Culture

Religious Schools and LGBTI Rights: a Delicate Balance

Note: a slightly different version of this article recently appeared in Engage.mailthe monthly online newsletter administered by the Evangelical Alliance’s Ethos think-tank. 

Introduction

The rancorous debate concerning religious freedom and the rights of the LGBTI community has produced several troubling side-effects, not least of which has been a tug-of-war over language. Take the word “discrimination”, which is now contested linguistic and conceptual territory. While all sides acknowledge that invidious discrimination can occur in the public sphere, many LGBTI activists are convinced that to make distinctions on the basis of sexual expression or gender identity – even those grounded in a wider system of religious beliefs – constitutes action that is, by its very nature, unfair.

I have been reminded of this repeatedly over the past year or so, as a series of disputes concerning LGBTI students and teachers in religious schools continues to smoulder. On one side stand religious liberty advocates, who argue that a faith-based school should be permitted to hire or dismiss staff according to its guiding system of values. On the other side are LGBTI activists and their allies, all of whom are equally convinced that such practices are intrinsically unjust and stall the liberationist enterprise. I don’t doubt the sincerity of many of those fighting for what they view as the fundamental rights of gays, lesbians, transgender people and so forth. Moreover, on the question of LGBTI students in faith-based schools, I’d suggest we’re largely in agreement. Even in the case of teachers, the issue is not, for example, sexual orientation per se, but competing lifestyles and value systems. But having said all that, it’s difficult to avoid the conclusion that there exist many activists who cynically weaponise the language of discrimination to subjugate their ideological opponents.

Demands that anti-discrimination laws be broadly applied to religious schools – institutions that have traditionally enjoyed exemptions from this legal architecture – have grown more strident. Brandishing placards and shouting their slogans, advocates decry religious schools choosing not to employ LGBTI teachers as an illegitimate expression of religious freedom. For them, all further discussion is foreclosed. Advocates passionately insist that, if a teacher’s primary role is to educate students according her specialty, then other attributes (e.g., homosexuality and any resultant conduct) should be seen as immaterial to the inherent requirements of the position. Any attempt to deny employment on such grounds is a manifest example of invidious discrimination and religious bigotry. This fervent activism is buttressed by the more sober reflections of advocates for reform in the legal profession, who attempt to argue upon jurisprudential grounds that faith-based schools should enjoy only the narrowest of exemptions in this domain.

The marriage of white-hot ardour and cool rationality forms a potent mix. And to be fair, the debate is not helped by current legal uses of the word ‘discrimination’ and its scope. Mischievous though some activists may be, their position is inadvertently reinforced by the way religious exemptions to such laws are currently articulated. As at least one commentator has observed, saying that religious institutions ought to sit outside the bounds of relevant anti-discrimination legislation invites the idea that the religious have been grudgingly given a reprieve from what is otherwise deemed to be objectionable conduct. This likely gives succour to some people calling for such exemptions to be repealed. But even if one concedes that the framing of current legislation is inadequate, it’s still true that, in prosecuting their case, many LGBTI advocates – whether sincere or cynical – who denounce religious schools appear to elide the distinction between legitimate and illegitimate instances of discrimination.

The purpose of faith-based schools

The real question, then, is not whether religious freedom entails freedom of discrimination per se, but what kinds of discrimination are appropriate or fair. Should a faith-based school be permitted to distinguish between staff on the basis of particular types of sexual conduct (or the promotion thereof)? Or does such permission implicitly endorse decisions that are manifestly cruel and bigoted?

It is here that an account of what religious schools are, and what they seek to achieve, is germane. For a religious school to hire teachers according to their adherence to the school’s guiding ethos is, I would argue, neither unfair nor invidious. Rather, it represents the natural sequel to the foundational principles supplying the institution with its raison d’etre in the first place. Such practices are critical if a religious educational institution is to maintain its specific identity. It is difficult to see how one could disagree with the proposition, considered generically, that a faith-based school should be given some autonomy to employ staff that will, in both confession and conduct, uphold the institution’s governing philosophy.

On this view, pedagogy is about far more than merely the transmission of discretely-packaged information to students. Religious educational institutions exist in part to convey such information within the context of a religiously-grounded worldview, and to engage students in a process of moral formation according to the tenets of the traditions they represent. Obviously, such a project will not always succeed: many students leave such schools unchanged, or may even repudiate the institution’s teachings entirely. But this oft-repeated reality has nothing to do with the principle at issue. For those schools that have been self-consciously established to communicate the ethos of a particular religion (apart from the task of instructing students in the various subjects common to all schools), it would seem self-defeating not to try and employ educators who can successfully embody them.

In the case of, say, conservative Christian institutions, this will likely mean upholding certain standards concerning sexuality and sexual identity. Faith-based schools seeking to imbue the life of their community with the values of their grounding tradition will normally do so through the conduits of teachers’ lives (among other means). Thus, if their goal is to uphold the particulars of their religious worldview, and doing so is partly achieved through the modelling behaviour of staff, then whether or not a person’s life reflects those values is deeply relevant. None of this is unique to faith-based schools, either. A moment’s thought will reveal that institutions of all types make certain demands on prospective members and stakeholders as way of maintaining their identity. Take political parties, for example. Would it be illegitimate for, say, the Liberal Party to continue formal association with a member who suddenly began espousing Marxist ideology? Similarly, would the Greens be wrong to expel someone – or refuse to hire them in the first place – if that individual were a so-called climate ‘denier’ and an enthusiast for fossil fuels? If these are legitimate forms of discrimination (owing to the character of certain beliefs and behavioural traits), what makes religious institutions any different?

Just how important is the issue of sexuality, really?

So far, so good. However, while some LGBTI advocates accept certain forms of differentiation, they are likely to maintain that one’s sexuality should be largely immune to discriminatory action. The Human Rights Law Commission offered an example of this distinction, seen in their submission to the relevant senate inquiry last year. Lying behind the claim seems to be the notion that sexual orientation and gender identity aren’t relevant to education at a faith-based school in the way, say, that creedal differences are, for they allegedly lack the defining importance of belief in Christ’s divinity or Muhammed’s supreme prophethood. But this assumes precisely what is at issue. To contend or imply that a person’s sexual mores are immaterial to their job as an educator in a religious context presumes without warrant that such conduct lies outside a given religion’s central doctrines – a minor piece of adiaphora, as it were.

I can’t speak for Jews, Muslims and other religionists who may bristle at the thought of faith-based schools being compelled to hire people whose lives fail to embody their traditions. But orthodox Christianity would regard such a view as deeply unsatisfactory. Even if the expression of one’s sexuality does not sit at the heart of the Christian faith – a privileged locale reserved for such distinguishing claims as God’s triune nature, or the atoning sacrifice of the God-man, Jesus Christ – it is far from trivial. After all, the book of Genesis has God create man and woman, who are called to bind themselves to each other in a union of sexual complements (Genesis 1:26-28). That this passage lies at the very head of the biblical narrative, prior to the catastrophic irruption of sin within creation, implies that it is a special part of the Creator’s originating vision for those bearing his likeness. Indeed, the creative endowments of human beings – seen most uniquely in the intrinsic capacity to generate new life – crucially reflect God’s far superior creativity. A glance at the New Testament reinforces the significance of this design. Its pages reveal both a renewed endorsement of that vision, as proclaimed by Jesus himself (Matthew 19:4-6), and a denunciation of same-sex erotic relationships as a particularly clear manifestation of humanity’s disordered nature and conduct (Romans 1:26-27).

Obviously, these points would need to be fleshed out in greater detail, and I don’t expect everyone to agree with their underlying assumptions. However, on a Christian analysis, sexuality and sexual expression are indelibly tied to our status as God’s image-bearers and the divinely sanctioned order we are meant to inhabit. For those reasons, questions of sex take on heightened significance, concerning as they do the degree to which one’s life reflects that order. Indeed, an orthodox Christian view of sex recognises it as a key manifestation of a particular anthropology (i.e., what humans are) and a particular cosmology (i.e., the created framework within which humans must conduct their lives). Gendered complementarity in human sexual relationships is, in other words, something that has been woven into the fabric of creation by God. As the Eastern Orthodox writer and cultural commentator, Rod Dreher, notes in his book, The Benedict Option, to live contrary to the divine will in this regard doesn’t simply break a set of ancient taboos. Rather, it constitutes one’s failure ‘to live in accord with the structure of [created] reality itself’.

All this is to say that, in the context of a Christian educational institution, the sexual relationships of its teachers cannot be dismissed as of little importance. Nor can it be condemned as a rationalisation of the basest kind of bigotry. We do well to return to my earlier, general comments concerning the goals of such schools. Efforts to permeate their corporate lives with the religious principles on which they were founded must logically include the ethical and behavioural demands that flow from them; anything else simply drives an artificial wedge between the cognitive and practical dimensions of the faith. And given that one of the key means of transmitting this ethos to students is via their embodiment in staff, adherence to the standards of orthodox Christianity is hardly irrelevant. Quite the opposite, in fact: conformity to a Christian ethic is inseparable from maintenance of a religious school’s peculiar identity, such that the inherent requirements of teaching roles extend beyond mere pedagogy and discipline-specific knowledge, and into the domain of Christian praxis.

The imposition of state-sanctioned beliefs: an intolerable outcome

To be sure, we have lately witnessed the splintering of the Western church on the issue of sexuality. Consensus on this question is rapidly eroding. But even if there exists internal dispute over the importance of sexual conduct to Christian faith, there is no compelling reason why the state should arrogate to itself the task of determining the proper contours of a particular religion. Writing his dissenting opinion in Christian Youth Camps v Cobaw Community Health Service some years ago, Redlich JA trenchantly noted that the Victorian Supreme Court was not properly trained to assess whether opposition to homosexuality was a key doctrine of the faith-based group concerned (p.13):

Neither human rights law nor the terms of the exemption required a secular tribunal to attempt to assess theological propriety. The tribunal was neither equipped nor required to evaluate the applicants’ moral calculus.

Secular state officials are manifestly ill-equipped to judge theological and doctrinal matters. Moreover, they lack the requisite ‘insider’ knowledge to be able to weigh the relative importance of creedal claims. But heeding calls to end exemptions to anti-discrimination legislation would lead to precisely this kind of judicial oversight. Anyone who values the institutional separation of church and state (where ‘church’ is defined somewhat more broadly) should be alarmed by this proposal. Such advocacy, if successful, means inhibiting a religious entity from articulating and embodying its governing ethos. In other words, it entails the encroachment of government institutions upon sacred territory traditionally regarded as verboten, that is, fundamentally impermissible. I don’t know how else to describe this but as an assault on religious liberty and a subversion of our modern pluralistic culture. If, as a society, we’re willing to permit religious educational institutions to make employment decisions based on their grounding principles, then this surely includes some latitude in regard to which principles are to be used as a framework to guide those decisions. The alternative simply invites interference by external authorities in what ought to be the free expression of a religious worldview.

