Friday, 28 June 2019

Contracting Out Of Religious Freedom.

Going Upstairs: If we accept the LGBTQI+ community’s untrammelled right to advance their understanding of love, then we must also accept Israel Folau’s right to articulate his own simplistic and inadequate interpretation of the Christian religion.

ONE OF THE FIRST things I learned as a young trade union organiser was: “You cannot contract out of statute law.” What does that mean? It means that if you enjoy a statutory entitlement to three weeks paid holiday, then your boss cannot legally require you to sign a contract limiting your paid holiday to just two weeks. This prohibition stands as one of the most crucial protections of English Common Law. Without it, the rights guaranteed to citizens by statute would be routinely signed away on pain of their not securing – or retaining – paid employment.

Tell that to Israel Folau!

In spite of the fact that the Australian Constitution explicitly guarantees to each citizen the freedom of religion, Folau’s contract with the national Australian rugby team has been terminated on account of his religious beliefs concerning homosexuality.

No matter that the constitutional guarantee of freedom of religion must, logically, include the freedom to express one’s religious beliefs. No matter that the Australian High Court has ruled that the democratic character of the Australian Constitution implies the enforceable entitlement of all Australians to all the freedoms associated with the practice of democracy – most particularly, the freedom of expression. According to Folau’s employers, his statement regarding the ultimate fate of sinners (which they have branded homophobic) has brought Australian Rugby into disrepute – and his contract has been terminated.

That bit about bringing his employers into disrepute is crucial to the outcome of the legal challenge Folau is determined to mount against his termination.

One of the other things I learned very early on in my (brief) career as a trade union organiser is that our paid employment is still defined as a “master/servant” relationship. Under law, one of the many duties we, “servants”, owe our “masters” is the protection of their good reputation. Our employers have a legal right to expect that their employees refrain from doing anything which is likely to bring them into “disrepute”.

Clearly, this legally enforceable right of the masters to curtail the speech of their servants runs headlong into the right of servants – as citizens – to exercise their freedom of expression. The question thus becomes one of determining which takes precedence. The fact that servants have a legal obligation not to harm their master’s reputation. Or, the fact that masters, along with everybody else in a democratic society, have a legal obligation to recognise their fellow citizens’ right to speak freely about the things that matter to them?

For a conservative fundamentalist Christian, the ultimate fate of those who sin is eternal damnation in the fires of Hell. Fundamentalists would, therefore, argue that Christian love requires the faithful to do all that they can to rescue sinners from the torments of hellfire: by warning them of the fate that awaits them; and by imploring them to change their ways.

It cannot fall to a believer’s employer to determine what should, and should not, constitute a sin in any given religion. That would represent an entirely unwarranted arrogation of power over that worker’s spiritual and moral life. Nor can it be just that their employees’ constitutional right to freedom of religion, and their democratic right to freedom of expression, is set aside on account of some supposed obligation to protect their boss’s reputation – as s/he defines it – at no matter what cost to their conscience and their liberty.

It has been argued that Folau’s statement about homosexuality constitutes a genuine threat to the well-being of young, gay people. But, surely, that can only be the case if those affected accept, as fact, Folau’s claim that eternal damnation awaits unrepentant sinners? This, in turn, presupposes that young, gay people are not free to reject the rugby-player’s theologically unsophisticated and deeply conservative Christian faith. That their own beliefs about human love and solidarity are not infinitely stronger than those of Folau’s fundamentalist Christianity, which has lost sight completely of the boundless and unconditional love of its founder.

And if we accept the LGBTQI+ community’s untrammeled right to advance their own understanding of love, then we must also accept Israel Folau’s right to articulate his own simplistic and inadequate interpretation of the Christian religion.

As this story unfolds, it’s becoming increasingly clear the only statute Israel Folau has contracted out of is Christ’s unequivocal commandment to “love thy neighbour as thyself”.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 28 June 2019.

32 comments:

Anonymous said...

Looking forward to reading the arguments supporting those who work for say, any Public Service authority such as the Ministry of Women who are also committed promoting Islamic Sharia Law, including the role of women, barbaric punishments such mutilation, stoning etc.

