Don't cry Folau

Updated: Jun 24, 2019

Singer and the own goals of religious freedom

If you haven't heard of the Israel Folau saga by now, you might have been hiding under a rock. Barely two days ago, 30-year old Rugby star Israel Folau launched a Go Fund Me Legal Action Fund, seeking to crowdfund three million dollars to, it seems, cover his legal fees. As of this time, the fund has raised over $400,000, with over 5,000 people contributing. The reason for raising these funds is because the popular Christian Rugby star was sacked, so many in the media say, because of an instagram post quoting the bible telling homosexuals (along with atheists, thieves, forincators, adulterers, and so on) that they would go to hell.

The popular narrative that Rugby Australia has threatened Folau's freedom of religion over an instragram post seems to be holding such a sway over people that they are willing to pay for it. So much so that it seems that even the renowned ethicist and philosopher Peter Singer has bought into it.

In his recent contribution, Singer argued that Rugby Australia had, to use an admittedly nonrugby analogy, kicked an own goal by dismissing Folau.

I respect Singer as one of the world's most influential thinkers. His seminal work Animal Liberation (1975) still provides ethical and pragmatic guidance over forty years after it was written.

In this case Singer has kicked in his own way more than one ethical own goal. His article is not worthy of his usual incisive commentary. In his endeavour to protect freedom of expression, the atheist Singer seems to be joining on principle the freedom of religion campaigners, who are kicking own goals too. Here's why.

Freedom from discrimination is freedom of religion

The irony of all of this is that the campaigners for freedom of religion tend to attack the right of freedom from discrimination, the very right that protects religions from group membership bias and hate speech. A further irony is that many Christian groups, who predominantly are campaigning for freedom of religion today in Australia, once refused to support freedom of religion. Mainstream church groups opposed the 1988 Australian referendum that sought to include freedom of religion in the constitution. They did so because of fears it would embolden and protect religious and other minorities. It is only now that non-Christians outnumber christians in Australia, that Christian groups are changing their position. The reason for this is that the current freedom of religion argument isn't about freedom at all. It's about disadvantage and advantage. Many people in this argument, including Folau, are arguing that their religion is at a disadvantage: they are seeking to disadvantage LGBIT people and maintain christian advantages they perceive as being under threat by legislative actions such as same-sex marriage that do not take any of their rights away. Comprehensive surveys and reports such as from the Pew Research Centre or the Washington-based Cato Institute scored suggest that freedom of religion is not under threat in Australia, and that Australia has much fewer restrictions on religious freedom than the US and the UK. What appears to be under threat, however, is freedom from discrimination in the form of social hostility.

Discrimination can not only do harm, it can lead to disadvantage and a loss of freedom of opportunity. As the former Race Discrimination Commissioner, Dr Tim Soutphommasane, suggested, in a much more sophisticated reading of Mill than Singer's, discrimination correlates with the denial of a form of positive liberty that results in the loss of negative liberty (freedom from barriers to advancement), too, for parties who are discriminated against. Freedom of religion or a workplace conduct issue? First, let me make it clear that I agree with all the commentators who have been weighing in to support Folau. No one should be sacked for their religion. Not only do I accept that protections against religious discrimination are strong in Australia, I do not agree that Folau was sacked because of his free expression of religion. The central contention of Singer and many media commentators mirrors Folau's own Go Fund Me claims. Rugby Australia's decision to sack Folau threatens freedom of religion, they claim, over a single instagram post quoting the bible. The problem is, this is false. The Israel Folau case has very little to to do with freedom of religion. The facts of the matter are:

  • Folau is a star athlete who gained hundreds of thousands of followers on social media because of his role in Rugby Australia.

  • Folau signed up to a code of conduct, a part of his contract, which meant that he was asked to reasonably ensure his social media account complied with his workplace policies.

  • In 2017 Folau expressed his views against Rugby Australia's decision to support the YES vote in the Australian Marriage Law Survey.

  • Folau has posted previously arguing that homosexual people faced god's plan for them, hell, and Rugby Australia's boss claimed he was still a good role model.

  • In 2018 Folau was in contract negotiations with Rugby Australia and was counselled and warned that his social media posts threatened his contract renewal and he allegedly promised to change his approach.

  • In one year following an alleged promise to reign in his comments about the LGBTI community during contract negotiations, as journalist Paul Cully points out, Folau posted over 52 times on Instagram, with 43 of these were statements about his religious belief. If you thought Ruby Australia were responding to the religious imagery, Folau's posts that were not the subject of the rationale for his sacking included a number of statements about hell and damnation.

