1. First Considerations: John Locke and Religious Tolerance
John Locke (1632-1704) is one of the leading Western philosophers of all times to deal with the problem of religious tolerance. It is undisputable that Locke’s defence of religious tolerance ultimately inspired the drafters of the U.S. Constitution to enshrine church-state separation and the free exercise of religion in its First Amendment. Prior to this, the American Declaration of Independence (1776) already manifested Locke’s Christian understanding that everyone is created equal and endowed by the Creator with certain inalienable rights.
John Locke was born in 1632 into a Puritan family in the west of England. His father, a small landowner, was a Calvinist who fought on the side of Parliament during the English Civil War (1642-1651). After attending the Westminster School, in London, Locke went to Oxford to study at Christ Church College, in 1652. Following graduation with a M.A. degree, he became a fellow of Christ Church in 1658, a position held by him until his dismissal for political reasons, in 1684. Late in life, Locke achieved an enduring reputation as a philosopher with his treatise, An Essay Concerning Human Understanding (1689). In defence of fundamental rights and the lawful right to resist politically tyranny, Locke wrote Two Treatises on Civil Government (1689). As for his works on religious tolerance, these include A Letter Concerning Toleration (1689), Some Thoughts Concerning Education (1693), and The Reasonableness of Christianity (1695).
During the late 1670s Locke was closely associated with the Earl of Shaftesbury (Anthony Ashley-Cooper). Shaftesbury was Locke’s mentor and an influential politician during the reign of Charles II. He led an opposition movement in Parliament who feared that England was dangerously moving toward a form of Catholic absolutism akin to that of Louis XIV’s France. Shaftesbury launched a campaign to exclude Charles II’s Catholic brother James, the Duke of York, from succession to the throne. Because his attempt failed Shaftsbury was forced to flee to Amsterdam, in Holland, where he died in 1683.
When Charles’ brother succeeded to the throne of England as James II, in 1685, the new King pursued the trend towards monarchical absolutism and Locke was forced to take refuge in Amsterdam. He would return to England only five years later, following the “Glorious Revolution” that replaced James II with his daughter Mary and son-in-law William of Orange, as co-regents. The king was forced to flee but not without first dissolving the Parliament, in July 1688. Since without the James’s presence it would not be possible to assemble a constituted Parliament, the dilemma was resolved through the convocation of an extra-legal Parliament comprised of London magistrates as well as members of the Lower House who had served under the reign of Charles II. Such a Parliament formally advised the newly appointed king, William of Orange, to convene an extraordinary Parliament due to meet on 22 January 1689. The Crown was offered to William and Mary (the deposed king’s daughter) but with a caveat: to give royal assent to every declaration that acknowledges full supremacy to the Parliament over all powers of the Crown under the conditions eventually established by the Bill of Rights, in 1689.
It is in this historical context that Locke’s life and legacy must be considered. Locke argued that governments have no other end but the preservation of our inalienable rights to life, liberty and property. Being God-given and therefore inalienable, there is a lawful justification to resist any government who dares to have these basic rights of the individual violated. Locke strongly believed that no government has a right “to destroy, enslave, or designedly to impoverish the subjects”. Curiously, it is hard to read any of Locke’s political writings that do not directly appeal to God and the Bible. Indeed, “it is hard to read any work of by Locke that does not bring up God or the Bible”. As Locke himself put it, in 1697: “The honour and veneration of the Creator, and the happiness of mankind. This is that noble study which is every man’s duty, and every one that can be called a rational creature is capable of”. Accordingly, Locke has been described as “a major theologian whose interpretation of Christianity was tremendously influential in Britain and America”. That is certainly not an understatement. As stated by Joseph Loconte,
“Locke devoted enormous energy to exploring the meaning of the Christian faith, collecting sermons and works of theology, and writing commentaries on Paul’s epistles in order to understand better the means of salvation. His singular defense of religious freedom, A Letter Concerning Toleration (1689), bears the imprint of a devout reader of the Bible. Indeed, Locke believed through his life that “every man has an immortal soul, capable of eternal happiness or misery” and that “there is nothing in this world that is of any consideration in comparison with eternity”.”
