregation of believers. “Religion”, he says, “is unobjectionable as long as it privatized”. – David Noebel, Understanding the Times: The Collision of Today’s Competing Worldviews (2^nd ed., Manitou Springs/CO: Summit Press, 2006), 80.

[26] Postmodernists agree with Nietzsche that “God” – which is to say, the supreme being of classical theism – has become unbelievable, as have the autonomous self and the meaning of history”. – Kevin J Vanhoozer, Postmodern Theology (Cambridge/UK: Cambridge University Press, 2005) 12. David Noebel comments: “A sympathetic critic defined Postmodernism as Marxism-lite dressed in a French tuxedo, sippin” French wine in a French café on the campus of the College International de Philosophie. A less sympathetic critic referred to Postmodernism as linguistic sophistry seeking to save Marxism’s irrelevant posterior”. – ibid., 78.

[27] Alister McGrath, The Twilight of Atheism (New York/NY: Doubleday, 2004), 227.

[28] D A Carson, “Christian Witness in an Age of Pluralism”, in D A Carson and J Woodbridge (eds), God and Culture: Essays in Honor of Carl F H Henry (Grand Rapids/MI Eedermans, 1993).

[29]Islamic Council of Victoria v Catch the Fire Ministries [2004] VCAT 2510, available at http://www.austlii.edu.au/au/cases/vic/VCAT/2004/2510.html The outcome of this controversial case bears out concerns that tolerance laws might be used to silence any strong criticism based on religious beliefs. In June 2002 three Victorian Muslims attended a Christian seminar on the topic of Islam. These attendees did not disclose their identity and were encouraged to attend this meeting by a member of the Executive of the Islamic Council of Victoria (ICV) and employed by the Victorian Equal Opportunity Commission, the Act’s primary administrative body. Pursuant to a deliberate plan, each one sat in at different times in order to ensure that the complete event was covered. The case had clear elements of a set-up, including a pre-arrangement by the Islamic Council of Victoria to send anonymous informants to a seminar held privately, followed by the coordinated lodgement of a formal complaint with the Victorian Civil and Administrative Tribunal (VCAT). In December 2004, pastors Daniel Scot and Danny Nalliah) were found guilty of inciting religious hatred against Victorian Muslims. The evidence of vilification, however, was not based on whether the attendees felt hatred or contempt toward Muslims, but whether those Muslim attendees, who did not reveal their faith and were technically not invited, felt offended by the comments made during the course of the seminar. These pastors were condemned to post an apology in their website and in four leading newspapers to the Muslim community, at the cost of $ 90,000. The advertisements would reach 2.5 million rather than the 250 individuals who attended the seminar. Of course, respondents appealed from the decision and, two years later the Court of Appeal invalidated the decision on the grounds numerous errors of fact by the judge who decide on the matter. There was no re-hearing and the case was closed through mediation, meaning that a case that lasted five years and costed several hundreds of thousands of dollars to the defendants, reached its final conclusion without a clear winning side. See: Augusto Zimmermann, “Why the Victorian Vilification Legislation Undermines Democratic Freedoms” (2005) 1(3) Original Law Review 52, 53-55.

[30] Ayaan Hirsi Ali, “The Painful Last Gasp of Islamist Hate”, The Weekend Australian, September 22-23, 2012, 16.

[31] Paul Marshall, “Blasphemy and Free Speech”, (2012) 41 (2) Imprimis 1, 2. In these Islamic countries even Muslims themselves may be persecuted if they do not endorse the official interpretation of Islam: ‘sunni, Shia and Sufi Muslims may be persecuted for differing from the version of Islam promulgated by locally hegemonic religious authorities. Saudi Arabia represses Sunnis and Suffis. In Egypt, Shia leaders have been imprisoned and tortured”.

[32] Michael Nazir-Ali, “Islamic Law, Fundamental Freedoms, and Social Cohesion: Retrospect and Prospect”, in Rex Ahdar and Nicholas Aroney (eds.), Shari”a in the West (Oxford/UK: Oxford University Press, 2010), 79.

[33] Brian J. Grim and Roger Finke, The Prince of Freedom Denied: Religious Persecution and Conflict in the Twenty-First Century (Cambridge/UK: Cambridge University Press, 2011), 21.

