Lawful discrimination by faith based groups

[Parallax]

Honestly, I'm not sure if this belongs on this forum or the news one. This will do for now, I guess...

The Government of the Australian state of Victoria has just pushed through legislation (somewhat dubiously) that allows faith based groups to discriminate against people based on marital status, gender, sexuality, etc.

Fury as Baillieu rams through pro-discrimination law

Updated 6 hours 19 minutes ago

The Victorian Government has cast the rules of Parliament aside to reintroduce a bill that will allow faith-based groups to discriminate on grounds such as religion, marital status or gender.

In a historic move, the Government used its numbers to suspend the rules of Parliament and conduct a second vote on the Equal Opportunity Amendment Bill, which was defeated last week.

Despite attempts by the Opposition to stop the second vote on changes to the laws, the bill was passed on Wednesday night.

The controversial amendment was defeated last week when Community Services Minister Mary Wooldridge missed the vote.

Labor tried to prevent the second vote, saying it was an unprecedented move.

But the bill passed the Lower House 43 votes to 42, following 18 speakers and almost three-and-a-half hours of debate. The bill will proceed to the Upper House, where the Government also has a slim majority.

A bitter debate ensued in the Lower House, with Premier Ted Baillieu labelled Jeff Kennett's "Mini-me" and Attorney-General Robert Clark accused of being homophobic.

Deputy Opposition Leader Rob Hulls said Ms Wooldridge deliberately missed the vote last week on what is a "rotten" bill.

"It was a deliberate meeting with members of her department," he said.

"This cock and bull about 'it was an accident - accidentally didn't front, accidentally didn't turn up' is absolute nonsense."

Mr Hulls said the Government's move to have a second vote on a bill that had already been voted down by the Parliament was an abomination.

"It is a corruption of the democratic process in this state," he said.

Mr Hulls urged Liberal Speaker Ken Smith to seek advice from the Solicitor-General about whether the bill would stand up to legal challenge once it becomes law.

But Attorney-General Robert Clark said the initial defeat of the bill did not reflect the will of the Parliament.

He said the Lower House was justified in looking to Federal Parliament rules, which allow for a bill to be voted on again if an MP accidentally misses a vote.

"It's clearly recognised by the Commonwealth Parliament that in cases where there is a misadventure, where there is a missed vote, it is appropriate for the question to be again put," Mr Clark said.

Opponents of the bill gathered outside Parliament House to protest.

Liberty Victoria described the proposed changes to the equal opportunity laws and the way the bill has been dealt with in the Parliament as "a tragedy".

The organisation's vice-president Jamie Gardiner said the bill would wind back the protections of the Equal Opportunity Act and increase inequality.

[Zed]

Discriminate for what purposes? Should Churches be able to discriminate on the basis of religion for selecting their staff? Should they be able to discriminate on the basis of religion for determining who they marry? What kind of discrimination are we talking about?

[Serafina]

Discriminate for what purposes? Should Churches be able to discriminate on the basis of religion for selecting their staff? Should they be able to discriminate on the basis of religion for determining who they marry? What kind of discrimination are we talking about?

Not sure, but there are several possibilities:

1: selecting their priests based on gender, religion or sexuality.
This one isn't really that bad. It would certainly be somewhat absurd if a catholic priest can not be fired if he is actually a buddhist - the argument that he would be unable to represent the religious denomination would be very strong in that case. This also applies to gender or sexuality.

2: selecting other staff for their churches based on those criteria.
That would include stuff like an organist for the church or a maid to clean the premises. The argument above doesn't apply here anymore, because such people are NOT representing the religious denomination in the first place.

3: selecting staff not related to the actual church based on these criteria.
That would include include such things as staff for hospitals and kindergartens the church has a share in. Again, the representation-argument does not apply.

I have no problems when #1 applies. #2&3 are however inacceptable, especially #3.
And i am ashamed to admit #3 applies in full force in Germany. If the church is providing 20% of the funding (or indeed any percentage at all) for a kindergarten or church or other institution, that institution is allowed to fire you if you are gay, or belong to another relgious denomination. Yes, if you are a lesbian nurse you can't work at a hospital that receives some funding from the catholic church without being afraid of being fired whenever they want to. Fucking disgrace, tough it might be changed soon.

