CANBERRA, Australia, 23 NOV. 2009 (ZENIT)
Here is the text of
a keynote address given Friday by Cardinal George Pell,
archbishop of Sydney. He was speaking at an Australian Christian
Lobby conference. He spoke on "Religious Freedom and Public
Policy."
* * *
Inquiries about religious freedom and a mishap.
As many of you are aware, the Human Rights Commission has been
conducting an inquiry into freedom of religion in Australia for
over a year. The only question about its outcome is how bad it
will be.
The tone was set when the inquiry was announced in September
2008. The ABC reported the Commission’s Race Discrimination
Commissioner, Tom Calma, expressing concern (in the ABC’s words)
“at evidence of a growing fundamentalist religious lobby, in
areas such as same-sex relationships, stem-cell research and
abortion”.[1] I am not a fundamentalist religiously, politically
or morally. But I was not aware that being a fundamentalist was
against any Australian law; nor am I aware why this should be of
any concern to a Race Discrimination Commissioner. This alleged
fundamentalism is apparently one of the main reasons for the
inquiry, and this attitude — that religious opinion and
religious people in the public square are somehow a problem,
perhaps even a danger — runs through the discussion paper the
Commission issued to commence the inquiry.
In case there was any doubt about the matter, in August Mr Calma
and Conrad Gershevitch delivered a conference paper on the
inquiry which opened with these words:
"The compatibility of religious freedom with human rights is the
subject of the most comprehensive study ever undertaken in
Australia in this area. ..." [2] (emphasis added).
Let us spell this out: the clear meaning of these words is that
religious freedom is not a human right and may not be compatible
with human rights. This is an astonishing claim from a senior
officer of the body responsible for the protection and
advancement of human rights in Australia. Mr Calma announced the
inquiry in a similar vein, comparing religion and human rights
to oil and water — substances that do not mix.[3]
I have not the time now to explain the two obvious fallacies in
what Mr. Calma is reported as having said. The first is that
religion is somehow opposed to reason, irrational. The second
is that the opposition to the destruction of human life involved
in, say, abortion depends upon premises peculiar to religion,
and not upon simple principles of justice common to all
humanity.
Mr Calma and Mr Gershevitch conclude their paper by suggesting a
greater role for government in managing religious freedom; a
role not in “the governance of religion, (of course) but [in
the] moderation of the public sphere in which faith communities
necessarily come into contact with each other”. “As in other
domains of human interaction . . . the hand of government, even
if gentle and gloved, may be required to ensure the public
good”. No doubt we are to be reassured by the prospect of a
nanny state, rather than the jack-boot. If these individuals
have their way, religious people in Australia can expect much
more government restriction and interference, “even if gentle
and gloved”. All of which simply underscores the need for a
different sort of inquiry; not into whether religious freedom is
compatible with human rights, but into whether this enquiry of
the Human Rights Commission is compatible with human rights.
The problem for the Commission and those who share its world
view is that human rights often get in the road of their
particular secular agenda. The rights to life, to marriage, to
family; the recognition of the family based on marriage as the
fundamental unit of society; the rights of parents to determine
the moral and religious education of their children; and the
rights to freedom of religion, belief, and conscience, are all
recognised by the major international human rights agreements.
They also stand squarely in the road of the radical autonomy
project which the extreme left, the anti-religious left is
pushing. This is the main reason why these inconvenient rights
have been read-down, reinterpreted and displaced by other, newer
“rights” such as those to abortion, euthanasia,
anti-discrimination and same-sex marriage, and all they carry
with them. Is the Commission genuinely committed to human rights
as agreed between the nations in the major treaties, or is it
actually committed to overthrowing some of them for radically
different ideas?
Another incident has emerged in the last week in Canberra which
is of some significance long term for freedom of speech and
religious liberty.
In response to the same sex legislation in A.C.T. Archbishop
Mark Coleridge issued a carefully worded statement opposing
same-sex civil unions, acknowledging the rights of homosexual
people to justice, but pointing out the differences between
desires and rights and the unique advantages the marriage of a
man and woman brings to the spouses and their children.
In doing so the archbishop was defending the national law of the
land on marriage and defending the role of mothers and fathers.
