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Upholding the Australian Constitution: The Samuel Griffith Society Proceedings

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Porteous, Julian --- "The Freedom to Hold and Profess a Religious Belief" [2018] SGSocUphAUCon 7; (2018) 30 Upholding the Australian Constitution 75



The Most Reverend Julian Porteous

The national debate around changing the definition of marriage saw the emergence of an ugly intolerance against anyone who expressed a position opposing change. Anyone who expressed a view defending the traditional definition of marriage was called a bigot, or hater.

The readiest example of this general trend was provided by the owner of a children’s entertainment company in Canberra who fired one of her staff members for merely expressing her view opposing a change in the legal definition of marriage. The owner outlined her reasons for her actions on Facebook stating that: ‘Today I fired a staff member who made it public knowledge that they feel “it’s okay to vote No” ... Advertising your desire to vote no for [same sex marriage] is, in my eyes, hate speech. Voting no is homophobic’.

She went even further to claim that anyone expressing opposition to the change in the legal definition was ‘a risk to the wellbeing of the children we work with’.

In my opinion, those pushing radical social change are no longer willing to tolerate any view that would oppose their position. They want to silence all opposition by labelling such views as ‘hateful’. We have reached a new low in public debate in Australia. With an increasing number of Australians no longer willing to engage in reasoned debate on social issues I have great fears for the future of our country.

What is even more worrying is that this campaign to demonise those opposing a radical new social agenda has had a silencing effect on those who would normally seek to defend a traditional position on social issues. They have become too fearful of being labelled a bigot or a hater and so remain silent.

While anyone was attacked for opposing the change in the legal definition of marriage, for the most part it was those of Christian faith who received the most abuse as they were perhaps the most vocal in their opposition to the change. Increasingly it is only those of strong convictions, who are for the most part Christian, who dare to speak out in opposition.

Christianity has become the last great institution resisting this radical social agenda, and as a result is now under increasing attack. Attempts are being made to try to silence Christians in particular and modify the teachings of the Christian faith in order to realise the full implementation of their agenda.

We witnessed threats of violence against venues booked by groups wishing to present the view that marriage should remain in the law as being between a man and a woman. It was curious that those defending long-held societal views on marriage were denounced and any venue who allowed them to present their views was threatened.

The right in a democratic society for the free exchange of views on topics of vital importance to the future of the nation was being curtailed by groups of activists.

In my own case, I was accused under anti-discrimination legislation of causing ‘offence’ to those who were same-sex attracted. That I was presenting well known Catholic teaching on the nature of marriage to a Catholic cohort did not prevent the use of laws which sought to protect individuals from discrimination. The material I distributed in fact acknowledged respect for those who experienced same-sex attraction.

My role as a bishop is to faithfully present Catholic teaching to members of the Church. In the case of a strong and at times quite emotive presentation of the alternative view, it was incumbent on me to explain not only what the Church teaches but why it holds the beliefs it has about sexuality and marriage.

However, there was a concerted effort to prevent genuine public debate on this important social issue.

While the case against me was eventually withdrawn it had a chilling effect on those seeking to express traditional social views, in particular those of faith in Tasmania. People were no longer sure that they could say what they believed, even in the most respectful of ways. The case was unresolved so people are not clear as to the reach of the legislation.

It became clear, as the debate about changing the definition of marriage went on, that those who held to the view that marriage was between a man and a woman no longer felt comfortable about expressing their views, even amongst family and friends.

It was pleasing to see the Turnbull Government recognise, in light of the marriage campaign, the need to review the protections of religious freedom through the Religious Freedom Review chaired by Philip Ruddock. It is interesting to note that the Review was flooded by submissions, mainly from individuals who were deeply concerned that their freedoms were in jeopardy. We await the outcome of this Review.

What is the basis for the right of religious freedom? This raises a very important question about the sound basis for what we refer to as human rights.

While there continues to be disagreement over the worth of rights language and a recognition of problems created by a culture overly saturated by ‘rights talk’, the importance of the concept of human rights can be found in the principles they seek to advance. Specifically those basic goods required for the human person to flourish according to their nature such as life, liberty of speech, religion and association, food, water and shelter.

As the world recovered from the horror of World War II where there were many instances of the denial of what we now regard as basic human rights, leading world figures sought to craft a set of principles to defend the dignity of the human person. This effort resulted in the development of the Universal Declaration of Human Rights.

Article 18 of the Universal Declaration of Human Rights states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The Universal Declaration of Human Rights is a milestone document in human history. It was drafted by representatives with different legal and cultural backgrounds from all regions of the world. It was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 and established a benchmark for authentic human society. Its thirty articles set out fundamental principles required for the respect and protection of human dignity.