[34] ibid., 169.

[35] Patrick Sookhdeo, Faith, Power and Territory: A Handbook of British Islam (London: Isaac Publishing 2008), 24.

[36] ibid.

[37] ibid. In countries subject to Sharia law, “Believers who reject or insult Islam have no rights. Apostasy is punishable by death. In Iran, Saudi Arabia and Sudan, death is the penalty for those who convert from Islam to Christianity. In Pakistan, the blasphemy law prescribes death for anyone who, even accidentally, defiles the name of Mohammed. In a religion which, unlike Christianity, has no idea of a god who himself suffers humiliation, all insult must be avenged if the honour of god is to be upheld. Under Islam, Christians and Jews, born into their religion, have slightly more rights than apostates. They are “dhimmis”, second-class citizens who must pay the “jiyza”, a sort of poll tax, because of their beliefs. Their life is hard. In Saudi Arabia, they cannot worship in public at all, or be ministered to by clergy even in private. In Egypt, no Christian university is permitted. In Iran, Christians cannot say their liturgy in the national language. In almost all Muslim countries, they are there on sufferance and, increasingly, because of radical Islamism, not even on that”. – Charles Moore, “Is It only Mr. Bean who Resists this New Religious Intolerance?, Daily Telegraph, December 11, 2004, at http://www.telegraph.co.uk/comment/columnists/charlesmoore/3613495/Is-it-only-Mr-Bean-who-resists-this-new-religious-intolerance.html

[38] Bruckner comments on the need to criticise Islam: “The process of questioning remains to be carried out by Islam, which is convinced that it is the last revealed religion and hence the only authentic one, which tis book directly dictated by God to his Prophet. It considers itself not the heir of earlier faiths but rather a successor that invalidates them forever. The day when its highest authorities recognize the conquering, aggressive nature of their faith, when they ask to be pardoned for the holy wars waged in the name of the Qu”ran and for infamies committed against infidels, apostates, unbelievers, and women, when they apologise for the terrorist attacks that profane the name of God – that will be a day of progress and will help dissipate the suspicion that many people legitimately harbor regarding this sacrificial monotheism. Criticizing Islam, far from being reactionary, constitutes on the contrary the only progressive attitude at a time when millions of Muslims, reformers or liberals, aspire to practice their religion in peace without being subjected to the dictates of bearded doctrinaires. Banning barbarous customs such as lapidation, repudiation, polygamy, and clitoridectomy, subjecting the Qu”ran to hermeneutic reason, doing away with objectionable versions about Jews, Christians, and gains and appeals for the murder of apostates and infidels, daring to resume the Enlightenment movement that arose among Muslim elites at the end of the nineteenth century in the Middle East – that is the immense political, philosophical, and theological construction project that is opening up … But with a suicidal blindness, our continent [i.e., Europe] kneels down before Allah’s madmen and gags and ignores the free-thinkers”. –Bruckner, above n.40, 46-7.

[39] For example, in January 2009, a Muslim cleric from Melbourne instructed his male married followers to hit, and force sex upon their disobedient wives. – “It’s OK to Hit Your Wife, says Melbourne Cleric Samir Abu Hamza”, The Australian, January 22, 2009. Statements such as this clearly deserve our revulsion and indignation.

[40] As Steve Edwards points out: “This legal hypocrisy is compounded by that of the moral kind when one considers that religions and religious “holy texts” themselves partake in some of the vilest hate speech towards nonbelievers, without providing a single morally defensible reason for their incitement. For instance, Sura 22:19-22 of the Koran claims, without providing any evidence, that non-Muslims will have “boiling water” poured over their heads, melting their skin and innards, while being “punished” and terrorised with “hooked rods of iron”. This horrific fate is not intended to be temporary: “Whenever, in their anguish, they would go forth from thence they are driven back therein and (it is said to them): Taste the doom of burning”. Sura 4:56 warns that “those who disbelieve our revelations” shall suffer being “roasted” alive. The punishment does not end there, for “as often as their skins are consumed, we shall exchange them for fresh skins that they may taste the torment”. The passage concludes: “Allah is ever Mighty, Wise”.” – Edwards, above n.8, 33.