Tackling another illegitimate distinction

The argument I have tried to delineate also has a deflationary effect on another distinction some advocates attempt to make – namely, between positions in a religious school that are connected with ritual observance or doctrinal teaching, and those that aren’t. This could be called a form of meta-discrimination, with only one type of role being susceptible to a process of discriminatory action. Again, the HRLC provides a ready example of this cast of mind (p.18): it recommends rescinding exemptions to the Sex Discrimination Act in most instances, whilst permitting ongoing differentiation/discrimination when it comes to conventional ‘religious’ roles. Behind these respective suggestions lies the apparent assumption that there exists a fundamental difference between positions involving pastoral care, religious observance and the like, and those that don’t (pp.16-17).

Unfortunately, the suggestion introduces an artificial disjunction into the understanding of religion generally, and faith-based schools specifically. For serious adherents of any religion, manifestations of spirituality are not confined to particular acts of ritual or devotion. Such activity, while central, is only one component in the complex web of faith. For Christians, say, one’s allegiance to Christ is not simply a case of verbal confession or cognitive belief. Nor is it exhausted by overt expressions of religious observance. Rather, it is meant to be worked out in the mosaic of everyday life, shaping the believer’s approach to everything from work and friendships to time and political participation. And, as I have already indicated, a religious school seeks to inculcate just this comprehensive understanding of faith – a task that is, once again, partly achieved through the embodiment of that faith in school staff. Their comprehensive approach to education means that positions within such institutions cannot be distinguished so simplistically.

It’s true, of course, that some roles might be more directly identified with the architecture of the school’s governing religion. Chaplaincy comes to mind as one obvious example. But it does not follow from this that other staff members may not be called upon to exhibit the virtues of the faith, provide (informal) pastoral care to students, offer general vocational advice within the context of Christian faithfulness, answer a student’s awkward questions, or attempt to situate various domains of knowledge within a Christian worldview. What I have argued concerning faith-based schools and their constitutive goals indicates that any attempt to starkly divide ‘religious’ and ‘non-religious’ roles is forced to rely on a false dichotomy – one recognised by most serious adherents as unfaithful to a holistic, integrated expression of religion.

Conclusion

Earlier, I noted that the language of discrimination is often used in cynical fashion by some LGBTI activists. Notwithstanding the presence of genuine, good-faith differences between advocates on either side of the issue, brandishing the word “discrimination” has the (often intended) effect of de-legitimising the views of religious liberty advocates before they have been properly aired. But this isn’t the only unwelcome consequence. LGBTI activists also succeed in corrupting portions of our language by using words like “discrimination” so cavelierly. History has repetedly shown that when words become the handmaidens of nakedly political projects, the prospects for open, rational discourse — discourse committed to the pursuit of truth — rapidly recede. That is something no one should want, even those who are prepared to conscript language for their own ends.

Where do we go from here? The victory of the Coalition during Australia’s recent Federal election seems to have had a retarding effect on the activist tide. Indeed, several analyses have already appeared, partly attributing the Australian Labor Party’s loss to the party’s alienation of large swathes of religious people. This may force the party to re-assess its attitude to matters of religious liberty and to adopt a more nuanced understanding of the issues involved – rejecting barely-concealed disdain (see 7:11-7:50 in this Q & A segment) for people of conservative faith, and recognising the electoral value in taking them seriously. I hope this is the case, and that such concerns will now receive bi-partisan support. If Australia is to maintain its status as an authentically pluralist society – in which mutually irreconcilable views and practices nonetheless exist in relative harmony – then I think a robust re-commitment to such freedoms is the most sensible path forward.

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Asia Bibi and the British State: A Story of Courage and Cowardice

Certain events have the power to pierce the veil of banalities comprising modern culture. For some, it will be the revelation of gross corporate malfeasance. For others, it might be the death of yet another woman at the hands of an abusive partner. For me, the case of Asia Bibi, a Pakistani Christian woman recently acquitted of blasphemy in that country, has deflected every other news item vying for my attention. Perhaps it’s because of the manifest, even searing, injustice of Asia’s plight. Or perhaps it’s due to the fact that the story presents itself as one of those rare instances where moral virtue and the purest savagery are so starkly apportioned – an archetypal struggle, in other words, between the forces of good and evil. What’s more, having been irrevocably shaped by the deeper principles at work in Paul’s advice to the Corinthian church – i.e., that we who are in Christ are not disparate individuals, but members of one, united body (1 Cor 12:1, 27) – I am drawn to accounts detailing the persecution of fellow Christians. Whatever the reasons, the case of Asia Bibi (not to mention her husband and five children) has clung to my mind, refusing to let go.

***

Although the facts of this case have become increasingly well-known, a brief recapitulation is not altogether inappropriate. In 2009, Asia – then living in a small village called Katanwala – became embroiled in a dispute with some neighbours over a drink of water. They refused to accept the communal cup Asia had used, citing concerns that she, a non-Muslim, had “defiled” it. In what appears to be a vestigial practice under the pre-partition caste system, Asia’s neighbours argued that they should have been given priority. The dispute escalated as others joined the fray; Asia’s daughter went to fetch her father, but by the time they returned, Asia had been hauled away. Within days, a charge of blasphemy had been issued against her. Asia was convicted by a Pakistani court the following year, and spent the next eight years on death row. During her protracted ordeal, former minorities minister, Shahbaz Bhatti, and Punjab Governor, Salmaan Taseer, were assassinated in separate incidents after they spoke out against the country’s blasphemy laws. One Muslim cleric even offered R500,000 – a sizeable sum of money in Pakistan – to anyone who would kill Asia.

Despite the unremitting attempts by fanatics to enact their murderous ideology, Pakistan’s Supreme Court recently overturned the earlier ruling, citing a paucity of evidence that could substantiate a charge of blasphemy. In a moment of judicial sanity, then, both the original conviction and its accompanying penalty were effectively quashed (albeit on procedural, not principled, grounds). Whatever relief Asia may have felt, however, was fleeting; the verdict sparked waves of unrest, as angry protesters rejected the court’s decision and called vehemently for Asia’s death. This was enough for her lawyer to flee the country. Meanwhile, it appears that Asia and her family have gone into hiding, although it remains to be seen how long they can live without being exposed. The government of Pakistan, headed by former cricketer and lothario, Imran Khan, has struck a deal with one of the country’s main extremist pressure groups, consenting to a review of the court’s decision. Asia and her family are not permitted to leave the country, which has hampered efforts to find them sanctuary. It is no exaggeration to say that their lives are in grave and mortal danger. The desperation is almost palpable: even if the verdict of October 31st is upheld, there is every chance that these beleaguered Christians will fall victim to the barbarous throng now agitating for Asia’s murder. One need only catch a glimpse of such protestors, whether on television or in a newspaper, to realize that they are animated by a near-satanic enthusiasm for wanton violence.

Christian and other non-government advocacy groups have been doing what they can to provide aid and succour to the Bibi family. Needless to say, this has included attempts to arrange safe passage to a Western country that will provide them with permanent refuge. At the time of writing, however, their efforts have yielded very little; reports suggest that the family continues to dwell in a kind of legal twilight, where one’s existence takes on a vaporous, spectral quality. They have now slipped into a rather dangerous liminal zone, with the recent judicial verdict under renewed scrutiny, and an uncertain future confronting them. All the while, Asia, her husband, and their five children have bravely cleaved to the faith they have long confessed, suffering reproach because of their Lord. Their apparent refusal to renounce the name of Christ, even in the face of such undimmed hatred, should shame Western believers who all-too-easily settle for the spurious comforts with which modern culture beguiles and habituates. They are true disciples, having been hardened – purified – by a trial from which most of us would instinctively recoil. Asia and her family continue to persevere in the midst of such opposition, having imbibed the New Testament’s exhortation that believers fix their eyes on Jesus, who himself endured the shame of persecution in obedience to God (Heb 12:2-3).

The case of Asia Bibi hasn’t simply captured the attention of Christians, though. It has also resonated deeply with the non-religious, possessing as it does many of the features that naturally energise activists on all points of the political spectrum. Asia’s plight will excite those on the Left, who tend to sympathize with the asylum seeker and the often-tortuous ordeal he or she is forced to undergo. As for members of the Right, the case reinforces their general propensity towards reverence of Christianity (even if they do not subscribe to its tenets), and scepticism of Islam. It also neatly encapsulates the fundamental significance with which right-leaning observers tend to invest notions of individual liberty in thought and belief. At any rate, Asia’s ongoing trial – via the rancour of the mob, if not the courts – has had a unifying effect: all are agreed that she presents as a clear a case as one would want in a worthy, deserving claim for refuge. As conservative commentator, Douglas Murray, correctly notes, if ever there was a person who warranted asylum, then Asia Bibi certainly does. Only sheer, obstinate perversity could obscure this plain fact.

***

Unfortunately, sheer, obstinate perversity is exactly what at least one government has been practising in relation to Asia Bibi. Assessing the merits of her case, the UK government rather quickly decided that it would not grant her sanctuary. The reason? Asia apparently constituted a security risk. Such a conclusion seems unlikely, to say the least: how could a lone woman from a despised religious minority – one, moreover, whose founder preached and lived out an ethic of non-violence – constitute a threat to the security and integrity of the United Kingdom? Now that’s not entirely fair, and I hope one can detect the sardonic edge in what I have written. The UK government knows full-well that Asia Bibi isn’t a security risk per se. What worries officials, however, is the threat of civil disturbance from parts of the country’s Pakistani Muslim population if it were to offer Asia and her family asylum. It’s not that Asia herself is threatening to harm British citizens, or damage British government property; nor is she the bearer of an ideology designed to incite or promote violence. She merely happens to hold beliefs that some within the UK Muslim community deemed so abhorrent, they were apparently willing to engage in violent* demonstrations against her entry. In response, the government of the UK has thoroughly perverted the term “security concerns”, denuding it of all conventional meaning. It has then essentially applied that phrase – deployed now as a “weasel” term to avoid the demands of basic humanitarianism – to the innocent victim of the vilest kind of mass persecution. Meanwhile, the British co-religionists of those who are still braying for Asia’s death are all but ignored, so fearful are officials of offending their sensibilities. The shameful consequence is that a member of a persecuted minority group is being penalised for the unyielding intolerance of others.

