Religious Freedom FAQ | Mark Spencer

With religious freedom continuing to be the topic of intense debate we have compiled below a number of questions we have frequently been asked on this topic.  We hope that it helps clarify a range of questions you may have – but if you have others, we are happy to answer them.  Just get in touch!

 

What is ‘religious freedom’?

In international law religious freedom is understood to be the right to hold and express religiously based beliefs and values.  In the main international human rights treaty, the International Covenant on Civil and Political Rights (ICCPR), it is part of the “freedom of thought, conscience and religion.

So, I can make up any view and call it my religion and be protected?

No, there is extensive case law defining what constitutes a religion, including from the High Court of Australia.  Religious belief is never a defence against criminal activity and has never seriously been claimed to be – despite some of the ‘straw man’ arguments.

Is religious freedom a new idea?

No, it is the oldest recognised human right dating back to the Peace of Westphalia in 1648, its recognition in international law well and truly pre-dates its inclusion in the Universal Declaration on Human Rights!

But religious freedom is not a fundamental human right – like equality and freedom from discrimination?

On the contrary, it has been at the core of all international human rights declarations.  The major international treaty, the ICCPR, has religious freedom as one of the few ‘non-derogable’ rights that can only be constrained in very limited circumstances.  Other rights we now hold as fundamental, such as freedom from discrimination, often have their origins in Christian teachings which were very radical in their context.

Doesn’t international law only protect holding a belief but not expressing it?

No, the right in Article 18 of the ICCPR includes the freedom, “either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching”.  This right to “manifest” can only be constrained when “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” 

Despite what some activists claim, this test that it be ‘necessary’ imposes a high legal bar on the allowable constraints on manifesting or expressing a belief.

So religious freedom trumps other rights?

No, and this has never been claimed.  All human rights are ‘indivisible’, you cannot pick and choose which to support.  There are times, however, when not all rights can be fully realised – you need to balance rights between people.  There are clear, established processes in international law for doing so.

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Doesn’t protecting religious freedom mean others will be discriminated against?

This is the argument being pushed by those wanting to eliminate religious freedom.  Let’s be clear, they want their view of the world, their values and beliefs, to be mandatory across ALL schools, to eliminate any freedom or choice.

In contrast, by protecting freedoms you are protecting choice, the free will we are endowed with by God, including the choice of those who do not agree with the values and beliefs of Christian or other faith-based schools – they can choose to attend another school.  If religious freedom is not protected that choice, for all families, is eliminated and all schools become more and more indistinguishable from each other.

What about students who don’t share your [Christian school] values and beliefs?
They will continue to be loved as cared for – as they are now and have been for decades!  Christian school teachers and leaders, just like those in other schools, love and care for their students.  In Christian schools this love and care is an outworking, an expression, of the faith of those staff, reflecting the love and grace of God they have experienced.  Teachers and leaders in Christian school want God’s best for their students.
Aren’t we as Christians called to “value others above yourselves, not looking to your own interests but each of you to the interests of the others”.
Yes indeed, it is in Philippians 2:3-4.  This is exactly why we must protect religious freedom – so that the Gospel can be proclaimed, and all people can hear the Good News of the saving grace of Christ.
But the First Amendment already protects religious freedom?
Yes, in the United States the First Amendment to their Constitution, passed by Congress on 25 September 1789 and ratified on 15 December 1791 as part of the “Bill of Rights” makes it clear that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.  It has no application in Australia however being US law.
Doesn’t the Australian Constitution already protect religious freedom?

Some politicians claim it does, including many who really should know better!  Section 116 of the Australian Constitution provides that “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” 

While on its face it may seem to protect “the free exercise of any religion” the High Court has interpreted this section to, effectively, only apply when the purpose of a Commonwealth law is to prohibit.  If a law has another valid purpose, and religious freedom is diminished as a mere by-product, that law has been found to be valid.

This section also only applies to stop the Commonwealth (Australian/Federal) government making a law – it does not stop a State from doing so and nor does it establish an individual personal right.  No Australian as an individual has a personal legal right of religious freedom as a result of Section 116.

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