Following the recent debate about whether religious schools in Australia should be entitled to expel gay students on account of their sexual orientation alone (as to which all seem to be agreed the answer is, No), there is now a push to remove the freedom of religious schools to make staffing decisions on these issues. The ALP has announced that they want to pursue this issue when amendments relating to students are debated in Parliament. It even seems that some members of the LNP Government are unclear about the issue.

While “orientation alone” should not be a ground to expel or discipline students, removing the provisions that allow schools to make these decisions in relation to staff is a bad idea. Religious schools exist because parents want the option to see their children educated in an institution which supports their religious and moral worldview. Students do not just learn academic truths from their teachers; in many cases they admire them as people, and model themselves on the values their teachers live out. Hence someone who is committed, by their identification and activity, to opposing the moral framework of the school, is not suitable to be working as part of that school community. A fully committed member of the Greens would not be suitable to work in the office of the Conservatives. The same issues arise in relation to religious schools and same sex oriented teachers.

These statements require some justification. This is not an area where the issues can be fully resolved by 280-character tweets. No doubt these matters were canvassed in the 16,000- odd submissions made to the Ruddock Panel and in their report, which so far as not been publicly released. Some recommendations which touch on the matters have been leaked, though those recommendations are much less radical than the suggestions made by the ALP and others in recent days. I will outline the relevant Ruddock Panel recommendations, and then set out some arguments supporting the views I have set out above. (In a previous post I provided three examples of cases where these issues had been discussed, and some of the points I made there are repeated below.)

Ruddock Recommendations on the issues: nos 5 & 6

Recommendations 5 and 6 of the Report deal with religious schools and teachers:

Recommendation 5

The Commonwealth should amend the Sex Discrimination Act 1984 to provide that religious schools can discriminate in relation to the employment of staff, and the engagement of contractors, on the basis of sexual orientation, gender identity or relationship status provided that:

• The discrimination is founded in the precepts of the religion.
• The school has a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced.
• The school provides a copy of the policy in writing to employees and contractors and prospective employees and contractors.

Recommendation 6

Jurisdictions should abolish any exceptions to anti-discrimination laws that provide for discrimination by religious schools in employment on the basis of race, disability, pregnancy or intersex status. Further, jurisdictions should ensure that any exceptions for religious schools do not permit discrimination against an existing employee solely on the basis that the employee has entered into a marriage.

As with recommendation 7, the wording of recommendation 5 is somewhat misleading. Religious schools already enjoy the right to make decisions in the employment area which would otherwise be discriminatory; the recommendation is designed to add extra conditions to the existing provisions. In the Federal sphere, this right is set out in s 38(1) of the Sex Discrimination Act 1984 (Cth), which reads:

38(1)  Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(Subsection 38(2) makes similar provision in the case of independent contractors.)

Recommendation 6 deals with both the Commonwealth law, and also State and Territory anti-discrimination laws, which vary in their provisions. The first half recommends that these jurisdictions no longer allow religious schools, in their employment decisions, to rely on the four grounds of “race, disability, pregnancy or intersex status”. I am going to put these to one side for the purposes of this discussion, which will major on the “sexual orientation” point. That is raised, however, by what we might call recommendation 6(b), which requires all jurisdictions to not allow “discrimination” on the basis that an employee has “entered into a marriage”. In past days this might have applied to cases where an employer decided to sack a female employee when she got married to her boyfriend. Now it will also apply, presumably, where a teacher or other worker at a religious school enters into a same sex marriage. This will again raise significant issues for a school operating on a religious ethos.

Why are these provisions here?

A key point to note is that, while recommending some additional conditions, the Ruddock Report in general (as far as we can judge from the leaked material) supports the existence of the provisions allowing selection and management of staff in religious schools to be influenced by sexual orientation.

The current provisions of s 38(1) and (2) are a part of the legislation because it has long recognised that some religious groups hold the view that sex should only take place between a man and a woman, and then only once they are married to each other. The “Abrahamic” religions, Christianity, Islam and Judaism, have taught for many years that homosexual activity is not part of God’s design for humanity. A person who identifies as being of homosexual “sexual orientation” is someone who has signalled, by that, that they disagree with this view. In particular, someone who announces that they are going to marry their same sex fiancé is making a very clear public statement that they disagree with this moral stance.

Of course the community at large has now indicated its support for homosexuality in changing the law to allow same sex marriage. But in the course of those debates, it was regularly claimed that allowing same sex couples to marry would not have a wider impact on those who disagreed with this change. It was always assumed that there would be a part of the community who did not support the move, and that for many of those people it would be because of their religious convictions. (Indeed, it is always worth remembering that 38% of Australians who indicated a view in the “postal survey” process, voted against the change. That is not an insubstantial portion of the Australian community.)

Let’s consider some objections which are now being taken to these provisions.

The “public funding” furphy

One mantra that is regularly trotted out in these debates is this: if schools wish to accept “public funds”, they can only do so on condition that they accept public morality on homosexuality.