Sometimes, it's just right to say "yeah, nah".

peteswriteplace said...

The Israel Folau controversy has become a tiresome bore. Sort out his legal requirements and have some other Australian news, perhaps about the lost generation?

John Hurley said...

When the jehovah's witness come to the door I give them a free pass. B**ger knocking on doors. The same with Mormons. Why the hell doesn't Israel Folau get a free pass: because the LGBT are stroppy and out for blood, they resent not being seen as "normal" (correct software for model #)?

Guerilla Surgeon said...

"Looking forward to reading the arguments supporting those who work for say, any Public Service authority such as the Ministry of Women who are also committed promoting Islamic Sharia Law, including the role of women, barbaric punishments such mutilation, stoning etc. "

1. They don't exist.
2. Folau works for a private organisation. They have every right to censor his speech. That's capitalism. Only the government in theory doesn't.

Guerilla Surgeon said...

Chris, if you're so keen on freedom of speech why was I banned from your site at least once and why have several of my comments been redacted? I'm pretty sure I'm not the only one who's had you refuse them a platform at various times.

Guerilla Surgeon said...

I sincerely hope that Folau has not been using Leviticus to condemn homosexuality, given the amount of ink he has.

David Stone said...

"Clearly, this legally enforceable right of the masters to curtail the speech of their servants runs headlong into the right of servants – as citizens – to exercise their freedom of expression. The question thus becomes one of determining which takes precedence. The fact that servants have a legal obligation not to harm their master’s reputation. Or, the fact that masters, along with everybody else in a democratic society, have a legal obligation to recognise their fellow citizens’ right to speak freely about the things that matter to them?"
There is no case that Folau's religious beliefs harm Rugby Australia's reputation. Nobody expects the union to support the beliefs of every player.If they felt the need they could have made the announcement that they do not agree with his ideas but no one could possibly infer that they might.
" As this story unfolds, it’s becoming increasingly clear the only statute Israel Folau has contracted out of is Christ’s unequivocal commandment to “love thy neighbour as thyself”. "
I don't see that this has been contracted out of either. Believing as he does, and as you imply earlier, his warning is entirely consistent with loving his neighbour and counselling them to avoid eternal catastrophe. Love could not shirk this counsel if he genuinely believes
I have thought from the start that Australian Rugby has blown it with this one. It will be interesting to see what the courts decide.
D J S

Michael Johnston said...

Guerilla,

"Folau works for a private organisation. They have every right to censor his speech."

Chris argues they don't if the speech in question is uttered in service of what Folau sees as his religious duty. In those circumstances his speech is protected by the Australian constitution, a protection that cannot legally be abrogated by an employment contract. It seems a sound argument to me.

On the other hand, your speech on Chris' blog enjoys no such protection. I have no idea why (or if) he banned you, but it's no hypocrisy for him to have done so. His blog is not the public square, it's his territory. We get to post here or not at his pleasure.

kiwidave said...

It will be an interesting case alright David and, regardless of the outcome, government should seriously look to enshrine/strengthen the fundamental principle of freedom of expression for employees. Folau had refused to sign a "social media" restriction in his contract so they have gone after him on the reputation aspect. Highly questionable given widespread support for his rights; RA appear to have done more harm to their own reputation.

The "offensive to gays" aspect is also weak given the overwhelming acceptance of homosexuality - more like adoration really, something to be proud of, if popular media and culture is any indication. If giving offence is genuinely the concern it seems super hypocritical of the media to amplify the contents of an obscure private message board into international headlines.

Early on in this saga the RA apparently met with Folau and asked him (with a claimed financial incentive) to remove his blog post. It seems likely that RA would have made it clear at that stage that there was a perceived risk to their reputation and what the consequences would be. Folau refused. I suspect that the substance of that meeting (the clear warning and subsequent refusal) will strengthen the rather weak RA position but that it will still come down to a first principles argument.

