Folau case to test boundary between private life and work

Australian rugby star’s legal battle will affect everybody

By Michael Swain, Executive Director, Freedom of Religion SA — Originally published on the FORSA blog

The dismissal of rugby superstar Israel Folau from the Australian national team and the Waratahs is arguably one of the most significant cases in recent times to test and highlight the current threat levels to freedom of religion. The fact that one of the greatest rugby players of this generation can have his career derailed and his life shattered as a result of his beliefs, is a concerning confirmation that no one is immune from sanction for simply professing beliefs which contradict the prevailing “politically correct” ideologies.

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This case goes beyond Folau’s personal expression of his Christian faith because the outcome will apply to everyone – regardless of their religious persuasion or viewpoint and it will cut deeply into all freedom of thought, opinion and speech!

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The facts
Israel Folau is clearly a committed Christian who believes in sharing his faith with others. In this instance, he posted on Instagram a meme which summarised the so-called “sins of the flesh” (in Galatians 5:19-21) and ended with an appeal to turn away from these towards forgiveness and redemption from a loving Christ.

Unsurprisingly, although Folau identified drunks, adulterers, liars, fornicators, thieves, atheists and idolators as being in danger of eternal judgment, the flashpoint came because he also mentioned homosexuals. He was immediately condemned as a homophobic bigot and subsequently given an effective lifetime ban from playing professional rugby in Australia, at the same time losing lucrative sports sponsorships. Significantly, the rationale given by Rugby Australia for this dismissal was not because of his religious beliefs but because he committed a high-level breach of the player “code of conduct” and thereby brought the game into disrepute.

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The potential threat in Codes of conduct
Codes of conduct are fast becoming the new frontier of the erosion on freedom of expression – and particularly freedom of religious expression – because they are typically included in the employment contracts of many businesses or other institutions to which people may belong. These codes are often drafted more broadly than constitutional limitations which test “hate speech” objectively i.e. whether (or not) it advocates hatred against a (protected) group while at the same time inciting violence against them. By contrast, definitions in many of these codes are subjective and therefore more dangerous, including speech which could be “perceived to be discriminatory” or “offend or insult” or “make people feel unsafe”. The decision by Rugby Australia to sanction Folau so severely should send a chill down the spine of anyone who may make a comment which may be deemed to be politically or ideologically inappropriate where a “code of conduct” is in place.

Until recently, there has been no ruling on the apparent conflict between an employer’s right to control employees’ social media and other comments through a “Code of conduct”, and the protections of religious or political freedom granted in constitutional and discrimination law. This raises serious concerns regarding when does your time at work end and your private life begin? What is the distinction between your personal and professional life? In the case of Rugby Australia’s code of conduct, this requires players to treat everyone equally and with dignity, regardless of their sexual orientation; not to use social media to breach expected standards of behaviour; and not to make public comments or otherwise act contrary to the best interests of the game. However, in the Folau case, while he may have overstepped the boundary if he had made his comments in a TV interview at the end of an Australian rugby test match, his comments were made on his personal Instagram account and during his private time.

Another major concern is the increasing lack of objectivity and fair application of standards by companies. Given that companies are (or should be) legal entities whose moral opinions are neutral, Rugby Australia had no business sanctioning Folau for simply expressing his sincerely held religious beliefs. In fact, given that this organisation represents all Australians (and the recent debate in Australia on same-sex marriage had clearly shown that many people, in fact, share Folau’s beliefs on the definition of marriage), at most Rugby Australia should have said that they celebrate a diversity of views and opinions and that Folau was simply speaking in his personal capacity and not representing Rugby Australia in any way. He should certainly not have been severely sanctioned for sharing them. Rugby Australia’s primary responsibility should be to select the best players to represent this nation at the highest level, regardless of their personal religious or political beliefs. However, by disagreeing with Folau’s interpretation of the Bible on this issue, Rugby Australia adopted a theological position which is both inappropriate and unfairly discriminatory.

The increasing role of corporations in shutting down religious freedom and pushing hard-line ideological positions has been further demonstrated by the involvement of Qantas in the mix. Qantas is Australia’s national airline and one of Rugby Australia’s major sponsors. It is widely believed that they supported and encouraged Rugby Australia’s action against Folau. There was also the extraordinary decision of GoFundMe, an online fundraising platform, to cancel Folau’s campaign to raise money from supporters to finance his significant legal costs. A GoFundMe spokesman stated that “as a company, we are absolutely committed to the fight for equality for LGBTIQ+ people and fostering an environment of inclusivity” and “we do not tolerate the promotion of discrimination or exclusion”.

