By Patrick Emerton
The idea of religious freedom is important for liberalism. But the idea is not just an abstract one. It is an idea that has a history ― a context in which it came to be, in which it was seen to make sense. There is a certain sort of work it has been expected to do. Its mere invocation won’t solve any political or social problems; but reflecting on the idea’s history and purpose may help us appreciate some dimensions of those problems.
Religious freedom is a central case of perhaps the most important theme in liberal political thought. That theme is one of toleration as a value, grounded in pluralism as a real social state of affairs.
The work of the American philosopher John Rawls ― perhaps the most highly regarded of recent liberal political thinkers ― emphasises the origins of liberalism in early modern Europe, where, following the Reformation and the Wars of Religions, religious pluralism had become an ineliminable fact of life. It’s not the case that someone, one day, simply came up with the idea that it would be nice for people to respect diversity of religious affiliation. Rather, the endurance of religious difference, in spite of attempts to impose uniformity by a combination of war and law, demanded that a new form of social life be invented. That new form of social life separated concepts like good citizen and law-abiding person from particular religious ideals, and over time ― Catholic emancipation came to Britain in the early-nineteenth century, while Jewish emancipation was still a topic of debate in the mid-nineteenth century and perhaps can be said to have been fully settled for Europe only by the outcome of the Second World War ― it made these transformed concepts a real part of social life: people could vote, and stand for office, and study at educational institutions, and take up jobs, regardless of their religious beliefs or lack thereof.
These social changes did not take place independently of religion. As Rawls emphasises, religion itself had to change in order to make them possible. Religion had to recognise pluralism as permissible, or even desirable, rather than simply put up with it as a regrettable but unavoidable failure of the aspiration to impose uniformity. This is because, for these new forms of social life to work, they must be firmly grounded and stable. Citizens, class-mates, fellow employees, employees and employers, all have to meet one another as equals who recognise that shared equality. If someone is conscious of their status as a mere concession ― “for the time being I have to treat you with respect, but I’m looking forward to the day when that changes” ― then how can they fully participate in social and civic life? A widespread attitude of regret towards pluralism undermines social stability, because it gives rise to a permanent threat of a change in the balance of power leading to the end of toleration.
For many Christian denominations, the relevant changes took place not just in theology ― for instance, through developments of doctrines that emphasise the moral primacy of individual conscience ― but in their conception of their social and political mission. In Australia we can see one outcome of those changes in section 116 of the Constitution, which forbids the establishment of a national religion, and forbids any religious test as a qualification to hold federal government office.
For some non-Christian religions, too, full flourishing in a pluralist society may depend upon changes in theology and outlook. The historical connection of liberalism to Europe means that discussions of religious freedom and pluralism often begin with a focus on Christianity. But European society itself has long included other religions, such as Judaism and Islam. And the spread of modern European social forms to other countries ― by means of the processes of conquest and colonisation and the incorporation of the entirety of humanity into a global economic system ― has meant that questions of pluralism and toleration have come to have a universal significance that they did not when liberalism first began to emerge.
The social changes of the past five hundred years have introduced further new dimensions to liberalism also. Religion is no longer the only, or even the most salient, form of pluralism in our societies. In the contemporary world many societies ― certainly Australian society ― are characterised by pluralism of occupation, of language, of cultural outlook and aspiration, of race, of sexuality, just to pick up on some of the more salient factors of our contemporary human identity.
In his work, John Rawls tries to show how a liberal society can fully accommodate these forms of pluralism just as, historically, it accommodated religious pluralism. A key slogan that Rawls uses to articulate this possibility is that, in a liberal society, the right is prior to the good. In other words, members of the society must understand and accept that they have to subordinate certain aspects of their own conception of what is good or bad in human life, as part of the process of fully and equally accommodating others who have their own, possibly quite different, conceptions of the good.
There is an evident possibility of tension here ― and not just a theoretical one, but practicaltension. Humans are social beings, whose sense of themselves, of their own worth and identity, and whose desires and aspirations, are significantly shaped by the social contexts in which they live out their lives. This means that, for many people at least, part of having a sense of living a good and worthwhile life comes from having that affirmed by others.
