Abstract
This paper considers the relationship between women, religion and the Australian state via an examination of federal anti-discrimination law. Much of the social research into religion-state relations over the last ten years, particularly with the rise of neo-liberalism, demonstrates that religious groups and ideas are actively involved in public debate, policy formation and implementation. While this has been examined by some scholars in social policy, particularly education, there has been little research on the relationship between women’s rights and post-secular politics. This essay will address this gap by firstly locating women’s rights in the context of global forms of neo-liberalism and specifically by examining Australian federal anti-discrimination legislation, which seeks to protect religious freedom by allowing religious groups general exemption from adhering to non-discriminatory employment and training protocols. It is argued via evidence, that such exemptions are premised on the treatment of women as other to masculine norms.
Introduction: Women and Global Violence
In late June and early July of 2013 when I was researching and writing this essay, a series of events unfolded around the globe that demonstrates just how unstable the rights of women continue to be.
In Egypt, in early July, violent protests against the government and the subsequent ousting and imprisonment of Prime Minister Mosiribi and the downfall of the Muslim Brotherhood government by the military, was again marred by reports of violence against women. Although it was under-reported, media reports of the rape and sexual assault of women by angry mobs of men began to filter through social media sites throughout July. Many women, who attended public meetings to protest, were beaten with sticks and yelled at to go home. Clearly, the public sphere is for men only and women’s entry into it is considered a violation of that space. A 2008 United Nations survey into sexual harassment in Egypt reported that 94% of women interviewed stated that they had been harassed at either work or home or in public places, and sexual violence continues to be a major social issue for Egypt that remains largely unaddressed.
Meanwhile on 26th June in the Texas legislature Democrat senator Wendy Davis spoke for 11 hours straight on the floor of the legislature in a filibuster movement to avoid the passing of a Bill that would have restricted abortion services to women significantly in that state. During her speech she could not sit, lean on anyone or thing, stop speaking, take a drink of water, or take a toilet break. She managed 11 hours before she was ruled invalid by the speaker for raising issues that were not allowed before the discussion of the Bill. The Bill was not passed despite different claims by Republicans and Democrats regarding the timing of the vote. It has since passed.
Finally, in Australia, in late June, the Australian Prime Minister Julia Gillard – the first woman to hold this office – was controversially voted out from the leadership of her party and replaced by her immediate predecessor, Kevin Rudd. Her leadership had been contentious from the time she became Prime Minister, for a number of reasons but without doubt her gender was an issue. She was subject to some brutal personal public attacks by the media and public figures (Goldsworthy, 2013; Summers, 2012, 2013a, 2013b). Australian feminist writer, Anne Summers’ analysis of this sexism (2013a) demonstrates how the vitriolic criticism circulated in the public sphere almost unchallenged and was characterized by a form of bullying otherwise unheralded in Australian political life. Why was there not more criticism about this bullying and more public outcry? In June 2013, when Gillard launched the Women for Gillard campaign support group, and then proceeded to raise concerns that the rights of women would be compromised under a conservative government including access to abortion, she was subject to criticism for starting gender wars (Summers, 2013a). Some well-known feminists even argued that abortion is no longer an issue (Goldsworthy, 2012). But even as they claimed this, a Senate committee tabled its report on a private Senator’s bill proposing restrictions to the Medicare rebate for certain types of abortion (Summers, 2013a). Anna Goldsworthy in her essay on the sexism and misogyny meted out to Julia Gillard titled ‘Unfinished Business’ (2013), argues that the treatment that Gillard received is directly related to a particular form of Australian misogyny that remains unfinished business in Australian cultural life. Because despite the legislative and political changes that second wave feminism has instituted, there still remains a deep loathing of femaleness (Goldsworthy, 2012: 5, 68). 1
These are only three examples of the instability of women’s human rights across the globe. It could be argued that these examples are all linked to the dominance of certain religious ideologies and theologies about the appropriate role and position of women in the family and the public sphere, even if these discourses are partially hidden from view. However, the main concern in this essay is to interrogate the relationship between state and religious groups and to investigate how the state’s incorporation of religious groups as unique, and particular legal and social entities in Australian law, contributes to the production of gender inequalities. An examination of recent changes to federal human rights legislation demonstrates the potential and real marginalization of women in relation to exemption clauses in anti-discrimination law and documents some cases where this is evidenced and provides two feminist frameworks from which to explore the relationship between the state and religious organizations. The broader question that this paper grapples with is what is the function of religion in post-secular states in relation to the gender rights discourse and why does religion continue to be an exceptional category of social practice and knowledge in contemporary, post-secular societies?