One of the major themes in Locke’s writings is the incompatibility of religious intolerance with the teachings of Christ. In A Letter Concerning Toleration (1683), a work written in Latin during Locke’s political exile in Amsterdam, explicitly condemned is not only the persecution of religious dissidents in Europe but also the forcible conversion of indigenous peoples in America. A Letter Concerning Toleration must be analysed against the background of the Catholic reign of James II and revocation of the Edict of Nantes in France, in 1685. Signed in April 1598 by Henry IV, the Edit of Nantes had granted the Huguenots (i.e.; French Calvinists) a legal right to feely practice their religion. On 18 October 1685, however, Louis XIV issued the Edict of Fontainebleau which entirely revoked the Edict of Nantes, a fact that forced all the Huguenots either to convert to Catholicism or face life in prison. There were around 800,000 of them and nearly one-fourth escaped to places of refuge, especially Rio de Janeiro, Geneva, England, Germany and Holland.
Amidst this difficult scenario Locke contended that freedom of conscience comprises a fundamental aspect of the true Christian religion. As a category, “conscience is associated with Christian philosophy and ethics, in which this concept appeared for the first time”. As an individual right, “freedom of conscience has been shaped as the result of centuries-old process, which commenced under the influence of Christianity in the Roman Empire, and developed in democratic states government by the rule of law in the second half of the XIX century”. According to Locke, spiritual matters cannot be granted by the State because freedom of conscience is an inalienable right reserved for the individuals themselves as well as religious societies voluntarily formed to promote their salvation.
Curiously, Locke framed his case for religious tolerance in decidedly Christian terms. If neither Christ nor the Apostles coerced anyone into the Kingdom of Heaven, Locke reasoned, neither could the State. “If the Gospel and the apostles may be credit”, he wrote, “no man can be a Christian without charity and without that faith which works not by force, but by love”. Since Locke believed that “man cannot be forced to be saved,” he concluded that religious matters should be left to individual conscience and individual discernment. Curiously, his entire defence of religious tolerance (one which is certainly in line with the thought of the greatest thinkers in the classical liberal tradition) was not grounded on a doubt about truth or sympathy to the beliefs that he thought should be simply tolerated. On the contrary, Locke argued that the opinions he proposed to tolerate could be even entirely “false and absurd”, at least according to his opinion. Although Locke was adamant that there is, indeed, “only one way to Heaven”, and that humans should observe God’s moral laws with the “utmost care, application and diligence in seeking out and performing them,” still he strongly believed that everyone is individually responsible for finding “the narrow way and the straight gate that leads to Heaven”.
2. Liberal Tolerance vs. Postmodern Tolerance
The Merriam-Webster Dictionary describes tolerance as the “capacity to endure pain or hardship.” As for the Cambridge Dictionary, tolerance implies a “willingness to accept behaviour and beliefs that are different from your own, although you might not agree or approve them”. This traditional meaning postulates that truth may actually be known, although the best way to find truths is by embracing an attitude of rational dialogue, open-mindedness and intellectual modesty.And since this meaning implies the existence of objective reality, free speech has been traditionally accepted in the context of western societies as a mechanism by which falsehoods can be eliminated. In the West, of course, the idea of truth is traditionally linked to the correlation between the real world and statements corresponding to the real world.
Postmodernists, however, claim that everything a person knows is basically the result of social surroundings. As a consequence, the relativism of our age appears to have made the classical view of tolerance considerably obsolete. In its place a “new tolerance” has emerged which denies the existence of objective truths. The contemporary mind tends therefore to operate under the postmodern assumption that “truth” is subjective and relative to social surroundings. We have moved away from the free exchange of ideas aspiring to ascertain the truth to the acceptance that all ideas are equality valid. As a result, the old link between tolerance and judgment has been lost due to our present obsession with being entirely non-judgemental and desperate straits are no longer required from those who claim the emotional status of “intolerance”. As noted by to D.A. Carson, an emeritus professor of Theology,
“Intolerance is no longer a refusal to allow contrary opinions to say their piece in public, but must be understood to be any questioning or contradicting the view that all opinions are equal in value, that all worldviews have equal worth, that all stances are equally valid. To question such postmodern axioms is by definition intolerant. For such questioning there is no tolerance whatsoever, for it is classed as intolerance and must therefore be condemned. It has become the supreme vice”.
