By Bishop Julian Porteous
Auxiliary Bishop of Sydney
As Federal and State governments draft anti-discrimination legislation, it’s essential they preserve the distinction between discrimination which is unjust and that which is necessary …
By Bishop Julian Porteous
The Sydney Star Observer (16 February 2011) reported that the NSW Greens “have called for the closing of loopholes in the NSW Anti-Discrimination Act that allow businesses owned by religious groups to discriminate against students, employees and clients if they hold something about them that conflicts with their beliefs”. Currently, the churches have “exemptions” from the provisions of the Anti-Discrimination Act.
David Shoebridge, Greens MLC, is reported as saying, “Once a religious organisation receives taxpayer money to fund its operations, whether it’s a school, welfare services or accommodation, then it is absolutely unacceptable that they be allowed to discriminate against people on the basis of their sexual identity, their religion or being a single mother”.
Are the churches offending against the Anti-Discrimination Act? Or is the Act itself wrongly constructed? Is all discrimination wrong?
Discrimination is an important quality to have as a mature human being. We discriminate every day in making choices. It is a compliment to be called a discriminating person. Or, at least, it used to be. To be discriminating was regarded as a virtue. It was viewed as a reflection of wisdom and prudence. Making considered judgements about all sorts of things has traditionally been considered the task of a responsible person. Yet now it seems that its meaning has been changed. In our society at the present time, discrimination has come to be seen only in a negative light. Today, a new definition of discrimination is taking hold. Anyone who projects judgements on situations is viewed as being judgemental. Rather than being discriminating, the person is considered discriminatory. How has this happened?
In the past, it was considered a natural process to make decisions, judgements and distinctions on the basis of distinguishing between objective good and evil, between right and wrong. This capacity to recognise what is objectively right or wrong was the basis for making appropriate choices. Now the issue is not what is right or wrong but what reflects an attitude of tolerance. Otherwise, it is claimed that a person is being judgemental, carrying prejudice, or being offensively discriminatory.
What was once a virtue is now seen as a vice. There has been a complete turn around in meaning. The virtue now is tolerance and the sin is discrimination.
The change in outlook is fuelled by the view that all people, all ideologies and all behaviours have equal merit and, therefore, an equal right to exist. When there is no such thing as basic right and wrong, then any judgement of another becomes negative discrimination. Sometimes the Catholic Church – holding as it does clear positions on a number of issues – is accused of being discriminatory. It is viewed as imposing its beliefs on society. However, as Pope John Paul II said, the Church does not seek to impose but rather to propose its understanding of issues to the society. The Church seeks to contribute to the public debate and offer its insights to assist in strengthening the quality of life within a society.
Properly speaking, discrimination may be either a virtue or a vice. It depends on whether the discrimination is just or unjust. It is right and good to discriminate between good and bad in order to make healthy and wise choices. We discriminate wisely when we call a doctor rather than a car mechanic for medical advice. This is appropriate discrimination and we do it every day.
Unjust discrimination is evidenced by treating someone less favourably than others because of a personal quality such as their race, age, religion, gender, parental status, disability, or political or other beliefs.
The Federal Attorney-General’s Department is currently drafting broad anti-discrimination legislation. However, is such legislation being built on a faulty footing? To speak of “anti-discrimination legislation” is to misuse the notion of “discrimination”. The concern of the government is not that all discrimination is wrong but, rather, that unjust discrimination is wrong.
It would seem wiser, then, to change the language and avoid the obvious danger of using this term in an inappropriate way, even if it has come into common parlance. We should be speaking about legislation against unjust discrimination.
It is made all the more important when we consider that there are government policies which invoke what can be called “reverse discrimination”. Such discrimination is aimed at favouring members of a minority or historically disadvantaged group, like the Aborigines. Such policies may take the form of affirmative action programmes. In other words, this is discrimination in favour of a particular group to redress inequality.
It would seem preferable to use an adjective to indicate whether discrimination is viewed as a virtue or as an act of injustice. Clearly, the government’s concern is to address issues where there is unjust discrimination. These days, the misuse of the word has led to the view that all discrimination is a social evil. When “anti-discrimination” is proposed as a good in itself, then any group which pursues some form of discrimination is viewed as being opposed to the common good of the society.
This can be applied to the Catholic Church which requires, for instance, that a teacher in a Catholic school accept the position of the Church on certain moral issues. To respect the right of the Church in such a matter, the State has proposed that an “exemption” be granted to the Catholic Church in certain instances. This, however, is a false position. It suggests that the Church is in the wrong, but this wrong will be tolerated by the State.
In a submission to the Australian Human Rights Commission, the Sydney Archdiocese commented:
“It is formally submitted that the language which characterises protections of religious freedom in anti-discrimination legislation as “exemptions” does not accurately reflect the purpose they are meant to serve. Characterising these protections as exemptions or exceptions encourages the profoundly mistaken view that religious freedom is merely a favour granted by the State or a special permission to discriminate, rather than a fundamental human right. This mistaken understanding is reflected in the clear tendency to apply existing religious freedom protections very narrowly or only to the most limited extent necessary.”
Australians are blessed in being able to enjoy freedom in its many forms. A basic form of freedom is freedom of thought and hence of conscience. This form of freedom is the basis upon which freedom of religion is based. No government can legislate against freedoms which are interior to the person and exist in the conscience of the person. Law should in fact protect such freedoms from being curtailed in any way. Of course, no “right” is absolute and operates alone.
Australian law should enshrine freedom of religion and ensure that it is a freedom which is acknowledged. This should be the starting point in any discussion about discrimination. This freedom of religion entails not only the right to hold to one’s beliefs, but also to publicly live the injunctions of the religion in one’s personal life, and where appropriate to promote one’s beliefs in order to enrich the society or culture. Religion is a significant source of the nourishment of the social fabric. Australian society benefits enormously from the religious faith of its citizens.
It seems ironic that investigations into anti-discrimination run the risk of proposing an unjust discrimination against religion. It should rather be the case that this enquiry includes an affirmation of the fundamental rights that the state upholds – like that of freedom of religion – and then address issues where unjust forms of discrimination exist.
There is great value in the lost art of appropriate discrimination. In fact, the future of our society depends upon our ability to discriminate between good and evil, right and wrong and what is or is not acceptable behaviour for our society.
The notion of discrimination needs to be rescued from the shadows and restored as a positive virtue to be sought and prized. Forms of unjust discrimination based in prejudice and denial of human rights need to be identified and penalised as inappropriate attitudes and behaviours.
At the same time, the right to discriminate on the basis of right and wrong, and in adherence to more fundamental beliefs, needs to be acknowledged and protected in Australian society.