Religion and the State
There is growing evidence (Thornton and Luker, 2009) that women are often subject to a double discrimination both by the state and by religious organizations. This discrimination is both real and symbolic and seems to be a feature of modern neo-liberal states. The state is in a contradictory position of needing to both protect the citizenship from religious influences (see below on the Australian constitution) while simultaneously providing a guarantee of religious freedom. Women, I will argue, are caught in a trap here; they are often denied full inclusion in religious traditions and institutions, and the state reinforces this marginalization by the very legislation to protect religious freedom. Yet the state also promotes the inclusion of women in public life through human rights and anti-discrimination legislation. This results in a quandary and begs the question: whose freedom is being protected?
In current Australian state and federal anti-discrimination legislation, a category of exemptions exists which allows religious organizations exemption from prosecution because it is perceived that they cannot meet the criteria of anti-discrimination requirements, due to the stipulation of traditional law. The federal law makes a general case for exemptions, which covers all recognized religious groups.
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Federally, and in most states, religious groups enjoy a ‘privileged and protected position in religion to exemptions from human rights legislation and taxation legislation’ (Bouma et al, 2011: 100). Indeed sociologist of religion Gary Bouma (2011: 100) argues that – in Victoria at least – some religious groups treat the exemption category as a ‘right’ to discriminate: In this context, some religious groups arguing from the protections provided by human rights documents regarding “Freedom of Religion and Belief” are insisting that they are in fact not accountable, that this freedom of religion and belief gives them the right to discriminate in employment and service provision, and frees them from the provision of the religious anti-vilification act in Victoria. They provide various theological and sociological arguments for their position as they seek to be able to act in ways that would certainly counter the criterion of compassion, but are in accordance with religious beliefs they hold. How is a society to respect both the freedom of religion and belief and the rights of its citizens to health, social and education services without discrimination and to live their lives without being vilified? …There are ways that the state is being called on to provide the court in which issues related to religious groups and inter-groups relations are handled. The separation between ecclesiastical and secular courts has not always been clear.
There is a contradiction for the state here. On the one hand it acts to protect the freedom of religious groups to practice their faith ‘tradition’, but on the other, allows for these same groups to discriminate against certain groups, including women, in order to meet the perceived requirements of a faith tradition.
The heart of this contradiction is that in enacting anti-discrimination legislation, the state articulates its commitment to the fair and equal treatment of all social groups. Indeed, the state often uses the status of women as a litmus test for the quality of citizenship, 3 yet allows religious groups exemption from such citizenship thus in effect promoting the discrimination of women. In both cases, it will be argued that the state uses religion to firstly position the status of women as an exception to the normative condition of masculinity; and secondly that the state constructs and relies on a particular definition of religiosity – the faith tradition – that is ahistorical, reflecting a patriarchal or male-centered tradition. In practice, faith traditions are dynamic, changing and contain multiple contested voices. It appears that the state is not only not interested in examining the gender dynamics of faith traditions but that it accepts that inequality is an essential part of the tradition and that this is agreed upon by the adherents of particular religious groups. Indeed, religious groups that have exemptions from discrimination law are themselves characteristically not democratic organizations, so the views and theologies of faith traditions held by the hierarchy are not necessarily those of members. Indeed, counter-hegemonic voices – across religious traditions – often belong to groups protesting exclusion on the basis of gender identity and sexuality. 4 Yet, the complexity of representing diverse or conflicting views of the faith tradition is not accounted for in state legislation processes. Feminist theology in particular is relevant here as it has demonstrated time and time again that women are marginalized in religious traditions by consistently calling into question the treatment of women both historically and currently, and providing a vital critique of, both, the sexism of the institution and the ideal religious subject as white, male, and Protestant. 5
Some religious groups with more liberal agendas such as the Uniting Church of Australia have made a productive contribution to women’s rights, enacting social and gender changes. Indeed, this church has argued against the exemption clause, stating that religious groups should be as accountable as any other social group. 6 We could argue that there is a higher onus on religious groups in terms of fairness and equality where religious services are delivered in the public sphere and public monies are being used, and that internal matters such as ordination are best left to internal Church processes. However, this would still leave women in a double bind and encourage a form of gender oppression in the private sphere, if that is indeed the position that religious organizations occupy. 7
However, most other mainstream religious groups continue to construe women’s roles as limited and subservient, legitimated by conservative and sexist theological positions which defend the existence of exemptions.