An important contributor to the Declaration was the French philosopher Jacques Maritain. In his book, Man and the State, Maritain makes the important point that the discussion of ‘rights’ only makes sense if there is a proper understanding of the nature of the human person and the purpose of human life, that is, a correct anthropology, one that contemplates what man is in his nature and what his destiny is.[1]

This does present a certain challenge for us today. Professor Mary Ann Glendon of the Harvard Law School has written that one of the greatest errors of modern culture, stemming from 18th-century Enlightenment philosophy, is its absolutising of ‘rights’. She explains that rights can be viewed as an autonomous licensed form of freedom that rejects any form of responsibility or duty.[2]

Maritain believed that the philosophical anthropology which emerged since the time of the Enlightenment did not provide adequate foundations for the rights of the human person. He maintained that the Enlightenment ‘led men to conceive of rights as divine in themselves, hence infinite, escaping every objective measure, denying every limitation imposed upon the claims of ego’.[3] The radical individualism that we experience today absolutises personal rights denying a sense of social responsibility.

Maritain recognised that a sound philosophy was needed that overcomes this tendency. The philosophical anthropology requires a recognition of the authentic ontological structure of human life. He explains that the human person is endowed with:

intelligence and determines his own ends, it is up to him to put himself in tune with the ends necessarily demanded by his nature ... this means that there is, by virtue of human nature, an order or a disposition which human reason can discover and according to which the human will must act in order to attune itself to the essential and necessary ends of the human being.[4]

We cannot ultimately have and defend universal standards of appropriate treatment of human beings, namely human rights, unless we recognise that there is an objective truth to human existence and way of knowing this truth. The existence of this objective order and the ability to know it is what the Catholic intellectual tradition refers to as the Natural Law. Specifically, Natural Law is the way that the human person can know the objective order of reality through the use of reason.

The acknowledgement of an objective truth about the human person is the necessary presupposition for the existence of natural moral obligations or rights.

The teaching of the Church on human rights, beginning with Pope Leo XIII at the turn of the last century, has been continuously expanded and developed by Popes over the past hundred years. One of the most important rights recognised by the Church in the important Vatican II document, Dignitatis Humanae, is the right to religious freedom.

It is important to note that the Church does not understand these rights as absolute, as Enlightenment thinkers did. In speaking about the right to religious freedom it says that:

its exercise is subject to certain regulatory norms. In the use of all freedoms the moral principle of personal and social responsibility is to be observed. In the exercise of their rights, individual men and social groups are bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all. Men are to deal with their fellows in justice and civility.[5]

Ultimately, this right exists, because it is viewed as necessary for the flourishing of the human person, who has a particular objective nature, which can be known through the use of human reason.

Religious freedom is a fundamental human right, but one that must exist in balance or harmony with other rights and important practical realities. It is not absolute. However, without an objective basis for this right, the ontological truth of human existence, there can be no fundamental guarantee of this freedom. The existence of such a right simply becomes one belief among many.

It is essential that the right to religious freedom be protected and guaranteed by all societies, constitutions, and religions because it is required for the human person to flourish and protect the essential dignity of the human person.

To reject religious freedom or to force another to believe something about the nature and purpose of human existence against his personal free choice is a grave violation of the person and their flourishing. Not only does it harm the individual but also the common good of a society.

It is imperative that we work tirelessly for the defence of the right to religious freedom, and respect for religious beliefs. As indicated in the beginning of this talk, the Christian faith remains the last great obstacle to those seeking to achieve their radical social agenda. Powerful forces are working to silence the Christian voice.

If these forces were to succeed, at least in terms of removing legal protections for freedom of religion, this would be a tragedy not just for those who believe but would constitute a threat to the freedoms and way of life we have all come to enjoy.

Once the voice of truth has been silenced, anything becomes possible. Totalitarian movements know this. When they come to power they know the Christian faith poses the greatest threat to their rule, for it maintains that there is a truth beyond that of arbitrary human power, a truth that defends the dignity and freedom of the human person.

Christianity, despite how it is portrayed in the popular media, is the original and best defender of the dignity of the human person and their human freedom. It has been the Christian teaching of the worth of the human person that has been at the basis of the western legal protections of the freedom of the human person.

Ultimately, the principles enshrined in the universal declaration of human rights can only be defended if we recognise that there is an objective truth about human nature. While one does not have to be a Christian to acknowledge this, the Christian faith remains the best defender of this reality.


[1] Jacques Maritain, Man and the State (University of Chicago Press, 1951) 96.

[2] Mary Anne Glendon, Right Talks: The Impoverishment of Political Discourse (The Free Press, 1991).

[3] Maritain, above n 1, 84.

[4] Ibid 86.

[5] Dignitatis Humanae, 7.

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