Law & Politics

Why religious discrimination is okay

To ‘discriminate’ is a very useful, indeed necessary, activity. The original and broader meaning of the word is to recognise and understand important differences. So we must all, for example, learn to discriminate between right and wrong.

But the newer narrower meaning, as encountered in modern anti-discrimination legislation, refers to the practice of unfairly or prejudicially treating certain groups of people differently. The law wants to discourage this type of unjust discrimination.

What makes such distinctions or differential treatment unjust is the application of irrelevant criteria to a judgement or selection. Of course, which criteria are irrelevant to a determination is often itself a matter of judgement, so we talk of unjust or societally unapproved criteria because society’s approval can change over time.

So let’s look at some examples of just or approved criteria of discrimination and unjust, irrelevant or societally unapproved ones.

If you were on the selection panel for the appointment of a teacher at your child’s school, should you be allowed to bar all Aboriginal applicants? Of course not. In Australia, Aboriginality is deemed an irrelevant criterion in the appointment of teachers. You may not discriminate on such grounds.

Is it okay to overlook all unqualified applicants? Yes, you may discriminate on these grounds, as having teaching qualifications is regarded as a relevant and just criterion in assessing suitability for a teaching position.

So far this is all fairly obvious. But it’s necessary to get our criteria and processes clear because there are much messier and more debatable criteria to consider, and this is because how relevant a criterion is to a decision is often a matter of judgement, opinion, and society’s current values, and norms.

For example, we can all agree that the use of a wheelchair should not prevent a person from acquiring a position as a teacher in a government school in Australia today. But what if the job being applied for is as a waiter in a restaurant, or as a roof painter? Use of a wheelchair is a very relevant criterion then, and so its application to the assessment of someone’s suitability is likely to be approved. It is sufficiently relevant.

To put it another way, the two related factors as to which criteria may be applied – ‘is it relevant and, therefore, fair and just’ and ‘is it societally approved’ – correlate, but not perfectly. Society must weigh up how relevant to work performance a criterion must be before it cannot be ignored, and society’s attitudes and values change over time.

Race and gender were in the past considered to be criteria relevant to performance in many fields, and therefore were deemed justified. Think White Australia policy, and women in the police force. But no longer. Society has changed, and so have our laws.

So we come to religious discrimination. Is it okay for you on the selection panel to favour or disfavour a religious person for a teaching role? Should religious affiliation be deemed as an irrelevant criterion in such job applications, just as gender or race are?

What if a Christian fundamentalist, such as a Seventh-day Adventist who believes that the Earth is a few thousand years old, wants to teach history or biology or geology, or any of the sciences, at your child’s school?

Would you allow a Roman Catholic who believes that morality comes from God, that the use of artificial contraception will lead to eternal torture in the afterlife, and that the Earth has been given by God for man’s exploitation to teach your child about ethics, about sex, or about ecology and environmentalism?

A Scientologist believes that your soul (‘thetan’) has resided in millions of previous alien bodies in the past all around the universe. They believe their science fiction novelist founder developed a whole new psychological theory and therapy (‘auditing’) that cures all mental illness and psychological problems – although it is still unrecognised by psychology and psychiatry. Would you select such a person to teach your child astronomy, history, sociology, or psychology?

Perhaps surprisingly, the religious authorities in Australia believe that it is fair and just to discriminate on these grounds, because they wish to do so, but only in favour of their respective religions.

Society must weigh up how relevant to work performance a criterion must be before it cannot be ignored, and society’s attitudes and values change over time.

The Catholic Archbishop of Melbourne, Peter Comensoli, has said, “Faith-based organisations should be protected by the law, so that they can employ staff who support their faith, values and mission”. So he wants this to apply in ‘faith-based organisations’ but not outside them. He wants positive religious discrimination in favour of Catholics, but no negative discrimination against them. He wants to discriminate against atheists, active homosexuals, divorced people, and even other religions. Like me, he doesn’t want a leading Scientologist teaching in his schools.

Surely, you say, Catholics must be able to favour and employ their own kind in a Catholic school. This seems fair and just. The criterion is a relevant one. But two insurmountable problems then arise.

