Neither church nor state can agree on Scott Morrison's draft religious laws

Below this week’s headlines about Anglican Archbishop of Sydney Glenn Davies was an admission that could easily weaken his insistent calls for stronger new laws to protect religious freedom.

And the timing could be crucial to the unending debate within Prime Minister Scott Morrison’s governing Coalition over whether people of faith need to be shielded from discrimination – and the size of that shield.

Davies issued a rallying cry for Christian conservatives with his message to Sydney Anglicans on Monday that he feared for the stability of the church on issues such as same-sex marriage that “fracture” their fellowship.

“My own view is that if people wish to change the doctrine of our church, they should start a new church or join a church more aligned to their views – but do not ruin the Anglican Church by abandoning the plain teaching of scripture. Please leave us,” he said.

This was so brutally frank it made headlines. But it was preceded by a remark that sounded like a discussion of volatile factional politics rather than settled Christian doctrine.

Davies called for the church’s general synod to agree at its next meeting, due next year, to “make a clear statement about the teaching of the Bible on the sanctity of sex within the marriage bond of a man and a woman” – in other words, to enforce his view.

But his view is not the only view within his own church. It did not take long for his fellow Christians to argue a very different doctrine.

“Most of the church has seen positive change in attitudes to mental illness, slavery, gender inequality, contraception, domestic violence, suicide, although there are retro pockets that are welded on a faded world view,” argued Father Peter MacLeod-Miller, the Rector of Albury at St Matthew’s Anglican Church.

MacLeod-Miller said the alternative direction to the Sydney Anglicans was to admit the church teachings were wrong. “A change of heart is at the centre of the Christian tradition and the parting shot from the Archbishop of Sydney is the clearest indication yet that change is on the way,” he wrote.

To an outsider, there might seem no difference here between party and church politics. Just as the Liberals divide constantly between social conservatives and moderates over same-sex marriage, now Anglicans engage in public dispute between their traditional and progressive wings.

The doctrine, in other words, is far from settled.

This matters because Morrison’s plan to protect religion ultimately turns on the nature of that doctrine. And it will not be Davies who rules on the definition. It will be a judge.

At the heart of the Morrison bill, which is currently a draft that is yet to be put to Parliament, is the goal of protecting someone from claims of discrimination when making a statement of belief. The protection only works when the words fit the rules.

A statement of belief has to be of a religious belief held by the particular individual who utters it, has to be said in good faith and has to be a view that “may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings” of the religion. (It can also be a statement of atheism.)

For Catholics, of course, the question of doctrine may be no question at all when the Pope decides. “Roma locuta est, causa finita est,” goes the old saying. “Rome has spoken, the case is closed.”

But do church leaders really want a court to rule on their “tenets” and “doctrines” after centuries when the task was left to bishops or popes? It may be too late for them to rethink. One view within the government is that churches should be careful what they wish for.

The religious discrimination bill only exists because of pressure from conservative Christians who opposed the marriage equality laws that passed the Parliament almost two years ago. Malcolm Turnbull, facing yet another revolt as prime minister, agreed to a religious freedom inquiry. Morrison leaned forward on the issue as soon as he became leader.

“At the end of the day, if you’re not free to believe in your own faith, well, you’re not free,” Morrison told The Sydney Morning Herald and The Age in his first interview as Prime Minister. This is personal for Morrison. A retreat is unthinkable.

A consensus, however, is unattainable. The response to the draft bill has been criticism from all sides. Nobody is happy. Churches want the protections to go much further, while LGBTI groups believe the laws will unleash more discrimination unless they are stopped or curtailed.

Meanwhile, the crucial swing vote in the Senate, Tasmanian independent Jacqui Lambie, sees no need for the laws at all. That means the government may only be able to pass the changes if it convinces Labor they are worthwhile – a big mountain to climb.

With every side of the argument wanting changes to the draft bill, the government has to start making trade-offs. Attorney-General Christian Porter will open another round of consultations with churches and community groups in the weeks ahead. No side can get all it wants.

One demand from the Sydney Anglicans and other churches is for greater protection for organisations linked to a religion – whether that is a youth camp, a school, a hospital or an aged-care facility.

Should the executive of an aged-care facility founded by a church have the same protections as a priest, for instance, when making a “statement of belief” about same-sex marriage that offends a worker at that facility? The draft bill protects educational institutions and registered charities but not bodies that engage “solely or primarily” in commercial activity.

This will be a stumbling block within the Liberals. While some seek to protect all church organisations, others believe this right cannot extend to a hospital or healthcare facility. In one view, the right should belong to an individual – a bishop, for instance – not an institution. A change to this exemption seems likely.

Another check on religious discrimination is on the nature and effect of the speech rather than the question of belief. The protection for people of faith evaporates if their statements are malicious or promote serious offences – a potential check on terror in the name of religion.

The protection also fails if the speech is likely to “harass, vilify or incite hatred or violence” against another person. Those who oppose the bill want to narrow these exemptions so the protection is more likely to fail, while the Sydney Anglicans believe “vilify” is too vague.

The onus on business is another sticking point after the furore over Israel Folau, his right to speak about his personal views on same-sex marriage and his termination by Rugby Australia. The bill says a business with revenue greater than $50 million cannot impose an employment requirement that limits someone’s freedom to express religious views, unless the rule is needed to prevent “unjustifiable financial hardship” to the business.

What is unjustifiable? The Australian Industry Group and others reject this drafting as unworkable. Churches insist it is needed to shield the Folaus of the future. As the government has shown on company tax cuts and energy industry divestiture powers, complaints from business are not always heard in Canberra these days.

Morrison appears comfortable with the way the debate is running between the conservatives and moderates within the Coalition. There has been nothing like the public war over marriage equality from two years ago. Even so, the Coalition splits easily over social questions today, as the Liberals proved again on abortion in NSW only weeks ago.

This will be a test for the Liberals and Nationals on whether they can ever compromise on an intractable social question.

But it is a test for Labor as well. Caucus members are still debating how their message on religion influenced their loss at the May election. After victories on same-sex marriage, Bill Shorten led Labor to the election with an attack on Morrison over the Folau affair. Shorten challenged Morrison over whether he believed gay people would go to hell.

Some in the Labor caucus, such as Chris Bowen and Michelle Rowland in western Sydney, now admit they did not get this message right. It is worth noting that Labor’s election review, and any findings on religion, will be released before the caucus has to decide whether to support the religious discrimination bill.

An outcome looks impossible when all sides disagree, yet Morrison and Porter seem oddly confident they can succeed. If they can pass this bill, it may be a sign they can put at least some of the Coalition’s internal enmities behind them.

https://www.theage.com.au/politics/federal/neither-church-nor-state-can-...