The Problem of the Definition of Religion
Like most modern states, the Australian Constitution of 1901 made a provision for state-church relations under Section 116: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Here is set out the formal, legal definition for Australian secularism, which provides freedom for religion while at the same time restricting the influence of religion in political life.
Since federation in 1901 the state has only sporadically defined religion. The most significant definition was in the 1983 High Court case where Scientology successfully argued that it should be seen as a religion for the purposes of taxation. Two of the High Court judges took the unusual step of defining religion as ‘belief in a supernatural Being, Thing or Principal’ and ‘the acceptance of canons of conduct in order to give effect to that belief’. 8
There are a number of points to be made here. First, while this definition could be said to define the monotheistic religions, it is not necessarily relevant to other religions, particularly Hinduism, Buddhism and Paganism. Second, that the universalizing of a single definition of religion is an example of what Richard King (1999) calls protestantization, where religions are appropriated into Western systems of knowledge via a process of orientalism which looks for certain aspects of tradition that mimic Protestant Christianity. Once found, this then signifies a religion. 9 These qualities include: belief in a deity, a community of believers, sacred texts and doctrines, and a clergy. We can see this reflected in the High Court definition of religion above, where a new religious movement – Scientology – is defined using a traditional definition. Finally, it remains the case that the High Court and other courts remain basically uninterested in the meaning and definition of religion. 10
That the state remains uninterested in defining religion in legal contexts does not mean that it is indifferent to religion per se. Indeed, religion has become of increasing importance, politically and economically, and is fully incorporated into neo-liberal agendas in terms of service provision and discourses of securitization. At both federal and state levels, the state outsources much of its social policy to religious organizations, and often refers to Christianity in particular, as a central articulator of social values and moral reason. The contradictions of such a dependence do not always occur to state and federal politicians who themselves are often members of conservative Christian groups (Maddox, 2005). And of course, post 9/11 politics have resulted in new forms of collective fear and anxiety associated with Islamic terrorism, leading to new security legislations and surveillance. In the hyper-vigilant state, the state’s interest in religion has become tied to ethnicity and the emergence of global Islam (Thornton and Luker, 2009; Turner, 2012). The state acts to mediate and manage ethno-religious conflict largely from a securitization discourse. This requires an on-going slippage between religion and race which Thornton and Luker argue situates Christianity in all forms as the norm, and Islam as the exotic ‘other’, so that ‘othering within a religious frame involves identification with reference to a racialised characterization’ (2009: 74). In this scenario conservative Christianity with its often homophobic and misogynist agendas is positioned as normative and moderate Islam, with its accommodative agendas, as dangerous and other.