When its meaning can be so distorted “tolerance” becomes “the superficial signifier of acceptance of affirmation of anyone and everyone and people become protected from troubling themselves with the challenge of engaging with moral dilemmas”. The result is that we have changed its meaning of from an acceptance of robust debate and healthy criticism to something like asserting that all ideas are equally valid. As noted above, the American Founders were inspired by a Lockean philosophy and their Declaration of Independence holds to be self-evident that we are endowed with certain inalienable rights. Postmodernists, however, reject the ontological nature of this statement because, by its very nature, postmodernism subjectifies every claim to truth. Accordingly, if there is no truth then there is no inalienable right to be self-evident and the foundation of the American experience in liberty basically disappears. Indeed, postmodernism pits itself against any claim of self-evident truths, including those leading to the recognition of any inalienable right of the individual.
Whereas in the past the laws advanced free speech as a means to achieve more tolerance, now these laws may put an emphasis on limiting such freedom as a means of achieving “social diversity” and “multiculturalism”. Consider, for instance, the Racial and Religious Tolerance Act enacted in the State of Victoria, Australia. In its goal of achieving “multicultural democracy”, such a legislation explicitly says that, in determining who has been “intolerant”, “it is irrelevant whether or not the person who has made an assumption about the race or religious belief or activity of another person or class of persons, was incorrect at the time that the contravention is alleged to have taken place.” In other words, under this legislation a person may commit an act of “intolerance” even when he or she had no intention to do so!
Why would any law assume that the truth of a statement is irrelevant? After all, the truth of a statement has always been deemed a significant element of defence in defamation cases. The answer appears to be quite simple: such laws rest on a postmodern view that approaches truth claims from an entirely subjective perspective. There is no the recognition of ultimate truths. There are only Christian “truths”, Jewish “truths”, Hindu “truths”, Islamic “truths”, with each of these claims being “truths” as long as they are perceived in accordance with the social context. However, one might say, when a modern liberal culture is considered of equal value to a culture in which the freedom of women can be radically restricted, it diminishes the defining characteristic of that liberal culture as the defender of individual liberty.
Postmodern scholars are inclined to concur with Nietzsche’s claim that “God has become unbelievable, as have the autonomous self and the meaning of history.” Because the typical postmodernist naturally leans towards an attitude of religious disbelief, “the very idea of deconstruction seems to suggest that the idea of God ought to be eliminated from Western culture as a power play on the part of churches and others with vested interests in its survival”. Consequently, instead of advancing the free expression of religiosity, tolerance laws based on postmodern underpinnings will advance a soft form of anti-religious bigotry that will not allow any form of strong disagreement. Of course, “one who has never disagreed with others about religion is not commendably tolerant, but is treating religious difference as trivial, as if religious beliefs do not matter”.
It might be important to remind the reader that postmodernism has emerged from a Marxist tradition of anti-Western philosophy. To be sure, Marxism is a form of dialectical logic and postmodernism operates as a reaction to all forms of dialectic. And yet, it is also important to consider that Karl Marx actually believed that fundamental human rights are socially construed – that all rights of the individual are socially created and determined. The Marxist link to postmodernism is therefore made quite evident when it is possible to realise that all the most celebrated postmodern scholars of the past century emerged from a Marxist tradition of critical thought.
Take, for instance, the example of Michel Foucault (1926-1984), who was a member of the Maoist Gauche Proletarienne and a member of the French Communist Party. Although later in life he left these communist organisations, Foucault would never abandon Marxist philosophy altogether. To the contrary, he remained fully committed to a critical analysis of power relations and the role of inequality in determining social structures. However, Foucault also felt a strong desire to create something even “more radical” than “mere” Marxism. Thus he turned to Nietzsche, Heidegger and avant-garde writers and surrealists whose hostility to “bourgeois life” took more aesthetic and psychological forms.
