Since the legalisation of same-sex marriage in 2017, some parts of the Christian church have been advocating for legislation to protect the freedom of religious organisations to set criteria for employment and participation based on their beliefs. The current Government has responded with a draft Religious Discrimination Bill which has been criticised by both sides. Some religious leaders feel it does not go far enough in protecting them. Others in the community, including LGBTIQA+ advocates and their supporters, argue that it goes too far, opening the way to discrimination against them.
In this article, I argue that Christians have been trapped in a zero-sum game that is neither good human rights practice, nor informed by a gospel ethic. There is a much better way.
A Gospel Ethic
The core of the Gospel is that Jesus, the Son of God, came to serve humanity, even at the cost of his own life. It is this service that brings our forgiveness and the healing of our relationship with God, and which lays the foundation for the healing of our relationships with each other and with God’s wider creation. Dietrich Bonhoeffer summed this up by calling Jesus “the man for others.”
In both Jesus’ teaching and that of his apostles, we are very explicitly called to follow in Jesus’ footsteps. Jesus makes this clear in a number of places. One example is the foot-washing scene in John 13, where he first washes their feet – the job of the lowest slave – and then tells them, “I have set you an example that you should do as I have done for you”. Another example in Mark 8, where he says, “If anyone would come after me, he must deny himself and take up his cross and follow me.” Paul reinforces the point in Philippians 2:
Your attitude should be the same as that of Christ Jesus
Who, being in very nature God,
did not consider equality with God something to be used to his own advantage;
rather, he made himself nothing
by taking the very nature of a servant…
Jesus sets this example against the morality of the Jewish religious leaders of the day, who insisted on a strict purity code. His problem was that their morality was hypocritical, not just because they failed to practice what they preached, but because they failed to get to grips with evil. This is expressed pithily in the saying in Matthew 15:11 – “What goes into a man’s mouth does not make him ‘unclean’, but what comes out of his mouth”. It is expressed more fully in the Sermon on the Mount, where Jesus explains to his followers that their righteousness needs to exceed that of the Scribes and Pharisees. He explains that even acts which in themselves are virtuous – prayer, fasting, charity, hospitality – become sinful when they spring from the wrong motives. This leads to a call to self-examination – take the log from your own eye before you attempt to take the speck from someone else’s.
All of us would do well to heed this call to self-examination.
What has all this to do with human rights? The starting point for Australian human rights legislation is the Universal Declaration of Human Rights and the various more detailed human rights covenants that flow from it and to which Australia is a signatory. These covenants provide lists of rights and freedoms that all humans should enjoy including, among quite a long list, freedom of sexual expression and freedom of religion, and freedom from discrimination on the basis of these and other characteristics and choices. They are tied together by the fact that we all live together in communities, not as isolated individuals, and our individual rights hit their limit at the point where they interfere with other people’s rights.
Some of these limits are very clear. If I am a sincere believer in a satanic death cult, this doesn’t allow me to interfere with your right to life. This is self-evident but other cases are less clear.
Take, for instance, the much-debated example of the dispute between the Catholic Church of Tasmania, represented by its Archbishop Julian Porteous, and trans activist Martine Delaney. Delaney complained that a booklet on same-sex relationships distributed by the Church vilified LGBTIQA+ people by saying, among other things, “messing with marriage is messing with children'” which could be taken to imply paedophilia. Porteous responded that no such slur was intended and that the book faithfully reflected Catholic teaching.
The legislation currently before parliament proposes to address these problems via a set of exemptions and exceptions, and consequent amendments to other Acts, but these can never be specific enough, or detailed enough, to address all future conflicts.
Tasmania’s anti-discrimination act, like those of other States and Territories, directs such disputes to conciliation, trying to resolve the issue by agreement. Delaney and Porteous attended two such meetings over the course of a few months, during which Delaney proposed a detailed edit of the booklet which removed the words that Delaney found offensive while attempting to preserve the essence of Catholic teaching on marriage. Porteous was unwilling to change the booklet but proposed a joint statement in which they expressed regret at the misunderstanding. They didn’t reach common ground and Delaney chose not to proceed any further.
Both Delaney and Porteous expressed some frustration with this process, but for me, what is important here is that the two of them sat in the same room together and listened to one another. It could not be expected that such widely different views would be resolved in two meetings, but I would hope that both left the process with food for thought, a better understanding of one another and greater empathy. In order for us to live together in the same community it is not essential for all tensions and disputes to be resolved, but it is essential for us to treat another respectfully.