In their report ‘Freedom of Religion and Belief in 21st Century Australia’ to the Australian Human Rights Commission in 2011, Gary Bouma and colleagues looked carefully at the question of defining religion and the effects of the protestantisation of religion (2011: 9-10), and they noted that while acknowledging the difficulty of defining religion, there needs to be an agreed set of descriptions. Their definition reads thus: For the purposes of this research, religion has been broadly understood as beliefs and practices that ground the meaning of human existence in the daily observable universe, but also involving an understanding of purposes and beings that are beyond but intersect with this universe. These beliefs and practices are usually associated with a community that may be more or less organised (2011:15).
This definition attempts to broaden public understandings of religion despite the fact that much of the public response noted in the report did not share this more inclusive understanding.
Beyond the law, religion has undergone significant definitional changes in Australian cultural life. This is clearly demonstrated in the national census, where the question on religion has revealed the extent of religious diversity, with evidence of the growth of world religions, new religious movements and popular religions growing as traditional Christian religion participation rates fall. Turning now to human rights legislation, the more traditional definition of religion is exemplified clearly in the exemption clause in anti-discrimination laws.
The Exemption Clause in Federal Anti-discrimination Law
‘There has been limited scholarly attention to the distinctive ground of religious belief in Australian discrimination law’ (Thornton and Luker, 2009:75)
In Australia, a raft of state and federal legislations deal with issues of potential discrimination. Anti-discrimination, sex-discrimination, racial discrimination laws, for example, provides protection from potential discrimination by both individuals and groups. In the federal human rights legislation, recognized faith traditions are allowed exemption from these laws on the basis that to meet them would compromise the legal obligations of a religious tradition. Exemptions are made in respect of employment, training and service provision and the law refers specifically to a special list of ‘protected attributes’. These attributes are nearly wholly related to the categories of gender and sexuality. For example, Subdivision C, Human Rights and Anti-Discrimination Bill 2012, states that in relation to the appointment of priests and ministers (Section 32), and religious bodies and educational institutions (Section 33) the list of protected attributes includes the following: gender identity, marital status, pregnancy and sexual orientation. This burdens women in particular with the costs of religious freedom by potential – indeed, real – exclusion from religious training programs and restricted employment in religious service providers, such as health and education. It allows the state to construct a form of secularism that is premised on the marginalization of women, which we might call sexularism. 11
In 2012 the federal government introduced a series of proposed amendments to the Human Rights and Anti-discrimination legislation. The proposed amendments included extending existing forms of protection from discrimination to cover gender identity, sexual orientation and intersex status, and in June 2013 these laws were passed. 12 However, the Bill left intact the existing General Exemptions section, including the list of special attributes, thus continuing to protect certain groups from anti-discrimination laws. Thus such groups – mainly charities – can in their employment, service provision and work practices act according to their philosophies and beliefs rather than those of the state. 13 The majority of these organizations are religious groups. 14
During 2012, the community consultation process which debated proposed changes to these laws included many submissions by community, religious and non-government groups. These submissions made clear that there is a diversity of opinions about the function and value of the exemptions clause and the special attributes list. For example, the leadership of most Christian churches argued for the importance of the right to an exemption based on freedom to practice their faith tradition. But this was certainly not the case with all Christian Groups. Uniting Justice Australia, an arm of the Uniting Church Australia argued against exemptions for religious groups, stating: We do not believe that religious organisations should be granted an exception for their activities in the provision of services, including education and accommodation services. As such, we do not believe that exemptions such as those granted in Section 38 (c) of the Sex Discrimination Act should be included in a consolidated Act (Recommendation 26).
Submissions from gay and lesbian groups also supported the removal of exemptions for religious groups, but interestingly not for particular sexuality groups in relation to employment. For example the Coalition of Activist Lesbians Australia (COAL), recommended that Lesbian groups be included in the exemption list with relation to employment services, but that religious groups not be exempt: COAL does not support the furtherance of exemptions for religious organisations. There should be no excuses for discrimination against lesbians or other groups. Religious organisations should conduct their affairs on the same basis as non-religious organisations that are without privileges and without exceptions to laws that should function to promote human rights, participation and equality. COAL recommends the complete removal of exemptions for religious organisations with regards to sexual orientation (COAL Submission, 2012: 22).