In this sense, Foucault contended that that the pursuit of truth is never disinterested or neutral but instrumental to the achievement of power and control – an attempt to conceal biases under the mask of pretence objectivity. Since he thought that nothing could be entirely right or wrong, not even in the act of knowing, he concluded that there is no such thing as objective truth and the very instinct for knowledge is something to be regarded as malicious and opposed to human happiness. By blaming the Western (Christian) tradition of scientism and objectivism for the oppression of peoples of other Civilisations, Foucault concluded that “the West” was the historical product of a capitalist system that is inherently diabolical and exploitative.
This immense hatred Foucault had for “the West” eventually led him to support one of the most fanatical and primitive forms of religious bigotry the world has ever seen. As the protests against the Shah reached their zenith, Foucault visited Iran in 1979 as a foreign correspondent Corriere della Serra and Le Nouvel Observateur. There he had a friendly encounter with the fanatical leader of that repressive Islamic Revolution, Ayatollah Khomeini. Foucault wrote opinion pieces in praises of Islamic oppression by interpreting those acts of religious violence as a turning point that could “set the entire region afire”, thus signalising the end of “Western hegemony”.Arguably, Foucault would have sympathised with Radical Islam for perceiving this religious worldview as the common enemy of “the West” – as an “anti-colonial force” and therefore “progressive”. He supported that Islamic Revolution because such a violent takeover of that country was anti-modern, anti-liberal and, above all, anti-Western. His hope was that Political Islam could be the spearhead of a global insurrection in the name of the “oppressed”. In the postmodern mind of such leftist philosophers, the hatred of “the West” is worth a few compromises, including the equality between men and women.
3. Religious Tolerance and Criminalisation of Truth-Telling
One of the primary examples of postmodern legislation claiming to promote “tolerance” is Section 18C of Australia’s Racial Discrimination Act 1975 (Cth). Under this Section, it is unlawful for any person to do an act (other than in private) if the act “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate” a person where the act is done because of the race, colour or national or ethnic origin of the other person. The “hurt feelings” test required in such a provision is far below the existing defamation threshold.Clearly, racism must be combatted. However, governments must take care to ensure that laws combatting racism do not unduly inhibit fundamental rights as personal freedom should not end where subjective feelings begin.
Despite its problems in compromising freedom of speech, there have been plans to extend the reach of litigation based on Section 18C of the federal anti-discrimination law to matters of religion. One of such proposals was presented by Dr Anne Ally, an Egyptian-born Muslim parliamentarian and the Australian Minister for Education. She sought to expand the scope of Section 18C to religious grounds, while simultaneously imposing considerable restrictions on freedom of speech. Fortunately, the idea was rejected by a religious freedom review commissioned by the Australian government. The rejection was premised on the realisation that such a proposal would dramatically restrict any legitimate debate about this important area. After all, according to law professor Neil Foster,
“The best way of exposing the darkness of those who commit religiously-motivated harm against others, would seem to be to bring into play the strong light of full and frank dialogue, so that those views can be clearly challenged and exposed. Preserving free speech on these and other issues is virtually important”.
Unfortunately, there are numerous other advocates of restrictions of free speech on grounds of “religious feelings”. One such advocate is Professor Samina Yasmeen, who is Director of the Centre for Muslim States and Societies at the University of Western Australia. When violent protests erupted in Sydney which saw young Muslims attacking the police, she attempted to establish a moral equivalence between these violent acts and a supposed “violence” caused by YouTube videos that, according to her, “inflame emotions across the Muslim world.” These videos “violate the special place assigned to Prophet Mohammed” and are “an intrusion into this sacred space”, Yasmeen wrote. Since she views any criticism of Islam as a primary cause of terrorist attacks, Yasmeen proposes the enactment of legislation which will prohibit the hurting of religious feelings. This new law should punish everyone who violates the feelings of Muslims, because, in her opinion, “violating spaces sacred to Muslims … falls within the space of violence”. In other words, this professor in Australia is proposing the creation of blasphemy law in Australia – if not in name at least in practice.
