The Daniel Andrews State Government of Victoria has recently proposed legislation to remove the rights of faith-based organizations to insist on religious criteria for employment in any of their houses of worship, schools, or charities. While the legislation attempts to curtail the ability of faith-based groups to discriminate against persons on the basis of gender, sexual identity, and religion, by doing so it enacts a fully-fledged Erastianism whereby the state dictates the parameters belief to religious bodies. The move is deeply concerning to anyone interested in the separation of church and state and constitutional rights pertaining to freedom of religion.
I can concede that faith-based organizations, especially those operating in the spheres of education and healthcare, need to be maximally inclusive insofar as their convictions permit. Accordingly, they should develop codes of practice to ensure that the offering of their services and their terms of employment are fair and reasonable. However, that can be achieved by self-regulation in order to achieve consistency, transparency, and accountability across the sector and does not require state legislation. In addition, when it comes to the employment of persons in faith-based organizations, institutional religious convictions, and individual employee protections can be safeguarded through personal contracts in order to ensure that mutual expectations are clear and the rights of all parties are upheld; once more, state legislation is not required here.
Sadly, the Andrews government has not seen fit to consult with faith-based organizations and instead has decided to press ahead with legislation that will directly interfere in the practice of religion. This policy represents a move that can only be described as unbridled Erastianism. For those unaware of this nomenclature, Erastianism is the management of religion by the state. Erastian policies are those which seek to determine religious belief and practice by the state. Erastianism, in its secular forms, can include suppressing religious belief, regulating religious beliefs, or sanitizing faith from the public square.
I want to present four reasons why the Erastian policies of the Andrews government are dangerous and damaging to the religious freedom and common good of all Victorians.
It Interferes with the Right of Religious Organizations to Self-Determination
A glaring problem is that the proposed legislation places an “inherent requirement” on faith-based institutions to justify any religious requirement mandated for its employees, including officers, administrators, or support staff.
Now, you might say to me. “Hey, does the janitor at Trinity College or the receptionist at Red Crescent have to be an adherent to their faith tradition?” Me, personally, I would say “no,” and I think you’ll find that is exactly the position taken in many faith-based organizations who do employ non-adherents in many instances. But – and here is the problem – does the state have the authority or even the expertise to decide which positions in a faith-based organization need to be occupied by a practicing member of their faith? The obvious answer is “no,” but Daniel Andrews insists to the contrary that the state can and must hold such authority. This is a controversial point and Daniel Andrews has tried to assuage critics with a statement we can break into two parts.
- The test will not force religious bodies or schools to employ people with attributes that conflict with its religious beliefs and principles.
- However, it will require them to demonstrate a necessary connection between their religious beliefs and the requirements of a specific role.
I take the point that Andrews is not going to force the Catholic Diocese of Melbourne to press the appointment of a polyamorous Rastafarian as a Principal of one of its schools or the CEO of one of its charities – but they now have the legal authority to do so, and that is alarming!
The whole thing reminds me of an episode of the British sitcom Yes, Prime Minister where Sir Humphrey tries to convince the Prime Minister that you don’t have to be a Christian in order to be a bishop. In fact, a bishop can be an atheist as long as he knows how to speak properly and knows which knife and folk to use! Sadly, comical fiction could soon become a legal reality. While the proposed amendment does not apply to appointments to “clerical office” such as a bishop, the work of religious groups is carried out by many “lay” persons whose commitment to a group’s faith needs to be clear and firm. Indeed, on a narrow reading, one could argue that in an educational institution like a school, that the only role that necessitates a religious affiliation is the school chaplain or director of the chapel.
The problem is that “demonstrate a necessary connection” between beliefs and roles is notoriously subjective. There are no objective criteria here since beliefs and roles will vary from religion to religion and from organization to organization. So who is going to decide when a “necessary connection” exists between beliefs and roles and exactly how they will decide? Will it be a secular magisterium within the Andrews government who are, to their pride I imagine, religiously illiterate and couldn’t tell the difference between a Menorah and the Mahdi? Will there be some panel of experts with expertise in comparative religion, educational practice and administration, healthcare, aged care, drug rehabilitation, non-profit management, and philanthropy? Because I’d love to meet these folks if you can find them! The only people qualified and authorized to determine the link between religious commitment and roles within a faith organization are the people of faith in that organization.
The Hypocrisy of Imposing Restrictions on Religion and Not on Other Organizations
It is strange and tragic that faith-based organizations have been singled out in the proposed legislation whilst other organizations can insist on ideology, ethnicity, and behaviour as part of requirements for membership and employment.
Imagine telling the Hellenic Society that they had to justify a by-law that leaders and officers have to have Greek heritage (an exemption in those circumstances is provided by s 66 of the Equal Opportunity Act). Imagine telling the Board of the Gay and Lesbian Sydney Mardi Gras that they had to justify why members of their board were LGBTI persons or had to be committed to the LGBTI cause. Imagine telling ALP and the Greens MPs that they have to justify why their staffers had to be members of their party and supportive of their political values (see the exemption in s 27 of the Act which permits this). Imagine telling the Islamic Council of Australia that they have to justify why their officers have to be practicing Muslims … oh wait, that’s exactly what Daniel Andrews is proposing!