I understand our (NZ) human rights legislation offers better protection for employees but I wouldn't take be taking that for granted given the intentions of the present government with regard to free speech as the primary right. The intention? Being expected, under threat of dismissal and/or criminal prosecution, to all believe, and therefore speak, the same, officially approved, thing.

aj said...

Folau wins, court awards him $1. Justice served.

Guerilla Surgeon said...

Okay, I thought long and hard about this and I'm taking a vacation from this place. Firstly, I'm a little sick of the hypocrisy surrounding the freedom of speech thing, given that all over the world right wing groups are shutting down newspapers, killing journalists, and in the case of President Trump inciting violence against journalists, and yet Chris, among others is fixated on the ramblings of an overpaid, over religious football player. Who's been sanctioned by his contract holder. The rights and wrongs of which will presumably be fought out in court, and personally I hope he loses.
And secondly I'm just a little disappointed in Chris's acceptance and promotion of middle-class ideals particularly around the capital gains tax. I regard that is something of a betrayal of the working class – such as it is these days.
So in case I find that I can do without my daily dose of New Zealand political opinions and I don't come back, I just like to say to all you stalwarts out there – it's been a pleasure and a privilege. And to all the "rightists", white supremacists, and so-called freedom of speech advocates, it's been.......... let's just say it's been.

Anonymous said...

"Looking forward to reading the arguments supporting those who work for say, any Public Service authority such as the Ministry of Women who are also committed promoting Islamic Sharia Law, including the role of women, barbaric punishments such mutilation, stoning etc."

Sigh. Those are cases where the values in question are intimately related to the job. For instance, I can't be a Catholic priest if I'm not a Catholic or if I publicly avow anti-Catholic views. These are exceptional cases.

Rugby has nothing to do with religion. Nor does, say, fast food. If a fast food chain owner who promoted "family values" wanted to fire workers for expressing pro-gay views on their personal time, it would also be wrong. Employers should not have that level of power other than in exceptional circumstances. It amazes me that gay people accept Rugby Australia's actions when the same thing can, and has, been weaponised agains them.

Nick J said...

DJS With the appeal for money from a rich man to fight his case I think Folau might also reflect on the heavenly rules as applied to camels and the eye of needles. Or the dictum of the first stone.

Nick J said...

Maybe tiresome, I suspect that it draws breath from the weakness of a counter narrative common to the whole of society (as opposed to strong arguments held by minorities). Maybe it reflects our dumming down to the lowest common denominator, and our outsourcing of our opinions to media talking heads.

This is diversity in action. The opposite of diverse is unified. As in unified people and state. With common goals and understandings. Don't remember the last time I heard discourse in favour of that.

Guerilla Surgeon said...

Okay one last comment, at least for a while because Michael Johntson You have brought up something quite important. In this whole stupid EFFING debate you are the first person to have mentioned protected and unprotected speech. At least as far as I've seen. It's simply been something along the lines of "You should allow our neo-Nazi friends to speak because – reasons." Or "because free speech" it's as if everyone thinks speech should be absolutely free which it isn't, can't be, and probably never will be. I've been quite upfront in that I said I believe in restrictions on free speech around hate speech and the like. Okay we could disagree about that, but if you put it in simple terms of free speech and then you restrict other speech you are being hypocritical. And I've only come across one of the blogs I follow where the owner allows AFAIK total free speech, and Brendan who claims to not censor anything. Though I suspect nobody really goes to Brendan's blog very much anyway. And to be honest, I don't care if you believe me when I say I've been banned from here albeit temporarily or not. Though I'm mildly insulted by the implication that I would lie about it, considering I'd be lying in the face of the blog owner who could tell everyone that I was. But I've also been banned from Whale Oil, and one or two other right wing/religious blogs who all moan and wail about free speech when it comes to their own. Which is why I'm tired of the debate because hypocrisy abounds.

Anonymous said...

Chris is right - free speech cuts both ways.
If one wanted to do a mind exercise, what would have happened if Mr Folau had tweeted a similar passage from the Koran - and they do exist, but are a lot more violent? Or had added another sentence saying this is the bible but not for today's society? Or just saying "I believe in this passage" and gave the bible reference.
That would show the hypocrisy of those anti-Folau protesters.