This spurred the A.C.T. Human Rights Commissioner to public
utterance describing Archbishop Coleridge’s statement as
“unhelpful”, “getting very close to “homophobia,” starting to
skate on thin ice”.
“People should pull back and think what they’re saying”; “people
need to be careful they’re not getting to the point of inciting
hatred or contempt for gay people”, she continued.
The Commissioner has gone too far in this attempt to intimidate,
to silence debate from Christians or indeed any person who, as
in this case, merely point out the natural advantages and
preminence of heterosexual marriage for society.
No official has the right when the speed limit is 60 k.p.h. to
name and shame those they allege to be travelling at 58 or 59
k.p.h. Indeed the rights of Commissioners to enter public
debate and rebuke those who oppose their point of view should
themselves be examined. Can the Commissioner be a participant
in the game as well as the referee, who threatens to send off a
player before the game has started? The new laws are not yet in
effect.
This sad little incident demonstrates why majority opinion, and
especially those in favour of religious freedom as well as
freedom of speech, should be opposed to a federal charter of
rights. It will be used, as it is now used in Britain, to
threaten and harass those manifesting religion in public life
and especially the Christian religion.
Using rights against rights
The Human Rights Commission is part of a bigger problem. One way
of stating it is to ask: why is it that human rights statutes,
such as the Charter of Rights and Responsibilities in Victoria,
seem to end up violating and diminishing some human rights
rather than protecting them?
Let us first note how human rights statutes, such as the
Victorian Charter, which claim to implement International
instruments, such as the Universal Declaration of Human Rights
(1948) and the International Covenant on Civil and Political
Rights (1966) have often what is at best a promiscuous
relationship to those instruments. Important rights, such as
the rights of parents to determine the religious and moral
education of their children are not replicated in the Victorian
Charter. And, further, the right to freedom from discrimination
on the grounds of sex is parodied by being associated with
ambiguous categories such as “sexual orientation”, and fantasies
of the zeitgeist such as “gender identity”.
Then it pays to look at the small print. The rights included in
the Victorian Charter can be limited or redefined according to
whatever is required “in a free and democratic society based on
human dignity, equality and freedom”. Imagine the fun Calma and
Gershevitch (and the A.C.T. Commissioner for Human Rights, Dr.
Watchirs) would have if they were defining a “free and
democratic society”! This sounds fine and reasonable, but in
fact is a recipe for trouble and oppression. It significantly
exceeds the limitations allowed in international instruments
such as the International Covenant on Civil and Political
Rights, which only permits some rights to be limited in times of
genuine national emergency or when absolutely “necessary to
protect public safety, order, health, or morals or the
fundamental rights and freedoms of others” (Article 18 (4)).
Even in times of “a public emergency which threatens the life of
the nation”, some rights can never be qualified or reduced
(Article 4). These include not only the right to life, and the
rights not to be tortured or enslaved, but also the right to
freedom of religion and conscience. Other important rights, such
as those to free association, free expression, the right to a
fair trial and due process, are not included in this category of
fundamental or basic human rights, and can be qualified in a
time of genuine public emergency. But not the right to life or
freedom of religion and conscience. This priority of rights is
regularly ignored, and the law decriminalising abortion in
Victoria in 2008 is probably the worst recent example that we
have seen recently.
The International Covenant on Civil and Political Rights makes
it very clear that necessity is what permits fundamental rights
to be limited in some circumstances, not discretion or
preference. But as Professor Patrick Parkinson has pointed out,
the clause in the Victorian Charter which allows rights to be
limited by whatever is required “in a free and democratic
society based on human dignity, equality and freedom” gives
judges and other decision makers an enormous discretion to
reinterpret, redefine, or simply ignore human rights if there
are more important priorities set by the government of the day.
The effect is that while human rights are of varied and limited
importance, they become secondary to public policy, to the
particular values or priorities of governments. Human rights,
and especially human rights charters, are to be read in the
light of public policy imperatives and applied accordingly. This
is how human rights commissions understand their task and
explains why they often produce strange decisions which fly in
the face not only of the intention but also the plain meaning of
human rights as set out in international agreements and
treaties.