This can only be described as an instance of supreme moral cowardice. One also can’t avoid the feeling that it marks yet another stage in the slow, sad dissolution of Western self-confidence. Acting in a thoroughly supine manner, the UK has effectively succumbed to Islamic extremists living within its own borders, allowing them to exercise an extortionary power over their decision-making processes. The government’s original error was in failing to administer a discriminating, finely-tuned immigration programme in the first place. Even a cursory glance at subsequent events clearly suggests that officials admitted many people whose commitment to the generative values of the West – values like religious tolerance, pluralism, the rights of women or minorities, and so on – was tenuous at best. But having committed the sin of imprudence, UK officials have now compounded it with the sin of moral weakness. Of course, they might well claim that in refusing asylum to Asia Bibi and her family, they have adopted a cautious, prudential approach to a delicate situation. They might also argue that denying sanctuary to an individual – even one who remains perched on the precipice of death – is justified, if that means avoiding the kind of rancorous civil discord that might occur as a consequence. One could be forgiven for thinking that the citation of security/prudential concerns now is somewhat too late; quite obviously, such concerns weren’t operative when UK government officials welcomed into the country thousands of adherents to a particularly virulent strain of Islamic supremacism. Moreover, there comes a point when caution or reserve becomes capitulation – one that the government of the United Kingdom has not only reached, but well and truly crossed.

A second, deeper question presents itself. One might ask precisely what, beyond basic civil order, the government thinks it’s preserving. After all, if a Western state allows any part of its governance to be determined by forces inimical to its own values and norms, then it has already ceded the moral high-ground. For the government of the United Kingdom to refuse entry to Asia Bibi and her family on the basis of what some members of the Pakistani Muslim community might do in response represents a hollowing out of Western norms. The UK government has singularly failed to defend those virtues that have made Britain (along with just about every Western country that exists) such a vibrant, open, and intellectually liberating place – one, moreover, that remains eminently attractive to migrants from all parts of the globe. In surrendering to the moral blackmail of Islamic extremists and their fellow-travellers, government officials have abandoned their fundamental mandate to maintain, not merely the physical boundaries that constitute the United Kingdom, but the unseen lineaments marking out a civilized society. True, they do not bear this burden alone; all British citizens are theoretically charged with the responsibility of enacting and transmitting that heritage. And it should be remembered that the fruits of Western culture aren’t ultimately rooted in the state. But as they control the levers of power – and with it, the entire panoply of laws and regulations that help safeguard that which has already been achieved – government officials can play a special role in either the maintenance or the dismantling of that culture. With this latest move, the UK government has signalled its unwillingness to defend the principles that birthed and nurtured it. Indeed, it has allowed fanaticism to supplant openness, and the dictates of religious bigotry to suppress a spirit of hospitality. If the government of the United Kingdom is so demoralized that it refuses to grant asylum to a single Christian woman – yielding instead to those whose antipathy towards Western values appears boundless – what, then, does it have left? What is it trying to defend, if not those principles and the particular way of life that stems from them? All told, its actions are as self-defeating as they are craven.

***

In the title of this essay, I referred to courage and cowardice. By now, it’s probably obvious that I was referring to Asia Bibi and the UK government, respectively. It almost seems platitudinous to say that Asia has demonstrated immense courage: first, by retaining her faith whilst on death row for eight years; and second, by continuing to confess that same faith, even when confronted with massed rallies calling for her execution. She embarrasses every Christian (including this one) who struggles to eke out a few, gospel-tinged words in conversation, when the only consequences they have to worry about are quizzical looks or polite rejection. But Asia also embarrasses governments like that of the United Kingdom. Those who denied her appeals for asylum have exposed the hollowness of their stated convictions. Yes, it’s true that this grim state of affairs has many fathers: an unfiltered migration system, say, or the growing “Islamification” of certain sections of British society.** None of that can, or should, be ignored. However, primary responsibility still lies with the country’s political elites, one which they have swiftly abdicated. With their protective services, expensive suits and anodyne words, such officials have proven incapable of emulating the kind of fortitude a poor, illiterate Christian woman has repeatedly summoned for the past eight years. The political class has, once again, abjectly failed to embody the values on which it purports to stand. Is it any wonder, then, that across the Western world its members are rapidly losing the trust of those they represent?

I do not want to end things on such a condemnatory note, however. Let us remember that at the heart of this drama lies a Christian and her family, all of whom are suffering for their faith. They urgently need our prayers, our advocacy, and our support. If this essay does nothing else but encourage even one person to act on behalf of Asia Bibi, then my ultimate goal will have been achieved.

*If anyone believes I am making an unwarranted assumption by labelling the predicted demonstrations as “violent”, just remember that the UK government has been so concerned about their occurrence they’ve refused to provide refuge to Asia Bibi and her family. I doubt that anyone seriously expected them to resemble the marches from Selma to Montgomery.

**This is not — I repeat, not — to say that all Muslims present a problem to a stable and peaceful society. Most are law-abiding citizens, interested primarily in forging a more prosperous life for themselves and their families. Furthermore, a number of prominent British Muslim leaders have called on their government to grant asylum to Asia Bibi. This is laudable and needs to be noted. Nevertheless, there appears to exist within the Islamic tradition intellectual and theological resources that foster, legitimise or otherwise sanction violent or intolerant practices. This, combined with the UK’s rather lax immigration system, seems to have led to a raft of issues — of which the present refusal to provide Asia and her family with refuge is just one.

UPDATE: Spiked editor, Brendan O’Neill, has an interesting column on the whole saga. As he and others have pointed out, it appears that it was Theresa May, acting on the advice of officials, who blocked Asia Bibi’s asylum application. O’Neill makes the obvious (though necessary) point that it truly is a scandal: not only did May abandon a persecuted woman to an uncertain fate, she also abandoned core principles underlying Western culture. O’Neill also observes — correctly, in my view — that even if admitting Asia into the country was likely to incite rioting (a sad eventuality that raises urgent questions regarding the composition of the UK’s immigration programme), this was no reason to block her application. After all, acting on principle sometimes entails risk (something I should have emphasised more clearly). If the government of the UK hasn’t actually forsaken its principles, then it’s giving a very good impression of having done just that.

True Religion According to Isaiah 58

Note to non-Ridley College readers: I have produced this piece as part of an exercise for my study of the book of Isaiah. The intention is to try and contextualize a portion of that book for a particular audience, drawing out the passage’s significance for people today. After posting their work, students taking the subject have to examine and comment on their classmates’ efforts.

This is a blog post-cum-article, such as you might find in an online publication like The Gospel Coalition, or a print publication like The Melbourne Anglican.

***

I didn’t agree on all that much with the late biblical scholar, Marcus Borg. His Jesus seemed more like a 1960s radical than a first-century Palestinian Jew; his doctrine of Scripture was a little too low for my taste (Borg probably would have said that the Bible is the product of various communities that were confronted by the ineffable power of the numinous); and his understanding of biblical politics – such as they are – bore an uncanny resemblance to modern-day progressivism.

But one area in which I found Borg to be quite insightful was his insistence on the deep, abiding connection between one’s relationship with God (or “the holy”, as Borg might have termed it) and a commitment to justice in the world. For him, the two went hand-in-hand; anything less was a betrayal of true religion. Reading Marcus Borg at this point was to be reminded afresh of a fundamental truth that had become lost amidst hurly-burly of everyday life.

***

Isaiah 58:1-14 perfectly distils this theme, one that is found repeatedly throughout Scripture. In the space of a few verses, the prophet denounces a narrow, restrictive kind of religion, concerned mainly with empty ritual and ceremony. In its stead, he places a full-bodied spirituality front-and-centre, one that is focused on both God and neighbour – a religion that is both “vertical” (in relation to the Creator) and “horizontal” (in relation to one’s fellow image-bearers).

For Isaiah, labouring for justice is not an adjunct or an add-on; rather, it is a manifestation of true religion. In response to the complaints of God’s people – who petulantly ask why they have bothered fasting and humbling themselves, for no apparent gain (v.3) – the prophet exposes their hypocrisy. They might have prided themselves on their holiness, but as the succeeding verses demonstrate, their vaunted religiosity was hollow, a sham. Their fasts ended in conflict (v.4), whilst the fleeting moments they gave to God (v.5a) paled into insignificance next to the large swathes of time spent living for themselves and ignoring the plight of the poor (vv.6-7). I like the way Paul Hanson, an OT scholar, summed up the predicament of Israel at this time:

“[They were a] community where those who regarded themselves as the most religious had converted religion into private acts of study and ritual, thereby leaving the entire realm of social relations and commerce under the dominion of ruthless, self-serving exploitation”.

Quite so. The Israelites of Isaiah 58 had allowed a corrupt form of their religion to colonize the far loftier requirements of devotion to Yahweh, confining their obligations to discrete acts of piety. Meanwhile, those weightier matters of justice and liberation were forgotten about, left to wither away like the poor wanderers among them.

What God commands for his people in Isaiah 58 is a “fast” that conforms to, and reveals, his deeper intentions for those who call themselves his disciples. It is a “fast” from injustice, oppression and exploitation, and studied neglect of the downtrodden. It is, indeed, a “fast” that aims to satisfy the painful longings of the empty and broken. If the people do these things, Isaiah says, their light will break forth like the noonday sun (vv.8-10), and God shall truly be their delight. They will, in other words, reveal the light (=truth) of God (cf. 2:5), all the while being genuinely reconciled to their Creator and King.

***

This isn’t simply an OT concern – part of that dreaded law that Christians can now do away with. Jesus and the writers of the NT (most of whom were Jews) were deeply committed to the ongoing relevance of the OT Scriptures for the spiritual and moral formation of disciples in the early church. Indeed, the NT is suffused with this ethos, for both it and its predecessor are grounded in the fundamental belief that every single person is a precious image-bearing being, deserving of justice and respite from exploitation.

Examples are too numerous to list, but a few will make things clear. Just think about the way Jesus excoriates the “selective righteousness” of the religious leaders, who assiduously tithe their spices, but neglect the foundational matters of justice and compassion (Luke 11:42). Or what about his announcement in Luke 4:16-21, where he quotes from Isaiah 61, proclaiming himself to be the fulfilment of the anointed one, who would liberate the captives and loose the chains of injustice? In what could be seen as a programmatic statement, Jesus stands in the synagogue, and describes his mission as one marked by the coming of deliverance in a great act of Jubilee. And let’s not forget a NT writer like James, who says in 1:27 that one of the characteristics of “pure religion” is to look after orphans and widows (read: the vulnerable and weak). If one is to be a genuine worshiper of God, devotion to those who have fallen prey to the harsh vagaries of this world is non-negotiable.

For Christians, then, the values and principles enshrined in a passage like Isaiah 58 aren’t irrelevant, or a part of some by-gone era superseded by the coming of grace; they are part of the warp and woof of holy living, now fulfilled in the person and ministry of Jesus himself. The “light” of Isaiah 58, which he said would dawn with renewed commitment to justice, is seen in Jesus’ light, which pushes back the darkness (John 8:12). But it’s also not dissimilar to the light that Jesus’ disciples are meant to shine, by which they reveal in their good works the greatness and holiness of God (Matt 5:16).

