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Michael Swain, Executive Director of FOR SA
The dismissal of rugby superstar Israel Folau from theAustralian national team and the Waratahs is arguably one of the mostsignificant cases in recent times to test and highlight the current threat levelsto freedom of religion. The fact that one of the greatest rugby players of thisgeneration can have his career derailed and his life shattered as a result ofhis beliefs, is a concerning confirmation that no one is immune from sanction forsimply professing beliefs which contradict the prevailing “politically correct”ideologies.
This case goes beyond Folau’s personal expression ofhis Christian faith because the outcome will apply to everyone - regardless oftheir religious persuasion or viewpoint and it will cut deeply into all freedomof thought, opinion and speech!
The facts
Israel Folau is clearly a committed Christian whobelieves in sharing his faith with others. In this instance, he posted on Instagram a meme which summarised theso-called “sins of the flesh” (in Galatians 5:19-21) and ended with an appealto turn away from these towards forgiveness and redemption from a lovingChrist.
Unsurprisingly, although Folau identified drunks,adulterers, liars, fornicators, thieves, atheists and idolators as being indanger of eternal judgment, the flashpoint came because he also mentionedhomosexuals. He was immediately condemned as a homophobic bigot and subsequentlygiven an effective lifetime ban from playing professional rugby in Australia,at the same time losing lucrative sports sponsorships. Significantly, the rationale given by RugbyAustralia for this dismissal was not because of his religious beliefs but becausehe committed a high-level breach of the player “code of conduct” and thereby broughtthe game into disrepute.
The potentialthreat in Codes of Conduct
Codesof conduct are fast becoming the new frontier of the erosion on freedom of expression– and particularly freedom of religious expression – because they are typicallyincluded in the employment contracts of many businesses or other institutionsto which people may belong. These codes are often drafted more broadly thanconstitutional limitations which test “hatespeech” objectively i.e. whether (or not) it advocates hatred against a(protected) group while at the same time inciting violence against them. Bycontrast, definitions in many of these codes are subjective and therefore moredangerous, including speech which could be “perceivedto be discriminatory” or “offend or insult” or “make people feel unsafe”.The decision by Rugby Australia to sanction Folau so severely should send achill down the spine of anyone who may make a comment which may be deemed to bepolitically or ideologically inappropriate where a “code of conduct” is inplace.
Until recently, there hasbeen no ruling on the apparent conflict between an employer’s right to controlemployees’ social media and other comments through a “Code of Conduct”, and theprotections of religious or political freedom granted in constitutional and discriminationlaw. This raises serious concernsregarding when does your time at work end andyour private life begin? What is thedistinction between your personal and professional life? In the case of RugbyAustralia’s code of conduct, this requires players to treat everyone equallyand with dignity, regardless of their sexual orientation; not to use socialmedia to breach expected standards of behaviour; and not to make publiccomments or otherwise act contrary to the best interests of the game. However,in the Folau case, while he may have overstepped theboundary if he had made his comments in a TV interview at the end of anAustralian rugby test match, his comments were made on his personal Instagram accountand during his private time.
Another major concern is the increasing lack of objectivityand fair application of standards by companies. Given that companies are (orshould be) legal entities whose moral opinions are neutral, Rugby Australia hadno business sanctioning Folau for simply expressing his sincerely heldreligious beliefs. In fact, given thatthis organisation represents all Australians (and the recent debate inAustralia on same-sex marriage had clearly shown that many people, in fact,share Folau’s beliefs on the definition of marriage), at most Rugby Australiashould have said that they celebrate a diversity of views and opinions and thatFolau was simply speaking in his personal capacity and not representing RugbyAustralia in any way. He shouldcertainly not have been severely sanctioned for sharing them. Rugby Australia’s primary responsibility shouldbe to select the best players to represent this nation at the highest level,regardless of their personal religious or political beliefs. However, by disagreeing withFolau’s interpretation of the Bible on this issue, Rugby Australia adopted a theologicalposition which is both inappropriate and unfairly discriminatory.
The increasing role of corporations in shutting down religious freedom and pushing hard-line ideological positions has been further demonstrated by the involvement of Qantas in the mix. Qantas is Australia’s national airline and one of Rugby Australia’s major sponsors. It is widely believed that they supported and encouraged Rugby Australia’s action against Folau. There was also the extraordinary decision of GoFundMe, an online fundraising platform, to cancel Folau’s campaign to raise money from supporters to finance his significant legal costs. A GoFundMe spokesman stated that “as a company, we are absolutely committed to the fight for equality for LGBTIQ+ people and fostering an environment of inclusivity” and “we do not tolerate the promotion of discrimination or exclusion".
