When Australia passed same-sex marriage legislation, the government has also acceded to calls to protect religious freedoms. Former Howard government minister Philip Ruddock was appointed to chair the Religious Freedom Review. As the review prepares its final report, senior government members have called for a religious freedom bill.
Many Christians in Australia are concerned about the ramifications of gay marriage laws. After all, in the wake of gay marriage rulings elsewhere, Christians were immediately subjected to attack by lawfare.
Christian bakers in the United States and Ireland were sued for declining to decorate cakes with gay themes. Accommodation services, photographers, and religious celebrants have also been sued. In Britain and Canada, laws accompanying gay marriage have seen schools and parents punished by the state for their religious beliefs.
Understandably, many Christians and conservatives are celebrating the prospect of religious freedom laws. But that may be a grave mistake. This may be a cure worse than the disease.
As I’ve written previously, there are different kinds of freedom, and the differences though subtle can have often profound ramifications.
The first kind of freedom is negative liberty, also called “freedom from”. Negative liberty is freedom from constraint. It is the type of freedom associated with classical liberalism and libertarianism. The US First Amendment is a negative liberty.
The second kind is positive liberty, or “freedom to”. This is the freedom to act only within the constraints set down by law and society. Positive freedom is associated with collectivist ideologies. Anti-discrimination laws are an example of positive freedom: citizens are free to act only within the bounds established by law.
This is the first danger of religious freedom laws. Tasmanian pastor Campbell Markham has already experienced the impact of gay marriage laws. When Australia’s gay marriage proposals were being debated, Markham and a street preacher from his church suffered six months of lawfare over their criticisms of gay marriage. Tasmania’s Catholic church was also hit, over a “Don’t mess with marriage” pamphlet.
Both complaints were eventually withdrawn, but the message had been sent: we’re ready and able to use the law against you. As Markham says, “if governments start to put a fence around religious freedom it exposes the religious community to those rights being shrunk or restricted. What the state giveth, the state taketh away”.
The other foreseeable danger of religious freedom laws is just what, exactly, they’ll be used to protect. Christians are gung-ho for these laws, for their own purposes. But, like the “progressives” advocating censorship, they forget that other people can weaponise the same laws against them. In the early 2000s, the Islamic Council of Victoria used that state’s Racial and Religious Tolerance Act to pursue evangelical pastor Danny Nalliah. The case was eventually resolved by mediation, but it took over two years, and ruinous legal costs.
Christians and others championing proposed religious freedom laws might want to take into account just what freedoms other religions are going to demand. The First Amendment protects all free speech, including the National Socialist Party of America’s right to parade in Skokie, like it or not.
Islam is notorious for its glass jaw. Criticism of Islam or Muhammad is without fail characterised as “insult”, which is strictly forbidden by its scriptures. What, then, if Muslims demand that Australian law protect that religious freedom? Or Islamic laws regarding child marriage, or female genital mutilation? Many European countries already heavily penalise criticism of Islam, and Islamic countries at the UN are trying to establish blasphemy in international law.
Positive liberty promises freedom, but is too often the handmaiden of tyranny. When we allow governments to decide what we’re allowed to do, almost inevitably those constraints grow narrower. When governments are told what they are not allowed to do, it becomes much harder for them to encroach on our rights.
Well-founded concerns about religious freedom are best addressed, not by asking the government to decide what citizens will be allowed to do, but by governments being told to keep their paws off citizens’ rights. Anti-discrimination laws should be repealed, or drastically narrowed. They are unnecessary in a society which, despite the mewlings of activists, does not practise systemic discrimination. As journalist John Stossel has said, if any business or institution practises discrimination in today’s society, the majority of people will vote with their wallets and their feet.
Anti-discrimination laws have become a weapon for authoritarian activists to restrict others’ freedoms. Religious freedom laws will surely do the same.