Professor Yasmeen was born in Pakistan. Her country has small pockets of Hindus and Christians, each of them comprising less than 2 per cent of the entire population. Non-Muslims in Pakistan have been killed, their places of worship been destroyed, and their property looted. Instead of addressing these problems in her native country, Professor Yasmeen advocates instead for what effectively would constitute a form of blasphemy law in Australia. She candidly talks about “the coordination of financial sanctions” that would “help the Muslims deal with such attacks on religions feelings”. She then proposes “a billion-dollar lawsuit against those who target religious beliefs, and engage in intense violation of sacred spaces, would shift the whole discussion to a different place”, she proposes. “And even if the courts throw out the suit”, she concludes
“it would focus attention on legal pathways to oppose such violence aimed at space that is sacred for a quarter of humanity. It may even create pathways that counter violence of this kind”.
Professor Yasmeen represents the academic side in the ongoing Islamic war on freedom of speech. She warns that Westerners will continue to be “potential targets” of religious extremism as long as they continue to “offend” the feelings of Muslims. Of course, the imposition of censorship of religious criticism is a key principle of Islamic jurisprudence – the prohibition of derogatory comments about Allah, Muhammad, and the Islamic religion as a whole. However, Australian academics such as Professor Yasmeen have the full support of many local politicians willing to compromise free speech in the name of a more “tolerant” society. According to Dr Mark Durie, a scholar in linguistics and theology,
“We are seeing the privileging of Islam in the public square, mandating of compulsory respect for Islam, erosion of the principle of reciprocity and equality, implementation of Sharia restrictions on freedom of speech and religious practice, denial and deception about the teachings of Islam including jihad and the Sharia, and denial about the religious motivations of some Muslims who engage in intimidation and criminal acts”.
Once the principle that nothing “offensive” about Islam can be legally permissible, the adherents of extreme manifestations of religion will be able to claim that they, rather than their extreme beliefs, have been attacked. To place any form of religion beyond criticism, because some of its adherents might feel “offended”, is to ignore that it is not possible to protect a right to not be offended without more grievously infringing on the fundamental right of others to express their opinions freely. Above all, such idea that any person or group should be sheltered from criticism is inimical to freedom of speech, which is the bedrock of every democratic society. As the Australian theologian, Robert Forsyth, properly reminds us,
“As important as the right to religious liberty is, it is crucial to add that protecting it should not entail any laws that remove others’ rights to criticise, deny or even ridicule any particular religious belief or practice … Therefore, it is essential to rule out any notion that blasphemy should be either reintroduced or reinvigorated as an offence. Nor can religious freedom protection guarantee that religious points of view will necessarily be listened to, or religious leaders respected in public debate. These are matters properly outside the reach of law in liberal democracies”.
The political process is necessarily wide, reflecting the freedom to receive information that may affect a citizen’s choices. Since the communication of political ideas which are important to democratic deliberation may sometimes be embedded in a religious perspective, such communication should not be limited or restricted. As noted by Professor Adrienne Stone, religious speech is in its nature often intertwined with “political opinions, perspectives, philosophies and practices”. By the same token, Nicholas Aroney, another Australian constitutional law professor, reminds us that “religious beliefs and religious practices (as well as irreligious beliefs) not infrequently inform, or are tied up with, political perspectives, philosophies and practices”. That being so, any law which affects the critical assessment of religious beliefs unconstitutionally burdens the freedom of political communication. This is the view already manifested by the Australian courts. For example, about a decade ago the Full Court of the Federal Court of Australia correctly decided that “religious beliefs and doctrines frequently attract public debate and sometimes have political consequences reflected in government laws and policies”. Accordingly, in Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth, Chief Justice Latham of the Australian High Court noted the following with respect to religious beliefs:
“Such beliefs are concerned with the relation between man and the God whom he worships, although they are also concerned with the relation between man and the civil government under which he lives. They are political in character, but they are none the less religious on that account.”
However, one of the greatest concerns in Australia has been the constant enactment of laws preventing some religious people from ever feeling offended. Although Australia does not have at federal level legislation aiming to prohibit manifestations of religious “intolerance”, three Australian jurisdictions have passed such a legislation at State level – Queensland, Tasmania and Victoria. Since these religious tolerance laws are sufficiently similar that the considerations about them are substantially the same, the Victorian Racial and Religious Tolerance Act 2001 (Vic) (hereinafter “RRTA”) will be taken as a representative.
