Setting aside for a moment the fact that the Israel Folau matter is a question of whether Folau has breached his employment contract with Rugby Australia, and the relevant Code of Conduct*, and whether that breach is serious enough to justify the termination of his contract, the largely misguided public outfall from this whole sad saga can only be resolved through a considered analysis.
An analysis that takes into account 21st century social norms, the underlying foundations of our modern, secular, liberal democracy, the nature and scope of freedom of speech, and the direct conflict between freedom of religion and the civil and human rights of the LGBTIQ community, which often seems to find itself on the pointy end of religious freedom.
Related stories:
• Why I am sick and tired of this …
• Why I am still sick and tired of this …
Freedom of opinion and speech
This freedom is a curious beast, especially when we live in an age when everyone feels ‘entitled’ to an opinion. I blame social media … but I digress.
The first question is whether freedom of opinion and speech is an absolute right, a right that cannot be outweighed by anything.
Rights that are universally recognised as absolute are relatively limited. They are set out in the International Covenant on Civil and Political Rights (ICCPR) and include, among others things, the freedom from torture and other cruel, inhuman or degrading treatment or punishment, the freedom from slavery and servitude, a prohibition against the retrospective operation of criminal laws, and the right to recognition before the law.
Freedom of opinion and speech isn’t recognised universally as an absolute right.
Not even in the US where it is as sacrosanct as it gets. In the US free speech is guaranteed by the First Amendment to the Constitution, which has achieved mythical status around the world, even though many misunderstand the substance of the right guaranteed under the text.
There is a complex body of case law surrounding the First Amendment, but the critical distinction to remember is that the First Amendment does not offer ‘universal’ free speech protections – it only prohibits the government from interfering with the freedom of speech of citizens and the press, among other things.
This means, for example, that corporations and individuals, while may be subjected to a cultural backlash if and when they are perceived to be interfering with freedom of speech, are not the subject of the constitutional prohibition prescribed by the First Amendment.
We must also remember, that a guarantee of free speech alone, no matter how wide and culturally pervasive, won’t guarantee a healthy, functioning democracy and press – the recent election campaign in the United States amply demonstrated that conundrum.
This point is illustrated further by the fact that despite its proud assertion of a ‘freedom of speech culture’, the United States ranks only in 48th place on the 2019 World Press Freedom Index.
Australia is in 21st place on that same index, despite the fact our Constitution is silent on our right to freedom of speech.
While we don’t have a constitutional right to freedom of speech, in 1992 the High Court of Australia held that we have an ‘implied’ but limited ‘freedom of political communication’ (Australian Capital Television Pty Ltd & New South Wales v Commonwealth [1992] HCA 45; (1992) 177 CLR 106).
The legal limits of this implied freedom of political communication were demonstrated by the High Court as recently as April this year when the Court considered this freedom in the context of religious anti-choice activists appealing against laws designed to protect women attending clinics providing abortion, and other reproductive services, in Victoria and Tasmania, by creating safety-zones around such premises within which anti-choice activists are prohibited from harassing women attending such premises (Clubb v Edwards; Preston v Avery [2019] HCA 11).
A majority of the Court considered that the burden imposed by the communication prohibition of the Victorian Act was justified by reference to its legitimate purposes, including the protection of the safety, well-being, privacy, and dignity of persons accessing lawful medical services. The remainder of the Court was of the view that the challenge to the prohibition should be dismissed without even determining the validity of the prohibition, because it was not established that the activist’s conduct involved political communication.
In relation to the Tasmanian Act, the Court unanimously held that the burden imposed by the protest prohibition was justified by reference to its legitimate purposes which, again, include the protection of the safety, well-being, privacy, and dignity of persons accessing premises at which abortions are provided, and ensuring unimpeded access to lawful medical services.
There are also some relevant international human rights treaties in the context of freedom of opinion and expression, to which Australia is a signatory.