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The Gay and Lesbian Rights Lobby argued that exemptions should be applied for specifically and not exist in general form and that services tied to government funding should not be exempt: While we acknowledge that the Government intends to retain some exemptions, we strongly recommend that faith-based organisations should not be entitled to wide-ranging discretions that allow them to discriminate against sexual and gender minorities. If exemptions are to be provided under a Consolidated Act, they must be specifically narrowed to exclude any services that are funded by the government (i.e. education, aged care etc). Moreover, exemptions should be made by application and should be temporary. Organisations seeking to rely on exemptions must provide rigorous justification for its necessity. Where exemptions are utilised, they should be made public to improve transparency (Submission from Gay and Lesbian Rights Lobby: 2).
These views were also apparent in submissions to the 2011 report prepared for the Australian Human Rights Commission Report on ‘Freedom of Religion and Belief in 21st Century Australia’. Most submissions to this report discussed the importance of balancing individual rights with group rights, and ensuring that exemptions worked to protect the autonomy and value system of minority groups. Having said that there is perhaps an irony here that many of the responses from religious groups claim that democracy allows them the right to participate in society on the basis of constituting members of a religious organization, yet at the same time they do not allow that right to their own members. One submission stated that: ‘Exemptions are protections, they are fundamental human rights, and the right of religious freedom – exemptions are attempts to protect the rights of believers in areas where they might be trespassed against’. 16 However, the issue at stake here revolves around the loss of human rights within religious groups when they assert values that are at odds with secular human rights and even with their own members.
The Tasmanian Legislation
The exception to the general exemption is in the state of Tasmania where exemptions are not automatic but must be applied for by an organization, and are time limited to three years. 17 While this doesn’t necessarily solve the problem of the definition of religion, it does provide a much more nuanced and strategic approach to the issue of exemptions and does not assume that exemptions are an automatic right.
In submissions to the 2012 Draft Human Rights and Anti-Discrimination Bill, the Office of the Anti-Discrimination Commissioner (OADC) Tasmania did not support general exemptions: because, in private, people are free to practice their religion and religious beliefs. However, in the public sphere when religious organisations are providing employment and service delivery, it is important to ensure that currently unlawful discrimination is not made lawful. This would impinge on many other people’s human rights of non-discrimination (2012: 38).
The Office of Anti-Discrimination Commissioner Tasmania suggested that like the current Tasmanian anti-discrimination legislation, the term ‘exemption’ should refer only ‘to a temporary order permitting conduct that would otherwise be discriminatory or unlawful’. Further, ‘Exemptions are granted to permit temporary non-compliance and should be subject to clearly defined processes and time limits’.
The Location of Religion in the Public Sphere – Two Feminist Arguments
Clearly, the continued existence of general exemptions and lists of special attributes, most of which relate to gender and sexuality, is problematic for the post-secular state. The primary contradiction – that the state allows gender discrimination via the exemptions clause, despite a commitment to gender equality in all other spheres – is noted by various groups with a critical understanding of gender politics. Given this contradiction, one must wonder why the state continues to allow religion to be a special case of social practice. I will now present two arguments that aim to locate religion in the public sphere and account for its difference and special treatment. Both accounts are feminist, and address definitional issues of religion in late modernity via women’s experience of law and religion. The first account deals with issues as they pertain to Australian law, and the second account utilizes research by Canadian scholars on religion and anti-discrimination laws (Goldenberg, 2013; Joy, 2013) 18 but both clearly demonstrate that modern Western states treat religion as a special category.
1. Religion is Neither Public nor Private
‘Religion is neither public nor private but somewhere in between’ (Thornton and Luker, 2009: 74).