The Victorian RRTA aims at preventing instances of either religious or racial vilification, thus applying to religion the same formulations which are normally applied to race. Of course, one would assume that the laws of a democratic society “should be less ready to protect people from vilification based on the voluntary life choices of its citizens compared to an unchangeable attribute of their birth.” After all, as legal scholar Ivan Hare reminds us, “religions inevitably make competing and often incompatible claims about the nature of the true god, the origins of the universe, the path to enlightenment and how to live a good life and so on. These sorts of claims are not mirrored in racial discourse.”
The Victorian legislation, however, allows anyone to file a complaint of alleged religious intolerance. The burden of proof rests with those who have been charged, instead of staying with those who claim to be offended. Those who are charged under the legislation are required to prove why they have not committed religious vilification, or why they would qualify for any exemptions. In so doing, they must bear all the legal expenses. In the meantime, those who bring these charges will get the full backing of the State, often with all costs borne by the taxpayer. Arguably, the risk of being dragged into court will deter many people from arguing the merits of someone’s religious beliefs. This self-imposed censorship of ideas may cause the “chilling effect” of limiting free speech due to the fear of litigation and its risk of financial ruin, jail, collegial ostracism, or embarrassment.
The RRTA explicitly states that the truth of a statement cannot be relied upon as a defence against the charge of religious vilification. In determining whether a person has committed such a vilification, “it is irrelevant whether or not the person has made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the contravention is alleged to have taken place.” And since the truth is considered irrelevant for its own purposes, the law might be contravened by conduct which has the effect of inciting religious hatred even where the inciter had no intention to do so.
Perhaps the most compelling argument against laws of such a postmodern nature is the Catch the Fire Ministries case in Victoria. This decision, the first major litigation on the subject in Australia, bears out all the concerns that religious tolerance laws can be used as a weapon by radical groups to silence any form of criticism towards their beliefs. On 17 December 2004, Judge Michael Higgins, presiding at the Victorian Civil and Administrative Tribunal (VCAT), found both the speakers and organisers of a seminar held by evangelical Christians on the subject of Islam, Pastors Daniel Scot and Danny Nalliah, guilty of inciting religious hatred against Muslims. In reality, the evidence of vilification against them was not based on whether the attendees felt hatred or contempt toward Muslims, but whether the three Muslim attendees (who did not reveal their faith and were technically not invited) felt offended by the comments about the Koran during the course of the seminar, even though they confessed under cross-examination that their knowledge of the Book was “slight.”
Following the controversial decision a remedy was announced on 22 June 2005. Judge Higgins ruled that the defendants had vilified Muslims and that, among other things, they would have to place a public statement expressing their apologies on their website as well as in two leading newspapers at the total cost of $70,000. These advertisements would reach 2.5 million people, rather than the less than 250 who attended the seminar. As one might expect, the respondents appealed the decision. On August 14, 2006, the Court of Appeal ruled that judge Higgins’s decision contained many substantial errors of fact. As a result, the Court of Appeal found no other alternative but to remit the matter to the Tribunal to be heard before a different judge, as well as have the orders requiring a public apology set aside.
After the decision by the Court of Appeal, that case ended up being resolved through mediation between the parties and without the need for re-hearing, thus ending a litigation process that lasted five years. Regardless of its outcome, it is worth considering that the defendants spent an enormous amount of money in litigation, the costs exceeding one million dollars. The excessive cost of litigation can result in the denial of justice. Since it may lie far beyond the financial capacity of most individuals and small organisations, defendants may be compelled to settle their cases with unfair concessions in the hope of avoiding costly litigation. This is in itself a form of punishment and a further denial of freedom of speech, meaning that the most vulnerable in this battleground are those who lack the resources and organizational clout to fund litigation.
In the Catch the Fire case, judge Higgins explicitly informed in his ruling that the truth is not a defense under the legislation. Of course, if a statement is true, it should be open to be stated freely. However, he found that the pastors’ seminar on Islam was not a “balanced discussion”. Such an idea that one must provide a “balanced” discussion to escape charges of religious vilification is, quite frankly, ludicrous. At the seminar Pastor Scot had drawn attention to a number of disturbing statements in the Koran, as well as a number of statements in the Koran of which he expressed approval.