***

The words of Isaiah 58 are bracing indeed. I’m not suggesting, of course, that anyone reading this is guilty of exploiting the poor, or of actively perpetuating oppression. But we need to take these words, echoed in the voices of Jesus and the first disciples, with a great deal of gravity. Moreover, we need to allow the God who inspired this passage then to use it now – searching our hearts for signs that we, too, may have slipped into conventional, narrow, or formal religion. I know that as I read these verses, I stand exposed as someone who all too easily falls into the trap of empty ceremony – thinking that my church attendance, for example, or my Bible reading is enough. And I cannot help but recognize that like the Israelites of this text, I am also guilty of “turning away” from other human beings (Isa 58:7c), of shutting my eyes to the misery and the brokenness around me. We may not be responsible for another’s exploitation; but how often do we ignore the plight of that person, or determine to remain uninformed about the travails of the oppressed?

How does one respond? It’s true that we live in a culture of self-interest, marked by materialism and a spirit of acquisitiveness. Such is the culture’s strength that it can be difficult to fully embrace the vision of Isaiah 58. But there is hope. Although each of us may have fallen short of these ideals, let us also remember that God is able to do exceedingly more than we can imagine. He is more than capable of re-making us; indeed, that is the whole point of being welcomed into his redeemed community. Moreover, he knows we are dust and ashes, and prone to following that which is merely convenient or comfortable. His grace is all-abounding, and is more than sufficient to forgive us our failings, and equip us for a life spent in service of others.

This is God’s promise. But what else should we do to live as people who manifest the spirit of Isaiah 58? Well, it is important to remain consistent in prayer. It’s unlikely God will change us without some openness on our behalf. Prayer avails much, and if we think we are lacking when it comes to a commitment to the poor and vulnerable, then it’s incumbent upon us to petition God for transformation. He will do much for us – and within us – but that comes with a receptive heart, made all the more so through prayer. Next, we might think about our posture: how do we position ourselves in this world? Do we open ourselves up to opportunities to assist and support those who broken or downtrodden? Or do we confine ourselves to acts of devotion and piety that allow us to remain walled-off from the discord around us? Along with prayer, then, a re-orientation of our goals, attitudes and way of life may well be necessary. It requires a conscious, intentional change – at least at some level – of one’s habits and daily rhythm. Such a posture means being alive to the possibility that God might use us in even the mundane moments of life. It entails deliberation about how we can reach out beyond the merely conventional or socially acceptable to those who are suffering. I think we’d be surprised by the opportunities that present themselves, right before our eyes.

Finally, there are practices, which are closely allied to our basic stance towards the broken. I’m not suggesting that we all need to abandon our current lives, move to a developing nation, and minister to people living in a slum. Practicing justice and loving-kindness could be as simple as reaching out to a neighbour you know facing financial hardship; or befriending someone at church who (as it were) comes from the “wrong side of the tracks”; or writing letters to your local MP on a raft of justice issues (asylum seekers languishing on Manus Island, abortion, or what have you). These are but a few examples.

We all face the cacophony of modern-day life, and we may often be distracted by all it has to offer. However, even in the midst such a dazzling array of amusements and consumer delights, there exist opportunities – even in the most “ordinary” of circumstances – to put the ethos of Isaiah 58 into action. In that way, we shall show ourselves to be God’s true people, following in the footsteps of his Son.

***

One final point before rounding off. I have focused mainly on what Isaiah 58 says about one’s commitment to justice. But remember what I said in reference to Marcus Borg: he talked of the indivisible bond between that commitment and devotion to God. If it’s easy to restrict one’s piety so that it has absolutely no effect on the world around us, then it’s also easy to think that social concern and a thirst for justice are enough. However, Isaiah 58 doesn’t promote a secular political programme. Rather (and as Marcus Borg recognised), it offers a distillation of the two halves of true religion, both of which are necessary for it to remain genuine. Here, I cannot help but end with another quote from Paul Hanson:

“Acts of loving kindness toward the neighbour do not exhaust the life of faith. They culminate in worship. The life of compassionate justice comes to its most sublime expression in the delight one finds in the Lord (v.14)…Isaiah 58 states God’s will with a clarity that wins the assent of all that is true within us…[evoking] our deepest sense of joy with the invitation to delight in the Lord through worship purified by loving-kindness”.

Amen.

Judging Kavanaugh in the #MeToo Era

Introduction: What to Do about #MeToo?

In what could be deemed a statement of secular heresy, I must confess to being somewhat ambivalent about the #MeToo movement. One certainly can’t deny its role as a driver for widespread social change, much of it for the better. This, of course, goes beyond the exposure and condemnation of a handful of famous predators. Aided by the amplifying power of social media, #MeToo has succeeded in fundamentally shifting the conversation regarding the rights of women. It has revealed hidden attitudes, even prejudices, concerning gender relationships and the role of women in society. In many instances, those attitudes deserved to be unmasked and repudiated, such was the toxic power they possessed. #MeToo has given otherwise timid, silenced individuals the platform – the voice – to combat habits of mind that sustain a conspiracy of shame and studied ignorance. To the extent that the movement has widened the scope of justice and invigorated the ongoing project for women’s rights, it should be applauded.

But like so many mass movements, #MeToo has been prone to a slew of excesses. Righteous fury has frequently given way to uncontrolled outrage, whilst the commendable idealism with which the phenomenon began has at times mutated into a mob’s crusade against even the smallest of perceived infractions. As the notion of unforgivable transgressions has become increasingly capacious, individuals with but a distant, tangential connection to some of these heinous acts have been dragged into the movement’s orbit. Just ask Ian Buruma, who until recently edited the salubrious The New York Review of Books. He left that position after a #MeToo-inspired imbroglio – not because he raped a woman or abused his position of power for the sake of sexual gratification, but because he showed insufficient sensitivity to victims by publishing an author who’d been credibly accused of such crimes. Undoubtedly, Buruma’s decisions – including some of the things he said in a follow-up interview – represented quite serious lapses in judgment. But it is another thing entirely to argue from this that he should have fallen on his professional sword, particularly as he himself has never been accused of the kinds of acts that sparked #MeToo in the first place.

Even where an accusation concerns the perpetration of a sex crime, the need for substantiation has sometimes been curiously lacking. The role of social media – which can transform the smouldering embers of a single controversy into a raging brush-fire of online outrage – cannot be overstated here. A claim of abuse, fired off like a salvo from one’s Twitter account, appears to be a sufficient basis for indictment. Just as alarmingly, they have led to the ruination of more than one career: a single, uncorroborated allegation is all that is required to destroy another person’s employment prospects. For all the celebrated good it has accomplished, #MeToo has also provided some with the cloak of unimpeachable veracity. Invoking the movement’s imprimatur, they consider themselves exempt from deference to basic moral norms to which people generally adhere; mere accusations are elevated to the status of unquestionable truth, whilst minor deviations from the movement’s accepted narratives are met with a wave of anathemas. In such a hostile, feverish climate, how is an accused person meant to defend himself without appearing to be self-serving? How are others meant to call for restraint and sober judgement without being labelled apologists for predatory behaviour?

Accused and Accuser in the #MeToo Era

These concerns were sheeted home recently as I monitored the acrimonious congressional hearings for the next justice of the United States Supreme Court. For the previous few weeks, those proceedings had grown ever more rancorous, as an already-fierce partisan contest degenerated into the basest kind of tribalism – aided in no small measure by the deepening cultural heft the #MeToo movement enjoys. Donald Trump’s latest pick for the Supreme Court, Brett Kavanaugh, has lately been assailed with allegations of (attempted) sexual assault during his days as a hard-drinking, hard-partying youth. Kavanaugh’s eventual confirmation notwithstanding, those allegations formed the foundation for a relentless campaign against his nomination – a campaign that seemed intent, not merely on trying to block one man’s ascendancy to the highest court in the United States, but on utterly destroying his reputation in the process. Of course, if he is guilty of the crimes of which he has been accused, then a shattered reputation would be well-deserved. But that’s precisely what has been at issue: whether or not Kavanaugh actually committed such heinous acts.

I don’t think it will ever be possible to know what transpired 30-odd years ago, when Kavanaugh’s first accuser, Dr Christine Blasey Ford, claimed that he attempted to rape her at a house party. At this point in time, we only have the testimonies of the victim and her alleged assailant; tearful accusations, on the one hand, and indignant denials, on the other. Although her testimony was powerful and arresting, Blasey Ford’s claims remain uncorroborated: the four people she said were present at the time of the incident (including Kavanaugh) have all publicly said that they have no memory of the event. Moreover, the credibility of her accusations has been brought into question, a fact that should give any reasonable person pause. Short of a confession from Kavanaugh or a recantation from Blasey Ford, it’s unlikely the impasse will be conclusively resolved. Such is the paucity of information, I think personal agnosticism and the presumption of innocence (unless otherwise demonstrated) is probably the least tenuous position one can adopt with respect to Judge Kavanaugh. And given the high hysteria with which this saga has been garlanded, I also think it’s the most mature.

But in an era that is being shaped by the burgeoning zealotry of the #MeToo movement, agnosticism is seen as tantamount to a betrayal of abuse victims. Meanwhile, pleas that we cling to the foundational principles of Western jurisprudence are contemptuously dismissed as the purest sophistry – a cynical ploy, designed to protect abusers and further humiliate victims. For Kavanaugh, being accused under #MeToo’s spectral presence is enough; the mere appearance of a complaint, whatever its evidentiary value, is now adequate for many pundits, politicians, commentators, and “Believe Women” activists to condemn an individual and shred his public standing. The movement’s presence has been glimpsed in the gaggle of protesters outside Congress damning Kavanaugh as guilty. Its ethos was echoed in the words of actor and activist, Rose McGowan, who urged commentators to discard the word “alleged” when talking about this and other incidents. And its strictures were obediently aped by journalists calling on Kavanaugh to be banned from coaching his daughter’s basketball team. As Kavanaugh himself conceded, his reputation has been irrevocably tarnished already as a result of these accusations. If anyone doubts the seriousness of that rather grim prospect, we might recall the sage (if ironic) words of Iago, the primary antagonist in William Shakespeare’s play, Othello:

“Who steals my purse steals trash…But he that filches my good name/Robs me of that which not enriches him/And makes me poor indeed”.

Regardless of what happens from here – even if Kavanaugh were to be completely exonerated – this is unlikely to change. The stench of a sexual assault allegation is simply too strong to shed completely. More about that anon.

