Sexual orthodoxy and admitting lawyers

The decision of the Ontario Court of Appeal in Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (29 June 2016) is an interesting illustration of the strength of the current orthodoxy in society on sexual behaviour, and how those who dissent are increasingly being cast in the role of “heretics” and unfit for civilised society. (While this blog is mostly about Australian issues, those raised by this case are likely to be replicated here and elsewhere in the West, so I think it is worthy of note.) 

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Homosexuality and “hate speech”

Simply expressing opposition to homosexuality from a religious perspective, not accompanied by incitement to violence, should not be classified as unlawful “hate speech”.

The terrible events at the Pulse gay nightclub in Orlando, Florida, where 49 people were killed by a man claiming to act in the name of the so-called “Islamic State” group, have naturally generated much heated comment online and in the news media. As others have noted, this was almost a “perfect storm” of hot-button controversies in the world today: Islam, homosexuality and gun control being some of the main ones.

In this comment I want to narrow the focus to the issues surrounding speech, and to consider how in the light of these events the law ought to deal with public comments about homosexuality. One of the reasons for this is that it has been suggested that part of the background to these events were previous comments made by Farrokh Sekaleshfar, a senior Shi’ite Muslim scholar who had visited Orlando in March, to the effect that homosexuality was a moral offence which warranted the death penalty. (It should be noted that while Mr Sekaleshfar had indeed made these comments, the recording in question dated back to 2013 on a different occasion, and there seems no suggestion that he actually said anything on the topic in his Orlando visit.)

And oddly enough there was then a direct connection with Australia- Mr Sekaleshfar was at the time of the Orlando events giving lectures at an Islamic centre in Australia. The Sydney Morning Herald reported:

Mr Sekaleshfar said in a lecture in Michigan in 2013 that in an Islamic society, the death penalty should be carried out for homosexuals who engaged in sodomy.

There was then some suggestion that Mr Sekaleshfar’s visa would be revoked on account of his comments, a course that in the end proved unnecessary when he voluntarily returned to the UK. It should be noted that the report also mentions that:

Mr Sekaleshfar told Reuters on Monday he condemned the Orlando shooting as a “barbaric act of terror that was in no way justified”.

The question of Muslim views on homosexuality hit the headlines in Australia again shortly afterwards. The Prime Minister, Malcolm Turnbull, hosted an “iftar” dinner (a traditional event held at the end of a day of fasting in Ramadan) for a number of leaders of the Muslim community at Kirribilli House, the official Prime Ministerial residence in Sydney. As reported by The Australian (June 17, 2016):

Four days after 49 people were shot dead in a gay nightclub in Orlando by Islamic State supporter Omar Mateen, Sheik Shady Alsuleiman was among dozens of Muslim leaders invited to the first ever Iftar — the evening meal at which Muslims end their daily fast during the holy month of Ramadan — to be staged by an Australian prime minister.

Sheik Alsuleiman, who was elected president of the Australian National Imams Council last year, arrived at Mr Turnbull’s Iftar dinner alongside Grand Mufti Ibrahim Abu Mohammad.

“What’s the most common disease these days?” he said in a sermon uploaded in YouTube in 2013. “HIV, Aids, that’s so common and there’s no cure to it. And when did it exist? Just decades ago, and more diseases are coming.”

He said it was “homosexuality that’s spreading all these diseases”.

The article goes on to note that other Muslim leaders present at the meal said that homosexuality was a sin under Islam, “but it does not mean go kill them”.

In a more recent report in The Australian (June 18, 2016) other Muslim leaders re-affirmed that the death penalty was appropriate for homosexuality under Islam.

Imam Yusuf Peer, the chairman of the Council of Imams Queensland, who is a member of the national peak body, told The Weekend Australian yesterday that it was “not permissible” to be gay and Muslim.

“But we do not have a problem with the people themselves, just the act and ideology,” Imam Peer said. “But this is what the sharia law says and we have to follow that. There is no way around that. When we are talking about gays, we have to be confident (they are gay) and there must be a lot of ­investigating.”

When asked if sharia ­required death, Imam Peer said: “Yes.”

Imam Peer said because a “proper process” involving “committees” applied, it prevented the “random bashing and killing” of homosexuals: “Nobody can implement Islam­ic sharia on their own. There is a procedure, there is arbitration, there is a committee.”

Building on these events, the Opposition Leader Bill Shorten was reported in an online debate as using these comments as an example of “hate speech” likely to be encouraged by the plebiscite on same sex marriage promised by the Coalition Government to happen after the next election.

Opposition Leader Bill Shorten has linked the planned plebiscite on same-sex marriage to the Orlando massacre and the murder of British MP Jo Cox, suggesting the campaign could “give haters the chance to come out from under the rock”.