Needless to say, discussion of these matters should not be repressed. Whatever the merits of the arguments presented by the respondents, the regrettable episode illustrates the potential for exploitation of any such mechanisms by religious extremists who are reluctant to endure public scrutiny of their beliefs. Another discomforting conclusion one can draw from that regrettable episode is that in the eyes of a governmental agency, the rights of some people to engage in free speech may be less important than others. This desire to shelter certain groups from public scrutiny should be of great concern to all Australians, including those of no religious beliefs. Arguably, legislation of this kind operates in terrorem as it causes people to be unprepared to make critical comments or give warnings about religiously extremist thoughts and activities, however well-based those comments or warnings might be.
Curiously, however, it appears that the legislation in Victoria is not effectively applied when certain religious beliefs are viciously attacked. In October 2022, former National Australia Bank CEO Andrew Thorburn was summarily dismissed of his post as Essendon Football Club CEO after less than 24 hours into the position. His crime: being associated with a church that upholds traditional Christian views of abortion, marriage and sexuality. Thorburn is the volunteer chairman of ‘City on a Hill’, a network of Anglican churches that uphold values that sit firmly within the mainstream of biblical Christianity – “human life begins at conception, marriage is between a man and a woman and sex should be confined to marriage”.
Irrespective of his personal beliefs, Thorburn stated on a radio interview that he had always been an inclusive leader: “I genuinely and passionately believe people can hold different views on complex personal and moral matters while being able to live and work together respectfully and harmoniously.” However, not even this public manifestation of support for social diversity initiatives was enough. As political commentator John Roskam points out,
“It is understandable a church should would have a view on abortion. Why a football club should have one is less clear … The precedent has been set. To be the chief executive of an AFL club requires successful candidates to hold and espouse a view (and the correct view) on abortion and marriage”.
His summary dismissal raises deep concerns about the ability of Christians to serve in high-profile positions in Australia’s business and government. To make it worse, in a press interview Victoria’s Premier Daniel Andrews accused Thorburn’s beliefs of being “absolutely appalling”. “That kind of hatred is just wrong”, he said. The Victorian Premier also declared:
“People can get all upset about the fact that someone resigned. I’m much more focused on the fact that people are harming themselves and, sometimes, taking their own lives because of bigotry and prejudice”.
As can be seen, Premier Andrews breached the RRTA by claiming that Thorburn’s beliefs “make people harm themselves and even take their own lives”. Arguably, his portrait of traditional Christian beliefs as “hatred” and “absolutely appalling” incite contempt, revulsion and ridicule toward the Christian community in Victoria. To be fair, the law provides a few exemptions if the statement is made in the public interest and it promotes the full and equal participation of everyone in society. But will these statements by the Premier promote the full and equal participation of every person’s society? Who would dare to say it is in the “public interest” to hound Christians who hold conservative views out of the public square? Arguably, using the language of “hatred” to suppress disagreement on matters as central to society as life-issues (euthanasia, abortion, etc.) and other significant moral issues, is likely to increase friction and disagreement in the community, not lessen them. Indeed, as Thorburn went on to say a few hours after being sacked for holding some conservative Christian beliefs,
“True tolerance, inclusion and diversity also includes people of faith. Freedoms of thought, conscience, religion and association are fundamental human rights, explicitly recognised in Victorian law in our Charter of Human Rights and Responsibilities and Racial and Religious Tolerance Act”.
To conclude, the Victorian Premier should not use the language of “hatred” in order to violate freedom of conscience. Of course, nobody has a “freedom” to incite violence. For the purposes of not undermining individual freedom, “hatred” must be framed in a classical context of advancing the right to dissenting opinions, and not according to an attempt to supress personal viewpoints articulated within long-standing moral values informed by a certain religious tradition.Such a suppression of personal viewpoints has no place in a truly tolerant society. The legal interpretation of “hatred” therefore must be based upon an authentic tolerance to moral evaluation, and not one based on subjective feelings or “the immediacy of identity of political movements themselves framed within the radical autonomy of the self to the expense of the community and the belief systems (including religions) that inform it”.
