A controversial case involving a lesbian teacher has raised questions about whether religious schools should be exempt from discrimination laws. It's a dead-heat as to which is more jealously guarded: the jurisdiction of rights between federal and State parliaments, or between Church and State.
It was no surprise, then, that a ruling filed by Human Rights Commissioner Chris Sidoti in federal parliament early this month - which upheld a complaint of employment discrimination against the NSW Catholic Church made by a lesbian teacher - has caused ire in both areas.
Based on federal legislation, Sidoti's decision contradicts State laws which exempt religious institutions, including schools, from anti-discrimination provisions. The churches also believe Sidoti's ruling trespasses on their rights to hire staff in line with their theological beliefs.
All this has sparked a war of words in the press and on radio between the Catholic Church and the commission. The church has rejected Sidoti's judgment and sought urgent discussion with the federal Attorney-General, Daryl Williams, over amending federal legislation. The impasse has brought into the increasingly fiery debate civil libertarians, federal and State rightists and other religious teaching institutions.
The case concerns a 1993 complaint made to the Human Rights and Equal Opportunity Commission by a former co-convenor of the Gay and Lesbian Teachers and Students Association (GALTAS), Jacqui Griffin.
She claimed her application for classification as a teacher in Catholic schools in the Sydney Archdiocese had been rejected because "the public lifestyle she espouses was considered incompatible with church requirements and teachings".
After a long series of conciliation meetings and hearings, Sidoti determined there was no evidence Griffin was unable to comply with Catholic system requirements that teachers support the church's official teachings. Her "known or public stance in relation to homosexuality", he wrote, "does not conflict with the official teachings of the Catholic Church". Further, he maintains, "there was no evidence whatsoever that she had ever said or done anything contrary to Catholic teaching". The question of evidence is disputed by Sydney Archdiocese spokesman Father Brian Lucas.
Sidoti, he says, has taken "a very narrow view of what constitutes evidence, and that's why we reject his ruling. We consider her prior position at GALTAS as sufficient evidence; he didn't. "It all revolves around the fact that parents have rights to choose the education they want for their children, and the schools have obligations to satisfy those rights by employing as teachers those who accept the ethos of the school.
If their known lifestyle is giving a message to students contrary to the message parents expect teachers to give, then they are not suitable for Catholic schools." Which translates as stalemate. Griffin, a law graduate and teacher for 15 years - she actually taught at an Anglican school for two years - believes, however, that her case is a classic "don't ask, don't tell" scenario. "If I hadn't been honest on my application, I would have walked in. But it's a Catch-22, because dishonesty of application is grounds for dismissal.
"The CEO's comments and presumptions about my personal life were offensive, particularly since they had no details and did not want to know them. Their reaction was very disappointing. The Catholic Church has a good record on some human rights issues, but it has no authority to pick and choose issues."
Under the Federal Anti-Discrimination Act, discrimination on sexual preference grounds is unlawful even among religious institutions, but commission recommendations cannot be enforced. Nevertheless, for Sidott, the wider implications of the case are simple. "If Griffin were living in other parts of Australia, she might be able to go to court and get an order - she would certainly stand a greater chance under the State laws in Queensland and Victoria, for example.
It's only when we see the way individual people's lives are affected that we begin to see the need to do something about it." The situation is further complicated by the lack of uniformity among Australian States and Territory anti-discrimination laws. There are substantial differences in what is proscribed - discrimination based on "homosexuality", or "lawful sexual activity" - and in the range of exemptions. In NSW, for instance, the law covering homosexuality explicitly excludes coverage of religious schools (as is the case in most States; federally, exemption applies only to religious practices).
Tasmania, with an anti-discrimination Bill moving through State parliament, will be the last Australian jurisdiction to legislate comprehensively on anti-discrimination (while Western Australia alone does not cover sexual orientation discrimination).
Which raises a series of essential questions: should religious schools be exempt from anti-discrimination provisions? Should there be a unified national anti-discrimination legal system? Should federal anti-discrimination legislation over-ride that of the States? And is Sidoti's decision, as some conservative commentators have suggested, just the latest example of political correctness run amok? As always, steadfast alliances have lined up: on the one side, the commission, numerous gay lobby groups, the council for civil liberties and social reformers; on the other, a phalanx of religious organisations and States rightists.
The general secretary of the Anglican General Synod, Dr Bruce Kay, believes churches should have, and fight to maintain, the right to "appoint people who can fulfil the purpose for which their schools exist ... and if people are not able to support those purposes, then clearly the school doesn't want to employ them".
While some Anglican schools would consider sexual preference a point of disqualification, he says "it is up to the individual diocese to rnake the decision - you would find diversity on that issue around the country". That view is supported by Robert Stringer, the national secretary for social justice in the Uniting Church of Australia. However, he believes the Uniting Church "would probably cope better than other churches with anti-discrimination proscriptions because we are currently wrestling with the issues of accepting openly gay and lesbian members and their partners in the church". And while they "would be concerned about the commitment to faith of openly gay applicants for teaching positions, and could not accept proselytisers in terms of homosexuality, everybody is judged on their merits - ultimately, every decision rests with the particular school".
The Council for Civil Liberties is firmly opposed to church exemptions. A spokesman, Tim Anderson, says: "We have always been against anti-discrimination exemptions for private educational institutions. They are basically a sop to church schools, although it can also be an issue in non-church private schools. It's a matter of basic human rights ... there's no rationale in principle for such a qualification, and it is not simply a religious issue - if these schools are funded or subsidised by the State, anti-discrimination laws should apply. To exempt them is a completely anomalous situation."
A spokesman for the Sydney Catholic Acceptance for Gays and Lesbians organisation suggested that a double standard "don't ask, don't tell" ethos ruled in the Catholic Church, which gave the manoeuvrings about anti-discrimination exemptions an air of hypocrisy. "As long as gays and lesbians are invisible, they are okay ... everyone knows there are gay and lesbian teachers in church schools, but as long as they don't make their relationships public, they are safe."
Privately, many Catholic bishops are compassionate about and supportive of gay people; publicly, they are trapped into doctrinal adherence. Lucas disputes hypocrisy charges, but admits that "if people are not making their position public, and it is not affecting the students then no one can act on it. You can't act on what you don't know about."
The church, he says, "has no atttude towards homosexual people specific to their sexuality; that's irrelevant. We have always maintained a distinction between those who have a particular orientation and those who act it out."
Sidoti is a firm believer that a unified system should be introduced, with limited exemptions. The churches and Lucas, he says, are "essentially arguing for a complete exemption from any anti-discrimination law at the federal level, as Catholic schools have at the State level. Personally, I find that unacceptable. The church is subject to the criminal law, and in every other respect to the law of the land; there's no reason why they should not be subject to anti-discrimination law except for those limited areas where those laws infringe upon religious freedom." Believing that consensus can be reached on this issue is obviously an act of considerable faith. Only an optimist would be holding their breath.
This article was first published in The Australian newspaper, June 27, 1998.
Copyright (c) Murray Waldren.
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