[Zed]

I think you need some finetuning of your categories. You cannot simply leap from "priest" to "cleaner". There's a broader spectrum at work here. For instance, what about (lay) spokespeople for the Church? What about the laypeople who develop the Church's policies and strategies for proselytizing or organizing events? Since you mentioned the example of a maid, what about priests' live-in maids? The case is far less clean-cut, here.

[Serafina]

The measurement i am using here is basically: "Is the job in question acting as a representative of the organization".

There aren't really that many gray areas with that, unless the definition is purposefully abused.
So yes, a church would be allowed to choose a lay spokesperson based on any criteria they like, because that job clearly includes representing the church.

Is this a perfectly clear-cut criterion? No, but when do you ever have one of those? As long as intelligent, neutral people judge over it, it should work quite well.

[SilverWingedSeraph]

This law has little to do with Churches and Priesthood and the like, and mostly exists so religious charity groups and private schools and the like can discriminate on who they hire on the basis of religion, marital status, gender and sexual orientation, iirc. I could be wrong, but I believe based on other articles I've read that that's what the law is pushing for, anyway.

[Parallax]

Previous to this, educational organisations already could discriminate. For example, a Catholic school hires someone to teach English. That teacher then moves in with a partner but is out of wedlock ... that could be grounds for dismissal (this is actually in a contract of a friend of mine, it left me stunned that such a thing could exist).

What these new laws do is extend the premise to any faith based group. Hospitals, Charities, Adoption agencies, etc.

It goes hand in hand with a story from last week, wherein an Australian adoption agency (religious based) said it would rather close up shop entirely than allow one of their children to be adopted by a homosexual couple. Now they're actually allowed to say "No, sod off." if such a couple apply to adopt.

[Serafina]

With regards to religious organizations, another criterion could be applied:

Is the service offered sought out for religious reasons?
If so, the agency offering that service can choose it's personnel to fit the religious denomination it provides service for.

This is clearly the case with a priest, but it would not be the case with, say, an adoption agency (especially if you consider that those offer a service for the child, not the potential parents). The same applies to hospitals. Schools would arguably be a somewhat grey area - they are primarily supposed to offer educational rather than religious services, but parents will often choose a specific school for religious reasons.



However, keep in mind that religions are not the ONLY group that could have reasons to limit it's hiring standards according to gender, sexual orientation or religion.
A womens shelter has a very valid reason to employ only women, even for non-representative services.
A group of gay men has good reasons to let itself be represented by someone who actually is homosexual.

There really isn't a one-size-fits-all solution here. Instead we need both reasonable criteria and reasonable application (if necessary via the judicial system).


So far, i have proposed two criteria:
- Is the job in question representing the organization?
- Is the service offered sought out for religious reasons?

The latter criterion can be expanded into "Is the service offered strongly sought out for reasons related to gender, sexual orientation or religious orientation?". (Other attributes might apply as well)

I would say that if BOTH criteria apply, a group should be able to restrict it's hiring standards according to the attribute criterion 2 applies to.
So if a group is supposed to represent women, it could hire solely female representative staff. If a group is supposed to represent Buddhists, it could solely hire Buddhist Monks to tend to it's temple - but not for, say, it's driving staff or the cook for local events or such.

Now the key question is "what people represents their organization"?
This is something where i can not yet provide solid criteria. However, criterion 2 can be applied to ensure that this question is not abused - you do not seek out the service of a hospital for religious or other reasons, so no religious standard should be applied to any of it's staff even if owned by a religious organization.

[Zed]

You're confusing your two criteria. You don't seek out a doctor for religious reasons, but doctors are representing their organization.

[Serafina]

You're confusing your two criteria. You don't seek out a doctor for religious reasons, but doctors are representing their organization.

Yes, so only one of the two criteria is applying. As i said, both have to apply.

