About Neil Foster

I am an evangelical Christian, an Associate Professor in law, a father and a grandfather. I have qualifications in both law and theology and teach “Law and Religion” as an elective to later year law students.

128 thoughts on “About Neil Foster

  1. Some interesting posts and here’s one over-arching comment on your approach to the law, both legally and politically: I wonder if there’s an inherent tension in the concept of “religious freedom” that will eventually doom it to failure, because religious freedom laws are about motivation and not consequences, and therefore end up treating different groups of people unequally even when their actions have the same consequences.

    To take the case you mentioned about the denial of wedding related services to gay couples, the law can’t distinguish between these two cases. Case 1: A Christian florist does not want to provide flowers for a gay wedding for religious convictions, because she believes marriage is between a man and a woman. Case 2: A non-religious person does not want to provide flowers for a gay wedding because he thinks marriage is between a man and woman.

    It seems really strange that religious freedom laws would allow Case 1 but not Case 2 just because the former has a “religious” conviction and the latter a “non-religious” conviction. So, can a non-religious florist who sincerely believes in man-woman marriage deny wedding related services? If the answer is that, yes he can, then why does this have anything to with “religious freedom” rather than just a freedom of commerce/libertarian-type argument? And if the answer is No, how would you defend giving religious people more rights and liberties than non-religious people with the exact same beliefs?

    The religious freedom argument is a loser from the start. Stronger in my opinion is the freedom of speech/commerce type arguments where it’s not the motivation but the sphere of activity that is delimited. It is possible to say that everyone is free to decide whether they want to serve someone when speech is implicated, but otherwise not free to do so when no speech is implicated, for example. So, if a wedding cake says “God Bless the Marriage of Adam and John,” I think anyone should be able to refuse for any reason – no need to examine if the reason is religious or not. But if a gay couple walks in and asks for the really nice chocolate wedding cake they saw in your shop brochure without asking for any specific wording, I don’t think any baker, Christian or otherwise, should be able to refuse.

    What’s interesting is that in the U.S., religious freedom laws are now being weaponized by the Left, not the Right, and you are likely to see it in Australia soon. Example: Why isn’t a Christian florist who refuses service to a gay couple who belongs to a church insisting that same-sex weddings are sacred not only discriminating on the basis of sexual orientation, but also on religion? Surely if Christian conservatives can be discriminated against on the basis of their beliefs in man-woman marriage, then Christian liberals can also be discriminated against on the basis of their beliefs in same-sex marriage? It goes both ways.

    Another example winding its way up the courts and which the Left has actually won in a couple of appeals courts: Why aren’t states who require mandatory abortion waiting periods or ultrasounds violating the deeply-felt ATHEIST convictions of women who believe in sacredness of bodily autonomy? Classic example of religious freedom being used by ultra-liberals.

    There’s a very small window period left for Christian conservatives to act, and religious freedom is a losing argument. It is like winning the battle in order to lose the entire war. The argument will be – and already has been – used by enemies of religious people everywhere to win exemptions for themselves.

    Like

    1. Dear Ryan; Your argument seems to assume there is nothing “special” about religious belief which would justify giving it recognition. I disagree, and with respect so does a long tradition of Western thought. To come closer to the current time, Constitutional protections such as the First Amendment in the US and s 116 in Australia apply to the “free exercise” of religion specifically. In broad terms I think the reason is that “religion” (as opposed to mere “opinion” or “preference”) provides an over-arching framework for a person’s life and fundamental part of their identity. Whether or not this is persuasive, it is just true that religious freedom is protected in ways that other opinions are not. I am happy for people from the “left” wing of politics to make arguments based on their religious freedom, as much as people from the “right”. Not all religious freedom arguments succeed, as these rights are often balanced by recognition of other fundamental rights. But I still think there is something special about “religious” freedom arguments. Thanks for your comments. Regards, Neil

      Like

      1. No, it is not persuasive that religion provides an overarching framework for individuals in a way that non-religious moral preferences do not. I think this is nothing more than mere prejudice in favor of those with religion and against those without – people’s moral convictions do not become less important or meaningful in their lives because they didn’t take it from a particular sacred book.