However, given that Folau’s campaign was simply to raise funds to seek legal clarification on a point of constitutional and civil law, it is evident that GoFundMe’s motivation and rationale unfairly discriminated against his religious views and position. The problem is that the role of companies in the “free speech” debate should be neutral and respectful of diversity, rather than to use their economic and social power to shut down certain viewpoints. Instead, a global trend is that major companies are increasingly becoming unofficial and unaccountable “thought police”, shutting down free speech by either supporting (or kowtowing to) liberal ideological agendas.

Need for legislative protection of religious freedom
Into this critical debate come two recent developments. The Folau case has highlighted the fact that religious freedom (including religious speech) is increasingly under attack and it is difficult to know which aspects of religious freedom may (or may not) be protected. What amounts to unlawful or unfair discrimination against someone’s freedom of religion? It may well be obvious that preaching and praying and singing in church is protected, but the lines become increasingly blurred when it involves day-to-day public conduct and expressions of faith made on social media platforms, especially where there is an employer/employee relationship involved. While there are some court judgments which have helped to define these parameters, it is increasingly evident that there is a need to develop legislation to further and more comprehensively protect religious freedom from unfair discrimination from special interest groups.

In Australia, a Religious Discrimination Bill is being drafted in an attempt to resolve these issues and make it unlawful to discriminate against people on grounds of their religious belief or activity. Speaking about the Folau case, Australia’s former Deputy Prime Minister Barnaby Joyce said he wants “laws to exempt religious beliefs from employment contracts”. He stressed: “You can’t bring people’s faith beliefs into a contract. Your own views on who God is, where God is, or whether there’s a God should remain your own personal views and not part of any contractual obligation.”

This type of law may also provide much-needed protection for cases such as the Masterpiece Bakery in the USA, the Asher’s Bakery case in the UK and (increasingly) cases brought against service providers in South Africa’s wedding industry. In these instances, Christians have found themselves in the crosshairs of LGBT+ activists (typically using State-funded agencies to fight on their behalf) simply because of their sincerely held belief in the traditional view that marriage is between a man and woman.

Victory for religious speech in the UK
A further significant development unfolded early this month in a landmark ruling for religious freedom in the UK. In the case of Ngole v the University of Sheffield, the English Court of Appeal has decided that “the mere expression of religious views about sin does not necessarily connote discrimination.”

The factual similarities to Folau’s case are remarkable in as much as Felix Ngole was a social work student at the University of Sheffield and a devout Christian. In 2014, he posted Bible verses about homosexuality on a public Facebook page as part of a political debate. Sheffield University accused Ngole of breaching a vague and broadly worded code of conduct and subsequently expelled him from the course and the University.

The Court of Appeal found that the University’s disciplinary process was fundamentally flawed because they took an entrenched position early on and imposed a sentence that lacked proportion. The Court rightly pointed out that, if the University’s approach was correct, no Christian would be secure in any profession, let alone Muslims, Hindus or Buddhists. Further, Ngole’s expulsion was disproportionate, given that the posts were expressions of religious and moral views that were based on the Bible. Although this is an “international case” without binding legal implications in South Africa, it is heartening to see that the judiciary are retaining a level of objectivity and a clear sense of fairness.

Conclusion
It is nevertheless clear that the battle between conservative, traditional views and ideologically driven agendas remains a fierce one and the lines are shifting all the time. The Folau case has highlighted – for those who ever doubted it – that the opponents of free speech will not hesitate to use all means and pressure at their disposal to make an example of those who oppose them. Heavy fines and loss of earnings and livelihood are often the “weapons of choice” and there is zero tolerance for those who simply want to have their views respected.

FOR SA is actively engaged in protecting and promoting our rights to enjoy freedom of religion, belief and opinion for all South Africans. The Constitutional Court has declared that this not only allows us to believe what we want, but also to express and to live out our beliefs. However, with the ever-broadening definition of “hate speech” – and with the Hate Speech Bill and the jail sanctions it includes before the current session of Parliament – we expect that this conflict will continue to escalate in the coming days.