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Michael Bradley

Essendon case shows why it is time for church and state to be truly separated

The martyrdom of St Andrew of Thorburn continues, along predictable lines.

The collision of religious freedom with paid employment, in a job one of whose criteria is championing inclusion and diversity, is being neatly rearranged as the exclusion of people of faith from society altogether.

Which is self-evidently rubbish, but it masks a more serious discussion around whether Essendon Football Club, if it did effectively force Thorburn to resign as CEO after one day by making his position untenable, committed a legal wrong. Specifically, unlawful discrimination on the basis of religious belief.

It’s significant because, as it happens, Victoria has a prohibition against religious discrimination in its Equal Opportunity Act. Other states and the Commonwealth don’t have similar laws, although both major parties have committed to it in the federal sphere, at least in principle.

If Thorburn brought a claim it would be hotly contested on a couple of grounds. It wouldn’t be the sure winner some lawyers have suggested, but he could conceivably win.

That raises two much larger questions. First, should the law be that way inclined at all? Second, which human rights are we honouring here, and at what cost?

The idea of legislating against religious discrimination is relatively new. Historically, religious belief was left out of the list of attributes protected by law from discrimination for the simple reason that it is recognisably indefinable. Not that we can’t see when a person has a belief which is rooted in religious faith, but that the potential range of beliefs fitting that description is infinite. Religious faith is absolutely subjective and uncontainable.

One consequence is the problem that Thorburn’s case illustrates: that one man’s religious belief may engage the denial of another’s fundamental rights, or even their existence. Thorburn’s church, for example, erases LGBTIQA+ people as they self-define. Its adherents are entitled to hold that belief, and to preach it. However, it becomes deeply problematic when they take it with them into the real world where LGBTIQA+ people do, in fact, exist and would prefer to not be told otherwise.

Flipped the other way, almost all churches in Australia insist that their existing exemptions from discrimination laws — allowing them to (for example) not make women priests or LGBTIQA+ people teachers — must be preserved and in fact enhanced. Why? Because otherwise the law would force them to act contrary to their faith. OK, but absence of a belief must surely be entitled to equal protection from the law as its existence? Otherwise the rule of law is offended.

The logic is undeniable: the law must cut both ways, with the inevitable consequence that religious belief deserves no protection by the law at all. If the Victorian law does make what happened to Thorburn illegal, then it is the law itself that is in the wrong. Not that I’m advocating ignoring the law, but I am allowed to point out when it’s been thoughtlessly created.

The second issue is related, and it starts with another proposition that the Thorburn case lights up. It is obvious by now that society’s norms have shifted, to the extent that it is now almost universally considered unacceptable to demonise LGBTIQA+ people, as it is to tell women what they can or can’t do with their bodies. Only a tiny fringe, mainly extreme religious conservatives, say otherwise; the norms are reflected in the fact that every state and territory outlaws discrimination on the basis of sexual or gender orientation, and they have all formally legalised abortion.

That being so, the act of promoting demonisation of LGBTIQA+ people (in which I include denying their equality not just under the law but in human dignity) or women who choose to terminate a pregnancy is (again, pure logic) now not something that we condone or accept, because it hurts people who deserve to be protected from it.

However, free speech and religious freedom remain supremely important countervailing human rights, and we should respect them by not trying to prevent people from holding or expressing their faith-based views no matter how repellent.

But should we continue paying them to do it?

Government is our servant, and it should not use our money to support or prop up institutions who engage in socially unacceptable behaviour. It is, therefore, entirely appropriate to ask why religious organisations, who openly promote homophobia, transphobia, rank sexism or other beliefs we have as a society rejected, should continue to be the beneficiaries of tax exemptions, concessions such as deductible gift recipient status, and direct government funding.

The constitution does not require any of this; it guarantees religious freedom, but nothing more. If there was ever a good reason for the state to be financially supporting churches, it’s long gone.

Should churches and religious organisations continue to enjoy tax exemptions? Let us know your thoughts by writing to Please include your full name to be considered for publicationWe reserve the right to edit for length and clarity.

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