The Israel Folau saga is a complicated mess and is not as simplistic as made out.
It is easy to jump on the free speech and freedom of religion bandwagon but this is mostly about an employment contract. Which is to say this also a debate about freedom of enterprise and the rights of organisations.
In this case it is complicated by the fact the enterprise in question is a monopoly and it is part business, part administrator and part regulator. This makes the penalty on Folau extremely harsh because he is effectively being denied employment in Australia by a kangaroo court that is judge, jury and executioner.
Notwithstanding the above, a critical issue in this case is what rights does an organisation have to hire and fire and under what circumstances?
If a business believes that a particular person would be a bad cultural fit why should they be compelled to hire him/her? If an employee upsets customers or sponsors causing commercial harm why shouldn’t the business be allowed to fire the offender?
While people should be free to practise their religious beliefs in private, pontificating on social media makes your private life public, and if your public life comes into conflict with your working life is it really that unreasonable for an employer to take action?
This is where Folau has come unstuck. If he had confined his view to church preaching to the converted he would have been fine. That said, I maintain that if you don’t like Folau’s views you are free to ignore his social media content. You don’t have to read it and be offended. So I am conflicted on this one.
That said, I don’t believe you can hide behind religious freedom, say what you like, and be immune from the fallout. This becomes obvious if take Folau and christianity out of the equation.
Instead lets consider a hypothetical case of a rugby player called Ali.
Ali is a devout muslim and likes to share his religion on social media. He posts on Twitter:
“If a man who is not married is seized committing sodomy he will be stoned to death.”
He gets called up by Rugby Australia to explain himself. He says he is just being a good Muslim. He defends his post on the grounds of religious freedom. He argues that Islam views homosexuality as a crime and he is merely quoting from the hadith, i.e. words attributed to Muhammad.
Rugby Australia tell him that his religious views are offensive to many people including its players, sponsors and fans and demand that he stop.
A few months later Ali posts another quote from the hadith:
“If you find anyone doing as Lot’s people did, kill the one who does it, and the one to whom it is done.”
He gets hauled up again by Rugby Australia to once again explain himself and once again Ali claims religious freedom arguing that he is merely quoting the words of Muhammad. He says he will continue to express his deeply held religious beliefs, so Rugby Australia sack him.
I am wondering under this hypothetical scenario whether quite so many media commentators who are sympathetic to Folau would be as sympathetic to Ali? I am wondering whether the argument about freedom of religion would extended to this hypothetical case? After all, both involve quoting religious texts they claim as sacrosanct. I seriously doubt it.
Hence, I don’t think the right to religious freedom is as absolute or as straightforward as people make out. If a court was to rule that quoting from a religious text makes one more or less untouchable watch out. The Christian lobby should also be careful about what they wish for in terms of religious discrimination laws.
The Folau case is ultimately about competing freedoms and how we reconcile rights and freedoms at an individual level with rights and freedoms at a collective level, and in particular whether the expansion of corporate policies to include social justice causes violates principles of freedom of association (for and against).
Hence, the main issue as I see it is that companies are increasingly defining their brands or tying their brands to political and social justice causes that have little if anything to do with their core business or express purpose for being, and are then using those social justice causes to strip employees of their of their basic individual rights, or worse still effectively enslaving their employees to their own political causes (e.g. Qantas staff being coerced into wearing SSM rings).
In relation to Folau, the argument is that same sex relationships have nothing to do with the core business of playing rugby and the express purpose for which Rugby Australia exists. To deny Folau employment violates his right to freely participate in the sport of rugby and hence is to also deny him employment. To unjustly deny someone “membership” is to take away their right to freely associate with a particular organisation.
Rugby Australia will presumably need to clear a pretty high bar to establish a link between Folau’s views on same sex relationships, which have nothing directly to do with playing rugby, and the impact his comments have had on their core business of sport and rugby. To do so it will presumably need to establish damages directly caused, or foreseeable to be caused, by Folau (e.g. loss of sponsorship, loss of club memberships, loss of crowd attendance, loss of players).
I don’t think they have a great case (from a moral or logical point of view, which granted has nothing do with law) but I do think they have an arguable case. If they didn’t then our hypothetical Muslim player Ali would be free to spew toxic bile to the rugby community at large with religious impunity and employers faced with hostile employees on a whole range of issues would be powerless.
For example, I would be sympathetic to a Jewish kosher deli owner terminating the employment of a noisy, Green BDS activist that was killing his business. I would also be sympathetic to a renewable energy company firing an employee that rose to public prominence as a skeptic calling for an end to climate subsidies. This is because the respective employee’s actions do have a direct impact on the respective company’s core business. That is fair and reasonable.
If you ask me Folau is bit of a goose and to the extent he is the pin up boy for free speech and religious freedom he is an accidental martyr that arrogantly bumbled into something bigger than himself, corporate bullying, which does impact on a free society. We better hope for a very sensible judge that carefully frames and balances the competing freedoms at stake.