The way things are going, the woke and SJW people are boxing themselves into a corner, alienating even those that are nominally on their side by decrying them as not pure enough - remember the Monty Python scenes - Not many realise that Life of Brian was a prescient allegory.
Chris Morris

sumsuch said...

Warning unbelievers is in 'Isaiah' or the book of the guy who went up to heaven diretto before death?

As summat I'm not interested in, nor have the brains to sort out in that case, thanks for the explanation.

Chris Trotter said...

To: Guerilla Surgeon.

First-up, yes, GS, I have declined from time-to-time to post your comments. Usually when you have become overly abusive of other commentators, or, simply because it is distressing to watch a person flogging a dead horse. This is in no way the same as a ban - of the sort so promiscuously distributed on The Standard and other blogs.

Second-up, I am very disappointed to read that you are planning to leave the Bowalley Road discussions. I value your contributions immensely, as I am sure do others. I would, accordingly, urge you to reconsider.

It is in the nature of political discourse that disagreements arise - usually quite strong ones. What is much less common is to find a forum where disagreement is not only permitted but encouraged - so long as it is advanced under the banner of reason.

You and I disagree, GS, on many things: FoS and the CGT are only the tip of the iceberg. But, in an age where more and more people live inside self-created (with a lot of help from Mark Zuckerburg) bubbles of congenial opinion, I consider it tragic that you are withdrawing from Bowalley Road because you cannot accept the views of its author.

That, I have to say, has the flavour of surrender.

Please don't do it.

Anonymous said...

Chris - you are being too accommodating. The gist of GS's argument seems to be he is upset that your world view is different to his, and you need to change. Sort of secular fundamentalism. You viewpoint is the sensible and right one. The world has been cleaved into the woke and the reactionaries. If you aren't 100% for us, you are against us. The middle ground is getting ever so much bigger but with fewer people inhabiting it. It is only a few, mostly old, commentators still prepared to put the stake in the "yes but" region. Whatever happened to agree to disagree and move on?
Chris Morris

kiwidave said...

it's been.......... let's just say it's been.
My thoughts exactly GS. I think you should start you're own blog; it's pretty easy to do these days and it just might end up a great success.

Anonymous said...

"Folau’s contract with the national Australian rugby team has been terminated on account of his religious beliefs concerning homosexuality." No, it's been terminated on account of his repeated failure to abide by his employment contract & keep his opinions to himself because these are incompatible with him doing his job (which includes aligning with his work team ethos & his employers & sponsors brand values).

J Bloggs said...

The Folau situation has nothing to do with religious freedom. Rugby Australia are not stopping Folau from practising his religion. They are not stopping him from worshipping, or going to church. What they have said is that you can't use your religion as an excuse to be an asshole in public and embarrass us. He has previously be warned by his employer not to do this, and has chosen to ignore them.
His employment wasn't jeopardised for being a christian, but for being an ashhole in public and embarrassing his employer.

Freedom of speech =/= freedom from consequences.

And if Folau is truly sincere about his adherence to the biblical laws in Leviticus, how about he use some of his millions of dollars to get all his tattoos removed, rather than taking up a lawsuit that he is obviously so confident of winning that he's not willing to use his own money for it.

rouppe said...

Guerilla Surgeon,

The problem you seem to be failing to see is, who gets to decide what is protected speech? It is an extremely slippery slope when you start saying "ban Falau" because you happen to agree with that stance, because sooner or later someone will come along and say that your speech is offensive. Which will seem ridiculous to you, obviously, but you have set the precedent that others can censor you.

Falau did not target homosexuals. He targeted sinners, one example of which was homosexuals. But given I satisfied at least one of his examples, why aren't I, or in fact anyone who has had sex out of wedlock - a fornicator - become outraged?

Because it doesn't matter. Falau's views on all those he believes are sinners don't matter. He hasn't said he won't play with our against fornicator's liars or homosexuals, he hasn't called for them to be excluded or physically punished or harmed in any way. That WOULD require intervention.