But this really is a furphy (for overseas readers, a “furphy” is an Australian colloquial term for a popularly believed fallacy). The statement seems to assume that “public funds” arrive from some mysterious source with a label saying “only to be used for secular purposes”. “Public funds” come from taxpayers, around 53% of whom in Australia have a belief in some form of religion! There is absolutely no reason why the taxes paid by religious citizens should not be used in a context where there is a general public benefit, supplied by a religious body which operates on the basis of a religious world-view. Australia has a long tradition for many years of religious schools being provided with public funding, at least since the High Court declared in the famous “DOGS” case that this did not amount to the “establishment” of religion contrary to the Constitution. (See Attorney-General (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559, known as the DOGS case for the group which sponsored the challenge, “Defence of Government Schools”, discussed here.  More recently the NSW Court of Appeal reaffirmed in the 2016 Hoxton Park decision that supplying an Islamic school with public funds did not breach the Constitution.)

Public funds are supplied to religious schools because they have been shown to be able to deliver the general public curriculum, as well as providing an option for parents who want their children to be educated in accordance with their religious beliefs.

“But there’s no ‘Christian’ view of mathematics”

Another common refrain here is to argue that, while a religious studies teacher needs to a fully committed religious believer, surely there is no need to give religious schools an option to dismiss, or not employ, a gay maths teacher?

And it is true that some schools will make that decision. But the fact is that many religious schools offer the experience of being part of a whole religiously motivated community, in which every member lives out that faith. That is one of the defining characteristics of those who are serious about their religion- it is not simply a “Sunday morning” or “Friday afternoon” hobby, it is a deep life commitment which covers every aspect of existence. So the school will expect, and parents who send children there will expect, that those providing the education will do so, wherever possible, from a position of full support for the religious world view in all parts of life. After all, the idea that a successful organisation is one where the employees “buy in” to the company’s corporate vision, is a key insight of modern management theory. Why would it not apply to a school?

“But does it really matter what teachers do on their own time”?

In my previous comments I suggested that it would be reasonable to remove the provisions of s 38(3), allowing a religious school to discriminate against a student on the grounds of their “orientation” alone, so long as the school was still allowed to implement a religious policy concerning the behaviour and conduct of students. Might not the same be said about teachers? Would it be possible to only allow teachers to be disciplined or dismissed where they had openly and publicly defied the school’s values?

Such a policy would have many problems. The suggestion ignores the many differences between the positions of students and teachers respectively. Teachers are those who set the tone for the classroom, who are looked up to by their students.

A “behaviour” provision would be similar to the now discredited “don’t ask, don’t tell” policy previously applied by some military organisations to the engagement of homosexual persons. It would lead in many cases to deep internal conflict for teachers who would feel threatened lest they be “outed” by someone at the school.

But in particular this policy ignores one of the deep truths about the profession of teaching- that students regularly learn so much, not simply from the facts that are conveyed by their teacher, but from observing and modelling themselves on the teacher’s life as a whole person. Popular media is full of such stories, from the classic films such as Dead Poet’s Society or Mr Holland’s Opus to the equally classic Simpsons episode where Lisa is inspired by her substitute teacher!

For once fiction is close to reality. Teachers do have a significant impact on the lives of their pupils going beyond the mere content they convey in class, and knowing this, it seems reasonable for a religious school to ask its teachers themselves to be examples of godly behaviour which it seeks to model and inculcate in students. This will of course mean that a heterosexual teacher will be disciplined or dismissed if they start living with their partner outside marriage, or a single female teacher might be asked to leave if they become pregnant. But it may also mean that a teacher who identifies as homosexual, may be told that if so this does not fit with the overall message of the school.

Response to the Ruddock Recommendations

So I do not think the abolition of the s 38(3) provisions is a good idea. In relation to the details of the Ruddock recommendations 5 and 6, while happy with the “publicity” changes, I have some serious reservations about the first proposed condition. For reasons I noted in my previous post, I do not think it is the role of secular courts or tribunals in these sort of cases to be determining what is “required” by the precepts of a religion. I would prefer to maintain the current wording, which refers simply to a decision made “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”. This would exclude a decision made as a “sham” to cover up some bad motive, but would allow the choice as to how the religion should be interpreted, to be left with those who run the school in accordance with those precepts.

As noted in an excellent article on these issues by Annette Pereira, Executive Officer of the Australian Association of Christian Schools:

For a religious community to function, it needs to be able to resolve its moral and ethical decisions within itself, with reference to its sacred teachings and texts. It is not up to the government to make those decisions on its behalf.

Conclusion

A society which is truly “diverse” will allow space for minority views. There has been a long history of Australian parents choosing to send their children to religious schools, precisely because the mix of beliefs and practices that characterise the schools are seen to be beneficial to their children. It would deny that free choice to deny these schools the ability to operate in accordance with their fundamental beliefs, by selecting staff who share those beliefs.