Religious schools and LGBTI rights: a delicate balance
Tuesday, 23 July 2019
| Scott Buchanan
Introduction
The rancorous debate concerning religious freedom and the rights of the LGBTI community has produced several troubling side-effects, not least of which has been a tug-of-war over language. Take the word ‘discrimination’, which is now contested linguistic and conceptual territory. While all sides acknowledge that invidious discrimination can occur in the public sphere, many LGBTI activists are convinced that to make distinctions on the basis of sexual expression or gender identity – even those grounded in a wider system of religious beliefs – constitutes action that is, by its very nature, unfair.
I have been reminded of this repeatedly over the past year or so, as a series of disputes concerning LGBTI students and teachers in religious schools continues to smoulder. On one side stand religious liberty advocates, who argue that a faith-based school should be permitted to hire or dismiss staff according to its guiding system of values. On the other side are LGBTI activists and their allies, all of whom are equally convinced that such practices are intrinsically unjust and stall the liberationist enterprise. I don’t doubt the sincerity of many of those fighting for what they view as the fundamental rights of gays, lesbians, transgender people and so forth. Moreover, on the question of LGBTI students in faith-based schools, I’d suggest we’re largely in agreement. Even in the case of teachers, the issue is not, for example, sexual orientation per se, but competing lifestyles and value systems. But having said all that, it’s difficult to avoid the conclusion that there exist many activists who cynically weaponise the language of discrimination to subjugate their ideological opponents.
Demands that anti-discrimination laws be broadly applied to religious schools – institutions that have traditionally enjoyed exemptions from this legal architecture – have grown more strident. Brandishing placards and shouting their slogans, advocates decry religious schools choosing not to employ LGBTI teachers as an illegitimate expression of religious freedom. For them, all further discussion is foreclosed. Advocates passionately insist that, if a teacher’s primary role is to educate students according her specialty, then other attributes (e.g., homosexuality and any resultant conduct) should be seen as immaterial to the inherent requirements of the position. Any attempt to deny employment on such grounds is a manifest example of invidious discrimination and religious bigotry. This fervent activism is buttressed by the more sober reflections of advocates for reform in the legal profession, who attempt to argue upon jurisprudential grounds that faith-based schools should enjoy only the narrowest of exemptions in this domain.
The marriage of white-hot ardour and cool rationality forms a potent mix. And to be fair, the debate is not helped by current legal uses of the word ‘discrimination’ and its scope. Mischievous though some activists may be, their position is inadvertently reinforced by the way religious exemptions to such laws are currently articulated. As at least one commentator has observed, saying that religious institutions ought to sit outside the bounds of relevant anti-discrimination legislation invites the idea that the religious have been grudgingly given a reprieve from what is otherwise deemed to be objectionable conduct. This likely gives succour to some people calling for such exemptions to be repealed. But even if one concedes that the framing of current legislation is inadequate, it’s still true that, in prosecuting their case, many LGBTI advocates – whether sincere or cynical – who denounce religious schools appear to elide the distinction between legitimate and illegitimate instances of discrimination.
The purpose of faith-based schools
The real question, then, is not whether religious freedom entails freedom of discrimination per se, but what kinds of discrimination are appropriate or fair. Should a faith-based school be permitted to distinguish between staff on the basis of particular types of sexual conduct (or the promotion thereof)? Or does such permission implicitly endorse decisions that are manifestly cruel and bigoted?
It is here that an account of what religious schools are, and what they seek to achieve, is germane. For a religious school to hire teachers according to their adherence to the school’s guiding ethos is, I would argue, neither unfair nor invidious. Rather, it represents the natural sequel to the foundational principles supplying the institution with its raison d’etre in the first place. Such practices are critical if a religious educational institution is to maintain its specific identity. It is difficult to see how one could disagree with the proposition, considered generically, that a faith-based school should be given some autonomy to employ staff that will, in both confession and conduct, uphold the institution’s governing philosophy.
On this view, pedagogy is about far more than merely the transmission of discretely-packaged information to students. Religious educational institutions exist in part to convey such information within the context of a religiously-grounded worldview, and to engage students in a process of moral formation according to the tenets of the traditions they represent. Obviously, such a project will not always succeed: many students leave such schools unchanged, or may even repudiate the institution’s teachings entirely. But this oft-repeated reality has nothing to do with the principle at issue. For those schools that have been self-consciously established to communicate the ethos of a particular religion (apart from the task of instructing students in the various subjects common to all schools), it would seem self-defeating not to try and employ educators who can successfully embody them.