There is unfortunately no way to prove whether he is correct or not. But as it stands, public statements that disagree with him are enough. If he launched into a sermon in the dressing room, he would be told eventually to shut up as the rest of the team doesn't agree with him. If you don't like his Twitter posts, don't follow him.

The action taken against him is McCarthy-esque. We all agree (I think) that the McCarthy era of blacklisting people because of their political beliefs was a dark time. It seems clear that dark times are upon us again.

Shane McDowall said...

Israel Folau's post warned eight different groups that " Hell Awaits You ... Repent ". Yet Homosexuals and their worshippers are the only ones bitching.

I fit into a few of the condemned groups. I am a lying; thieving, atheist,drunkard who wishes he was a fornicator. Four and a half out of eight is pretty good going.

Homosexuality is condemned in both the Old and the New Testament. Tattooing is not.

Religious organisations are salesmen for a product that does not exist.

Frankly, I hope Mr Folau takes the ARFU to the cleaners.



Wayne Mapp said...

J Bloggs,

I think you are wrong in asserting that Rugby Australia is not restricting Folau's religious freedom. They are, because they are saying if you publicly express your religious views we will sack you. And indeed have done so. Part of freedom of religion is the right to proselytise, or at least publicly state your faith. Even if it is not a mainstream view.

Most fundamentalist sects within the three Abrahamic faiths believe what Folau stated. Are the believers all be liable to be sacked if they state their religious views? What about a fundamentalist who woks in government, local or central? Should they be sacked if they go out and proselytise? Wouldn't we think that a gross interference in liberty?

Freedom of religion is different to freedom of speech. Self evidently the exercise of freedom of speech may damage employer. For instance you can't criticise, directly or indirectly, your employer or their product or service.

Folau's vow as to who will be in Hell is really no business of the employer. Bear in mind he was referring to is what happens in Hell, not in the temporal world. Rugby Australia should just have ignored him or restated their commitment to diversity.

Geoff Fischer said...

The Folau-Rugby Australia case will determine whether in the Austraiian jurisdiction
- it can be "disgraceful" to quote a text from the Biblical New Testament or from the Hebrew scriptures.
- fundamentalist Christians and by extension orthodox Jews and Muslims are part of the fabric of Australian society or may be categorized as dissident and objectionable minorities.
- the employment relationship is transactional, as argued by neo-liberals, or institutional, as held by social conservatives
As such, the outcome will signal either that neo-liberalism has reached and passed its high water, or alternatively that Australian society has undergone a fundamental change of state such that the legal principles, political institutions and social values of the European protestant reformation no longer apply.
My prediction is that the Australian courts will baulk at endorsing the kind of fundamental social change that is implicit in the Rugby Australia case.
They may however decide that the employment relationship is institutional, which means that it is indeed possible for an employee to bring an employer into "disrepute".
That itself would be an anachronism. In the modern paradigm employment is a transactional relationship analogous to the sale and purchase of goods between a willing seller and buyer. Seller and buyer can argue about specifications, terms and conditions but nothing that one might do can bring the other into "disrepute". That is to say, nothing that the seller or buyer does can be imputed to the other party. Outside of the transaction, nothing connects them. They are "at arms length" from each other.
Imputed disrepute can only apply in an institutional context. By one's actions one may bring dishonour on one's family, church or nation. (Curiously, it can never be the other way around. An institution, be it family, church or nation can never bring the individual member into disrepute. In other words there is no suggestion that Folau could be brought into disrepute by the actions of Rugby Australia).
So on this point the position of Rugby Australia must be neo-conservative. It will argue that Rugby Australia is an institution and that Folau as a member of that family could conceivably bring it into disrepute.
Having got over that hurdle, Rugby Australia needs to show that Folau acted disgracefully, because that is the test of an action which can bring Folau himself, and then by imputation the institution of Rugby Australia, into "disrepute". It will be necessary to persuade the court that it is disgraceful to quote from what used to be known as "Holy Scripture" and that, I believe, will be the point at which the court demurs.
Even if the court does accept that it is or can be disgraceful to quote from the Bible, Folau will have one last argument, which is that freedom of religious opinion is a fundamental legal right which cannot be voided by the provisions of a civil contract. Given the current mood of the colonial political establishment it is quite possible that an Australian court could decide that the interests of institutions should be allowed to over-ride the right to freedom of religion, but that would be a momentous and revolutionary decision.
‌In short, if the courts decide against Folau they will be laying a legal basis for fascism in Australia by asserting the primacy of the institution over the individual and right of secular institutions to proscribe religious belief. I could be wrong, but I personally don't think that the courts will want to go there.

