If I say that I want the freedom to do something, I mean that I want there to be no law against my doing it. But if I want to be able to do something that is against the law as it is, I am asking for something more. I want my case to be excluded from the law – like when a charity is exempted from paying tax. What I am asking for is a privilege – ‘A right advantage or immunity granted to or enjoyed by a person, or class of persons, beyond the common advantages of others.’(Shorter O E D.) The two notions are very different, and obviously different, but this difference is usually ignored, especially in The Australian, when people talk about some chimera called ‘religious freedom.’
Generally speaking, Australians can follow what religion they like, but not in a way that is against the law. A cleric gets no immunity from the laws of libel, racial discrimination, or treason just because he is speaking in a pulpit.
There are laws against discriminating against people on the ground of their sexuality. There is a suggestion that some religious schools should be exempted from complying with this law to the extent that it makes it unlawful for a school to send a child away because of his or her sexuality. A religious group seeking to acquire such a right is seeking a form of privilege. But they prefer the word freedom because it is harder to deny a claim to be free as opposed to a claim for a privilege that puts someone above and beyond the law. This is one time when labels matter. We are not talking about freedom of religion but privileges of churches.
The law allows certain kinds of clubs exemption from some laws about sexual discrimination. It is lawful for the Melbourne Club not to allow female members. Different considerations of policy would arise for the Melbourne Cricket Club or Victorian Racing Club because of their standing in public life.
There are at least two grounds of policy difference when considering exempting a school from obeying the law relating to sexual discrimination. One is that the Melbourne Club consists of consenting adults. That is not so with a school. Schools are there to benefit children who have not reached the age of consent. The other difference is that one way or another, a private school is likely to receive public money. In my view those two differences distinguish the case of a school from that of a club, and entail a rejection of the claim for privilege.
At the very least, any government agreeing to grant such a privilege should make it transcendentally clear that any such school will never receive one cent of my taxes.
Finally, may I say that in the present climate of opinion, any religious group seeking to put itself above the law is showing a level of hardihood and obtuseness that verges on the sublime.
Now the enthusiasm gap has disappeared. Republicans are as intense as Democrats. This mutual loathing, by the way, is very bad for America.
Greg Sheridan, The Australian, 11 October 2018
The headline referred to ‘Kavanagh persecution.’ Two things. It would be as hard to imagine a clearer instance of a spoiled child who is a flower of the Establishment, or of a man more unsuited for the judiciary because of his political views and failure of temperament – leaving Doctor Ford out of the question altogether. American senators should dress in character and turn up in togas.