In their article on religion and discrimination, Margaret Thornton and Trish Luker (2009: 73) argue that religion is unlike other forms of social relations such as gender, race and ethnicity because it concerns the interior life and therefore is less easily related to processes of rationality, of which law is the sine qua non. However, although the secular state in modernity positions religion in the private sphere, the impact of religious activity in the public sphere is certainly visible. The state, while promoting and valuing the principles of secularism, makes multiple accommodations to religious groups; indeed the state co-exists with religious groups in the public domain in a number of ways. First, it allows religious groups significant moral power in the public articulation of social issues including those that directly affect women such as fertility, reproduction, abortion, sexual identity and marriage (Thorton and Lucker, 2009: 73). Second, as we have seen above, the state allows religious groups exemption from anti-discrimination laws on the basis that adhering to the laws would interfere with and contradict the beliefs and doctrines of faith traditions. Third, in more recent years, the state has outsourced large sections of social policy to religious groups as service providers including education, disability services, aged care, health care and employment agencies. Protected by law, religious service providers have been able to discriminate in employment and training practices and it is no surprise that this has impacted unfairly on women. The authors argue, ‘where religious organizations are exempt from the application of anti-discrimination legislation, they have defended this as a right to religious freedom, but this often results in collision with other protected values’ (Thornton and Luker, 2009: 76).
Thornton and Luker examined gender and race politics as they appeared before anti-discrimination legal forums in the shift from social liberalism to neo-liberalism, and they undertook a longitudinal study of employment-related discrimination with attention to religious groups (2009: 75). 19 They argue that the state has ceased to be secular in the sense that religion once belonged to the private sphere and exerted little or no influence on issues of political and economic concern. 20 Instead the neo-liberal regulatory state positions religious groups in an exceptional manner allowing it unprecedented influence and access to the public sphere in the formation and implementation of social policy while simultaneously exempting religious groups from anti-discrimination laws with regard to employment and educational practices (2009: 74). It is no surprise then that cases of discrimination come before state anti-discrimination tribunals for mediation. For example, the authors cite two separate cases that came before the anti-discrimination courts where two women were dismissed from their teaching positions at Catholic schools because one woman was an unmarried mother in a de-facto relationship and the other woman was a lesbian activist. Prescriptions about women’s sexual identity and life style choices clearly underlie these decisions, as well as the ‘vexed nature of the public/private distinction’ (Thornton and Luker, 2009: 76). The court here must weigh up the conflict between the protection of religious freedom and the rights of individuals to non-discrimination in employment. The issue at stake is should the church be allowed to proscribe matters of women’s sexual choices on the basis that it offends Catholic teachings. In both cases the complainants were successful indicating that the state can be responsive and flexible in terms of amending notions of religious freedom when they conflict with other rights (2009: 76–77). Yet the outcome of other cases reported on by Thornton and Luker demonstrated the opposite: a confirmation of religious freedom as exclusionary (2009: 77).
Despite the contradictions, the neo-liberal state allows religious organizations to have a moral voice on issues of social significance including those involving areas that cover women’s rights, such as sexuality, fertility, reproduction and family (Thornton and Luker, 2009: 73). The media regularly reports on church views regarding social policy and moral concerns, reinforcing a widely held view, promulgated by a previous Prime Minister John Howard, that Christianity has a natural possession on the production and promotion of socially worthy values. This is particularly visible in the school funding debate where religious schools are often seen by parents as the only suitable option for a values education. Public education is seen as something of a moral vacuum. The issue of exactly what kinds of values private religious schools teach needs much more public debate, particularly with regard to gender and sexual identity issues (Byrne, 2012).
As noted above, Thornton and Luker (2009) argue that the neo-liberal state is in a process of re-defining religion as a racialized discourse. In the social-liberal state Christian theology was certainly the dominant discourse but was articulated as belonging to a multi-cultural, multi-faith religiously pluralist society. In neo-liberalism, there is a much more potent articulation between security, global Islam and race, creating a powerful ideological slippage between race and religion (Thornton and Luker, 2009: 74–76). Hence, current legal definitions regarding the nature of religious belief tend to refer to religion as essentially tied to issues of ethnicity and cultural identity (Thornton and Luker, 2009: 79). For example, in NSW and Tasmanian discrimination law, race is identified as having an ‘ethno-religious origin’ (Thornton and Luker, 2009: 79). This continues to be problematic for some groups, including Muslims, whose ethnic origins are multifarious (Thornton and Luker, 2009: 80).