In the midst of this hyperbole, it might be worth reminding ourselves of some facts about homosexuality, religious perspectives, and the idea of “hate speech”. I’d like to offer five propositions, and comment on them briefly:

1. Homosexual behaviour is seen as immoral by some religions

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

4. There is “hate speech” which ought to be made illegal

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

1. Homosexual behaviour is seen as immoral by some religions

Mainstream religions around the world have long regarded same sex intercourse as contrary to their religious beliefs. In Islam, the primary source, the Qur’an, Sura 7:81 explicitly condemns homosexual behaviour. This article and this one link to other more detailed comment in the Hadith and other sources which make this quite clear.

In Christianity the prohibition on homosexuality is found in the Old Testament in Leviticus 20:13 (and 18:22), and is repeated in the New Testament in Romans 1:26-27, 1 Corinthians 6:9, and 1 Timothy 1:10. In the Lev 20 verse, the death penalty is laid down for those who engage in same sex relations.

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

However, modern believers in both Christianity and Islam do not intend to say that they “hate” someone when they report that the person’s behaviour is immoral. Indeed, as far as Christianity is concerned, the fact that someone has rebelled against God and is hence a “sinner”, is a fact that is said to be true of all human beings (see e.g. Romans 6:23). Christians are urged to do good to all, including sinners (since all fall into that category!) And the best known verse in the Bible, John 3:16, reports that God “so loved the world” that he sent his Son Jesus to die for its salvation.

So a judgement, on the basis of revealed truth, that behaviour is wrong does not on its own imply “hatred” for someone else.

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

However, it does have to be said that Islam as a religion finds it more problematic to speak of behaviour which is immoral, and not at the same time illegal.

Christianity has a long history of recognising that wrongful behaviour may not need to be punished as such by the State. Indeed, there is a crucial truth about the relationship between Christianity and the laws of the Old Testament that must not be forgotten in these debates.

The simple fact that there is an “Old” Testament (comprised of the Hebrew Bible) and a “New” Testament signals something very important about Christianity. Without exploring the complexities of the debates here, broadly speaking Christians believe that the arrival of Jesus Christ as the promised Messiah of Israel saw a radical change in the way that God related to humanity. In the Old Testament the people of Israel were designed to live both as a political entity and a religious entity, a body politic with laws and punishments and authority structures mostly centred on the area of land known as Canaan or Palestine. With the arrival of Jesus, however, it became clear that the laws which had governed the political State of Israel were no longer applicable to the new people of God, who were now defined as those who had put their faith in Jesus as Lord.

This apparently arcane religious debate has massive ramifications for the way that the Old Testament laws are treated today by Christians. While there have been debates and alternative views taken over the centuries, the mainstream Christian view has been that the laws of a modern political entity do not need to replicate the laws applicable to Old Testament Israel. Jesus, for example, in a startling passage of teaching, told his disciples that all foods were clean (see Mark 7:19), overturning all the OT teaching on clean and unclean foods. He told his disciples that there were certain matters that were the province of “Caesar” (the secular government) and where their rules should be respected- see Matthew 22:21. The apostle Paul taught that Christians were not “under the law” (Galatians 5:18).

Hence no mainstream modern Christians believe that the death penalty ought to be applied by the State for all sinful behaviour prohibited in the Bible, even if that penalty had been imposed by the Old Testament. All Christians believe that some OT ceremonial laws are not applicable at all today; most believe that the moral principles spelled out in OT laws are still applicable but the legal penalties are not. This is not simply a “let’s pick the ones we like and ignore the others” policy, it is a result of detailed unpacking over many centuries of the clear teaching of the New Testament. (See also this recent comment refuting the suggestion that Paul’s letter to the Romans calls for the civil death penalty for homosexuals.) So while the famous episode in the “West Wing” where President Bartlett attacks a “conservative” for opposing homosexual behaviour but not executing children for disobedience may have made amusing TV, it bears no connection to the reality of arguments made on this point by religious conservatives.

Islam, however, tends to have a strong mainstream strand which sees it as a religious duty to work towards the application of Islamic religious (sharia) law to the whole community. Christian philosopher Richard Shumack, in an important work discussing fundamental differences between Christianity and Islam, The Wisdom of Islam and the Foolishness of Christianity (2014) quotes an influential Muslim thinker, Abul Ala Maududi, who says:

The chief characteristic of Islam is that it makes no distinction between the spiritual and the secular in life. Its aim is to shape both individual lives as well as society as a whole in ways that will ensure that the Kingdom of Allah may really be established on earth and that peace, contentment and well-being may fill the world. (from Shumack, p 197, quoting Maududi, “The Islamic Concept of Life.”)

This explains why serious Muslim speakers will continue to argue that the death penalty is an appropriate penalty for homosexuality in certain circumstances- in particular, in a society which has committed itself to full implementation of sharia law. In an ABC TV interview with Farrokh Sekaleshfar before leaving Australia, he explains the remarks for which he has been attacked as being made in an academic discussion of this sort, about a theoretical society where sharia law is implemented, and in relation to a “public” act of homosexual sex.

