Between church and state, let’s cherish common decency

Opinion Article

2018 October, 12

When Martin Luther propounded his doctrine of the two kingdoms, he created the basis for the separation of church and state, and the modern model that distinguishes theocracy from pluralist democracy. It was a fork in the Western road presaging its liberal democratic future, rejecting government by religion but without banishing it from the public square. 

Luther owed his doctrine to St Augustine’s The City of God, turning on the meaning of Jesus Christ’s answer to the entrapment of the Pharisees, who asked whether one should pay tax to the Romans. In Matthew 22, Jesus famously answered, “Render therefore unto Caesar the things that are Caesar’s and to God the things that are God’s.”

The American founding fathers were much influenced by Luther when they conceived their republic. James Madison wrote in an 1821 letter that the “genius and courage of Luther led the way, between what is due to Caesar and what is due to God”. The separation of church and state marks democratic government throughout the Western world. 

The separation is often set out in constitutional law. The interaction between religious freedoms and democratic principles concerning tolerance, plurality and human rights is now facing us. 

The modern world is more tolerant of plurality and intolerant of denying individuals and groups human rights. Tolerance is a virtue and, properly understood, should strike a middle way through two extremes: indulgence on the one hand and narrow-mindedness on the other. 

Religious freedom in 21st century Australia will require equilibrium, and religion and pluralism must be reconciled. Christianity no longer commands exclusive dominion in the public square. It is no longer possible to say as Shakespeare’s Richard III said in respect of England: “Else wherefore breathe I in a Christian land?” 

If there is to be freedom for Christianity there must be freedom for Islam. If we proscribe certain elements of religious practices that offend universal human rights, then all religions must be subject to the same limitations. 

If any aspect of sharia law or, indeed, the customary laws of Aboriginal people offends universal human rights then it is fitting it be curtailed, as should the Catholic seal of confession if the law requires priests to disclose information about child abuse gleaned from confessions. Same-sex marriage brought these questions to a head. Human rights concerning discrimination on the grounds of sexual preference and freedom of religion must be reconciled and mutual respect located. 

I have argued that John Howard’s refusal of same-sex marriage through his 2004 Marriage Act definition kicked the can down the road and failed to balance the freedom of same-sex couples and freedom of religion. Conservatives who fail to acknowledge the other side of the argument, and merely use force majeure, leave themselves vulnerable to later defeat when progressives command the silent majority. The results of the plebiscite in Warringah and Wentworth showed this plainly. 

The plebiscite and subsequent legislation recognising same-sex marriage only half-resolved the issue. Now parliament needs to work out whether and how religious freedoms are to be protected. The Ruddock review is yet to be finalised, and the federal parliament will need the wisdom of Solomon to strike the right equilibrium. For mine, the test of whether an act undertaken as part of a religious observance should be allowable, notwithstanding that it would otherwise be an unlawful discrimination, should follow a two-part test. 

First, is the act pursuant to an established and recognised aspect of a religion shared by a group of believers which is protected by section 116 of the Constitution? This is because religion cannot be the idiosyncratic belief system of an individual. Religions by definition are shared and adhered to by groups. They are organised in some way. Individuals cannot avail themselves of a claim to religious freedom on the basis of their personal philosophy or spirituality. Atheism and agnosticism are not religions within the ambit of section 116, and whatever recognition and protection we may choose to afford them under the law, it cannot be on the basis of religious freedom. Leaked reports indicate the Ruddock review may be misguided on this point.

Second, is the act an essential aspect of the beliefs and practices of the particular religion, which without protection would undermine or derogate from that religion? Baking cakes, hiring limousines, hiring venues or the provisioning of any goods or services — including officiating at non-religious ceremonies — have nothing to do with religion, and no discrimination should be allowed. If you want to bake cakes only for heterosexual marriages then you should expect to be taken to the Anti-Discrimination Commission. Just as plumbers, electricians and publicans cannot discriminate on the basis of homosexuality or sexual orientation or preference, neither should dressmakers, suit hirers and florists. 

The civil celebrant is in no different position. You shouldn’t be in the business if you want to - observe your own private beliefs about same-sex marriage. 

The only protection concerns religions. Christian churches and other religions may discriminate according to their theological beliefs. This is offensive to many people, but it is what is involved when we uphold freedom of religion. 

According to this type of test then, religious schools must be able to insist on their curriculum and pedagogy according to their beliefs, as the teaching of children in particular faiths is central to religious freedom. I would distinguish between what is taught and who is allowed to be taught and who can teach and work in religious schools. Provided employees can and do discharge their duties without contradicting the religion of the school, then their private sexual preferences and arrangements should not bar them from employment if they have nothing to do with their employment at a religious school. 

The only way for churches and others to change is for the religions themselves to change their - theology. This cannot be obliged by the state. The Uniting Church has decided to recognise same-sex marriage. Other churches remain opposed. All churches undergo theological reviews concerning questions of sexuality, the ordination of women and other contentious matters. 

Perhaps the law should have been amended so that the distinction is not between heterosexual and same-sex marriage, but between religious and secular marriage. It would then be a matter for each religion to determine whether it permitted marriage ceremonies within the religion. 

The US Supreme Court’s ruling in the 2017 Masterpiece Cakeshop case concerned the refusal of a wedding cake-maker in Colorado to make a cake for a couple on the grounds of his religious objection to same-sex marriage. The cake-maker was taken to the Colorado Civil Rights Commission. The Supreme Court ruled in favour of the baker by virtue of his appalling treatment by the Colorado authorities. No precedent emerged from the case as to whether cake-making and other such services may be lawfully refused to same-sex couples on religious grounds. 

The court wrote: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognising that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” 

The great prophet of the marketplace, Adam Smith, famously wrote of the baker’s propensity to get up early and bake his bread not for his love for those who would buy his bread, but because of his own self-interest. In a liberal marketplace sellers do not and should not care for the sexual preferences of their customers. 

I am reminded of American writer Raymond Carver’s story A Small, Good Thing. It concerns a baker who has been asked by a mother to bake a cake for her boy. On his birthday the boy is struck by a hit-and-run driver. As the boy lies in a coma, the baker keeps harassing them obsessively and anonymously on the phone about the cake that was ordered and never picked up. The boy dies and the enraged parents confront the baker and a strange midnight communion occurs between the grief-stricken parents and the baker: “I’m not an evil man, I don’t think. Not evil like you said on the phone. You got to understand what it comes down to is I don’t know how to act anymore, it would seem. Please let me ask you if you can find it in your hearts to forgive me.” 

It would be very bad if the Supreme Court or, indeed, our own High Court allowed personal religious belief to permit discrimination in the provisioning of services on the grounds of same sex marriage and sexual orientation. It would also be very bad if the outcome of the Ruddock review results in any legislative proposals that seek to legalise such discrimination based on idiosyncratic and peripheral religious views, which are really directed at identity rather than true religious freedom.

Between church and state, let’s cherish common decency