What i was trying to point out in the last sentence (which i think you are referring to?) is that, no matter how much you are trying to twist the "represents our organization"-criteria, the second criteria is a stopgap against such abuse.

The first criteria is mainly there in order to prevent purely religious service providers from defining their hiring standard in any way they want.

[Highlord Laan]

And stupid throwbacks to the bronze age win another round. And here I thought only theocratic shitholes like the mideast and the US pulled this shit.

[Norade]

I don't see why anybody who knows the correct religious lore shouldn't be allowed to be a priest. Frankly most atheists know more about religion than those they're preaching to anyway.

[Simon_Jester]

I don't see why anybody who knows the correct religious lore shouldn't be allowed to be a priest. Frankly most atheists know more about religion than those they're preaching to anyway.

Because you're getting paid to promote a specific set of ideas that the organization believes to be true, and that the congregation believes and expects you to explain to them correctly. And because people will often come to you advice, or want to incorporate you into rituals that are important to their lives, and so on.

And none of this is served when you are trying to lead people's opinions off in a direction they don't want to go (atheism), or when there is the suspicion that you are being hypocritical in proclaiming things you do not believe.

[evilsoup]

A little while ago there was some controversy over here (UK) about a Catholic adoption agency who wanted to refuse to help out a gay couple (and then got smacked down in court). Would this law affect that sort of case in Australia?

[Norade]

I don't see why anybody who knows the correct religious lore shouldn't be allowed to be a priest. Frankly most atheists know more about religion than those they're preaching to anyway.

Because you're getting paid to promote a specific set of ideas that the organization believes to be true, and that the congregation believes and expects you to explain to them correctly. And because people will often come to you advice, or want to incorporate you into rituals that are important to their lives, and so on.

And none of this is served when you are trying to lead people's opinions off in a direction they don't want to go (atheism), or when there is the suspicion that you are being hypocritical in proclaiming things you do not believe.

Eh, you can be an Atheist who thinks that he can reach more people by wrapping his own views in faith so more people will hear. It's nothing that preachers don't already do. One side is simply being honest about their biases.

[evilsoup]

Norade, what are you blabbing about? With the example of a Christian church, their main goal (in principle) is to get people to accept Christ as their lord and saviour. How could an atheist be of any value to a church in the role of a priest? How could they convincingly preach?

[Simon_Jester]

Pretty much, 'soup.

I mean, I don't see it either- you've got an organization whose entire reason for existence is to provide a ritualized framework based on a set of beliefs, where your ability to operate within the framework and provide guidance to others according to the framework is part of your job qualifications.

In that situation, yes it makes sense for the organization to not hire you. The church is not there to provide a platform for you to convey your own message to the congregation. If you want to preach your own sermons and not theirs, go make your own church.

[Serafina]

And remember that it's not just religious organizations that could such an interest in choosing representatives that actually match the ideas they are promoting.

Now in most cases, the persons religious beliefs, sexual orientation or gender don't matter. A straight, buddhist women can promote the products of a sports company just as well as a gay, christian male. Or at least should be - but we should not cater to societies prejudices.
However, an atheist IS arguably genuinely worse at promoting a faith than a member of that faith.
And a man is arguably genuinely worse at representing the interests of a female-only group. And a straight person is arguably worse at representing the interests of a gay group.

Which is why i laid out the criteria above. Any organization that wants to discriminate when hiring a person for a specific job must show that the services of that person would be sought out for reasons related to whatever attribte you want to favor, AND that the persons is supposed to work in a representative role (so no "our maid or kitchen staff must be christian because we are").

In general, selecting your employees based on their religion, sexual orientation or gender should not be allowed, since neither of these attributes affect their job performance - just like you are not allowed to select your employees based on hair color.
But there are some cases where these attribute actually matter. Those cases are so rare that i see no fundamental problem with allowing exceptions for such cases, as long as the rules are strict enough that they can not be abused.

[Zed]

What about functions in which the individual is a role-model, e.g. a teacher? If a Church wants to spread its religious and moral message in the form of education, should they not have the right to only hire teachers / role models that share their values and beliefs? Even though students don't always seek out religious schools for religious reasons?