However, even in the case of Islam is just not true to say that mainstream Islamic teaching requires the death of homosexuals in a Western country. The view that homosexuality is wrong, even the view that in an Islamic society it ought to be punished, may be, and indeed is, offensive to many. But should someone who holds such a view be punished for saying so?

4. There is “hate speech” which ought to be made illegal

There has been a long debate about the validity of laws which forbid so-called “hate speech”. But before we discuss this issue it seems a good idea to define this term. What is it?

Perhaps in popular terms it means “speech which is motivated by the speaker’s hate”. But this is not the way that the term is usually used in legal contexts. The appropriate definition of “hate speech” has to do with its effect on the hearer, not the subjective motivation of the speaker. “Hate speech”, in broad terms, means speech that incites the listeners to “hate” a person or group of people who are the topic of the speech.

One example can be seen in the NSW Anti-Discrimination Act 1977, s 49ZT, which makes it unlawful to “incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons” on the grounds of homosexuality. There are various defences that apply to this provision in the interests of free speech. Under s 49ZTA, however, where this incitement is accompanied by a threat of physical violence, or by incitement of others to such violence, then it is a criminal offence and those defences do not apply. These seem to be appropriate laws.

In a previous post discussing the related (though not identical) issues of “religious vilification laws”, I commented as follows:

I have written a longish academic paper where I discuss issues about religious “hate speech”, and there I conclude that, while the law should neither penalise the mere causing of “offence”, nor the expression of opposition to ideas or beliefs, it is sensible for the law to penalise the incitement of hatred against people on the basis of their religion. I cite Jeremy Waldron, who in his excellent book The Harm in Hate Speech (Cambridge, Mass; Harvard UP, 2012)  makes a careful but impassioned case for the desirability of  such “hate speech” laws. Waldron correctly points out that real harm can be experienced by those who are part of a minority group which is confronted on a regular basis by written and visual reminders that some would exclude them from civil society

So, I think there is a legitimate place for laws prohibiting the incitement of violence against same sex attracted persons.

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

But- not all comments conveying disapproval of homosexual behaviour fall into this category. I have posted before about the unwise nature of laws that prohibit mere “offence”, and supported a proposal to make it clear that open debate on the merits of same sex marriage should never of itself be grounds for legal complaints about “hate speech”. (See “Protecting free speech in the Same Sex Marriage Plebiscite debate” and a follow-up post here.)

In short, the value of free speech as both a fundamental human right and a tool for making sure all views are heard in the search for truth, means that we ought not to use the law to shut down the views of others who are “causing offence,” if that is all they are doing.

Of course, as noted above, I support making unlawful (as they already are) calls for direct violence against same sex attracted persons. But, to draw a line that is foreshadowed above, I do not think such a call is heard when a Muslim scholar suggests what law should be applied in a society governed by sharia law, while acknowledging that Australia is currently not such a society.

Of course, as a Christian I regard such a prospect (an Australia governed by sharia law) as bad, and will argue whenever I have the opportunity to do so that such should not happen. As a Christian I will argue with Muslim scholars that their views on this issue are wrong. But I do not think that expression of these views (outside the context of a call for direct violent action) should be shut down by the legal system. For one thing, I want Australians to be fully aware that Muslims believe this, when considering whether or not to adopt Islam as a religion. I do not want these views hidden from view, but rather to be out in the open where they can be critiqued and challenged.

If there is to be an ongoing and fruitful dialogue with genuine representatives of the Muslim community by leaders in government, it would be unhelpful to draw lines too sharply as to who will, and who will not, be consulted. While the views noted above as being held by the Muslim representatives at the iftar dinner will be deeply offensive to many, they do not represent calls for active violence against same sex attracted persons. Those views may be challenged from many directions, from a shared commitment to diversity and tolerance in a liberal society, to a critique of Islam from other religious perspectives. But open discussion of such views needs to take place in a context where the law allows free speech which does not directly incite violence.



Religious Instruction in schools and “soliciting”

Press reports today (e.g.”Qld govt to review religious education“, Courier-Mail, 7 June 2016) indicate that a school Principal in Queensland has written to parents at his school indicating that he is cancelling the usual Religious Instruction (RI) classes, on the basis that he has discovered the lessons involve “proselytising” (a term which he says refers to “soliciting a student… to change their religious affiliation”). The Queensland Government in response to the press reports has indicated that it will be reviewing materials used to ensure they comply with relevant rules.

Does this mean a radical change has recently taken place in a program which has been operating for many years allowing parents to send their children to RI (elsewhere sometimes called “Scripture” or “Special Religious Education”) classes for a short period each week? Actually, no. It seems that the Principal has misread the relevant provisions, and the Queensland Government really doesn’t need to react to the misleading interpretation.

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