In the case of, say, conservative Christian institutions, this will likely mean upholding certain standards concerning sexuality and sexual identity. Faith-based schools seeking to imbue the life of their community with the values of their grounding tradition will normally do so through the conduits of teachers’ lives (among other means). Thus, if their goal is to uphold the particulars of their religious worldview, and doing so is partly achieved through the modelling behaviour of staff, then whether or not a person’s life reflects those values is deeply relevant. None of this is unique to faith-based schools, either. A moment’s thought will reveal that institutions of all types make certain demands on prospective members and stakeholders as way of maintaining their identity. Take political parties, for example. Would it be illegitimate for, say, the Liberal Party to continue formal association with a member who suddenly began espousing Marxist ideology? Similarly, would the Greens be wrong to expel someone – or refuse to hire them in the first place – if that individual were a so-called climate ‘denier’ and an enthusiast for fossil fuels? If these are legitimate forms of discrimination (owing to the character of certain beliefs and behavioural traits), what makes religious institutions any different?
Just how important is the issue of sexuality, really?
So far, so good. However, while some LGBTI advocates accept some forms of differentiation, they will continue to maintain that one’s sexuality should be largely immune to discriminatory action. The Human Rights Law Commission offered an example of this distinction, seen in their submission to the relevant senate inquiry last year. Lying behind the claim seems to be the notion that sexual orientation and gender identity aren’t relevant to education at a faith-based school in the way, say, that creedal differences are, for they allegedly lack the defining importance of belief in Christ’s divinity or Muhammed’s supreme prophethood. But this assumes precisely what is at issue. To contend or imply that a person’s sexual mores are immaterial to their job as an educator in a religious context presumes without warrant that such conduct lies outside a given religion’s central doctrines – a minor piece of adiaphora, as it were.
I can’t speak for Jews, Muslims and other religionists who may bristle at the thought of faith-based schools being compelled to hire people whose lives fail to embody their traditions. But orthodox Christianity would regard such a view as deeply unsatisfactory. Even if the expression of one’s sexuality does not sit at the heart of the Christian faith – a privileged locale reserved for such distinguishing claims as God’s triune nature, or the atoning sacrifice of the God-man, Jesus Christ – it is far from trivial. After all, the book of Genesis has God create man and woman, who are called to bind themselves to each other in a union of sexual complements (Genesis 1:26-28). That this passage lies at the very head of the biblical narrative, prior to the catastrophic irruption of sin within creation, implies that it is a special part of the Creator’s originating vision for those bearing his likeness. Indeed, the creative endowments of human beings – seen most uniquely in the intrinsic capacity to generate new life – crucially reflect God’s far superior creativity. A glance at the New Testament reinforces the significance of this design. Its pages reveal both a renewed endorsement of that vision, as proclaimed by Jesus himself (Matthew 19:4-6), and a denunciation of same-sex erotic relationships as a particularly clear manifestation of humanity’s disordered nature and conduct (Romans 1:26-27).
Obviously, these points would need to be fleshed out in greater detail, and I don’t expect everyone to agree with their underlying assumptions. However, on a Christian analysis, sexuality and sexual expression are indelibly tied to our status as God’s image-bearers and the divinely sanctioned order we are meant to inhabit. For those reasons, questions of sex take on heightened significance, concerning as they do the degree to which one’s life reflects that order. Indeed, an orthodox Christian view of sex recognises it as a key manifestation of a particular anthropology (i.e., what humans are) and a particular cosmology (i.e., the created framework within which humans must conduct their lives). Gendered complementarity in human sexual relationships is, in other words, something that has been woven into the fabric of creation by God. As the Eastern Orthodox writer and cultural commentator, Rod Dreher, notes in his book, The Benedict Option, to live contrary to the divine will in this regard doesn’t simply break a set of ancient taboos. Rather, it constitutes one’s failure ‘to live in accord with the structure of [created] reality itself’.
All this is to say that, in the context of a Christian educational institution, the sexual relationships of its teachers cannot be dismissed as of little importance. Nor can it be condemned as a rationalisation of the basest kind of bigotry. We do well to return to my earlier, general comments concerning the goals of such schools. Efforts to permeate their corporate lives with the religious principles on which they were founded must logically include the ethical and behavioural demands that flow from them; anything else simply drives an artificial wedge between the cognitive and practical dimensions of the faith. And given that one of the key means of transmitting this ethos to students is via their embodiment in staff, adherence to the standards of orthodox Christianity is hardly irrelevant. Quite the opposite, in fact: conformity to a Christian ethic is inseparable from maintenance of a religious school’s peculiar identity, such that the inherent requirements of teaching roles extend beyond mere pedagogy and discipline-specific knowledge, and into the domain of Christian praxis.