Although, as a nation, Australia doesn’t seem to have a very good track record of upholding international treaties, just look at our treatment of asylum seekers over the past decade or so and Article 14 of the Universal Declaration of Human Rights (UDHR) which provides that ‘[e]veryone has the right to seek and to enjoy in other countries asylum from persecution’, or the 1951 Refugee Convention.
Before looking at the various international human rights treaties it is also worth highlighting that while they were ahead of their time, and inherently liberal and progressive in their tone, in their language and cultural concepts they very much reflect a society of their respective times, the 1940s and 1960s.
For example, Article 19 of the UDHR, proclaimed in 1948, provides:
‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’
But the UDHR must be read in the context of Article 1:
‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’
And it is also subject to Article 29 which, among other things, provides for certain specific exemptions to ensure that the rights and freedoms of ‘others’ are protected:
‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’ (emphasis added)
Article 19 of the ICCPR, adopted in 1966, also provides that:
‘1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’
Again, these rights are informed by both the preamble to the ICCPR, which states ‘[c]onsidering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person …’, and sub-article 19(3):
‘3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary …’
And, it is also subject to sub-article 20(2), which states that:
‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’
As for the ‘duties and responsibilities’ and the ‘restrictions’ mentioned in Article 19(3), breaching any such restrictions prescribed, or duties and responsibilities attached, will have inevitable consequences.
Just ask Yassmin Abdel-Magied who was literally ran out of the country for exercising her ‘freedom of speech’, even though she breached no laws but merely offended the sensibilities of conservative forces.
Or former SBS sports reporter Scott McIntyre, fired because his controversial tweets were in breach of the broadcaster’s social media policy and code of conduct, and offended the sensibilities of conservative forces (McIntyre’s unfair dismissal case ended in a confidential settlement, but he was not re-employed).
Back on the subject of the sources of freedom of opinion and speech in Australia, we also have a cultural and social tradition of speaking our minds freely.
Nevertheless, we also have very specific legal limitations on our ‘freedom of speech’. For example, discrimination and defamation laws prohibit, or at least make highly undesirable, certain types of speech.
Such laws are designed to strike a balance between our desire to express ourselves freely, and the less desirable manifestations of our human nature, such as bigotry, division, ignorance, hate, homophobia, malice, misogyny, racism, religious zealotry, and the like, which can lead to the abuse of the privilege of free speech, and undesirable, even dangerous, social outcomes.
As a modern, liberal, plural, progressive, secular society, Australia made an informed decision to curtail some forms of speech considered harmful to individuals and society, to encourage a cohesive and inclusive culture where our public discourse is not characterised by the lowest common denominators.
That’s a socially beneficial status quo worth defending.
Some may see such restrictions hypocritical and potentially intellectually flawed, and question where such a line could or should be drawn.
The ‘limitations’ are necessitated by human nature itself, in order to protect the exercise of the freedom, and to protect it from being co-opted by hate.
Informed debates, the discussion of ideas and concepts and challenging the status quo without fear, are indispensable to human existence and progress.
However, any speech that calls for, incites, or supports physical violence, or reasonable fear of physical violence, especially in response to someone else exercising their right of free speech, is unacceptable. Such speech is inherently antithetical to the very concept of freedom of speech.
Whether speech calling for discrimination or exclusion, infused with bigotry, hatred and prejudice, such as homophobia, misogyny or racism (but falling short of calling for, inciting, or supporting physical violence, or reasonable fear of physical violence), should be allowed is a vexed issue.
Arguably, bigotry, hatred and prejudice by their nature lack the ‘informed’ component, and an ‘opinion’ in the absence of evidence and facts to support it is usually nothing more than bigotry, hatred and prejudice and consequently it is arguable that no one is ‘entitled’ to an opinion, especially when the opinion in question has no foundation in facts, or has been conclusively and inarguably debunked. Further, it is very hard to see what valuable contribution such opinions could make to the public discourse.
Therefore, you are only ‘entitled’ to what you can coherently argue and factually support.
Karl Popper’s paradox of tolerance must also be considered in this context, noting the idea that ‘in order to maintain a tolerant society, the society must be intolerant of intolerance’ because, the argument goes, ‘if we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them’.