Nick J said...

Wayne, we agree. I'm raising a glass of Shiraz to this unlikely event. I will raise a second in case you don't.

Anonymous said...

The religious in society including Christians have enjoyed the right to judge, discriminate, persecute, torture, burn, humiliate and murder people they deem as different for the last 2000 years all over the world.

Religions having to adapt to a world where they are obliged to treat others as equal is not coming easily - but not being able to judge and sentence them publicly is apparently impossible to bear.

Daniel Copeland said...

"It has been argued that Folau's statement about homosexuality constitutes a genuine threat to the wellbeing of young gay people. But surely that can only be the case if those affected accept as fact Folau's claim that eternal damnation awaits unrepentant sinners?"

No, there are other ways. Folau as a rugby player has special access to the attention of a particular contingent of young men, a contingent more prone than the average person to enforcing their ideal of masculinity and sexuality with physical violence. By endorsing homophobic values he places young gay people in danger of being targeted by that contingent.

Geoff Fischer said...

Kia ora Daniel
First, it needs to be said that so far as we know Israel Folau has never incited violence against those he describes as "sinners", has never himself directed violence towards them, and has never even verbally abused them.
You do have a point, but it has nothing to do with Israel Folau personally. It has to do with the fact that young heterosexual men are commonly hostile to homosexual men, and in some cases may incline to violence against them. This intrinsic hostility to homosexuality causes deep unease among gays and their liberal advocates or supporters. They worry that the progress of the past fifty years could at some point be undone and it is this concern that drives their anger against Israel Folau.
Their fear is understandable. Two thousand years ago the late Roman Empire gave the world same-sex marriage. But a few centuries later Christianity dominated all of Europe, homosexuality was proscribed and same-sex marriages became strictly illicit and needed to be conducted in secret.
Attitudes towards homosexuality change, but they do not change in isolation from other social developments. The current period of tolerance and affirmation is very much a product of the broader social changes of the past half-century, and will thus be at risk in the event of a generalized social or political reaction.
The only way I can see gays entrenching and defending their gains of recent years is by somehow de-coupling those advances from the broader neo-liberal agenda, but I am not at all convinced that is even possible, and there are no signs that gays as a whole have any inclination to make a distinction between gay rights and the broader agenda of neo-liberalism.
The sad fact is that by "making an example" of Israel Folau, gays will not forestall the conservative reaction. They will just give it new impetus. It seems we are fated to go where the Romans went two thousand years ago.

Shane McDowall said...

It is a popular stereotype that ancient Greeks and Romans were rampant homosexuals. There is good evidence that this is true.

But I suspect homosexuality was popular in classical times for the same reason it is popular in contemporary Muslin nations - rigid segregation of the sexes.

What is less well known is that paedophilia, especially homosexual paedophilia, was also acceptable to the ancients.

So the ancient Romans allowed same sex marriage, whoop-de-do, they also f**ked children.


Guerilla Surgeon said...

"But I suspect homosexuality was popular in classical times for the same reason it is popular in contemporary Muslin nations - rigid segregation of the sexes."

The Greek sexes were not necessarily rigidly segregated, it entirely dependent on where you lived and what time you lived.
The same applies to homosexual contact between older men and adolescents. And even then, when it was legal, there were limits as to what you could do. The same in ancient Rome.

"they also f**ked children."
So it seems does half the Catholic priesthood, and many Protestant pastors. And Hollywood doesn't seem to mind Roman Polanski doing it either. So your point is? (And in actual fact, fucking a boy who wasn't a slave was terribly illegal in Rome.)