But in a plural society it may be hard to affirm something as good without, perhaps implicitly, suggesting that other ways of living are not so good. Does celebrating the athleticism and sporting achievement of some send an implicit signal to others, who live less physical lives, that their lives are not as good? Does conferring recognition and status on those who succeed at formal education send an implicit signal that a less-educated life is a less worthwhile one?
Some of these questions are answered by the reality of the times and circumstances in which we live. For instance, given the realities of the contemporary Australian economy, some minimum degree of education is probably necessary for any sort of flourishing life. Other ways of living ― for instance, subsistence pastoralism or agriculture ― are no longer feasible options for the overwhelming majority of Australians. This makes some things ― such as education and concomitant socialisation into the ways of urban and bureaucratic life ― what Rawls calls all-purpose means.
But even if we consider an all-purpose means such as education, tensions may still arise. One person’s education and socialisation may lead them to affirm a conception of the good which excludes, as a possible form of the good life, exactly the life that some other person has found, through her or his experience of those same social processes, to be the good for her or him. In these circumstances, in a liberal society, what sort of forbearance is owed by who to whom?
In Australia this has become a topic of heated discussion: Israel Folau’s condemnation of homosexuality, and by implication, at least, of same-sex relationships, same-sex marriage and allied social forms, as immoral and unholy, has been the most recent catalyst. Must Folau’s remarks be tolerated ― including by those at whom the condemnation is aimed ― because they are one aspect of him living out his conception of the good? Or are his remarks to be condemned, because they fail to evince a proper and full respect, in the context of a pluralist society, for others who are living out their own conceptions of the good?
The notion of religious freedom does not provide any answers here. No doubt Folau’s views are sincerely held, and his adherence to his conception of the good is deep and genuine. But the lives of gay and lesbian people are lived sincerely and genuinely also. Their conceptions of the good go just as deep. Religious freedom has a special place in explaining the origins of liberal thought. But it does not have a special priority, today, that would allow some conceptions of the good to be ranked over others.
The notion of free speech does not provide any clear answers either. The Australian Constitution does not expressly affirm or protect free speech. The protection of free speech in our system of law and government is understood as serving an instrumental purpose ― because our Constitution provides that the people shall choose their members of parliament, and free speech is one important mechanism for ensuring that people are able to make this choice in a free and genuine fashion. But as I’ve already pointed out, there are other things that are also important underpinnings of political participation. A sense of meeting as equals, grounded in a stable relationship of mutual respect, is one of these. Is this really possible in a society where some must go about their lives being openly and publicly condemned to hell by others?
Social power is an important aspect of this. Folau condemned not only homosexuality but fornication, but there has been little or no outrage on the part of, or in defence of, those who have sex and build families and relationships outside of marriage. In the past ― even the relatively recent past, given the prevalence of forced adoption into the 1970s in Australia ― such people have been victims of social oppression and hence may have needed to defend themselves and seek defence from others. But that is no longer the case. When it comes to homosexuality, however, a significant degree of oppression and marginalisation is still a reality.
But social power is at work in other aspects of these events also. Folau is of Tongan heritage, and Christianity is an important part of contemporary Pacific Island life and social identity. That is the result of nineteenth and twentieth century colonisation by Europeans, who encountered these societies, took control of them, and set out to reshape them. Is it consistent with the mutuality and respect that liberalism demands for others to set out once again to reshape Islander culture, or aspects of it, so that certain religious views will not be so vociferously expressed?
Just as religion had to change to make genuine freedom of religion possible, so it seems likely that religion will have to change further to fully accommodate other forms of pluralism, including with respect to sexuality. It’s legitimate, I think, for liberals to call for such changes. Ultimately, however, those changes will have to emerge from within particular religious traditions, in accordance with their own theological, philosophical and social conceptions. It therefore makes sense for liberals to identify and work with leaders within those traditions, who have the social and cultural power to make the necessary changes; and perhaps to criticise those leaders who refuse to engage meaningfully with the demands of pluralism, and to point out the hypocrisy of doing so while appealing to religious freedom as if it were some self-standing principle of human affairs.
But whether the best place to begin this social and political project is by focusing on the case of Israel Folau is a further matter. It may not be.
Patrick Emerton is Associate Professor of Law at Monash University, Melbourne.
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This article was originally published on ABC Religion and Ethics. Read the original article.