Undermining the Western Heritage

It was disturbing, then, to see a person being subjected to the most salacious attacks, even as those leading the assault (and here, I do not include Blasey Ford herself) seemed content to press on in the absence of any concrete facts whatsoever. His opponents appeared unwilling to entertain even the theoretical possibility that he may not have committed the crimes of which he is being accused. Instead, they appeared singularly devoted to his irretrievable destruction. But what we are witnessing transcends the experiences of one man. Kavanaugh is a condensed symbol of the kind of frightful turn the culture, in the US and elsewhere, is taking. The #MeToo movement cannot claim sole credit for this unwelcome state of affairs, of course (uncorroborated accusations were being made against people long before it began). We shouldn’t ignore, for example, the role that an increasingly ugly political discourse has played in this affair. Still, #MeToo has fostered the conditions required for such practices to take on an unexceptionable, even virtuous, air. Uncritical acceptance of the intrinsic sanctity of an accusation – and with it, the implicit canonisation of the accuser – is now demanded as a matter of justice. The ritual denigration of an accused man is likewise thought to be necessary if the baleful forces of an oppressive patriarchy are to be kept at bay. In the face of such beatifying authority, how are the normal processes of justice and truth meant to operate?

I for one can’t see that they can. #MeToo’s transmogrification into a kind of secular religious movement has meant the inadmissibility of doubt or scepticism. Nothing less than unalloyed faith is permissible; anything falling short of this standard is an impediment on the road to gender-based justice. Kavanaugh’s current experience is simply one manifestation of this wider phenomenon. It’s also one reason why all of us – conservative and progressive, religious and secular, male and female – should fear the consequences if some of the darker legacies of #MeToo are allowed to weave themselves into the cultural fabric. The values underpinning the movement’s more extreme edges are fundamentally at odds with the basic principles of Western jurisprudence I referred to earlier. Indeed, as the columnist Victor Davis Hanson recently wrote, what we are observing right now,

Involve[s] a strange inversion of constitutional norms:…hearsay is legitimate testimony; inexact and contradictory recall is proof of trauma, and therefore of validity; the burden of proof is on the accused, not the accuser; detail and evidence are subordinated to assumed sincerity; proof that one later relates an allegation to another is considered proof that the assault actually occurred in the manner alleged; motive is largely irrelevant;…and the individual allegation gains credence by cosmic resonance with all other such similar allegations.”

The presumption of innocence, the burden of proof, the slow, unprejudiced weighing of evidence – these principles, for which many people have fought so valiantly, lie at the heart of the Western legal system. And quite rightly, too, for they form the main bulwarks against the tyranny of the accusing finger, or the vengeful braying of the mob. Without them, people are at the mercy of rumour and hearsay, held hostage by the awareness that the mere presence of an accusation – however fanciful, however scurrilous – is enough to destroy them. Of course, Brett Kavanaugh is not on trial (at least not literally), and those principles don’t apply in quite the same way. But they are not simply the preserve of court houses and lawyers. Rather, they are part of the unwritten code of decency that governs modern life; the unseen lineaments marking out a civilized society. The more dogmatic representatives of #MeToo, fuelled by an eschatological fervour, are working assiduously to ensure those principles are abandoned.

Beneath these crucial tenets rests a fundamental belief in reason as the best tool to which we have recourse to determine the truth of the matter. It’s not perfect, by any means. All too often, we have allowed reason to succumb to hysteria, prejudice, or plain old bias. But by developing the basic architecture of rational discourse, Western culture has hit upon the surest means of forging a harmonious union between a person’s truth claims and the reality to which they allegedly point. It is also all we possess as a society if we want to ensure that justice – where the innocent is acquitted and the guilty is condemned – is truly, genuinely, dispensed. To do so, however, requires a measure of doubt and intellectual reserve when examining allegations leveled against another person. This isn’t to cast aspersions on a woman’s personal credibility; nor should anyone pretend that questioning the searing testimony of an alleged victim of abuse wouldn’t be deeply painful. But that basic position is unavoidable if we are to ensure a rigorous commitment to truth.

This cannot be underscored too frequently: the “Kavanaugh affair” represents a deliberate and widespread repudiation of crucial features of our cultural heritage (and by “our”, I mean those of us who live in, and enjoy, the fruits of Western society). Its replacement would see identity or outward sincerity become the primary criteria by which truth is to be adjudicated; automatic credence given to an otherwise unsubstantiated allegation; and reason and restraint being ruthlessly supplanted by emotion and hysteria.[1] It would be, in other words, the antithetical rejection of those cultural boundary markers that afford protection to those accused of even the gravest of crimes. If their erosion is permitted, then a terrible precedent will have been set. Again, if someone of relative power and privilege can be ground down in this way on the basis of unproven allegations (and let’s not kid ourselves that for Kavanaugh, it would end simply with his being sent back to the Court of Appeals), where does that leave ordinary people? If this way of dealing with one’s opponent is legitimized in one field (i.e., accusations of sexual assault), why should we think it won’t spill over into other domains of life? It’s partly for these reasons that I am deeply reluctant to heed voices on both the Left and the Right who argued Kavanaugh should have withdrawn his candidacy for the Supreme Court. To have done so would have represented a capitulation to forces that shroud their basic illiberalism in the robes of empathy and compassion.

The Ghost of Theophanous

Some reading this piece may still be unpersuaded. It might even be tempting to reject it as a disingenuous exercise aimed solely at preserving male privilege. And whilst others might be inclined to agree with me, talk of the Western heritage may seem like little more than a piece of abstracta. But everything that I have discussed has been borne out repeatedly in the concrete experiences of people whose lives have been utterly ruined – even ended – by the corrosive power of unfounded accusations. Many such examples could be cited; one in particular comes to mind, and it concerns a little-known Australian politician named Theo Theophanous.

A decade ago this month, The Age, a Melbourne newspaper, published an explosive story apparently exposing Theophanous as a rapist. It detailed an interview with an anonymous woman who claimed to have been sexually assaulted by Theophanous in his parliamentary office. Four days later, the same newspaper ran a damning profile of Theophanous, painting him as a manipulative and lecherous charlatan. Bear in mind that Theophanous had not been charged with any crime, or even interviewed by police. No formal complaint had been made. But a major daily news outlet nevertheless decided to run an uncorroborated story (on its front page) in the most lurid detail. Within days of these twin pieces, Theophanous stepped down from his position as a minister in the Victorian state government. About a year later, he left parliament, his ministerial career obliterated.

A subsequent court hearing, in which the magistrate dismissed a case against Theophanous at the committal stage, found that the woman who levelled the accusations against the former politician was an “entirely unreliable” witness. Her account of the alleged rape was so riddled with inconsistencies as to be simply unbelievable. It’s little wonder that sex crimes detectives required 15 months – and 15 attempts – to help the woman produce a statement that could pass even the lowest threshold of plausibility. Furthermore, she had a history of making false claims: first, in an effort to claim social security; and second, by dishonestly accusing a former boss of sexual harassment. When one of the interviewing detectives was asked in court why he’d been so credulous, despite knowing all of this, he said: “It’s incumbent upon us to believe what complainants tell us…” I doubt that a more perfect rendition of one of the #MeToo movement’s guiding principles could be found.

The Australian newspaper interviewed Theophanous about six years after the ordeal. Despite being completely exonerated, he said he was still haunted by what happened. He and his wife have been able to move on, but even today, the toxicity of a rape accusation can still succeed in warding off potential employers. One charity declined to accept his application to sit on its board, saying that although it knew him to be innocent of the charges, it did not want his presence to be a distraction. Life has regained some semblance of normality for Theo Theophanous and his wife, but the torment of that experience has left an indelible mark. The “filching” of his reputation and character (as Iago observed) has impoverished him in a way that the theft of mere possessions cannot do.

Of course, my point is not to unfavourably compare the anonymous woman in this story with Christine Blasey Ford. For one thing, Blasey Ford exposed herself, bravely appearing before a Senate committee to testify as to what she claims occurred. And unlike Theophanous’ accuser, Blasey Ford at least appears to be someone of credible character (whatever one thinks of the content of her testimony). But his experience dramatically illustrates what can happen when an unverified accusation of rape or sexual assault – even one as laughably implausible as the allegation that felled him – is leveled against another person. It also shows that not every allegation can, or should, be believed; Theophanous’ accuser plainly failed to meet the minimum standards of credibility. Contrary to what some activists might think, then, women (just as much as men) are prone to deception or confabulation. A reasonable, sane society would acknowledge this fact – not because women are particularly duplicitous, but because everyone is capable of falling into error or sinning against truth.

Theo Theophanous underwent the humiliation of being labelled a sexual predator some years prior to the genesis of #MeToo. I fear, however, that the cultural landscape has changed dramatically, at least in the United States. If left unchecked, the expansion of these perverse attitudes all but guarantees (and even legitimizes) the weaponization of hearsay and gossip as a means of inducing social death. And although the epicentre of this phenomenon lies in the US, there is no reason to think it won’t also make its presence felt in other Western societies.

Thankfully, such shifts haven’t yet been “mainstreamed” here. But if (or when) that occurs, we would likely witness a well-rehearsed litany of consequences: the substitution of accusation for evidence; the ostracism of the accused and their families from polite society; the creation of pariahs out of anyone publicly associated with them; the corruption of even the ordinary rhythms of life, eroding trust and civility between individuals; and the deepening tribalization of our politics. This potential future has already been glimpsed, fuelled by the unholy alliance of a metastasized #MeToo movement and an ugly, hyper-partisanship. The “Kavanaugh Affair” is a harbinger, even if the man at the heart of this tawdry saga has survived his brutal confirmation hearing. But for those who have gleefully watched his possible demise, or who thought that yet another powerful lecher was being justly exposed (even in the absence of all confirming evidence), I can only ask: has it been worth the cost?

[1] And no, I am not making some coded insinuation about the differences between men and women with that last warning.

One Same-Sex Marriage, a Conscientious Objector, and Three Failed Arguments (Part Two)

Introduction

A few weeks ago, I began a short series examining several arguments that have been put forward by Australian advocates of same-sex marriage, many of whom think that conscientious objectors within the commercial wedding industry should not be allowed to withhold their creative talents from a same-sex wedding. In my first post, I critically engaged the claim that a dissenting wedding operator is analogous to a racist business owner who refuses to serve certain people based on the colour of their skin. As anybody who read that piece will know, I found the argument sadly wanting, even as I acknowledged that efforts like mine to rebut it aren’t likely to make a substantial difference to the overall trajectory of the debate. Nevertheless, I continue in the hope that conducting discussions on the basis of a shared commitment to reason and civility — not to mention a sincere and open pursuit of the truth — remains a worthwhile enterprise. This is particularly so in a liberal democracy, which can only properly survive if such conduct is not just accepted in theory, but adhered to in practice.

Religious Expression and Journalistic Fallacies

In this post, I want to tackle a slightly different attempt to legitimize restrictions upon dissenting wedding operators. Like the focus of my previous piece, this argument is based on the alleged analogy between opposition to SSM and forms of conduct that are widely (if not universally) condemned. Unlike the analogy between race and SSM, this one is concerned with narrower questions regarding acceptable (and indeed, unacceptable) manifestations of religiosity.