Freedom of religion
Freedom of religion is not a freedom that’s universally considered absolute either.
In Article 18 the UDHR also addresses religious freedom:
‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’
But, again, this article needs to be informed by Article 1:
‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’
And, again, it is subject to Article 29 protecting the rights and freedoms of ‘others’:
‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’ (emphasis added)
Article 18 of the ICCPR also provides that:
‘1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.’
But, these rights are subject to certain limitations permitted by sub-article 18(3):
‘3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’ (emphasis added)
And, again, it is also subject to sub-article 20(2), which states that:
‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ (emphasis added)
As for section 116 of the the Australian Constitution, it merely prevents the Commonwealth from taking certain actions in respect of religious beliefs and observance, and it has no application beyond that:
‘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.’
Personally, I support and defend the right of people of faith to observe their religious beliefs.
I understand religion provides comfort, and gives strength, to millions around the world.
While religion can be misused, and people’s faith manipulated, I believe most religious people are good, and have honourable intentions.
However, in a 21st century secular, liberal democracy religious freedom cannot be an unfettered, absolute right:
- religious beliefs cannot be equated with, or override, proven observable facts, and social and scientific theories; and
- freedom of religion must give way when it comes into conflict with the dignity of human beings.
Religious institutions must observe the separation of church and state, and abstain from interfering in politics and public policy.
Only public policy:
- guided by common decency, human dignity and fairness; and
- informed by proven observable facts, and social and scientific theories,
will be good public policy.
Such policies will arguably also always satisfy the fundamental principles of religious faith, without importing the prejudices developed and retained by their institutions over the centuries.
Religion is faith.
But blind faith is ignorance with no room for reason.
And where there is no reason, there is no room for humanity.
We recently learned the hard way, from the Royal Commission into Institutional Responses to Child Sexual Abuse, how we failed to protect generations of young people from the hypocrisy of religious institutions – let’s not fail another generation out of misplaced, historical reverence for institutions and people whose attitudes and world-views belong to history’s dustbin.
While Folau clearly feels ‘entitled’ to express his extremist, fringe, literal interpretation of his ‘faith’, we are also entitled to express our fatigue with tired old ignorant, medieval prejudices being selectively and hypocritically regurgitated time-and-time again on public forums designed to hurt, denigrate, and humiliate others in the name of a ‘loving god’.
Arguably, it is our intellectual duty to respond, and highlight the nonsense in such illogical and unsubstantiated faith-based assertions.
So what are the practical aspects and scope of freedom of religion?
The very concept was born out of the need to protect adherents of various religions from persecution by … each other.
This was essential for our survival, to achieve public stability, a fundamental condition for a functioning and prosperous society.
Consequently, Western democracies adopted the concept of religious freedom.
Arguments remain about the scope of religious freedom in modern secular, liberal societies.
This remains a difficult issue to resolve, given that even within the followers of the same religion there are often various interpretations and practical applications of their holy text, and over the centuries many teachings of that text became socially unacceptable, even illegal under changing social mores and secular laws.
Human society has undergone fundamental social transformation over the past couple of millenniums. Our definitions of humanity, law and morality, and our understanding of science and the world around us, had advanced in leaps and bounds.
To many the Bible is no more than a story book today, reflecting the intellectual capacity and morality of its writers, men who lived close to two millenniums ago.
To Christians it’s a holy text, the word of God.
Some followers of Christianity, such as Folau, choose to read the text literally, anchoring them to the morality and understanding of a distant and primitive humanity, and make this even more problematic by choosing to apply its teachings selectively, and even intentionally misrepresenting its meaning for personal and political gain.
Other Christians take a message of love and inclusion from the same text.
However, in the context of a 21st century secular, liberal and egalitarian society we are also equally entitled to freedom from religion, and for religion not to be used as a weapon to attack others.
Otherwise we make a mockery of both freedom of religion itself, and the fundamental principles of our secular, liberal, and egalitarian democracy which underpin religious freedom.