[41] Robert Spencer, “Religious Vilification”, Human Events, January 24, 2005, 18.

[42] Sookhdeo, above n.46, 2.

[43] Greg Taylor, “Casting the Net Too Widely: Racial Hatred on the Internet” (2001) 25 Criminal Law Journal 260, 268.

[44] Berg, above n.3, 176

[45] Ibid., 177.

[46] Jenny Stokes, “Religious Vilification Laws in Victoria – Background to the Law and Cases”, Salt Shakers, Melbourne/Vic, May 2005, available at http://www.saltshakers.org.au/images/stories/attachments/252_300343_ARTICLES_ON_VILIFICATION.pdf

[47] See also: Racial and Religious Tolerance Act 200 (Vic), Section 4(1)(a).

[48] Samuel Huntington, Who Are We? America’s Great Debate (London: The Free Press,2004), 173.

[49] For a broad analysis of how culture shapes values such as democracy, economic development and human rights, see Lawrence E. Harrison and Samuel P. Huntington (eds.), Culture Matters: How Values Shape Human Progress (New York/NY: Basic Books, 2000).

[50] Robert A. Dahl, On Democracy (New Haven/CT: Yale University Press, 1998), 150-1.

[51] ibid., 150.

[52] John Gray, Enlightenment’s Wake (London/UK: Routledge Classics, 2007), 36.

[53] Bruckner offers this insightful, though rather polemical, criticism of multiculturalism: “[U]nder the cover of respecting cultural or religious differences (the basic credo of multiculturalism), individuals are locked into an ethnic or racial definition, cast back into the trap from which we were trying to free them. Their good progressive friends set blacks and Arabs, forever prisoners of their history, back into the context of their former domination and subject them to ethnic chauvinism. As during the colonial era, they are put under house arrest in their skins, in their origins. By a perverse dialectic, the prejudices that were to be eradicated are reinforced: we can no longer see others as equals but must see them as … victims of perpetual oppression whose past ordeals interest us more than their present merits”. –Bruckner, above n.40, 145.

[54] John Stuart Mill, Considerations on Representative Government [1861] (Chicago/IL: William Benton, 1952), 31.

[55] Ibid., 29.

[56] Samuel Huntington, “Democracy for the Long Haul”, in L. Diamond, Marc F. Plattner, Y. Chu, and H. Tien (eds.), Consolidating the Third Wave Democracies (Baltimore/London: The John Hopkins University Press, 1997), 7.

[57] Richard L. Russell, “The Crushing of Middle Eastern Christianity, The National Interest, May 10, 2013, available at: http://nationalinterest.org/commentary/the-crushing-middle-eastern-christianity-8457. Before the uprisings in Egypt, for example, 10 per cent of the population claimed Christianity. But with a Muslim majority, the democratic elections are building a new government that is Muslim dominated and determined to install strict Islamic law which forbids all Christian activities. And yet, a survey by Pew Research Center has found that about 60 per cent of Egyptians actually want the country’s laws to ‘strictly” follow the teachings of the Koran. –”Egyptians Back Sharia Law, End of Israel Treaty, Poll Shows”, Arabian Business.Com, April 26, 2011, available at http://www.arabianbusiness.com/egyptians-back-sharia-law-end-of-israel-treaty-poll-shows-396178.html. As for a “democratic” country such as Iraq, the local Christian community has been severely discriminated against by Iraq’s Shia majority, largely in control of the elected government. Since the 2003 American and British military invasion ousted Saddam Hussein, the ongoing violence against the Christian community has led to a mass exodus of Christians. In the time of Hussein there were between 1.2 and 1.4 million Christians in the country. Today, after the American-led “coalition of the willing” imposed “democracy” on Iraq, it is estimated that fewer than 500,000 remain. (Rupert Shortt, “In the Middle East, the Arab Spring Has Given Way to a Christian Winter”,
The Guardian, January 2, 2013, available at http://www.guardian.co.uk/commentisfree/belief/2013/jan/02/middle-east-arab-spring-christian-winter.

[58]

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