On the day the results of Australia’s SSM plebiscite were revealed, the journalist Michael Bachelard wrote a piece for the Fairfax press, in which he averred that “religious freedom is, and should be, limited”. This basic thesis formed the backdrop to his specific point: namely, that there is no reason to allow a wedding vendor to refuse service to a same-sex couple on the grounds of a sincere religious belief. In fact, he claimed that there are obvious reasons why such practices should be prohibited, and went on to cite several examples of religiously-inspired activity that is nonetheless deemed illegal. Among them were the Jesus People and Children of God (cultish groups that have engaged in the violent sexual abuse of women and children) and certain Muslim sects that practice female genital mutilation (hereafter, FGM). Bachelard seemed to think that because Australian law already prohibits sexual abuse and FGM — even if they are practiced by sincere religious individuals — there exists clear and principled precedent for restricting the ability of a religious wedding operator to refuse to service to a same-sex wedding.

At a glance, the argument appears to be quite persuasive. But in this instance, outward appearance and substantive reality enjoy little more than a passing acquaintance with each other. Beneath its superficial cogency lie several problems, which taken together prove to be fatal. Bachelard’s claimed analogies aren’t really analogous at all, at least in the relevant sense. Quite the opposite: as we shall see, there are a number of crucial differences between Bachelard’s selected examples, and the case of a dissenting wedding vendor.

Excursus: Pre-empting a Predictable Objection (Yet Again)

I will examine those differences shortly. But before I do that, I want to briefly highlight another erroneous element in Bachelard’s argument. At one point, he criticises the (since aborted) attempts by Liberal Senator, James Paterson, to introduce a SSM bill into parliament, which would have given conscientious objectors in the commercial wedding industry the right to refuse service to a same-sex wedding. Bachelard contends that everyone ought to abide by anti-discrimination laws, “in the name of a civilized society, in not discriminating against people for who they are” (emphasis mine). Bachelard wants to say that a religiously conservative wedding vendor who does not wish to service a same-sex wedding is in clear violation of anti-discrimination law — and is, to that extent, engaging in self-evidently unlawful activity, just as the abusive member of the Jesus People is when he molests children.

Such activity would of course be unjust if it were done on the basis of the italicised portion of the quote above. But is someone who refuses to lend his creative talents to a same-sex wedding really “discriminating against people for who they are”? As I sought to show in my previous essay, that refusal is grounded in one’s beliefs about the true shape and nature of marriage. It is not about the identities or attributes of the participants per se, but about the structure of the event in which they are participating. Indeed, as I also demonstrated in that earlier piece, the parties to an event and the event itself are logically distinct; to oppose the latter does not require a person to hold any animus against, or evince bad faith towards, the former. Dissenting wedding operators who have been hauled before judges and anti-discrimination boards have made it abundantly clear that they are more than happy to serve gay and lesbian couples for a variety of occasions. In addition, the recent ruling by a Californian judge in just such a case suggests that not only is a refusal to service a same-sex wedding not a genuine instance of unfair discrimination; being compelled to provide that service may actually constitute a violation of the rights of the wedding vendor in question. So it’s not at all clear that what Bachelard assumes (which is precisely what he does) is correct. This will be important as we proceed, lest anyone reading this is tempted to rest on the facile riposte that conduct of this kind is unjustly — and obviously — discriminatory.

Same-Sex Weddings, FGM and Sexual Abuse: Some Crucial Dis-analogies

Let’s return, however, to Bachelard’s alleged analogies, and why they fail on multiple levels. To begin, there is a wide gulf in the degree of harm experienced by those who have supposedly been wronged. I would argue that the examples in Bachelard’s article are, in fact, vastly different in their effects. For example, a girl who endures FGM suffers injury in a way that a same-sex couple — who might be faced with the indignity of a religiously conservative florist refusing to arrange their wedding bouquets — does not. Apart from the excruciating pain of the procedure itself, a victim of FGM will likely experience a combination of some (or all) of the following symptoms, often for many years: painful periods, excessive bleeding, labour difficulties, infections, urinary problems, unhealed wounds, or even death.  Of course, a same-sex couple confronted with an unwilling wedding operator is likely to feel aggrieved and embarrassed. No one would want to deny that such an experience could well leave one feeling quite humiliated. Nor would one wish to trivialise such experiences. But the question of degree or proportion is paramount. Certainly, it’s difficult to equate that kind emotional hardship — which may be rather ephemeral, depending on the circumstances — with the acute, long-term physical and psychological suffering a young female experiences as a result of a forced clitoridectomy.  The severity of the one is, I would suggest, far outweighed by the other.

This is not to say that such differences are sufficient in themselves to secure dissenting wedding vendors a reprieve (even if they should give us pause to wonder whether Bachelard has been too hasty in grouping these examples together): if publicly manifesting one’s religious beliefs occasions injury (whether physical or emotional), then perhaps it doesn’t really matter how severe or enduring that injury is. One may argue that even if they do differ in degree, they might nonetheless fall under the same broad rubric of “harm”; as such (so the argument might go), they should be liable to penalties commensurate with the severity of the offence.

But in this instance, a difference in degree is accompanied by, and connected to, a qualitative distinction. Whilst measuring the harm experienced by the victim of FGM or sexual abuse is relatively straightforward, at least in legal terms, things are not so easy in the case of a same-sex couple claiming emotional or dignitary harm as a result of being refused service by a wedding vendor. The former case involves material injury to one’s person — in other words, harms that can be publicly identified and verified. They possess a tangibility that injuries associated with supposedly insulting conduct by another person lack. Indeed, the relationship between a certain act and one’s subjective experience of offence or emotional distress is more remote than the tight, causal connection between the practice of, say, FGM and the experience of personal suffering. Whilst the latter is, by its very nature, bound to cause harm, the extent to which the former causes injury is based on the internal states and perceptions of those who may be in a position to make such a claim. This renders the notion of dignitary or emotional injury far more slippery: whilst the consequences of FGM can be readily defined and substantiated, it is much more difficult to obtain proof of emotional harm that can be publicly countenanced.  This is not to say that it does not, in general, exist, or that those making such claims are lying. It is merely to argue that they are far harder to capture legally than actions that quite clearly violate the liberty of another individual by causing material — and, supervening upon that, psychological — injury.

This brings me to a further dis-analogy: that which concerns the distribution of rights and possible harms between the two parties. In the case of religious leaders practicing FGM or sexual abuse, there is a clear, even radical, asymmetry of rights or entitlements. The right of vulnerable individuals not to be violated by the activity of others automatically negates the alleged “right” of the person perpetrating those acts to manifest his religious convictions in this way. The sacrosanct nature of one’s person is part of the bedrock of our legal system. It is regarded as morally and legally inviolable, such that an act that attempts to impinge upon that status is necessarily deemed unlawful. Religious motivation, however genuine it may be, is irrelevant in these circumstances — as are any claims of “harm” that might be “suffered” by the perpetrator if he were compelled to cease his activity. Moreover, whilst the injuries associated with Bachelard’s examples are readily apparent in the case of the victims, corresponding claims made by perpetrators would be so intangible — so indefinable — as to defy verification.

However, there seems to be a much closer balance between the alleged rights or harms of a dissenting wedding vendor and those of a same-sex couple wanting to wed. Whatever rights a same-sex couple may claim in this context, and whatever alleged distress they may have experienced as a result of being rebuffed — these must be weighed against the rights of a person to maintain integrity and cohesion between inner conviction and outward expression. On the one hand, we have noted that claims of emotional injury or dignitary harm are theoretically problematic. Even on the assumption that such notions could be defined coherently and measured intelligibly, it does not follow that precipitating conduct should be penalized (in the way that conduct causing material or bodily harm ought to be). Indeed, as the American legal scholar, Andrew Koppelman (himself an advocate for SSM) has pointed out:*

“The dignitary harm of knowing that some of your fellow citizens condemn your way of life is not one from which a law can or should protect you in a regime of free speech”.

On the other hand, dissenting wedding vendors can also claim that they possess certain rights. Religiously conservative wedding vendors can assert that having to lend their creative talents to a same-sex wedding potentially violates their deeply-held convictions: engaging in activity that implicitly legitimizes a ceremony of which a person disapproves forces them to dis-integrate their views and their conduct. It is at least arguable that the religiously conservative cake-maker (for example) has the right not to participate in something he regards as immoral, in order to avoid complicity. We might recall what I said earlier about the Californian judge, who recently ruled that forcing a Christian baker to bake a wedding cake for a lesbian couple was a violation of her right to freedom of speech and expressive conduct. In addition, Bachelard’s argument ignores the possible harms such vendors may have to endure, regardless of the choice they make. Those who do not wish to participate in a same-sex wedding are, in many instances, confronted with the prospect of two unwelcome alternatives: violate their consciences and sacred convictions; or succumb to often hefty financial and pecuniary penalties.

Active and Passive Manifestations of Religion: A Fundamental Difference

There is one final difference between Bachelard’s chosen examples, and that of the dissenting wedding vendor. In many respects, it is fundamental to the entire debate. It centres on the direction of activity between the two parties, and the asymmetry between passive and active manifestations of one’s (in this case, religious) beliefs. I have hinted at this difference already, in referring to the kinds of violations of which a practitioner of FGM is guilty, but which appear to be absent in the case of a religiously conservative wedding vendor. However, I think it important to flesh this out a little more.

In the case, say, of an acolyte of the Jesus People abusing a minor within their spiritual community, we have a clear example of one individual acting upon another, thereby curtailing his right to liberty and freedom from degrading treatment. Indeed, I think most would agree that the act, by its very nature, violates the victim’s person, and, in most cases, harms them materially. The religious believer in this instance manifests his convictions in an active manner; he commits a certain act against another individual, which necessarily restricts or smothers their rights. In that sense, it’s a zero sum game: the active party imposes himself upon a vulnerable, unconsenting or unwilling recipient, which entails the simultaneous extension and restriction of one’s freedom of action. As I have already noted, it is for this reason that such behaviour, whatever its inspiration, is rightly considered unlawful — and indeed, criminal.

However, the religiously-inclined wedding vendor who refuses to lend his creative talents to a same-sex wedding is engaged in passive abstention. Here, the question of (religiously-motivated) imposition is irrelevant, for it simply does not exist. The vendor seeks to preserve coherence between inner conviction and outward activity, whilst avoiding duplicitous, hypocritical or morally inconsistent behaviour, and does so by refraining from participation in the event. In other words, he merely omits to do something. As the American columnist David Brooks (another advocate of SSM) has recently written, religiously conservative wedding operators who refuse to participate creatively in a same-sex wedding aren’t trying to restrict others’ (in this case, gay) rights; nor are they imposing themselves on other people. They are simply asking not “to be forced to take part” — i.e., they seek leave to abstain from contributing materially to something with which they disagree. Where someone who practices FGM assumes an active, dominant role in the relationship with the victim of such a procedure, a Jack Phillips or a Barronelle Stutzman is simply “withdrawing” from certain activity. This does not affect the hypothetical same-sex couple in the same way that sexual abuse, say, affects its victim: apart from the relative difficulties surrounding the notion of dignitary harm, the couple in this scenario is not restricted or coercively acted upon, as the passive parties in Bachelard’s initial examples most certainly are.

