Separation anxieties: no religion is above the law

The recent furore over the allegations of child sexual abuse in the Catholic Church and the announcement of the Royal Commission has dominated the Australian political and media landscape. 

Undoubtedly, many of us have found it tempting to respond with contempt and disgust towards the Catholic Church. However, we must remember that saturating this debate with emotional rhetoric can actually limit the opportunities for justice and reform.

Much has been written about the separation of Church and State and the undue influence of religion in politics. On the flip side, however, maintaining (at least formally) a strict separation between the two has facilitated reluctance, at least on the part of politicians, to regulate the activities of religious institutions.

The demand for a Royal Commission into child sexual abuse in institutional contexts is not just about redressing the egregious harms associated with child sexual abuse or preventing such acts from occurring again. From a broader perspective, it also offers us an opportunity to address a fundamental question about systemic abuse: how do we improve institutional accountability?

When it comes to religious authorities, legislative interference must not unduly impinge upon freedom of religion. Freedom of religion, however, does not operate in a divine vacuum. Such freedoms are exercised indivisibly from a range of other rights including equal recognition before the law and freedom from discrimination.

Religion itself is not homogenous or static. Religious bodies, like many other institutions, operate in broader social contexts. With faith-based organisations providing education and other public services through schools and non-government organisations, it would be inaccurate to speak of ‘institutional religion’ just in terms of a place of worship.

Ongoing deference to religious authorities can have problematic consequences. Australian anti-discrimination law is currently littered with broad exemptions for faith-based institutions with respect to employment and service provision. For example, in NSW, should a faith-based adoption agency wish to, they could lawfully deny a same-sex couple from parenting or a religious school could expel a student on the sole basis that their ‘homosexuality’ or ‘transgender status’ is perceived as compromising the institution’s religious sensibilities.

Exemptions reveal the need to distinguish between religious functions and public administration. After all, the rationale of equal opportunity legislation is to address a history of social inequity. Permitting permanent, non-transparent and automatic discrimination against those it is designed to protect is counterintuitive.

Political hesitation in providing regulatory oversight hinders, not helps, the work of religious bodies. On one hand it discourages individuals from accessing community services provided by faith-based organisations, such as aged care or foster care, for fear of discrimination. Alternatively, it simultaneously positions all faith-based organisations as being ‘anti-gay’, when many are inclusive of sex, sexuality and gender diverse people.

Religious accountability is not a unique Australian concern. Over in Ireland this week, a woman died after she was denied access to appropriate reproductive health care. Hospital staff reportedly refused her an abortion by merely citing that ‘this is a Catholic country.’ When hospitals, even if faith-based, are able to dictate the terms on which they provide health care, then such horrific incidents are likely continue.

Surely religious bodies performing public services should be held to the same ethical standards as their secular counterparts?

We can take some direction from the approach in England, where the Human Rights Act 1998 denies exemptions to religious organisations who receive public funds to provide outsourced public services.

Returning to the Australian debates on abuse in the Catholic Church, evidence law protects ministers of religion from revealing information obtained under the “seal of confession.” While spouses, medical professionals and teachers may be compelled to disclose what is revealed to them in confidence, ‘religious confessions’ remain specifically excluded.

So why do we privilege religious communications over other relationships that import obligations of trust and confidence?

Accountability demands much more than rhetoric or emotional labelling. It requires a principled approach to regulation that preserves the free exercise of religion while maintaining our community standards. For example, as Professor Sarah Joseph astutely observes, enforcing accountability through obligatory reporting of child abuse may not prevent further abuse. Cardinal George Pell revealed at his press conference earlier this week that he would not hear the confessions of those whom he believed likely to disclose such abuse. While willful blindness may make it easier to preserve the sacrament of confession, it enables the abuse to persist through ignorance or silence.

No single Royal Commission will be able to resolve all the demands for accountability. If we are committed to preventing institutional abuses of power in the Church (or indeed anywhere else) we must make it clear that religion is subject to the law.

In doing so, however, we must guard against caricaturing religious belief. Rather, we should question the extent to which religious leaders assume ‘authority’ over particular religious matters and what this illustrates about their institutional culture. Let’s remember that many survivors of child sexual assault in the Catholic Church are Catholic themselves.

Demands for justice must not inflame a moral panic or vilify people’s religion. An ‘eye for an eye’ approach does little to further justice for those subject to systemic abuse. Instead, we must find principled ways to ensure that all institutions, whether religious or not, are held accountable to the same ethical standards. No person or institution is above the law.

Senthorun Raj is a Churchill Fellow.


Follow him on Twitter: @senthorun