Final Considerations: From Liberal Tolerance to Postmodern (In)Tolerance
Religion is rarely only a private matter and religious speech is often intertwined with political opinions, perspectives, philosophies and practices. And at what point does speaking out against any religion may turn into a form of discrimination that should be stopped? To start with, citizens in a democratic society are entitled to freely express their opinions. Furthermore, some religious beliefs actually deserve to be criticised. The obvious danger in passing legislation based on rejection of criticism of religion lies in the creation of blasphemy law – if not in name, then in effect. This article then concludes that religious tolerance laws should not forbid the robust debate and criticism of religion, including religious beliefs and expressions.
Tolerance once meant the acceptance of contrary opinions that you strongly dislike. As traditionally conceived, religious tolerance leaves a person perfectly free to criticise and condemn as ‘false and absurd’ any religious idea. However, given the moral relativism of our time such a view has been replaced by a postmodernist view that assumes the moral equivalence of all religious beliefs. Western societies have therefore moved away from the free manifestation of religious ideas to the assumption that all beliefs are equally acceptable and valid. Once a society slides from the classical view of tolerance to such a postmodernist variant, tolerance then ceases to imply that everyone has a right to freely express opinions, and society starts to morph itself into an oppressive censor of strong opinions that contradict the general assumption about the more equivalence of religious values and ideas. To question such a relativistic assumption is to commit a great ‘sin’ and to be guilty of the ultimate act of religious intolerance. In the particular case of Australia, writes Peter Kurti,
“We are rapidly losing sight of the fundamental principles of tolerance by John Locke; tolerance has evolved to become a signifier of acceptance and affirmation. Those who fail to affirm are deemed intolerant; and those who express ‘intolerant’ opinions are condemned for engaging in ‘hate speech’. Denunciation, condemnation, and public humiliation are the tactics used increasingly by the defenders of new orthodoxies”.
This is hardly the kind of society in which most of us would like to live. However, the classical link between tolerance and judgment has now been lost in our society due to the refusal to pass valid judgment. Such a goal which is manifested in some contemporary legislation reduces religiously inspired moral convictions to an entirely private matter due to such laws resting on the great fallacy that every religion must be tolerated because no religion can actually be objectively true. Of course, it is easy to talk about the freedom of those who think and act as we do. The problem is when there is fervent disagreement. In this context, the legislator who enacts these “tolerance” laws have accepted a denial of objective reality, thus perceiving all truth claims as no more than preferences that may be ultimately illogical, absurd and mendacious but which by itself does not allow for robust debate based on the rational manifestation of strong disagreement.
Perth/WA, 20 January 2023
Prof Augusto Zimmermann PhD
ABOUT THE AUTHOR
Augusto Zimmermann PhD, LLB, LLM, CIArb, DipEd, is Professor of Law and Head of Law at the Sheridan Institute of Higher Education, Perth. In addition, Professor Zimmermann is a former Law Reform Commissioner with the Law Reform Commission of Western Australia (2012-2017) and a former Associate Dean (Research) at Murdoch University’s School of Law. Professor Zimmermann is also President of the Western Australian Legal Theory Association (WALTA), a former Vice-President of the Australasian Society of Legal Philosophy (ASLP), an Elected Fellow at the International Academy for the Study of the Jurisprudence of the Family, and the Editor-in-Chief of The Western Australian Jurist law journal. A prolific writer and the author of many articles and academic books, Professor Zimmermann was awarded the 2012 Vice Chancellor’s Award for Excellence in Research, and two School Dean’s Research Awards, in 2010 and 2011, at Murdoch University. He is the author/co-author/editor/co-editor of numerous academic articles and books, including Foundations of the Australian Legal System: History Theory and Practice (LexisNexis, 2023); Fundamental Rights in the Age of Covid-19 (Connor Court Publishing, 2021); No Offence Intended: Why 18C is Wrong (Connor Court Publishing, 2016); Christian Foundations of the Common Law (3 Volumes, Connor Court Publishing, 2018); Global Perspectives on Subsidiarity (Springer, 2014); Western Legal Theory: History, Concepts and Perspectives (LexisNexis, 2013); etc.