Public policy and freedom of religion
Setting public policy is one of government’s most important
responsibilities. Government is a creation of civil society. It
is not government which creates civil society. In Catholic
social teaching we speak of the concept of subsidiarity. Its
basic principle is that, wherever possible, social
responsibilities should be carried out at the lowest and most
local level of organisation, unless this is beyond their
capacity and resources. This principle of subsidiarity is
directly opposed to the totalitarian principle in which the
individual is understood to exist to further the purposes of the
State.
So, defence is obviously a national responsibility. Police
forces and hospitals can be a national, state or local
responsibility. Education, however, first of all resides with
families, and only then with local, district, provincial or
national government.
Public policy miscarries unless it is informed by the principle
of subsidiarity. The role of that principle is to foster key
values which are essential to the flourishing of civil society
and the common good. It used to be and still should be an
important principle of public policy to support and protect
marriage, both as the basis of strong families and strong
communities. This was reflected in the administration of
government (for example, through tax concessions for families),
and in the administration of law (for example, the decision of
the US Supreme Court in the 1870s which prohibited polygamy). In
the late 1960s and 1970s, again in the US, the principle of
racial equality was made a priority of public policy, so that
colleges or community organisations which were based on racial
segregation lost whatever concessions or privileges for which
they would otherwise have been eligible.
In Australia today anti-discrimination is becoming a defacto
priority of public policy. The particular hay bale flying around
at the moment is the approach taken to the protections for
religious freedom and freedom of conscience under different
anti-discrimination laws at the state level. The churches have
had something of a win in Victoria recently, where there was a
proposal to eliminate the so-called exemptions in Victorian law
which allow religious schools and agencies to exercise a
preference in employment for people who share and live out their
faith. We have to stop using the word “exemptions” because it
suggests that religious freedom is a government grant or
concession, not a fundamental human right. We should insist
these rights are protected.
Christians believe that everyone should be free from unjust
discrimination, but anti-discrimination laws which do not
respect fundamental human rights such as freedom of religion and
conscience, are unjust laws. We should not be afraid to say
this. We have a right to foster religious communities. Those who
want to cancel out this right need to show why this right should
be removed.
In Britain, the situation is difficult. The London barrister
Paul Diamond, who visited Australia last month to talk about the
charter of rights, has explained that anti-discrimination has
become an official priority of public policy in the UK, with
serious consequences for the rights of Christians as people who
are held to be inherently “discriminatory”. In the United
States, scholars have been turning their minds to the public
policy implications of same-sex marriage, which is of course a
part of the anti-discrimination agenda. If courts and
governments were to decide that the general recognition and
acceptance of same-sex marriage should be an important principle
of public policy, the consequences for religious freedom could
be enormous. Marriage preparation, relationship counselling,
decisions about medical treatment by next of kin, school
enrolments, sex and relationship education in secondary schools,
the hire of parish, school and church facilities for functions
and events, and arrangements for married couples in emergency
housing, retreat, conference and aged care centres are only the
most obvious examples of where Christian beliefs about marriage
could collide with public policy on anti-discrimination which
prioritises the equal treatment of same-sex marriage.
These great matters must be decided politically and we should
not let our minority opponents shuffle them off to the courts,
much less to Commissions.
Conclusion
The U.S.A. and Britain are still a long way away from where we
are now. And that is where we want to keep it. We need to be
clear about what is happening elsewhere in the world and be both
vigilant and confident in protecting all human rights, including
the right to religious freedom, especially through the
parliaments. When the human rights industry starts to treat
religious freedom as a problem, it makes itself an ugly Goliath.
But we should not be cowed. Due to age and arthritis my running
days are gone but speaking metaphorically, we should remember
instead the example of David, and start running at him. We
should also remember that David felled Goliath.
[1] “National Religious Freedom Review to be Announced”, ABC
News, 17 September 2008. (http://www.abc.net.au/news/stories/2008/09/17/2366511.htm?section=justin)
[2] Tom Calma and Conrad Gershevitch, “Freedom of Religion and
Belief in a Multicultural Democracy: an inherent contradiction
or an achievable human right?” Paper presented to the Unity in
Diversity Conference, Townsville, 13-15 August 2009.
(http://www.hreoc.gov.au/about/media/papers/freedom_religion20090803.html)
[3] “Like oil and water? Religion and Human Rights in
Australia”. Human Rights Commission media release, 17 September
2008. (http://www.humanrights.gov.au/about/media/media_releases/2008/97_08.html)