        But in any case, while there may or may not be something special about religious belief, there is definitely nothing special about labeling a particular belief “religious” in a legal context because anyone can do so, and because the non-religious can simply appropriate “atheism” as a religious category. In the United States, courts generally do not question that a belief is a religious belief if the claimant declares that it is so. For that reason, anything can be declared a religious belief, and this makes sense given that even among the most established religions, believers often believe very different things about their faiths.

        Take a look at the Satanic Temple, created not that long ago from the imagination of one person, which understands the problem with the religious freedom approach and is turning it inside out against conservative Christians in the U.S. It is essentially an atheist organization founded on principles of rationality; it takes Satan as a symbol of its fight against superstition. The IRS (the US tax agency) has given it tax-exempt status and recognized its status as a religious group. Courts have also all accepted its standing as a religious group. It has won many, many cases against Christians by invoking the exact principles used by Christian conservatives who coined religious freedom as a strategy. For instance, schools that host evangelical clubs are also asked to host After-School Satan Clubs; since they have to treat all equally, schools tend to close down the evangelical clubs rather than invite the controversy of anything “Satanic”. Their goal is to drive Christianity from the public square by employing the legal tactic of religious parity.

        You say that you are “happy” for groups from the left to claim religious freedom too, but I believe you are missing the larger point: Because it is impossible to distinguish between a religious belief and a non-religious belief, the “religious” label will eventually become meaningless. Anyone can claim their belief is religious and anyone who isn’t religious will simply say they are “atheist”, which courts will treat equally as a religious category; the courts will then have to adjudicate the rights-balancing using other criteria. What’s to stop the gay couple who wants to be married in an Episcopalian Church (which recognizes same-sex marriage) that they are not being denied service by the conservative Christian baker on the basis of religious discrimination? In point of fact, the gay couples being turned away by county clerks like Kim Davis could have sued the state on grounds of religious discrimination, assuming that they belonged to a church that embraced gay marriage, and it is quite simple enough to join one these days.

        Here’s my prediction: Religious freedom arguments will eventually end up further limiting the space traditional religionists have to practice their religion. Religious freedom was historically used as a shield against the state (such as when Muslim inmates wanted to keep facial hair and wanted a religious exemption) and not as a sword against other minority groups (such as not wanting to serve at a gay wedding). Used in the former way, religious freedom enjoyed broad consensus; used in the latter manner, every poll has showed declining support for religious conscience exceptions.

        Like

    2. Great points and I might go one step further. Traditional protected classes like sex, sexual orientation and ethnicity all have strong biological components, unlike classes like religion or national origin. Religion, in particular, is nothing more than a choice and a lifestyle. Individuals should be free to live a Buddhist lifestyle or Christian lifestyle, but there is no reason to elevate their religious preferences into a protected classification in comparison to relatively immutable characteristics like sex, sexual orientation or race.

      This is just the dying gasps of Christian cultural privilege, soon to be washed away as the millenial generation takes over. Not to worry – Christians won’t be treated badly, they just won’t be given the special treatment they have in the past. Which is fair. I think folks like you don’t understand how deep the disgust is with the constant requests for Christians to be exempted from this and exempted from that. The rest of us don’t get the same privileges yeah. You are not more important than me as a citizen.

      Like

      1. Ryan, Neil and others.

        Great conversation.

        There is definitely a lot of confusion out there but it made me think about trying to get back to basics and then work up again from there.

        In my studies of trust and charity law and its history I came across many court cases and other materials referencing court cases which involved religion and exemptions.

        The very cornerstone of the religious exemption is based on the principle that a religious person or group is deemed to be lessening the burdens of government. This same principle is what underpins all charities and what allows them the tax exemption. From a purely legal perspective, if a charity holds property, it is deemed to be unalienable and held in trust for the benefit of community or other purposes/groups, which as a result help alleviate the burden on government to address the same issue. Put another way, the more charities doing governments work, the less resources the government has to tax from the private sector. This is ‘why’ charities get tax exemptions, and again, from a purely legal perspective (and an equitable perspective), a government cannot tax what is already being used for its benefit (the benefit being that the charity lessens the burdens of government). The only reason a charity would be taxed is if it is proven that there are private beneficiaries.