Indeed, whereas the individuals in Bachelard’s opening examples necessarily violate the integrity of another’s person, the same cannot be said of the hypothetical wedding vendor. In arguing for limits to expressions of religious belief, Bachelard presumes that anything less would lead to the unwelcome expansion of pernicious activity, under the guise of maintaining religious liberty (Bachelard even dismisses countervailing calls as “bogus”, clearly implying that those who advocate in this direction are cynically using religious freedom as a veneer to advance oppressive practices). This, of course, would explain why he has framed the debate with examples that most people are likely to see as clear and violent threats to civil liberties. But again, he overlooks key features of the active-passive distinction I have tried to highlight. Religious practices such as FGM and cultish sexual abuse are what we might term inherently “expansionist” — that is, they expand the range of the perpetrator’s activity at the expense of his victim. By contrast, the actions of conscientious objectors within the commercial wedding industry are “preservationist”: as Brooks’ earlier observation suggests, they seek merely to preserve what they believe could be undermined through participation in an event that contradicts their basic convictions. Limiting freedom of religion in the former instances goes without saying, given their active tendency towards the suppression of rights and the generation of suffering. The notion that similar restrictions should be applied to the latter is, at the very least, a contestable proposition.

Final Reflections

Bachelard’s argument is likely to appeal to those who already agree that withholding commercial wedding services to a same-sex couple is an egregious example of invidious discrimination. It’s also bound to appeal to many of the uncommitted, who aren’t likely to ask whether his contention has any merit, or whether it’s fair to group an unwilling baker (say) with child rapists and mutilators of the flesh. In that sense, Bachelard’s not unlike the targets of my last piece on this topic, since they also sought to draw connections between superficially similar acts. Intentional or not, his rhetoric has the effect of circumventing a person’s critical faculties: having first been confronted with examples of religiously-motivated violence, the unwary reader is lured into docile acceptance of the proposition that the sacred convictions of religiously-sensitive wedding operators should be met with the same kind of righteous fury. This is simply guilt-by-association, but without the label.

Lest there be any misunderstanding, I am not arguing that there should be no limits on alleged expressions of religious belief. What I have written here should make that clear. But I also think that there are principled reasons for allowing some religious freedoms whilst disallowing others. That, too, should be clear from what I have written. But the problem, as I see it, lies in the basic orientation of a piece like Bachelard’s. Underlying the words themselves is the fundamentally negative belief that religion is, and has been, a largely malignant influence on society. Whether one is referring to an imam who mutilates young girls or a dissenting wedding vendor, it is important that manifestations of religious or spiritual belief — especially those in the public arena — be kept on a taut leash. That leash, of course, is to be held by the secular state, which (to change the metaphor) must corral such expressions so that the baleful forces of superstition and religious bigotry do not corrode our modern, progressive way of life. If anyone objects to this project, their claims can safely be dismissed as a rear-guard action, aimed at  shoring up the last vestiges of religious privilege. Or so the assumption goes, anyway.

But it’s time to conclude. Despite his own certainty on this question — one might call it a kind of secular zeal — Bachelard’s claimed analogy breaks down at almost every relevant point. He is left with the mere shell of an argument, which not only fails to advance a good-faith dialogue, but positively frustrates it. Unfortunately, given the times in which we live, his offering is likely to fuel efforts that further restrict the right of religious conservatives to live in harmony with their deeply-held convictions.

*Please note that the article to which I have linked was not penned by Koppelman, but by the legal academic, Sherif Girgis, who quoted the same excerpt that I did. It appears the original piece is no longer available for viewing online (it was originally published in the Southern Californian Law Review).

 

What is Free Speech? Don’t Ask Peter Van Onselen

I like reading The Australian newspaper, but whenever I come across an article by one of its star columnists, Peter Van Onselen, I always find myself having to remember that he has a PhD. Why must I do this? Because I naively believe that possession of a doctoral degree means that a person is capable of engaging in subtle thinking, and rendering sound judgments based on fine distinctions — skills that Van Onselen consistently, and conspicuously, fails to practice.

Recently, I highlighted Van Onselen’s rather facile (and erroneous) equation of religiously conservative wedding operators who decline to lend their creative talents to a same-sex wedding, and racist business owners who refuse to serve someone because of the colour of their skin. Last weekend, he committed another grievous sin against clear-headed thinking (article paywalled, unfortunately). Speaking about the recent furore surrounding the date of Australia Day, Van Onselen argued that conservatives who doggedly oppose Section 18C of the Racial Discrimination Act are guilty of high hypocrisy for supposedly “shut[ting] down debate about whether Australia Day should” be shifted to another date. After caricaturing the views of S18C’s opponents — it is quite misleading to say their goal is that “humiliating and intimidating rhetoric should prevail” — Van Onselen suggests that their dismissal of such discussion amounts to “mind-boggling” sanctimony. He gleefully thinks he’s exposed an egregious example of moral posturing by political conservatives: of individuals hobbled by unacknowledged double-standards, whose apparent devotion to principle masks a willingness to censor others if their own sacred cows are at risk of slaughter.

To be sure, Van Onselen does make a number of pertinent points later in the article. But when it comes to the alleged inconsistency of free speech advocates, he only manages to cite one example of the phenomenon he claims to have uncovered. In the first couple of paragraphs, he makes passing reference to Citizenship Minister Alan Tudge, who apparently labelled calls to change the date of Australia Day as “ridiculous”. If this is the most troubling instance Van Onselen can find to substantiate his argument, then I’d say the prospects for the Australia Day debate are pretty healthy.

Let me put this as plainly as I can. Whatever one thinks of changing the date of Australia Day, or of dismissive responses to such calls, there is an entire world of difference between criticising another person’s view as “ridiculous”, and deploying the apparatus of the state to silence individuals — on pain of financial penalty — who utter views that are deemed unacceptable. This is precisely what happened to a group of university students at the Queensland University of Technology a few years ago, under the auspices of S18C. It dramatically highlighted the problem with the law, and why so many conservatives have opposed it as an affront to free speech. If Van Onselen can’t distinguish between this and the (robust) dismissal of a view with which one disagrees, I’m not really sure what else to say.

But say something I will. Just so there is no misunderstanding, free speech advocates — and in particular, advocates of the repeal of S18C — do not argue that a person ought to be immune from criticism, or even ridicule. In fact, advocacy of free speech demands that all ideas be exposed to such scrutiny. Nor does it mean that one is obliged to listen to, or entertain, an idea that another person propounds. What the so-called “hairy-chested warriors” for free speech (Van Onselen’s words) argue for is the freedom to speak one’s mind without fear of censorship or punishment — especially when it is practised by the state.  As an embodiment of this kind of legalistic restriction upon freedom of speech, S18C represents just such a threat. There is absolutely no weight to the charge of hypocrisy that Van Onselen levels at political conservatives (who, aside from Tudge, remain curiously anonymous). They oppose S18C as a corrosive element in a modern liberal democracy, since it hampers the free exchange of ideas. But again, this in no way entails that ideas should remain quarantined from either critical examination or blunt rejection. Meanwhile, calling an opinion “ridiculous” hardly qualifies as “shutting down” debate, whatever Van Onselen thinks. A sense of proportion would certainly go a long way.

***

I said earlier that having a PhD should mean that one is least able to demonstrate a commitment to fine-grained thinking. But it now seems reasonably clear that the distinctions Van Onselen fails to recognize aren’t fine at all. Rather, they’re quite obvious — so obvious, in fact, that someone without an ideological axe to grind, and without a penchant for trying to humiliate so-called “reactionaries” in every article,* is able to see it quite easily.

*Just Google “Peter Van Onselen” and “reactionaries”, and observe the results.

One Same-Sex Marriage, a Conscientious Objector, and Three Failed Arguments (Part One)

Introduction

They say that history is written by the victors. In the case of same-sex marriage legislation in Australia, it seems that the victors seek to write the future as well. Not content with the passage of SSM into law, advocates on both sides of the political aisle voted down a number of amendments that sought to protect the rights of dissenters from the new orthodoxy. For many of them, mere change of the marriage act was insufficient; complete public conformity now has to be enforced, underwritten by the imprimatur of the state. To be sure, some politicians who voted for Senator Dean Smith’s marriage bill unchanged claimed several substantive arguments in their defence. However, I cannot escape the feeling that for many parliamentary supporters of SSM, a desire for total victory was the primary driving force. That, and a sense of urgency induced by the approaching festive season, ensured that most of the proposed amendments received little more than cursory consideration.

As a consequence, only the most narrow of exemptions — touching directly on ministers of religion or religious institutions — remain in the bill. As for those who do not benefit from the protected sanctions of a recognized denomination, they may well find it difficult — perhaps exceedingly so — to preserve the integrity of their convictions in the face of demands to acquiesce. Photographers who decline to capture a same-sex wedding on film; a civil celebrant who does not wish to preside over a wedding ceremony centred around a same-sex couple; or a parent who does not want to expose her child to sex education that promotes a conception of marriage that contradicts her beliefs: in each case (and unless future amendments are accepted), the conscientious objector in question will have little recourse if they wish to retain the purity of their convictions. Since most opponents of SSM — or, to put it more positively, supporters of traditional marriage — are likely to oppose the change on religious grounds, any confrontation between the new regime and lingering dissent will raise burning questions concerning the legitimate scope of religious liberty in a secular society. If recent flashpoints in other countries are anything to go by, they’re likely to be rancorous affairs — deepening further the fissures that already exist between religious and secular, conservative and progressive.

Of course, for many advocates of SSM, both here and overseas, stringent limitations on a person’s ability to publicly express his or her (religious) convictions in this area is only just: true equality does not exist if even a few, lonely holdouts are permitted to maintain so-called “bigoted” attitudes beyond the citadels of their minds. This is certainly the case where commercial wedding vendors — specifically, those that directly contribute to the celebratory nature of a same-sex wedding — are concerned. Whether some Australian wedding operators may decline to provide services to same-sex nuptials remains to be seen; SSM was only legislated a month ago, and the first such ceremonies won’t be taking place until some time next month. However, the issue has been playing out in various locales across the United States, pitting religious conservatives against same-sex couples and their allies in state bureaucracies. As in so many things, US developments in this area could well be a harbinger of things to come here.