[Serafina]

What about functions in which the individual is a role-model, e.g. a teacher? If a Church wants to spread its religious and moral message in the form of education, should they not have the right to only hire teachers / role models that share their values and beliefs? Even though students don't always seek out religious schools for religious reasons?

As you said, it depends on why students actually choose that school. That's probably something that varies from region so region and school to school, so i can hardly give an universal answer.
However, that question also involves whether or not the institution in question is advertising itself as something you use for religious reasons.

In principle, i have no problems with a catholic school solely hiring catholic teachers (as long as there are plenty of non-religious schools). Both of my criteria apply, and it does not result in discrimination problems if such schools are rare and teachers of other faiths can find plenty of alternatives.


At that point, i'd like to point out that religion is one of the most problematic attributes here, because it often involves discrimination against gender or sexual orientation as well. I am NOT in favor of allowing a religious organization to discriminate against women or homosexual people just because their faith says so. The "does that job represent us"-standard should be higher in those regards - if you want the head of your church to be a straight male, fine - but don't apply the same criteria to the teachers you hire.

As i said above, this is ultimately something that has to be sorted out on an individual basis by judges. We do that with every aspect of the law, so why not do it here?

[Zed]

Discriminating against homosexual people is one of the cornerstones of the Catholic faith, though. You can hardly expect teachers who are unrepentantly homosexual to be acceptable role models in a Catholic school, for instance.

[Serafina]

Discriminating against homosexual people is one of the cornerstones of the Catholic faith, though. You can hardly expect teachers who are unrepentantly homosexual to be acceptable role models in a Catholic school, for instance.

Yes, it's quite complicated.

To take an actual example:
There are plenty of Kindergartens in Germany who are run by our churches, at least partially. The state often isn't providing more because there are already plenty of them and they do NOT reject parents based on their religion (i know one catholic kindergarten where a couple of children have homosexual parents). But they ARE applying standards to the kindergarten teachers based on catholic faith - they don't have to be catholic, but if you're gay and want to get married, you'll loose your job.
This would not be a real problem if catholic kindergartens were rare - but it IS a problem when you're a lesbian kindergarten teacher and 35% of all the available jobs are only available to you if you deny your own sexuality.

This is why i have the "do people look for the service for religious reasons"-criteria. Because most parents don't send their child to a catholic kindergarten because it's catholic (most don't do much with religion anyway). They do so because they want to send their child to a kindergarten and that one happens to have free places. And thus there would be no problem with actually having a lesbian teacher. If there are parents who absolutely abhor that thought, they can found their own kindergarten specifically for that reason.


I'm basically trying to find a compromise where discrimination is not allowed, but when people (employers and their customers) can still have specific people represent them in very specific cases - as long as that does NOT translate into general discrimination. If some parents REALLY want their children taught solely by straight catholic men, they can have an institution for that - as long as they remain a minority, there is no reason to ban something like that.
You can't have a perfect clear-cut solution, so i'm trying to find good principles and guidelines.

[Zed]

I think a simple criterion is that, firstly, a majority of the investors in a school (representing >50% of the funding) need to agree on discriminatory hiring practices for them to be allowed, and, secondly, schools in which the government is one of the investors should never be allowed such practices. In a system where religious schools are subsidized by the state (as in Belgium), these practices shouldn't be permissible. In systems where a religion creates its own educational institutions, they should be able to discriminate according to their religious beliefs. However, in a system where the latter schools dominate, the state should fulfill its obligations by providing sufficient state funded schools.

[Serafina]

That's a good approach

Incidentally, most of the church-run kindergartens in Germany are only partially funded by the church. I know of one example where the church was only providing less than 5% of the funds in several years - yet they were still legally allowed to discriminate based on sexual orientation!
So that approach would solve most of these problems.

As i said - when the bigots really want to have their secluded havens, let them have it. Just don't give them any state funding.

[SpaceMarine93]

I for one proposes that we impeach that government immediately. The earlier generations of many of us had endured discrimination for any reason long enough. No would should stand for it.