Firstly, just as a religious school is allowed to discriminate against members of other religions, divorced people, homosexuals, and atheists, non-religious schools must be allowed to discriminate against the appointment of religious teachers, as religion is relevant to most subjects taught. Note the examples above.

Secondly, it is acceptable in Australian society to form a discriminatory club, and to admit only members who qualify. There are Jewish clubs and ex-services clubs and clubs for people with the first name of Shirley. Why not see exclusive religious schools as a type of club? The answer is because the views and rules of these clubs are not tacitly approved and materially supported by massive government funding and by tax-free status.

As a former Australian Senator and Attorney-General, George Brandis, admitted in parliament, people have the right to be bigots. It’s not against the law per se. You could set up a school that enrols or employs only Christian one-legged, Aboriginal, gay, dwarf stamp collectors. But don’t expect Commonwealth funding, because government funding warrants Australian society’s standards, values and, for that matter, curriculum.

Australian teachers should not be paid by the government – our taxes – to teach children that, for example, their atheist father will suffer eternal torture after death while they themselves will experience eternal bliss and not care at all about their parent’s torment because they will be with someone’s version of God.

So if religious beliefs are to be a criterion for positive discrimination in employment in religious schools – which ipso facto entails negative discrimination against people not selected for those positions –  then negative religious discrimination must be allowed in other settings. And the positive discrimination in religious schools should not be supported by government funding and the endorsement that this imbues.

We must not forget that Australia’s huge religiously-based primary and secondary educational sectors are exceptional in the world. This is an accident of history that puts Australia in an unusually invidious and precarious position regarding control of curriculum and social splintering.

You may feel there is an inconsistency here. Why should it be okay to discriminate against a fundamentalist creationist in a public school, but not against an atheist in a Catholic school, when both are government funded? The answer is because at least one of these must be wrong, and has to be teaching lies.

Either the theory of evolution is right or God made all the species just how he wanted them. Either I can guarantee heaven after my death by wearing a little cloth around my neck – a scapular – all my life, as the Sisters of Nazareth told me when I was eight, or this is a futile behaviour. Either homosexuality is unnatural, sinful, and a ‘lifestyle choice’, or it is natural, acceptable in society and biologically determined. These are not matters of taste. They are verifiable facts, and society has accepted the evidence for a position in each case.

In a pluralist society, the government may tolerate some lies where they do little damage, but should not sponsor them. For example, Australian society has decided to tolerate the sale and promotion of some unproven complementary therapies so long as they do no serious harm. But the government is not subsidising and promoting them, and it has justifiably  come down hard on the promotion of bogus Covid treatments in the middle of a pandemic.

With the powerful religious schools lobby, the root of the problem lies in the tradition of respecting all religious beliefs. This is what has enabled the perpetuation of hateful, destructive, Dark Ages mores and beliefs about gender roles, sexual orientation, abortion rights, stem cell research, et cetera, well beyond their era of acceptability or usefulness.

There is a simple solution to the current ructions over people’s religious right to cling to such attitudes while holding prominent paid positions in contemporary society. This is to recognise that none of the thousands of sects and cults and religions have direct access to truth or to righteousness, that mathematically either all-but-one or simply all of them have to be wrong, and that none deserve more respect – or tax-free status – than you or me.

If I say publicly that all gay people are going to hell and if I support this by claiming that my interpretation of my holy book tells me so, then this should no more save me from being sacked from my job as a clinical psychologist than if I said a guy in a pub told me this. And if I am applying for a leadership position in a diversity-supportive organisation, then you, on the interview panel, have an obligation to discriminate on this very relevant religious criterion.

So let’s stop pussyfooting about with these beliefs that demand respect without earning it. Let’s be open about the fact that society has moved on for clear and justified reasons – scientific developments, reliable contraception, advances in cosmology and psychology, a rational criminal justice system. And let’s recognise that the shrinking, splintered, and confused religious component of society no longer deserves special consideration – including the competitive advantages of tax-free status.

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Photo by Isabella and Zsa Fischer on Unsplash

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