  • Folau even posted on Instagram on September 25, 2018 that: "We live in a day where Biblical truth is considered hate speech even among those who profess Christ. It is loving to tell the truth no matter how much it might hurt the hearers." Denying the reality of hate speech and muddling harm with love suggests at the very least that Folau's claim to be able to follow his code of conduct, during contract negotiations, were disingenuous.

Singer and other commentators ignore the fact that the overwhelming weight of the evidence is that Folau wasn't fired because of his religion, but because he harassed the LGBTIQ+ community and, after a series of posts and counselling, continued to do so, and after being asked to remove his post, he refused and broke his code of conduct which he agreed to by signing his contract.

While the safety of teammates and opponents coming first may be relevant to Folau's actions, which could encourage homophobic attacks on Rugby players, the clause that matters here is: "1.3 Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, culture or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby." Folau was sacked because he breached his code of conduct and failed to comply with reasonable requests from Rugby Australia. He put his perceived freedom of religion above the need to treat people with a different sexual orientation to him fairly, equally, and with dignity, and he engaged in a pattern of harassment.

Journalists Paul Cully and Peter FitzSimons have been bandying around a helpful analogy to explain why this employer workplace action is reasonable and does not threaten freedom of religion. Imagine if an employee attended work everyday with the words "homosexuals were going to hell" printed on a T-shirt. Wouldn't it be reasonable for an employer to ask this employee to not wear the T-shirt to work or, as Cully suggests is more accurate of Ruby Australia's approach, simply to cover it over with a jacket? The reality is, this was one social media post in a host of other ones expressing his religion, and Folau refused to comply with a reasonable request. Freedom of religion is not freedom to discriminate Considering this case in these simple terms of workplace conduct is most in keeping with the reality of the case. But what if, as some argue, Folau neither intended to treat LGBTI people unfairly or with a lack of dignity, but was merely expressing his religion, and that his "quote" of the Bible had no harmful effect? Folau wasn't merely quoting from the bible, but added in the words "Warning" and "Hell" to Corinthians 6:9-10, a notoriously difficult passage in the Bible that doesn't even refer to homosexuals in the original language. This is because homosexual is a modern concept, and the terms used morally condemn, it is debated, temple prostitutes and child molestors, not homosexuals. Peter Singer in his analysis of this use of the bible follows a typical ignorant New Atheist approach, which fails to understand that the Bible does not merely refer literally to certain things, but can be interpreted and used in order to express hatred and bigotry. This is certainly the case here. That said, Rugby Australia's decision to sack Folau was not even based on this one post, but on the pattern of behaviour that involved harassing the LGBTI community and threatening the reputation of his employer. There is no question that Folau became an activist against freedom from discrimination protections following his stance against Rugby Australia's support for the YES vote in the same-sex marriage referendum in 2017. Rugby Australia would have reason to claim that Folau was challenging his code of conduct.

As to the impact on people of Folau's comments, Singer's contention is that they did not harm people and that Mill's classic (or interpreted) comments supporting a negative liberty view apply here. Singer even occupies an astounding space of privilege by claiming that these views have no impact on him, because he is an atheist: hell has no fury for an atheist. It may be hard for Singer to imagine homosexual people who are religious, or homosexual people who play ruby who may also be religious, but that doesn't mean they are not impacted. Perhaps we should actually listen to the LGBTI community in Rugby to understand the impact of Folau's social media posts on people of a different "sexual orientation" in Rugby? Folau's sacking is currently being considered by the Fair Work Commission. If the Fair Work Commission finds that the sacking was procedurally fair, then Folau may still challenge his sacking by arguing that it was discrimination against religion, using the same legislation he opposes for other minorities, and take his case to the Federal Court of Australia.

Six days after Peter Singer's opinion piece, Israel Folau delivered a Sunday sermon at The Truth of Jesus Christ Church in Kenthurst in which he claimed the devil was behind same sex marriage and behind children being allowed to change their gender. Now, recently, he is on Go Fund Me raising funds on the basis of his fight for his religion. Clearly, Folau's freedom of expression or religion does not seem to have suffered since being terminated. Of course Folau is unlikely to ever play rugby in a league managed by Rugby Australia. Which is good news. Rugby Australia has acted on its values and enforced its code of conduct. There's is absolutely nothing wrong about acting on workplace issues that can easily become major cases of discrimination or even a criminal case. That Folau did not comply with a reasonable request says more about him, then Rugby Australia. So perhaps minorities should be spared having to prop up freedom of speech and religion for the Paul's of the world, who, according to Singer, should be allowed to discriminate by publishing homophobic biblical texts and still play Rugby for Australia. Fortunately, there are more rights to take into account, such as freedom of association and dissociation. So if players don't want to play for Rugby Australia because it enforces its own code of conduct, they can play for other leagues or set up their own that don't have any codes of conduct and encourage bullying and harassment. I know which league I will be watching.

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