In a civil, democratic, liberal, secular society, especially at the dawn of the 21st century, rights that protect mere intellectual constructs, no matter how historically sacred, must bow to the dignity, and inalienable human and civil rights, of actual people.
From an intellectual perspective, purely ideological identities, such as religion and political leanings, while entitled to protection in a civilised society for cohesion and security, are simply not entitled to, nor can expect, the same level of protection as non-ideological identities, such as gender, sexual orientation, disability, or one’s skin colour.
If and when the rights of ideological and non-ideological identities come into an irreconcilable conflict, humanity, dignity, common sense, and decency demand that the rights of non-ideological identities must triumph over the rights of ideological identities.
This argument is supported by the limitations expressly set out in subarticle 18(3) of the ICCPR to freedom of religion, including the fundamental rights and freedoms of others.
The right of an individual human to dignity, to be who they are, to live free from discrimination, must always override the conceptual and derivative rights attached to a ‘belief’, or an ‘opinion’.
Consequently, religious beliefs and political ideology must take a nice comfy backseat, and will be asked to behave, and not to make a nuisance of, themselves, when it comes to the actual civil and human rights and dignity of women, LGBTIQ people, people with disabilities, and people of colour, etc.
Actual people before beliefs/ideology. Always. Full stop. No apologies.
A significant ongoing conflict between religious freedom and our secular, liberal societies arises from the reproductive freedoms of women and the rights of sexual minorities, lesbian, gay, bisexual, transgender and intersex people.
Organised religions have been traditionally hostile towards other races, women, and the LGBTIQ community. In the past, the Bible was used to support the oppression of women’s rights, including voting, birth control, and abortion.
Today it continues to be used to justify the persecution of the LGBTIQ community.
Just replace ‘homosexuals’ in Folau’s Instagram post with people of colour, or people of the Jewish faith, and see what happens!
Especially as when it comes to people of colour, good Christians once considered them to be without soul, some still do today, and bound for hell as a consequence.
For example, let’s take Folau’s fringe brand of literal Christian theology to its full conclusion.
What will happen to Jewish or Muslim people according to Folau’s Biblical views if they don’t repent and accept Jesus Christ of as their saviour?!
Exactly!
Put that in an Instagram post, and see what happens!
But somehow it’s acceptable to single out and target the LGBTIQ community (or atheist, or people who enjoy a drink)?
As for the ‘he is just quoting the Bible, how can you “persecute” him for that’ brigade, first, he is not ‘quoting’ the Bible. He has posted the street poster of a second-rate American evangelical hate group, which misquotes the Bible …
Second, just imagine what would happen if I turned to a female colleague, training professional, or manager at work and instructed her to be silent and not to presume to instruct or inform me?
After all, it is very clearly stated in 1 Timothy 2:12 ‘I do not permit a woman to teach or to have authority over a man; she must be silent’.
And this is in New Testament, so that old excuse of ‘oh that’s in the Old Testament, voided by the New Testament’ response won’t cut it.
I would be in a meeting with Human Resources so fast …
Or imagine if a white sportsperson started quoting Bible passages supporting slavery … The President of the Confederate States of America, Jefferson Davies, certainly thought it appropriate to do so: ‘[slavery] was established by decree of Almighty God … it is sanctioned in the Bible, in both Testaments, from Genesis to Revelation … it has existed in all ages, has been found among the people of the highest civilization, and in nations of the highest proficiency in the arts.’
But times and societal norms change through social evolution, and as the journalist Kurt Eichenwald once put it, frankly, people like Folau are ‘… God’s frauds, cafeteria Christians who pick and choose which Bible verses they heed with less care than they exercise in selecting side orders for lunch,’ yet they revel in their false, self-assured righteousness almost as if they believe they are earning extra credits for the afterlife each time they offend our social sensibilities.
Much ugliness in our human history has been explained away, or purportedly supported, by the hypocritical or politically motivated interpretations of God, the Bible, and other religious texts.