2. Religion as a Vestigial State
Thornton and Luker’s work (2009) indicates the importance of federal and state anti-discrimination legislation in protecting the rights of individuals and minority groups. Similarly, the work of Canadian feminist scholar, Naomi Goldenberg (2013, 2014), locates anti-discrimination law as a new form of rights, which protects individuals and groups who have been subject to social and economic discrimination. Goldenberg (2013), and Thornton and Luker (2009: 71) argue that the second wave women’s movement was pivotal in the development of this raft of legislation which has become the hallmark of modern states in promoting and regulating tolerance and cultural diversity (Thornton & Luker, 2009: 71).
Goldenberg goes further than Thornton and Luker and suggests that the state remains uninterested in changing or investigating formal definitions of religion. She suggests that the central reason for this, is that religion is positioned as a vestigial state in modern Western democracies, where its central aim is to publically express and contain the symbolic ideation of an absolute other (generally a male divinity) as the mythic originator of the current state (2013: 40). Hence Christianity once was a state power whose absolute power and authority was (a male) God. No longer a political necessity to the contemporary Western state, the vestigial state however gives authority to the past, provides a history and authorization of state power and contains the [possibly threatening] ideal that there is a higher power than humanity. Incorporation in the modern secular state as a once-was state comes with certain privileges and power, specifically, exemption from certain laws, tax-exempt status as charities, and a dominant voice in moral arbitration. But these privileges are underpinned by a deeper consideration: an understanding of religion as a primarily ahistorical, mythological category of sociality.
Drawing on the work of Roland Barthes, Goldenberg (2014: 250–51) argues that the state in presenting religion as mythologized and ahistorical, has the effect of de-politicizing religion and creating a non-contingent social form. That is, one that is not affected by race, gender, class and other political contingencies. In this scenario according to Goldenberg [in Canada], a person who publically uses hate speech against, for example, lesbian women, on the basis that it offends religious belief, is immune from prosecution because the tradition has always held this to be true (2014: 249). When a category is defined as mythological, it appears as natural and eternal, and most importantly its speech is de-politicized: Depoliticized speech is therefore speech that is permitted to stand outside human webs of power and consequence. Or, more precisely, depoliticized speech is allowed the pretense of being located outside such networks. (Goldenberg, 2014: 250)
To demonstrate this point, Goldenberg (2014: 249) cites the 2006 DORA
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Canadian legislation, which was designed to shield individuals from prosecution for communicating hate speech when that speech was done out of a sincerely held religious conviction. This legislation was eventually repealed on the grounds that it was already covered in Canadian law and would protect those religious people who felt moved to denounce for example, gay marriage and lifestyle. This provides a particular kind of legal precedent: where religious speech is a special speech that is ‘immune for penalties pertaining to other speech… Such speech might be called secular …’ (2014: 249). The problem with this is that: in Canada two people could, in theory at least, spout the same hate-filled screed, with the result that one would be jailed while the other would go free depending on the classification of such screeds as “religious” or “secular” (2014: 249).
The status of this special speech can be understood as the special conditions attached to a vestigial state.
Goldenberg states (2014: 250) that according to Barthes depoliticized speech is ‘chosen by history’. That is, ‘particular historical groups in particular social circumstances decide (with differing degrees of awareness) what will be recognized as mythic speech’ (2014: 250) and this speech will be innocent, in that it will be depoliticized, ‘immune from prosecution… and… allowed to stand outside the reach of judicial consequence’ (2014: 250). Goldenberg argues that in practice religion operates in the law as a special form of sociality, where it is accorded the privilege of being non-contingent (2014: 250–51). This occurs in two ways. First religion is perceived as being an essential category of human life, that is, it has always existed in one form or another. Second, its status as mythology allows it to stand as a non-political form (2014: 251). Ironically, the positioning of religion in this fashion is a highly political act.
