This is my submission to the government’s “review”. As usual, I get contrarian. Below the fold…
Submission to the Religious Freedom Review
Summary: Religious exceptionalism is undemocratic
Many people of religious commitments believe they are under threat from such secular laws as antidiscrimination acts, the calls for the confessional to be regulated in cases of child abuse, and so on. To an extent, this is quite true, but the question is not whether religious privilege is under threat, but rather why, in a secular society, religious believers and institutions are exempted from some of the laws and duties of Australians at all.
Historically, religious privileges, such as religious activities being untaxed, is due to the fact that the predominant religion at the time of Federation, and indeed the foundation of the colonies, was that of a Christian nature, and indeed the Church of England was the established church of the empire. Consequently, Australia inherited that dominance of religion. But in the light of the Protestant/Catholic Act of Settlement in Britain in 1701, social values had started to move away from religious discrimination in the body politic, and hence the founders introduced section 116 in the Australian Constitution:
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.
Hence, the Australian constitution protects religious believers and nonbelievers alike from being restricted in any way by the state in their beliefs, practices or access to state services, although the courts have interpreted this section more narrowly than, for example, similar provisions in the United States.
The distinction between a right and a privilege
That there should be an absolute right for all inhabitants of Australia (and not merely citizens) to the free exercise of their religious beliefs is not at issue. My concern here is that equally, no inhabitants should have a right that others do not have. A “right” that is not extended equally to all inhabitants is not a right, but a privilege.
Religious privileges in Australia, in practice and in law, include:
- Tax exemption for all religious activities, and not merely charitable work, including commercial activities by any church or religious institution;
- Religious instruction in public schools, excluding nonreligious instruction;
- State-funded Christian “chaplains” in public schools;
- Parliamentary prayers, as well as prayers in local governments;
- Absolute confidentiality of confessionals, even when a crime is being confessed; a privilege not extended to nonreligious institutions;
- The right to practise Roman Catholic canon law or Jewish Beth Din courts, while opposition to Islamic Sharia religious law is effectively practised by government;
- A generalised presumption of normalcy for Christian religions, values and institutions.
All of these run contrary to both the secular nature of Australian polity, and the democratic assumptions that underly it. Religious privilege is an unhealthy revenant of the religious exceptionalism from which the western democratic world has been extricating itself for over two centuries.
The inequality of these privileges against minority religions, and also particularly against those who are not members of any recognised religion, including nonbelievers, is evident to anyone who looks at the matter dispassionately.
I propose that all religions are subject to universal constraints of law. This includes the duties of religious individuals and institutions to report crimes, pay taxes on any activity that is not exempt for charitable reasons, and to adhere to the antidiscrimination laws that apply to all other Australians and Australian institutions.
Not to adopt this is to fundamentally abandon our democratic heritage in favour of the corruption that secularisation has sought to eliminate in the body politic in the Anglo-American tradition to which Australia is heir.
I also propose that all Australian parliaments pass laws that guarantee the absolute right to freedom of belief, rather than to privilege belief-based institutions. This is an issue of individual rights, not the privileges of churches, mosques, synagogues and other religious corporate bodies.