In Christianity, from the geopolitically tragic Crusades, to the horrors of The Inquisition, and women accused of being witches being burnt at the stake, drowned in rivers, or hanged from trees, were rooted in various interpretations of the Bible.
When The Inquisition was ended, and when humans were finally prohibited from killing witches, no doubt many would have felt that their freedoms of religion and expression were grievously abridged.
I suspect if social media was around back in those days there would have been a group of ‘good Christians’ protesting the ‘travesty’ of it all.
Lamenting the fact that their peers and society had moved on from torturing non-believers and burning ‘witches’ alive for the ‘glory of god’, and how their feelings were being hurt by their fellow humans not understanding the great offence to their religious freedom by ending such ‘religious practices’ …
But, some forms of expression and some concepts and ideas had proved themselves irretrievably evil, and an existential threat to peace, humanity, and our progress.
Our reverence for freedom of speech and expression of ideas, or freedom of religion, should never be exploited and perverted to reanimate ideas rightfully confined to the graveyard of intellectually bankrupt and inherently evil concepts.
The civil and human rights of the LGBTIQ community
Given recent history and the public record, I assume we can take the long, exhausting fight of the LGBTIQ community for social acceptance, and legal protections and recognition as an agreed fact.
The ignorant, malicious ugliness of the debate that surrounded the recent farcical marriage equality postal survey is still very much fresh in our minds.
Every ideology and religion in existence has extremists, with views on the outliers of the mainstream, but not even a secular, liberal society can be expected to cater to every such fringe view.
Calling LGBTIQ people ‘evil’, ‘sinful’, or ‘unnatural’, or subjecting them to harmful conversion therapy, purely on the basis of Biblical or other religious views, is ignorant beyond comprehension, and utterly unacceptable.
Permitting such practices to continue is intellectual cowardice that disregards our social evolution, our improved scientific understanding of the world around us, including human sexuality, and the development of our secular, liberal democracies.
Using Biblical and other religious arguments to attack the inherent civil and human rights and dignity of LGBTIQ people at the dawn of the 21st century, betrays a bigoted and ignorant view of the world that no longer has a place in modern society, any more than misogyny or racism.
Folau’s Instagram post is not a ‘victimless’ act, and can’t be taken in isolation from the decades, centuries, of persecution suffered by the global LGBTIQ community under the guise of ‘religious morality’.
Even today there are LGBTIQ youth out there who are trying to come to terms with their emerging sexual orientation, often still surrounded by homophobia and ignorance at schools, homes, and houses of worship.
The recent reactions by some elements of society to the Safe Schools program highlight the resentment and hatred that still very much exists towards LGBTIQ people.
Those attitudes do a lot of unpleasent things to the head of young, inexperienced, and developing people.
There is a reason why LGBTIQ youth are one of the highest risk groups for self-harm and suicide, and Folau’s public social media posts have now inevitably became part of the ignorant and hateful messaging they receive about who they are.
It is critical that society responds to such utterings unequivocally and without ambiguity, so that LGBTIQ youth know that such ignorant, hateful, and misguided views are not right, nor socially unacceptable, even if they come from a loved sporting icon and role model, or someone in their house of worship assuming to speak from a position of ‘authority’, and that it will all get better once they learn to accept and love who they truly are …
* 1.3 Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby.
…
1.6 Do not make any public comment that is critical of the performance of a match official, player, team official, coach or employee/officer/volunteer of any club or a Union; or on any matter that is, or is likely to be, the subject of an investigation or disciplinary process; or otherwise make any public comment that would likely be detrimental to the best interests, image and welfare of the Game, a team, a club, a competition or Union.
1.7 Use Social Media appropriately. By all means share your positive experiences of Rugby but do not use Social Media as a means to breach any of the expectations and requirements of you as a player contained in this Code or in any Union, club or competition rules and regulations.
1.8 Do not otherwise act in a way that may adversely affect or reflect on, or bring you, your team, club, Rugby Body or Rugby into disrepute or discredit …
(Rugby Australia Code of Conduct)
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