Against religious freedom: The Israel Folau controversy

Recently in Australia, it has been reported (BBC, 2019) that Rugby player Israel Folau has had his contract terminated by Rugby Australia for breaching their code of conduct. The termination came about from Folau’s expression of anti-homosexual sentiments on social media. The sentiments were of religious origin. The first occurrence was in April 2018, where on Twitter he was reported (Sky News, 2018) as saying that what awaited gay people was “HELL.. Unless they repent of their sins and turn to God.” From this, it was also reported (Sky News, 2018) that the NSW Waratahs although would not be punishing Folau, they would be discussing with him his use of social media.

However in April 2019 it was reported (BBC, 2019) That Folau posted on Instagram that “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters” should “repent” because “only Jesus saves”.

This resulted in Rugby Australia terminating Folau’s contract on the grounds of violating the code of conduct. BBC (2019) quotes the Rugby Australia chief executive, who said:

“Israel was warned formally and repeatedly about the expectations of him as [a] player for the Wallabies and NSW Waratahs with regards to social media use and he has failed to meet those obligations.

“It was made clear to him that any social media posts or commentary that is in any way disrespectful to people because of their sexuality will result in disciplinary action.”

Folau challenged the claims, but was found guilty of breaching the code of conduct in May 2019.

I will not be commenting on whether there is legal grounding in the decision, since I am not an expert in the law regarding code of conduct, nor am I a lawyer. However, I will show the sections of Rugby Australia’s code of conduct I believe he would have been in breach of:

“1.3 Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby.

1.7 Use Social Media appropriately. By all means share your positive experiences of Rugby but do not use Social Media as a means to breach any of the expectations and requirements of you as a player contained in this Code or in any Union, club or competition rules and regulations.”

On face value, it does seem that Folau is guilty of these sections, since his comments did not treat homosexuals equally, fairly or with dignity, and used social media to do so.

This has resulted in the conservatives in the Australian government, according to M. Koziol (2019), proposing amendments to discrimination laws to prevent contracts that require suppression of religious expression or employers from discriminating based on religious expression.

Freedom is not universal. For instance, freedom of speech is not universal. We have libel and slander laws, hate speech laws, and so on. These laws are in place because it is acknowledged that the words we speak do have consequences, and in many cases the harm caused cannot be undone, or undone far too late.

Hence, there are constraints against freedom. The constraints, I argue, which are necessary against certain freedoms are freedoms that violate the ‘harm principle’. The harm principle comes from John Stuart Mill, who argued that the only freedoms we can place a constraint on are those that do harm to others. For instance, Mill would be against banning cigarette smoking, but he would endorse banning smoking in public areas, because the former does harm to yourself, whilst the latter does harm to others.

Regarding freedom of speech, Mill would probably be against the decision made by Rugby Australia, because he only justified constraints on freedom of speech regarding incitement of violence. He is famously quoted of saying that someone can circulate in the media that a corn dealer starves the poor, but cannot yell it out at an angry mob outside of a corn dealer’s house. This is mostly because Mill believed that maximising the ideas expressed would give us the greatest chance at getting at the truth. However, contemporary treatment of freedom of speech today does not entirely agree with Mill. Hateful speech can and does result in harm, and having an unconstrained freedom of speech does not minimise it. The idea that the answer to hate speech is more speech is as much grounded in reality as the answer to gun violence is more guns. Hence, if Mill were alive today, he may very well change his stance on freedom of speech, since he grounds his views on the consequences it brings about.

So, even though I disagree with Mills’ standards on what counts and does not count as violating the harm principle, I believe the principle is a legitimate distinction to use between what kinds of religious freedoms we can allow in society and others we cannot.

Returning to the Folau case, Rugby Australia did not punish him for being Christian, or of being a certain sect of Christianity, but due to that his comments were not treating homosexuals equally, fairly or with dignity. The treatment of homosexuals equally, fairly and with dignity is a requirement of all Rugby players. Thus, if Folau wishes to be exempt from this requirement based on his religious beliefs, then he would be claiming that players of certain religions can be allowed to violate the code of conduct. This is not an example of treating people of religious beliefs equally to non religous people. This is an example of giving religious people the privilege to behave in ways that cause harm which non-religious people are not allowed. For example, if a Rugby player were to post on social media that they disliked homosexuals because they thought that they were unnatural or weird, this would also violate the code of conduct.

Some have argued that Folau was ‘just quoting the bible’. The first point to be made about this objection is that in the first case he was giving his views, not direct quoting. And the second point is that given his previous public comments, he clearly was attempting to say that homosexuals are sinners and should give up their sinful ways. Some have argued that in the second public comment by Folau he also mentioned Atheists, thieves and others. I find this to be a ridiculous objection. If I say in public that I think homosexuals and people who put pineapple on pizza are evil, no one would take seriously me trying to argue that my comment wasn’t homophobic because I also mentioned people who eat Hawaiian pizza.

I have no idea how the proposed changes by conservatives are meant to address the Israel Folau situation. However, if they are meant to prevent what has occurred, this could have serious consequences. This is because if it is meant to do this, then it very well may give religious people the ability to harass others, as long as they do it within a religious context.

An example of such consequences could be a workplace where there is an employee who is homosexual. And at this workplace, there is a work colleague who every time they enter the building, in the presence of the employee, yells out “Man who lies with mankind as with womankind is an abomination”. Can this employee complain to HR about being harassed by the colleague? After all, the colleague is merely ‘quoting the bible’ and expressing their religious beliefs. If the employee cannot, because the discrimation law does not allow the employer to ask the employee to cease the harassment since it is religiously based, then this would make the right of religious expression override the right to not be harassed in the workplace.

Overall, religious freedom has limits. And harassing homosexuals is one of them.