There is a serious problem of legal consistency across the cultural spectrum. Daniel Andrews is seeking to dictate to churches and mosques, with their schools and charities, the criteria for their appointments. And yet other organizations, including his own party, are free to insist on ideological subscription and expected codes of conduct as a condition of employment. It is hypocritical and plainly ridiculous.
Creating a Mechanism for the Harassment of Religious Minorities
The legislation applies not only to Catholic and Christian schools –undoubtedly the intended targets– but also includes other religions such as Islam, Judaism, and minority denominations like the Assyrian and Coptic Churches. What is more, the scope of the legislation is not restricted to schools, but includes charities, associations, and even roles associated with places of worship like secretaries and administrators working for churches, synagogues, and mosques.
There is every possibility that people with anti-Islamic or anti-Semitic beliefs will use the legislation to harass certain faith communities where possible. That could be achieved by claiming discrimination whenever a job is advertised and filled by a religious practitioner, when contracts are issued or not renewed, or when a person fails to receive an internal promotion.
If I was a committed Islamophobe, I would be overjoyed by the proposed legislation and I would be applying for every job at every Muslim school I could for the specific purpose of accusing Muslim institutions of discrimination in order to create havoc for the Muslim communities these schools represent. One need not win any of the complaints, but the sheer process itself would represent a form of harassment against Muslim communities.
A Threat to Victoria’s Secularity, Diversity, and Pluralism
Social progressives like Daniel Andrews are a grave threat to the secularity and diversity of the Australian way of life.
First, when it comes to secularism, there is a comic irony on display before us. We now have Daniel Andrews’s brand of social progressivism, seemingly committed to the separation of church and state, getting rid of the SRI program from schools as proof of their commitment to the secularism, but now dictating to faith-based organizations the relevance of beliefs for roles in their organization. To quote Alanis Morisette: “Isn’t it ironic.”
It seems that social progressives are all for separation of church and state when it suits them, like in public schools; but the chasm separating church and state suddenly disappears when the Andrews Government feels the need to intervene in the affairs of faith-based organizations in order to dictate which roles in their organizations require subscription to their religion’s faith and practice.
Let me add that I actually believe in secularism. I don’t want the state controlling the church nor the church controlling the state. I also believe that church and state can work together for a common good and for the better of society – there is plenty of evidence in the charities, education, and healthcare sectors that this happens and happens well.
However, the proposed legislation is not in the spirit of the generous or neutral secularism we have traditionally enjoyed. The proposed legislation evinces a secular crusade to colonize sacred spaces with ideologies that are fundamentally opposed to the faith and values of the people in those organizations. If we are brutally honest, it is clear that the proposed legislation is the attempt to manipulate and control, through the threat of prosecution, what faith-based organizations and their members believe about marriage, family, and sexuality.
Second, when it comes to diversity, there are also major concerns here. At the risk of condescension, I think social progressives need to be reminded that diversity means the right to be different without fear of reprisal. However, the Andrews government is zealously opposed to permitting religious groups to maintain their distinctive views of family, marriage, and sexuality. Instead of permitting a diversity of opinions on the matter, the Andrews government is taking the unprecedented step of establishing a type of doctrinal orthodoxy on the subject and even requiring degrees of adherence in the sphere of religion.
Let’s be honest. There are seismic differences in our society about marriage, family, and sexuality. Our society is pluralistic and includes people of all faiths and none. Victoria includes people of a social progressive persuasion and others who are for reasons of religion or upbringing very conservative. In order for us to co-exist in peace, we don’t have to agree with each other on contentious matters. We simply have to recognize the right of “others” to live their own lives and pursue their own happiness. We need to give each other space to exercise their convictions, to continue conversations about our common humanity, and to pursue the things that make for peace and an atmosphere of respect. However, the Andrews government is taking the position that pluralism is a type of heresy and only progressive values are to be held in the public sphere and they are pursuing policies with the specific purpose of embedding progressive views in faith-based organizations irrespective of whether those views are congruent with an organization’s religious beliefs.
Our challenge, as Australians committed to secularism, diversity, pluralism, and multiculturalism, is not to legislate away our differences, but to discover ways in which we can live together in peace despite our differences and to celebrate our differences insofar as they enrich our common life together.
The Daniel Andrews Brand of Erastianism in a Nutshell
So let me sum up my complaint. Daniel Andrews is engaging in a draconian act of secular Erastianism
- By infringing upon the rights of religious organizations (houses of worship, faith-based schools, and charities, etc) to appoint people to positions within their organization who are committed to their beliefs, values, and standards of behaviour.
- By hypocritically insisting that religious organizations drop religious beliefs and behavioural expectations for certain roles, while political parties, lobby-groups, and cultural organizations are free to insist on ideological and ethical subscription for any role in their organization.
- By proposing legislation that can be used to take punitive actions against minority groups, especially Jews and Muslims.
- By compromising the secularity, social diversity, and cultural pluralism of the state of Victoria.
I am hopeful that the proposed legislation would be defeated upon a legal challenge because it is clearly an overreach by government into the space of religion. However, it might not be so clear cut.
(My thanks to Michael Kellahan, Neil Foster, and Mark Sneddon for reading and commenting on earlier drafts).