Reinforcing Substantive Religious Inequality: A Critical Analysis of Submissions to the Review of Freedom of Religion and Belief in Australia Inquiry

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From mid-2008 to Inid-2009 the Australian Human Rights Commission (AHRC) sought to gather views from faith, interfaith and civil society groups on the freedom of religion and belief in Australia. The inquiry set out to examine freedom of religion and human rights in the face of increased religious diversity, and examine the role of religion in the public sphere. It engaged with issues that related tit public funding of religion and faith-based services, and raised the question of whether religious arguments had a legitimate place in public debates. There was a stated attempt to understand the implications of growing religious diversity on the relations between faith groups and the state. A central component of the consultation process involved seeking public submissions, of which 2,033 were received. Bouma and colleagues (2011) reported on the overarching findings of the inquiry, in a report referred to throughout this paper as the Inquiry Report. The focus of this article is different from the findings of the Inquiry Report, as our interest is in critically analysing the 'religious voice' in the public submissions, and the impact of the public submission process on social policy. This article addresses two related research questions. First, what was the nature of the voice expressed in the submissions, and to what extent was this voice reflective of the broader Australian population's views of freedom of religion and belief in Australia? Secondly, if submissions had a particular, interested view of freedom of religion, what implications might this have for social policy and the place of religious minority groups in Australia? The public submissions made overt suggestions on social policies, including religious exemptions from anti-discrimination laws, and the development of anti-religious-vilification legislation, and the commentaries on these matters are the case studies for our analysis.

There is a common sense understanding of democracy in which it is asserted that if all citizens are governed the same way and protected by the same entitlements, then this constitutes equality. Equal treatment by the state may ensure process equality, but might not deliver substantively equal outcomes (Mouffe 1993; Castles 1995; Tholen & de Vries 2004: 461). The uniform treatment of all persons can, and usually does, deliver inequality in peoples' material circumstances. This inequality in outcomes can pertain across religious groups. This may be because individuals from minority groups are less empowered to participate in political processes and to 'profit' from their rights. This means that minorities require additional assistance, from the state and other institutions, to exercise their citizenship (Young 1995: 177; Tholen & de Vries 2004: 456). This is the intellectual basis for the principles of out-reach and targeting which underlie access and equity policy. Reaching for substantive equality in a multi-faith nation would therefore require mechanisms tit specifically assist minority groups. Our theoretical assertion, following those critical philosophers who advocate radical democracy, is that the contemporary state too often privileges dominant religious groups, while professing neutrality, and to the detriment of religious minorities.

Some theorists have contested the theory that assumes consistently unequal outcomes for a group is a reasonable enough test of the fairness of a rule or law. One of the best developed of these critiques, in the realm of religious groups and rights, is that by Brian Barry. Barry (2002) firstly reminds those concerned with social justice that even treatment is a dramatic improvement upon palpably racist or sexist laws and rules, and that such advancement has been hard won. In this sense, state evenness in its treatment of religious groups has great virtue. It would be inappropriate if religious minorities were not given the opportunity to avail themselves of employment or of a service because of their faith. …


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