Equality and freedom of religion

Anne O'Rourke

Liberty Victoria recently completed a submission into the freedom of religion inquiry being undertaken by the Australian Human Rights Commission.

While endorsing freedom of religion as recognised by a number of international instruments, our submission centred on the balancing of freedom of religion and belief and the right to equality.

There are well over a hundred identifiable religious groupings in Australia which in many ways overlap with ethnic, cultural and national identities. Religious belief and membership of religious groupings have a long history of being the focus for discrimination and conflict.

Liberty Victoria believes that individuals should not be persecuted or discriminated against because they hold, or do not hold, particular religious beliefs, or engage in or do not engage in particular religious practices. This is clear.

However, it must also be recognised that religious bodies have a long history of discriminating and persecuting others. This is not surprising, given that many religions are based on a firm, even unshakeable, belief that they alone are in possession of the Truth. It is inevitable, however, that this cannot be true, given the incompatible claims.

Unfortunately, the importance of religious freedom in the history of our politics has led to undue deference to the claims of religious bodies and individuals to be allowed to discriminate against holders of other beliefs or those with none. As a result the freedom of religion as against the state sometimes gives way to a licence to discriminate, which the state, wary of infringing the freedom of religion or preferencing one religion over another, fails adequately to rein in.

Our submission argued that endorsing this anomaly left individuals vulnerable to unrestrained discrimination by religious bodies and that the state needed to protect such individuals human rights, and for that matter their freedom not to believe in, nor act according to, the dictates of the beliefs of a religious body to which they do not subscribe.

Liberty argued very strongly that in a democratic society, which is necessarily pluralist and secular, government policy and laws should not be based on religious belief. Government must be neutral and ensure the rights of all, limited only by the principled human rights framework itself.

Liberty Victoria considers it essential to distinguish the freedom to hold a belief from a licence to impose it on others. Religious belief and practice that is self-regarding, held or engaged in willingly by competent adults, must be respected. Religious practice that affects others, directly or indirectly, should have no special status.

For example, in 2004 the Australian parliament voted to exclude same-sex couples from marriage for no other reason than to appease certain religious beliefs. Allowing all competent, consensual couples of marriageable age, irrespective of sexual orientation, does not interfere with any group’s rights and does not affect the capacity of religious people or non-believers to marry. In changing the law, the parliament was unduly influenced by a particular religious view and deliberately maltreated one group of Australian citizens who do not hold that religious view.   

Liberty Victoria is not arguing that religious groups should be forced to eat pork or wear clothing of mixed fibre. We believe that within their own organisations and membership, religious groups are entitled to freedom of conscience and protection of their right to hold their beliefs — subject always to the ordinary criminal law: for example, clergy are not entitled to abuse children, nor husbands to beat their wives.

We can see, however, no justification for allowing religious groups to discriminate against others based on mere belief, however holy and ancient, or for governments to enact laws reflecting such beliefs.

Anne O’Rourke is a Vice-President of Liberty Victoria.