Hence, religious groups enjoy political power, except in the area of military force, which remains the prerogative of the secular state. This deal – largely unconscious – that the state enacts with religious groups is based on a transaction that is accommodative in principle. Clearly, reading religion as a vestigial state is a provocative theoretical argument, which in essence has the potential to disable the dichotomy between secular and religious distinctions primarily because it deconstructs religion as a belief system and re-positions it as an ideological system. And while there is not enough space in this paper to adequately explore the argument, I think it is important because it provides a way of explaining the intransigence of the state in addressing the gender inequities that legal exemptions result in, and in clearly understanding that exemptions and attributes are in large directed at the continuing exclusion of women from inclusion in civil society. The work of feminism then must include an examination of religion as a dynamic category of knowledge and power. This, argues Goldenberg (2014: 251–52), is largely missing from feminist analyses, which concentrates on re-positioning gender as contingent and historical but fails to do so with religion. Goldenberg turns to the work of Judith Butler, whose commitment to understanding gender as historically, culturally and politically in a constant state of being dynamically re-defined and re-made, might be a model for feminist religion scholars in formulating definitions of religion.
Taking this argument into law, it is clear that the recognition of religious traditions as dynamic, changing, and contested domains of power and instability is much over-due. Instead, in defining religion as tradition and non-political, the law allows a patriarchal myth to reign as the tradition, rather than one expression of it.
Conclusion – Sexularism and Discrimination
This essay has argued that the Australian state continues to express a lack of interest in investigating the status and definition of religious traditions as expressed in anti-discrimination legislation. How religious groups construct and apply their understandings of religion to the law remains a matter for religious organizations, and not the domain of the state. Hence, masculinist definitions of religious tradition appear as the only expression of tradition and locate women in tradition as ‘other’ to the proper religious subject, requiring management through a list of special attributes that are designed to exclude women and LGBTQ people not just from full inclusion in the religious tradition, but putting them in the front line of potential discrimination by religious organizations. This allows a particular theological practice of faith tradition to be understood as the definition of religion. That is, the particular is taken to be the general. As we saw above, most religious organizations defend their right to exemptions that protect sexist practices.
The state is in a contradictory position of upholding secular modern ideals of the equal inclusion of all people in civil society, while at the same time allowing discrimination via exemptions to law. There is evidence that the state does accommodate to new religious environments by expanding definitions of religion, but this is uneven and not systematically embedded in legislation or policy. This is clearly seen in Thornton and Lucker’s (2009) claim that the state has shifted its understanding of religion towards a racialized discourse particularly in its treatment of Islam. Using the framework of religion as a vestigial state (Goldenberg, 2013: 2014), we can see that new laws of securitization might exist primarily because Islam is not wholly a vestigial state in the modern world; indeed in some instances it is a state form enacting all the rights of modern states including the operation of military power and the practice of particular interpretations of legal forms, such as Sha’ria, which the West finds threatening and confusing. Despite attempts by various Western states, including Britain, Canada and Germany, to accommodate its legal systems to Islamic law, the fear of an Islamic state is ever present and requires ongoing containment (Goldenberg, 2013).
Returning to the initial discussion of the instability of women’s rights across the world, Goldenberg (2014: 251) reminds us that women’s rights are relatively new and remain precarious and open to constant revision. Women’s citizenship is partial and the laws that have developed to protect those rights are themselves new, hence it is no surprise that there continues to be a significant struggle by women’s groups to ensure rights around fertility, reproduction, sexuality, employment and safety. In relation to religion, many groups continue to discriminate against women on the basis of history and tradition. Until the category of religion is taken seriously by the state, and investigated, human rights courts will continue to hear cases of discrimination based on an idea of religious tradition as largely mythical, ahistorical and masculinist.
Footnotes
Funding
This research was partially funded by the Faculty of Education and Arts, University of Newcastle, NSW, Australia.