As the Masterpiece Cakeshop’s legal saga continues to unfold, LGBTQ people of faith are again caught between two legal aims: LGBTQ equality and religious freedom. How can we use the law to curtail unjust religious discrimination against LGBTQ folk without inadvertently setting precedents that limit religious liberty?
This conflict sprang into relief again recently in Australia, where LGBTQ rights advocate and lawyer Fr. Frank Brennan S.J.’s two roles embody the tension between these aims. In his role as pastor and advocate, Brennan has called for Roman Catholics to stop using the language of “disorder” to describe same-sex attraction and has been criticized for supporting civil marriage equality. In addition, he’s recently endorsed Senator Penny Wong’s bill “to remove the capacity of bodies established for religious purposes that provide education to directly discriminate against students on the basis of their sexual orientation, gender identity or intersex status.” [See footnote below.]
But as a lawyer, Brennan defends religious freedom. In a recent column, he proposed an addendum to Wong’s anti-discrimination bill:
It is no detriment to a student for an educational authority to engage in teaching activity if that activity:
(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and
(b) is done by, or with the authority of, an educational authority that is conducted in accordance with those doctrines, tenets, beliefs or teachings.
Brennan understandably wants to keep government out of doctrinal matters: “it is not for the state to rewrite the Bible or Koran.” Even though “some religious teachings can be confronting and upsetting,” he says, “I think religious schools should remain free to teach their doctrine respectfully and reasonably.” As he responds to his readers,
“That freedom ought only be curtailed by law to the extent necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. I think it would be a gross overreach by the state for government or parliament to start deciding which particular doctrines to ‘legitimise’ or delegitimise, in part dependent on ‘their impact on society’. I think ‘a society respectful of human rights’ should allow religious communities a significant margin of appreciation in the teaching of doctrine, even those doctrines which some find unpalatable, hurtful, or outdated.”
This argument for religious freedom raises huge legal red flags with regard to discrimination. To be sure, these warnings are even more alarming in Australia than they would be in the US, because the Australian government subsidizes all religious schools heavily. Still, Brennan and his commentators set out challenges to which we need to formulate credible answers if we want to champion both our LGBTQ equality and our freedom of religion. The following are some questions that should be considered:
- What counts as a “detriment” to students? As several thoughtful respondents asked, what if a religious school’s “doctrines, tenets, beliefs or teachings” are misogynistic, racist, or religiously discriminatory? Would we not consider them harmful to students individually and communally? And if they are harmful, aren’t teachings that label LGBTQ persons “disordered” just as damaging?
- Given these concerns, how wide should the legal “margin of appreciation” be? Who draws the line between religious doctrines that are “tolerable” and those that are outright harmful and discriminatory?
- How can we distinguish legally between “respectful and reasonable” styles of teaching and discriminatory teaching?
- How can we insist that religious schools teach alternative views, given that freedom of speech prohibits us from legally requiring religious schools to teach others’ perspectives—including the dissenting perspectives of members of their own religious traditions?
Is an analogous case helpful? Brennan himself suggests Jesus’s “countercultural” condemnation of wealth, which is “confronting and upsetting”— a powerful teaching that the law should protect, along with freedom to assemble, freedom to publish, and many other religious freedoms. Religious freedom, he implies, is uncomfortable, but its prophetic possibilities are a precious leaven in civil society.
The analogy fails, however, because Jesus’s worries about wealth and Vatican teaching that shames LGBTQ students and leads to the firing of LGBTQ school staff are not really on the same footing. Here Brennan missed his greatest opportunity. He says that “a Christian school must be guaranteed the freedom to teach what Jesus taught, respectfully, reasonably and counterculturally.” Do the gospels depict Jesus condemning greed and poverty? Check. Do they show him censuring men who divorced their wives in an era in which women had no economic alternatives? Check. Do they demonstrate him condemning same-sex attraction, gender queer and transgender persons, and same-sex marriage? Not so much. Not to mention, as one commentator pointed out, that wealth and divorce are voluntary choices in a way that sexual orientation and gender identity rarely are.
LGBTQ advocate and religious freedom lawyer Brennan is trying to force a thick piece of yarn into a very fine needle. We shouldn’t be surprised that he’s failed. But that does not let us off the hook. We need to figure out how to affirm countercultural religious freedom without endorsing anti-LGBTQ discrimination. And fast.
–Cristina Traina, Northwestern University, February 6, 2019
The Tablet reports that, as a member of the Ruddock Commission, which conducted a legal review of religious freedom in Australia, Brennan signed off on its recommendation
“that religious schools could discriminate in relation to the employment of staff, and the engagement of contractors, on the basis of sexual orientation, gender identity or relationship status provided that the discrimination was founded in the precepts of the religion; the school had a publicly available policy outlining its position in relation to the matter and explaining how the policy would be enforced; and the school provided a copy of the policy in writing to employees and contractors and prospective employees and contractors.”
“It recommended that the same apply in relation to students, with prospective students and parents to be provided with a copy in writing at the time of enrolment and existing parents and students to be given written updates of the policy, but also required that ‘the school has regard to the best interests of the child as the primary consideration in its conduct’.”
These two freedom provisions (which were among a few sidelined by Parliament) appear highly discriminatory. But context is all. The Ruddock Commission’s policy had to fit existing federal law. Under that law, some jurisdictions explicitly permit religious schools to hire, fire, admit, and expel on doctrinal or moral grounds, and others do not. Thus, the recommendations above limit rather than expand schools’ power to exclude. Brennan supports Wong’s bill because it overrides this discrepancy by installing one non-discriminatory standard for all jurisdictions.