Towards a Gospel-based human rights ethic
I see advocating for a stand-alone religious discrimination act as a fundamental mistake – it is poor human rights practice, and our advocacy does not reflect the gospel we profess to follow.
In terms of human rights law, it abstracts one of the rights out from the rest and attempts to deal with it in isolation. This sets up an inevitable conflict with other rights – in this case, particularly the right to freedom from sexual discrimination, but potentially also other rights – without a proper means of resolving these conflicts. This makes it inevitable that they will be played out at a distance, in a zero-sum game that breaks down relationships rather than builds them. The legislation currently before parliament proposes to address these problems via a set of exemptions and exceptions, and consequent amendments to other Acts, but these can never be specific enough, or detailed enough, to address all future conflicts. The result would be a complex set of pieces of legislation that would need to be regularly amended or clarified through expensive precedent-setting cases in the higher courts.
This process is also mistaken when viewed through the lens of a gospel ethic – of following the one who came “not to be served but to serve.” Our advocacy for this legislation is self-serving, not in a pernicious or dishonest way but in the normal way of power politics. We have worked on our political friends and brought them to take our side and promote our sectional interests against our opponents. Our leaders have lobbied cleverly but have not faithfully upheld the gospel.
I know these are strong words but consider how else we could have approached this question. Instead of advocating for a Religious Discrimination Act, we could have advocated for a comprehensive Human Rights Act, modeled on the range of rights in the UN covenants. (One was, in fact, put before the Parliament in 2017 by Independent MP Andrew Wilkie.)
If we had advocated for such an act, we would have been advocating for religious freedom, for the protection of our own rights. But we would also have been advocating for the rights of others, including those with whom we disagree. We would have found ourselves side-by side with LGBTIQA+ people in advocating for sexual freedom, First Nations people advocating for racial equality, homeless people advocating for the right to housing, and refugees advocating for the right to seek asylum. This would mean that when tensions arise, they could be dealt with from a foundation of goodwill and mutual respect, rather than a starting point of mutual suspicion.
Such an Act would not in itself resolve the tensions and conflicts inherent in the upholding of human rights. It would, however, provide both a framework within which they can be addressed and a process for doing so. The general practice with anti-discrimination legislation in Australia, at both State and Commonwealth level, is for such complaints to be dealt with at a fairly low level of formality. At the Commonwealth level these are administered by the Human Rights Commission, which has the power to investigate complaints and to engage in conciliation. If it cannot be resolved, the Commission will terminate the case and the complainant has the right to pursue it in the higher courts.
Various pieces of State legislation add a second, more formal step. For instance, the Queensland Ant-Discrimination Act 1991, which protects against discrimination on a range of grounds including religion, has a process that includes conciliation as its first step, followed by referral to either the Queensland Industrial Relations Commission (QIRC) for employment-related matters, or the Queensland Civil and Administrative Tribunal (QCAT) for other matters. While the QIRC is a more formalised legal tribunal, QCAT is purposely designed to be less formal and legal representation is only permitted in limited circumstances.
Although in all these cases there is the possibility of going to the higher courts, such cases are rare. This is partly because the costs are prohibitive, and partly because the less formal processes have a high success rate in resolving complaints. Both the Australian and Queensland Human Rights Commissioners resolved just under half of the complaints they received via conciliation, and the conciliation process also results in a substantial number of complaints being withdrawn before they proceed any further.
The proposed Religious Discrimination Act also makes the Human Rights Commission responsible for dealing with complaints. However, it hands the Commissioner an increasingly complex task, needing to sort through a number of different, often conflicting, Acts to determine whose rights take precedence. Bringing them together in a single human rights act would make it easier to clarify these tensions, and a holistic rights focus would ensure legislators focus on rights as a package, not the rights of particular social groups in isolation.
To me, conciliation processes provide an excellent venue for Christians to live out a gospel ethic. They are, quite literally, venues in which we can live out Jesus’ instruction to love our enemies. This does not necessarily involve us always doing what they want – there are many cases where this may violate our conscience – but it provides opportunities for us to listen carefully to their point of view, to engage in self-examination and self-reflection, and to try and find a way we can serve those with whom we disagree, even if this comes at a cost to ourselves. Not all tensions will be resolved – we live in an imperfect world, and we cannot control the actions of others – but at least we have the opportunity to continue to live out the love of Christ.
Jon Eastgate has had a 40-year career in community development and social policy, and currently runs a small consulting business advising not-for-profit organisations. He is a long-time parishioner at St Andrew’s Anglican Church, South Brisbane.