At any rate, whilst there may be a diversity of views on other questions, most SSM advocates (and even some opponents) are convinced that refusal to lend one’s creative talents to a same-sex wedding is manifestly unfair. For many of them, the alleged obviousness of their position means that it needs no discursive or articulated foundation. Still, some supportive politicians and commentators have tried to buttress it by proffering a series arguments that purport to demonstrate the illegitimacy of public opposition to SSM within the commercial space — particularly where it is inspired or driven by religious belief.

Three such approaches have recently caught my eye. All of them bear directly upon the issue of conflicting beliefs within the context of commercial transactions, and could be said to have implications for religious expression, conscience and intellectual liberty. Given the limits of space (which I have no doubt already pressed), I shall concentrate on only the first of the three arguments I have in mind. I’ve had reason to touch on these issues before, but recent events in the United States — where a dispute between Jack Phillips, a religious cake-shop owner, and a same-sex couple has made its way to the Supreme Court — mean that they still possess sharp currency. Despite claims that unwilling wedding vendors are likely to be a minor matter (and therefore of little significance), I incline to the view that if a political right is legitimate, it hardly matters how many people might be robbed of it by an overweening state. Furthermore, I think it important to answer advocates who would seek to ensure universal submission to the reality  of SSM, and to expose the shallowness of their arguments. A Sisyphean task, perhaps, but necessary nonetheless.

Race and Same-Sex Marriage: a False Analogy

Here, I want to examine a depressingly common justification for refusing to allow a dissenting wedding vendor to refrain from contributing materially and artistically to a same-sex wedding ceremony. I say “depressingly”, because the argument’s ubiquity is matched only by adherents’ rather thoughtless devotion to it. Some proponents of SSM have asserted that a wedding vendor who declines to provide his or her services to a same-sex ceremony is akin to commercial operators of a previous era placing signs in their front windows signalling their refusal to serve people of a certain “race”. If this sounds like an exaggeration — a caricature of an opponent’s point of view — then here is the ALP’s Penny Wong, staking out her position in response to the tabling of Liberal Senator James Paterson’s rival SSM bill:

“I thought we had gone past the point in this country where we had signs that said ‘We don’t serve Jews, we don’t serve blacks'”.

Senator Wong is hardly alone in thinking this way. During parliamentary debate on SSM and related amendments, Wong’s colleague, Linda Burney, asserted an equivalence between wedding vendors who decline to service a same-sex wedding, and racist business operators. And what about The Australian’s Peter Van Onselen, who lazily conflates the two actions? Their views simply reflect a great swathe of public opinion.

Unfortunately, the argument itself is deeply — indeed, corrosively — fallacious. To be sure, there are some superficial similarities between the examples cited by those above: in both activities, a kind of discrimination is taking place. But it should also be noted that not all such forms should automatically be construed as unfair or illegitimate. Discrimination takes place all the time in a myriad of settings, and it is even seen as virtuous in certain contexts. For example,  we do not fault an employer when he “discriminates” between the relative abilities of two candidates vying for a position at his firm. Quite the opposite: he is doing what is required of someone looking to enhance the profit-making capacity of his business. As such, there are times when a discriminatory outlook is not only warranted, but encouraged.

Wong, Burney, Van Onselen and their ilk are operating with a deeply confused understanding of what counts as unjust discrimination, illegitimately eliding real, invidious instances of discrimination with those that are only apparent. Refusing to serve someone based on their “race”, and declining to lend one’s creative talents to a same-sex wedding, are dis-analogous in a number of crucial respects.  At base, it is the difference between prejudicial treatment grounded in a person’s innate features or characteristics, and distinctions made based on a desire to avoid complicity in an event, ceremony or process with which one disagrees. As Senator Paterson — who is himself a supporter of SSM — has pithily said, “It’s not about the person, it’s about the event”.

It’s worth exploring these differences in a little more depth. On the one hand, commercial discrimination against someone based on race or ethnicity is rightly viewed as unfair, because it is grounded in (a) innate characteristics of an individual (as opposed to an event distinguishable from said individual); and (b) consequent considerations that are irrelevant to the transaction in question. The provision of housing cannot be withheld from, say, Indigenous folk, because no rational relationship obtains between (in this case) Aboriginality and accommodation, and no rational distinction exists between an Indigenous man and a white person. Such actions attack the person qua person, and serve simply to undermine their position as an equal member of society. Some academics have theorised that this is part of a wider system of racial domination, by which the dominant group seeks to reinforce the inferior status of the subordinate group. As a manifestation of that system, refusal to accommodate certain individuals on the basis of race targets certain intrinsic features which — once more — have no material connection to the goods and services they wish to access. That is why they are (justly) seen as bigoted or prejudicial.

On the other hand, there is a rational relationship between a wedding ceremony (in this case, a same-sex wedding ceremony) and the provision of wedding-related services. To provide such services just is to make a contribution to a same-sex couple’s nuptials. Here, the question of the shape and nature of the marriage in question becomes supremely relevant, at least for those who hold to a traditionalist view of marriage. This does not centre on a person’s sexual orientation (in the way that a bigoted hotelier’s refusal to serve African-Americans is intrinsically about one’s racial identity). Rather, and as Senator Paterson noted, the source of the vendor’s objection is the possible contribution to, and participation in, a particular event. Those wedding vendors who object to lending their services to a same-sex wedding do so, not because they refuse to serve LGBT people, nor because they wish to communicate a message of dominance to a supposedly subordinate group, but because they do not wish to participate in a ceremony that contravenes their conception of marriage.

Religiously conservative business owners who have  declined to render their services to a same-sex wedding have made this very point when hauled before state judiciaries. The separate experiences Baronelle Stuztman, a florist, and Jack Phillips (noted above) are instructive. Having been subject to legal sanction for their dissenting behaviour, both Ms Stutzman and Mr Phillips have stated clearly their willingness to serve gay couples for a variety of occasions. In fact, Ms Stutzman was sued by a gay couple she had willingly and cheerfully served for approximately a decade before running afoul of Washington State’s anti-discrimination statutes. However, she and Mr Phillips draw the line at making a material, artistic contribution to a same-sex wedding. In doing so, they are holding precisely to the distinction between persons and events that I have outlined. I’ve already written about Ms Stutzman, but it’s worth recalling the following words, since they can be applied to the issue more broadly (the brief excerpt within the quote comes from Ryan T. Anderson’s Public Discourse piece on this topic):

“In the case of Ms. Stutzman, her decision ‘did not spring from any convictions about people who identify as LGBT’, and had nothing to do with making distinctions based on a person’s sexual orientation; rather, it was rooted in what she believes to be the true shape of marriage”.

What proponents of the countervailing argument fail to realize is that there is actually a logical distinction between the sexual orientation of a person, and one’s definition of the institution of marriage. One may, for example, hold to a neutral — even positive — position on same-sex erotic relationships, even as they remain convinced that marriage is fundamentally a dyadic union of sexual complements. A quick thought experiment might help to make this distinction clearer. Imagine, if you will, a same-sex marriage composed of, say, two heterosexual women. Unlikely? Yes, but it is entirely conceivable.* Conversely, one may also imagine an opposite-sex marriage, composed of a gay man and a lesbian woman. It is therefore possible to separate the shape and nature of the event from the sexual identities of the participants involved. Assuming a religiously conservative cake-maker (for example) is consistent in his or her convictions, he or she will oppose the first union, but happily participate in the second. What these hypothetical examples do is dramatize the crucial difference between orientation (a feature of the person) and the structure of a marital relationship (an institution external to that person). That is why Ms Stutzman and Mr Phillips could, without a whit of inconsistency, serve LGBT people in a variety of contexts, and yet refuse to lend their artistic talents to a same-sex wedding.

By contrast, there is simply no parallel in the case of a business operator refusing to serve a customer because of the colour of their skin. Unlike the person-event distinction that obtains in the case of a same-sex couple wanting to marry, it is impossible to imagine a black person without reference to his or her ethnicity. Discrimination concerning race is inescapably grounded in certain, innate features of an individual; racially supremacist behaviour cannot be divorced from the prejudicial beliefs which underpin it, and is reducible those attitudes in a way that opposition to SSM (at least in some forms) isn’t. A distinction between neutral or positive regard and differential treatment — similar to the possibility that exists between one’s attitude towards homosexual relationships and a wedding vendor’s refusal to contribute to a same-sex wedding — is impossible where race is involved. A local publican’s turning away, say, an Indigenous man from his pub is simply the product of racial animus. The one is an expression of the other, such that in the absence of a personal attitude or belief concerning racial differences, a public display of racially-tinged discrimination would not — perhaps could not — exist.

Concluding Thoughts

The distinctions I have tried to highlight here are subtle, to be sure. But they are no less significant for all that. Sometimes, a fine-grained analysis is necessary, if only to expose the hollowness of an argument masquerading as self-evident truth. I remain convinced that this must be prosecuted, in order to make the case that it’s still possible for reasonable people to disagree. Of course, I fear that however strong my position is (and some may think it very weak indeed), it is likely to fall on a multitude of deaf ears — ears which belong to people who are already convinced that a Baronelle Stutzman and a proud segregationist dwell on the same moral plane. Indeed, the ease with which some progressives conflate the two leaves me doubtful about the prospects of détente or rapprochement on this issue.

As commentators like Rod Dreher and Ross Douthat have observed, if the analogy examined here continues to gain acceptance, then dissenting photographers, bakers, etc. will likely suffer the same kind of ostracism that Jim Crow advocates (quite rightly) experience in the US. It will mean that those who dare to object to the new orthodoxy will likely see their views de-legitimised before they have been given a fair hearing. After all, would we be willing to sympathetically enter into the emotional and intellectual world of a person who thinks that African-Americans are inferior to whites, and that their economic and social subjection is simply part of the natural order of things? Would we be willing to sincerely consider their point of view with any degree of openness?

This phenomenon goes well beyond commercial wedding vendors. As Douthat notes, positions on SSM that were taken by left-leaning politicians just a few years ago are now condemned as the “purest atavism”. The experiences of unwilling wedding operators may therefore prove to be a barometer of things to come, both here and overseas: the alleged parallels I’ve examined are now frequently deployed at a more general level to tar all opponents of SSM, regardless of whether they are in a position to refuse participation in a same-sex wedding.** If the analogy between race and SSM does hold (socially, if not logically), then there’s no real reason to restrict its application to those operating in the commercial wedding sector. Needless to say, none of this bodes well for the future of religious and intellectual liberty.

* Legally speaking, I mean. This is not to say that a same-sex marriage is metaphysically possible.

** As an aside, I remember speaking with a colleague just after Ireland voted to legalize SSM in 2015. I distinctly recall him saying that in time, opposition to SSM (broadly conceived) will be viewed in the same way we now see racist beliefs. He himself is a supporter of SSM, and he didn’t sound overly concerned by such a possibility. In fact, he seemed to think that it represented the natural extension of our culture’s current journey of progress. I doubt very much that the opinion was either original or unique to him.