        This is the principle. It is not based on opinion or anything like that. So the question must always come down to, is the particular case in point demonstrating that there is a lessening of burdens on government?

        We might all argue over and over whether we believe that someone who practices religion is lessening the burdens of government compared to an atheist, but as far as our common law is concerned, they are because it is assumed (until proven otherwise) that a religious person acts in a way which places less demands on government than a non-religious person pursuing secular goals, i.e. they consume less, they demand less, their pursuits of economic interests are more moderate compared to a non-religious person, and that as part of their religion they will have an influence on others to do the same. At least that is what a religious person is ‘suppose’ to be doing if they follow their religions properly.

        So what is really going on when we have two florists, one religious and the other non-religious?

        As far as being florists, they are in business for themselves, and are therefore “not” lessening the burdens of government (i.e., anyone who pursues self-interests such as money, property etc, is a burden on government).

        As far as making decisions as to who they sell their flowers to and who they do not, they again are not lessening the burdens of government whatever may be the decision. Put another way, the motivation not to sell the flowers is religiously based, but the consequence is that it is a business decision, and therefore at the end of the day, this florist is acting in their own self-interests as is therefore well within their rights to do this. The common law has always placed emphasis on the freedom to pursue self-interests from within the private sector.

        If a gay couple takes the florist to court, then on what grounds? Whatever may the motivation, the end result is that a florist owner can choose who they sell to and who they do not. For the florist to throw religious freedom in there is simply muddying the water. The florist does not need to rely on such an argument. The gay couple should look for gay florists, this is what our whole capitalist system is based on – demand creates supply.

        At the end of the day, every single one of us is either pursuing self-interests, and thus increasing the burdens on government, or we are acting on behalf of some group less fortunate than us and are thus lessening the burdens of government. This is the real distinction to me made and the real principle upon which all of these arguments should be based.

        For me personally, I do not believe there is any religious freedom at all. Religious freedom to me means the ability to follow the main principles all religions teach. I do not see this as being possible from within the private sector.

        Like

    3. It is often the case that people who practice religion impose unique burdens on society, actually. New York recently outlawed religious exemptions for vaccines (they previously had such an exemption) because of a horrendous measles outbreak. This is one example when religious opinions that are not grounded in science or fact harms the wider community and leads to removal of an exemption.

      But I think there are two different issues. One is legal, the other political. I used to work for a political consultancy (center-leaning, neither left or right) and one of the things we advised our LGBT clients to do was claim the exact same exemptions being pushed by their opponents. For example, while some of the LGBT groups we consulted for were worried that some Catholic adoption agencies would gain exemptions against placing children with same-sex couples, we explained that if the law came to pass (it did not eventually), then private agencies would be able to stop placing children with Christian couples; the Catholic agency can argue that children do best in a home with a father and mother, whereas the secular agency can claim that children do best in a home without bigoted beliefs, especially since there’s a good chance (maybe 3-5%) that the child will eventually be LGBT. This, in fact, is the strategy that some LGBT groups (I suspect) are waiting for in glee.

      I find conservative Christians’ approach to the entire issue hopelessly silly, because they keep picking the wrong fights that will cost them. There will be an equal and opposite reaction for every exemption they claim; in fact, the reaction will probably be magnified against Christians. You had the cake baker in Masterpiece cake shop not want to serve gay weddings. Well, guess what? Suddenly, there are diners all over America like the Red Hen in Lexington who decide not to serve conservative Republicans/Christians a meal. You don’t want to host gay weddings at your property? That’s great – guess what, most of the Fortune 500 hotel chains, which overwhelmingly subscribe to LGBT equality, will have quite a big problem hosting conferences for any Christian events deemed anti-LGBT. Catholic religious schools want to fire LGBT teachers who publicly support gay marriage? That’s great. Guess what? The Australian Rugby League has the same right to fire anti-LGBT players who publicly are against gay marriage and homosexuality. What’s good for the geese is good for the gander.

      It’s so curious why the Right thinks this is a winning strategy at all. For every hand you play, the Left will raise you one and they will do it better, and you won’t be able to complain because it really is pretty fair.

