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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Sunday, February 13, 2011

They're never satisfied

In the Australian state of Victoria, religious employers are allowed to discriminate in employment where demanded by the inherent requirements of the job. In practice, this is likely to mean that the Catholic Church can insist on male priests - no female priest could consistently uphold the Church's doctrine that only a man can exercise the function of Christ in transmuting the bread and wine, or whatever, exactly, the relevant doctrine is. It is likely to mean that a Catholic teacher employed specifically to teach the Church's miserable doctrines about sexual sin could not expect to hold the job if he or she were openly acting in defiance of those doctrines. Presumably the Black Muslims could insist on a black priest, and a white supremacist cult could insist on a suitably blond and blue-eyed priest or whatever its nutty doctrines demanded.

We could have an interesting discussion about whether these sorts of exceptions are justifiable. They certainly give the various churches and sects considerable scope to discriminate. In any event, folks, that's the current state of the law ... but some of these people are never satisfied.

The religious lobbies in Victoria have pushed for much wider exemptions from anti-discrimination law, and the recently-elected Liberal (i.e. conservative) government is all too willing to comply. It looks like legislation will be enacted that goes far beyond pastoral positions, or those involved in moral teaching or public advocacy, or whatever other areas might come under the "inherent requirements of the job" test, to allow the churches and sects to run enterprises that openly and pretty much freely discriminate in employment.

This is advocated on the grounds of freedom of religion. But hang on, anti-discrimination laws are not enacted for the purpose of suppressing religions. Moreover, that can't even be the effect - not even a collateral effect - as long as there is an "inherent requirements of the job" test in place. The core work of churches and sects, including public advocacy of their respective doctrines, can go on with no real impediment from anti-discrimination law. Once we move beyond pastoral positions and others that are particularly sensitive for whatever reasons - positions where agreeing with, and being seen to agree with, the doctrines concerned really is needed to perform the job competently, safely, and with the employer's trust (which shouldn't be withheld unreasonably by ordinary standards) - where's the problem?

Well, I suppose the problem is that conformity to the law may be inconvenient for religion-sponsored enterprises. It might be easier and "nicer" to have a workplace where everyone from the CEO to the gardener thinks the same things and acts, even in private life, in accordance with the same canons of conduct.

But all enterprises experience a certain amount of inconvenience from obeying the law. Inconvenience does not trump public policy.

Religious or religion-sponsored enterprises don't have any more claim than anyone else to be able to do things in whatever way is most convenient to them, even where it undermines the secular purpose for which a law is enacted. Once churches and sects move into the secular labour market, they should meet the same employment standards as anyone else. Those standards can even include the same flexibility as everyone else gets - the inherent requirements of the job test gives some flexibility to ordinary businesses in various circumstances, as well - but why should religious enterprises get special privileges?


GTChristie said...

Yeah, and the Boy Scouts can be limited to only boys, or whatever their nutty requirements are.

Normally I'm on the same page with you about 80% of the time, but not on this one, which seems just a bit over the top.

Russell Blackford said...

I'm not sure what you're objecting to, GT. Do you think that white supremacists are not nutty?

There are, of course, various exemptions from anti-discrimination law that I haven't mentioned, and they do allow single-sex clubs and similar organisations such as the boy scouts. No one thinks that those organisations are inherently nutty (though the boy scouts, specifically, do have their problems such as excluding atheists). In some cases, their existence may even be positively in the public interest.

But we're talking here about churches participating in the mainstream labour market. Why shouldn't they have to abide by laws that are meant to ensure that gays, for example, are not disadvantaged in the labour market, or even excluded from it?

If you think the test should be something more lenient to the churches than the "inherent requirements of the job" test, what would it be? It's not a rhetorical question: I'd genuinely be interested to hear an alternative.

Michael Fugate said...

Should a church janitor need to sign a statement of faith?

Marshall said...

The point of any organization is to form a somewhat closed group where common purposes can be taken for granted. That's an important evolutionary feature since it allows participants to leverage behavior through cooperation, raising participants' fitness relative to non-participants. Humans have adapted to living in groups.

It's a feature of modern organizations that they are most powerful at large scales, and these large-scale organizations are very destructive at small scales such as "local" (roughly, face-to-face) community. I think that's a huge problem in these mega-urban nation-state global-corporation days. Anti-discrimination legislation certainly has a valid purpose: forming closed groups sometimes amounts to taking unfair advantage. But it makes it more difficult for small groups to resist being diluted by outsiders who are not committed to community goals and mores, whereas I believe more local structure would be healthy for humans.

Thinking about employment by churches. Robert Wright (the best/relevant part of his Ev of God book was excepted in The Atlantic) makes the argument that Pauline Christianity flourished because it was successful in "planting churches" that formed a network of communicating, mutually supportive local communities well adapted to the emerging mediterranean-world economy. Today, ideally, members of a congregation form a reciprocal-altruism group that makes it easy for members to interact productively. This kind of mutual trust is obviously valuable in a daily-work office or shop. In a nutshell, the church (nor any other institution) can't do its job (increasing fitness: its own and its members') without creating boundaries around itself.

(@Michael Fugate: Sometimes a low-skill job can be reserved as a way of giving assistance to members. Membership isn't a matter of "signing a statement". Joining a community is a matter of learning their language, doing what they do, and turning out to support their projects. "Get to know them.")

I think it's possible to apply an anti-discrimination policy in a way that is not disruptive to local community, which is to be tolerant with groups that claim to be a confraternity around whatever quality. This isn't moral relativism yet, just the right to obtain a corporate charter. A business that has no particular ethnic interest can be prohibited from ethnic discrimination while an ethnic Indonesian cafe can be permitted to hire only Indonesian cooks and waiters, also tax accountants and janitors if they want to... we recognize their interest in supporting the Indonesian community generally. Indonesians don't need to be blind to Indonesianicity, although the local junior college and the across-town Thai place must be.

So why not facilitate a Black Caucus that's only for black people, and a Men's Club and a Women's Gym and a Masonic Lodge and and an OCD Survivor's Group and a Halfway House and Qabbalahist College and so ever on? And let them run their business as much as they are able from inside their own community? Does everything have to represent everybody?

...I have to admit I don't know what to do about Catholic hospitals; hospitals are in a highly nonstandard moral position. I guess, grandfather them in and hope for evolutionary change as the larger society evolves.

...The actual problem with the current situation is tax breaks. As we were saying the other day.

...Sorry for the long post, but I had not enough time to write a short one. - Benj.Fkln.

Kirth Gersen said...

"The actual problem with the current situation is tax breaks."

I see a large gap between a private organization or emplyer and a public one, in this regard. If someone wants to start a "No Homers" club (as in the infamous Stonecutters episode of the Simpsons), and uses no public funds to do so, then I personally see it as an intrusion for a supposedly liberal government to step in and force a change in that policy. On the flip side, if the No Homers Club expects to receive government funding and/or benefits of any kind (including tax breaks, IMO), then they should have to comply with fairly strict nondescrimination policies.