The imposition of state-sanctioned beliefs: an intolerable outcome
To be sure, we have lately witnessed the splintering of the Western church on the issue pertaining to sexuality. Consensus on this question is rapidly eroding. But even if there exists internal dispute over the importance of sexual conduct to Christian faith, there is no compelling reason why the state should arrogate to itself the task of determining the proper contours of a particular religion. Writing his dissenting opinion in Christian Youth Camps v Cobaw Community Health Service some years ago, Redlich JA trenchantly noted that the Victorian Supreme Court was not properly trained to assess whether opposition to homosexuality was a key doctrine of the faith-based group concerned (p.13):
Neither human rights law nor the terms of the exemption required a secular tribunal to attempt to assess theological propriety. The tribunal was neither equipped nor required to evaluate the applicants’ moral calculus.
Secular state officials are manifestly ill-equipped to judge theological and doctrinal matters. Moreover, they lack the requisite ‘insider’ knowledge to be able to weigh the relative importance of creedal claims. But heeding calls to end exemptions to anti-discrimination legislation would lead to precisely this kind of judicial oversight. Anyone who values the institutional separation of church and state (where ‘church’ is defined somewhat more broadly) should be alarmed by this proposal. Such advocacy, if successful, means inhibiting a religious entity from articulating and embodying its governing ethos. In other words, it entails the encroachment of government institutions upon sacred territory traditionally regarded as verboten, that is, fundamentally impermissible. I don’t know how else to describe this but as an assault on religious liberty and a subversion of our modern pluralistic culture. If, as a society, we’re willing to permit religious educational institutions to make employment decisions based on their grounding principles, then this surely includes some latitude in regard to which principles are to be used as a framework to guide those decisions. The alternative simply invites interference by external authorities in what ought to be the free expression of a religious worldview.
Tackling another illegitimate distinction
The argument I have tried to delineate also has a deflationary effect on another distinction some advocates attempt to make – namely, between positions in a religious school that are connected with ritual observance or doctrinal teaching, and those that aren’t. Again, the HRLC provides a ready example of this cast of mind (p.18): it recommends rescinding exemptions to the Sex Discrimination Act in most instances, whilst permitting ongoing differentiation/discrimination when it comes to conventional ‘religious’ roles. Behind these respective suggestions lies the apparent assumption that there exists a fundamental difference between positions involving pastoral care, religious observance and the like, and those that don’t (pp.16-17).
Unfortunately, the suggestion introduces an artificial disjunction into the understanding of religion generally, and faith-based schools specifically. For serious adherents of any religion, manifestations of spirituality are not confined to particular acts of ritual or devotion. Such activity, while central, is only one component in the complex web of faith. For Christians, say, one’s allegiance to Christ is not simply a case of verbal confession or cognitive belief. Nor is it exhausted by overt expressions of religious observance. Rather, it is meant to be worked out in the mosaic of everyday life, shaping the believer’s approach to everything from work and friendships to time and political participation. And, as I have already indicated, a religious school seeks to inculcate just this comprehensive understanding of faith – a task that is, once again, partly achieved through the embodiment of that faith in school staff. Their comprehensive approach to education means that positions within such institutions cannot be distinguished so simplistically.
It’s true, of course, that some roles might be more directly identified with the architecture of the school’s governing religion. Chaplaincy comes to mind as one obvious example. But it does not follow from this that other staff members may not be called upon to exhibit the virtues of the faith, provide (informal) pastoral care to students, offer general vocational advice within the context of Christian faithfulness, answer a student’s awkward questions, or attempt to situate various domains of knowledge within a Christian worldview. What I have argued concerning faith-based schools and their constitutive goals indicates that any attempt to starkly divide ‘religious’ and ‘non-religious’ roles is forced to rely on a false dichotomy – one recognised by most serious adherents as unfaithful to a holistic, integrated expression of religion.
Conclusion
Where do we go from here? The victory of the Coalition during Australia’s recent Federal election seems to have had a retarding effect on the activist tide. Indeed, several analyses have already appeared, partly attributing the Australian Labor Party’s loss to the party’s alienation of large swathes of religious people. This may force the party to re-assess its attitude to matters of religious liberty and to adopt a more nuanced understanding of the issues involved – rejecting barely-concealed disdain (see 7:11-7:50 in this ABC Q&A segment) for people of conservative faith, and recognising the electoral value in taking them seriously. I hope this is the case, and that such concerns will now receive bi-partisan support. If Australia is to maintain its status as an authentically pluralist society – in which mutually irreconcilable views and practices nonetheless exist in relative harmony with each other – then I think a robust re-commitment to such freedoms is the most sensible path forward.
Scott Buchanan is a social worker, practising in community mental health. He is also studying theology at Ridley College in Melbourne. Scott blogs at scottlbuchanan.wordpress.com.au.