      That’s what our clients pay us for. When we consulted for them, we told them that instead of fearing religious liberty laws, they should USE them to their advantage. You are seeing the second act play out now in the U.S., as I expected. Christians will lose, badly, again, because they have now legitimized an entire wave of secular deplatforming directed against Christians in order to gain the right for a couple of bakers who didn’t want to serve at LGBT weddings. Seriously? You cannot invent this – it is so laughably ineffectual. What is gained is so little, and what is lost so significant.

      It is a bane of contemporary identity politics that the LGBT Left does not (yet) understand how big a gift they are being given by their political opponents. Remember: this was predicted by no less than Antonin Scalia, that great conservative jurist. Religious liberty used to be championed by liberals and frowned upon by conservatives (yes, you read that right!). Scalia was the author in Employment Division v. Smith, which denied a religious exemption for Native American use of peyote. Although the political script has flipped, the underlying legal regime has not: religious liberty favors liberal activism because it allows them to arrogate cultural space using equal protection arguments. Scalia understood this; the Christian conservative movement does not, yet, and they will pay the price for it.

      Like

      1. Thanks for your insights, Ryan. I look forward to reading more on your own blog sometime. In the meantime I think that you have occupied enough space on mine for the moment. All the best.

        Like

      2. I think it is a sad state of affairs if the only way to exist in this world is to impose your beliefs on others, whether you are religious or not. In a highly political and competitive world, what else is there? My experiences have been that a religious person is no more imposing than a salesman, a politician, those they represent, an economist, or any of my family or mates who think they should tell me how to raise my children, or like to tell everyone how the country should be run.

        But just as sad is that my interpretation of religion seems to be 180 degrees from most religious people I know.

        Strangely, I found God not from any upbringing (I was not born into a religious family) but from a course of self-observation (and the years of struggles that came with it) and the study of trust law. My reading of religious texts only came after.

        I also do not subscribe to any particular religion but instead have studied them all and found that there are really only a small handful of principles which run through them all and these principles are the cornerstone of my understanding of God. The rest of the materials which make up these huge texts I interpret metaphorically. For instance, I do not interpret the union between man and woman in the literal sense (at the same time I would never impose this interpretation on others), but instead see Adam (man) as representing my mind or intellect, and Eve (woman) as representing my heart, and that any union is the ability to use my heart in an intelligent way, as opposed to reacting to life’s circumstances or using my intellect at the expense of my ability to feel compassion for others struggles.

        I also do not subscribe to the notion that anyone and everyone who is not religious is a sinner, and in fact, sin can only occur to those who have accepted that God exists. Put another way, I interpret it that only a religious person, or someone who claims to be religious, or to have found God, or Jesus etc, is capable of sin. It is much like only a trustee of a trust who has accepted the trusteeship is capable of breaching trust. Again, this is something that I would never impose on others but merely is my interpretation. What is important for me is that my interpretation works for me. When I sin I know almost immediately because something always happens, like an injury etc, and then I reflect back and see that I have not taken the opportunity to use my heart and mind together in any situation. My experiences have also taught me that the real struggles in life are always within first, but if I am not careful manifest into struggles with others.

        I’m not really sure why I shared this because I am aware that this line of interpretation is not acceptable to some. I have a Christian friend whose father is a pastor, and who feels uncomfortable with my interpretations of religion, particularly that I interpret a lot of it metaphorically. But at the same time, I understand that a lot of the scriptures do come across in the way that they are generally interpreted and I embrace this for my friends sake, i.e. I feel that this is what he needs to believe and so be it. I am not here to change this for him unless and until he should ever come to me and ask.

        So I think what I am really trying to say is that I crave religious freedom, but not in the sense that it is argued or debated on this and other blogs. I crave it from the perspective of being able to live a life where I do not have to compete with others as to what and how something is interpreted. I also find it strange that Australia claims to support freedom of religion and yet voting is mandatory.

        Like

  2. Hi Neil, I have tried to post a comment but it says it is awaiting moderation, whereas on other occasions it does not say this. It seems it only goes to moderation if I am logged in to my wordpress account, whereas if I am not, it does not go to moderation.

    Like

    1. Not sure how this all works, to be honest, Dean. I have “approved” your comment, ie this question (which just means I am happy for it to be seen, I think.) But not sure if there is something else I need to do.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s