Much conservative anxiety about the proposals of the Victorian Labor Attorney-General Rob Hulls to extend the coverage of anti-discrimination to include the ‘non-core’ activities of religious organisations such as health and Education providers. Noteworthy that religious conservatives champion a radical ‘multiculturalism’ here, although most of them are opposed to Australian multiculturalism in its customary ethnic sense. They claim a distinct legal autonomy for religious organisations, if this was demanded by members of an ethnic group they would be up in arms, polygamy or child marriage for example. The argument that religious organisations should be free to discriminate become a touchstone of ‘religious liberty’ and a protection agaisnt totalitarianism. We can identify other examples of conservative feigned enthusiasm for cultural diversity. In the NSW Liberal Party the hard right once presented themselves as the defenders of ethnic communities (ie. anti-communist East European migrants) against the Anglo party leadership group. Reminded of how American slaveowners saw abolitionists as a threat to their freedom of local self-government. It is alarming how intelligent people define freedom as freedom for some to oppress others, the clear implication is that non-believers, gays and lesbians etc. are inferior. Yet this mobilisation reveals also the limitations of religion in politics. There is much conservative rhetoric about the evils of secularism and the call for the role of religion in the ‘public sphere’ to be defended, yet religious conservatives offer no opinion on public policy across broader range. The appeal of religion is dependent on steering clear of major political issues, consider the world wars. If anything was a moral challenge these were but the Catholic church avoided making a judgment here. In the archives of hypocrisy note that for many conservatives only a white man’s home is his castle. What should be the relation between religious organisations and the law? Cass Sunstein is insightful here:
Consider the following potential conflicts between sex equality and freedom of religion, conflicts that arise in one or another form in many nations:
1. Certain Jewish synagogues educate boys separately from girls, and certain Jewish schools refuse to admit girls. Some Jewish girls and their parents contend that this is a form of sex discrimination that contributes to sex-role stereotyping.
2. A Catholic university refuses to tenure several women teachers in its canon law department. A disappointed faculty member complains that this is a form of employment discrimination.5 The university responds that courts cannot intervene in a religious matter of this kind.
3. A young man trains and studies for ordination to the priesthood of the Society of Jesus. He is repeatedly subjected to sexual harassment by two ordained priests. The harassment takes the form of unwanted sexual comments, propositions, and pornographic mailings. He brings suit for employment discrimination.6
4. Mormon employers engage in various practices of sex discrimination in employment. They refuse to hire women for certain jobs; they claim that being male is a bona fide occupational qualification for certain positions. These practices are undertaken in the private sector, in institutions that both have and do not have explicitly religious functions.
5. A Western nation allows immigrant men to bring in multiple wives. It recognizes their polygamous marriages and various discriminatory practices (including “assigning” teenage girls to older men for marriage) that accompany certain religious convictions.7
Freedom of religion has a central place in the liberal tradition, and in the United States, as elsewhere, the law forbidding sex discrimination contains important exemptions for religious institutions. The law itself permits bona fide occupational qualifications based on sex, and courts have said that the free exercise clause of the Constitution requires courts to refrain from adjudicating sex discrimination suits by ministers against the church or religious institution employing them–even though ministers could certainly complain of assault or rape.8 This principle has been read quite broadly, to apply to lay employees of institutions (including high schools and universities) whose primary duties consist of spreading the faith or supervising religious rituals.9
As I have suggested, the resulting doctrine is a puzzle in light of the fact that almost no one believes that in general, such organizations can be exempted from most of the law forbidding civil and criminal wrongs. The puzzle is not only obvious but also important, for there is good reason to believe, as Okin shows, that some of the most pernicious forms of sex discrimination are a result of the practices of religious institutions, which can produce internalized norms of subordination.10 The remedy of “exit”–the right of women to leave a religious order–is crucial, but it will not be sufficient when girls have been taught in such a way as to be unable to scrutinize the practices with which they have grown up. People’s “preferences”–itself an ambiguous term11 –need not be respected when they are adaptive to unjust background conditions; in such circumstances it is not even clear whether the relevant preferences are authentically “theirs.”
There is a further problem. Seemingly isolated decisions of individual women to subordinate themselves may help establish and reproduce norms of inequality that are injurious to other women. Women interested in sex equality therefore face a collective action problem; rational acts by individual women can help sustain discriminatory norms. To say the least, it is not obvious how a liberal society should respond to this problem. But some measures prohibiting sex discrimination may make things a bit better.