However,given that Folau’s campaign was simply to raise funds to seek legalclarification on a point of constitutional and civil law, it is evident thatGoFundMe’s motivation and rationale unfairly discriminated against his religiousviews and position. The problem is that the role of companies in the “free speech” debate shouldbe neutral and respectful of diversity, rather than to use their economic andsocial power to shut down certain viewpoints. Instead, a global trend is that major companies are increasinglybecoming unofficial and unaccountable “thought police”, shutting down freespeech by either supporting (or kowtowing to) liberal ideological agendas.
Need for legislativeprotection of religious freedom
Into this critical debate come two recentdevelopments. The Folau case has highlighted the fact that religious freedom(including religious speech) is increasingly under attack and it is difficultto know which aspects of religious freedom may (or may not) be protected. What amounts to unlawful or unfair discriminationagainst someone’s freedom of religion? It may well be obvious that preachingand praying and singing in church is protected, but the lines becomeincreasingly blurred when it involves day-to-day public conduct and expressionsof faith made on social media platforms, especially where there is anemployer/employee relationship involved. While there are some court judgments which have helped to define theseparameters, it is increasingly evident that there is a need to develop legislationto further and more comprehensively protect religious freedom from unfairdiscrimination from special interest groups.
In Australia, a Religious Discrimination Bill is being drafted in an attempt to resolve these issues and make it unlawful to discriminate against people on grounds of their religious belief or activity. Speaking about the Folau case, Australia’s former Deputy Prime Minister Barnaby Joyce said he wants “laws to exempt religious beliefs from employment contracts”. He stressed: “You can’t bring people’s faith beliefs into a contract. Your own views on who God is, where God is, or whether there’s a God should remain your own personal views and not part of any contractual obligation.”
Thistype of law may also provide much-needed protection for cases such as the MasterpieceBakery in the USA, the Asher’s Bakery case in the UK and (increasingly) cases brought against serviceproviders in South Africa’s wedding industry. In these instances, Christians have foundthemselves in the crosshairs of LGBT+ activists (typically using State-fundedagencies to fight on their behalf) simply because of their sincerely heldbelief in the traditional view that marriage is between a man and woman.
Victory for religious speechin the UK
Afurther significant development unfolded last week in a landmark ruling forreligious freedom in the UK. In the caseof Ngole v the University of Sheffield, the English Court of Appeal hasdecided that “the mere expression ofreligious views about sin does not necessarily connote discrimination.”
Thefactual similarities to Folau’s case are remarkable in as much as Felix Ngolewas a social work student at the University of Sheffield and a devoutChristian. In 2014, he posted Bible verses about homosexuality on a publicFacebook page as part of a political debate. Sheffield University accused Ngoleof breaching a vague and broadly worded code of conduct and subsequentlyexpelled him from the course and the University.
TheCourt of Appeal found that the University’s disciplinary process was fundamentally flawedbecause they took an entrenched position early on and imposed a sentence thatlacked proportion. The Court rightlypointed out that, if the University’s approach was correct, no Christian wouldbe secure in any profession, let alone Muslims, Hindus or Buddhists. Further,Ngole’s expulsion was disproportionate, given that the posts were expressionsof religious and moral views that were based on the Bible. Although this is an “international case”without binding legal implications in South Africa, it is heartening to seethat the judiciary are retaining a level of objectivity and a clear sense offairness.
Conclusion
It is nevertheless clearthat the battle between conservative, traditional views and ideologicallydriven agendas remains a fierce one and the lines are shifting all thetime. The Folau case has highlighted –for those who ever doubted it – that the opponents of free speech will nothesitate to use all means and pressure at their disposal to make an example ofthose who oppose them. Heavy fines and loss of earnings and livelihood areoften the “weapons of choice” and there is zero tolerance for those who simplywant to have their views respected.
FOR SA is activelyengaged in protecting and promoting our rights to enjoy freedom of religion,belief and opinion for all South Africans. The Constitutional Court hasdeclared that this not only allows us to believe what we want, but also toexpress and to live out our beliefs. However,with the ever-broadening definition of “hate speech” – and with the Hate Speech Bill and the jail sanctionsit includes before the current session of Parliament – we expect that this conflictwill continue to escalate in the coming days.
[author] [author_image timthumb='on']https://forsa.org.za/wp-content/uploads/2016/06/michael-swain.jpg[/author_image] [author_info]Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 30 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).[/author_info] [/author]
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Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:
