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Ahdar, Rex Tauati --- "Slow train coming: religious liberty in the last days" [2009] OtaLawRw 3; (2009) 12 Otago Law Review 37

Last Updated: 25 February 2012

^{Inaugural Professorial Lecture: August 21st, 2008}

Slow Train Coming: Religious Liberty in the Last Days

Rex Tauati Ahdar^*

I Introduction

A lunch-time Christian club is threatened with being shut down at a Wellington state primary school. A Muslim witness wants to wear her burqa when giving evidence in the Auckland District Court. The Exclusive Brethren complain of religious persecution by the New Zealand government following their clandestine support for an opposition political party at the previous general election. Complaints about a ban on communion wine in New Zealand prisons bring about a change of policy by the Corrections Department. Concerns are raised after Sikh priests board a domestic Air New Zealand flight wearing their kirpan (ceremonial daggers) under their robes. A Christian registrar in North London is disciplined for refusing to carry out a same-sex civil partnership ceremony. The Canadian news magazine, Maclean’s, is accused of smearing Islam after publishing an article warning of the growing influence of Islam. Two Christian preachers are allegedly told to leave a Muslim area of Birmingham by local police lest they stir up ill feeling. These are some recent headlines relating to religious freedom.¹

Religious liberty is not in imminent peril in the West and, in both global and historic terms, countries like New Zealand enjoy a healthy measure of religious freedom. In the annual poll of my Law and Religion class, I asked the students to rate the state of religious freedom in New Zealand on a scale of 1 to 10 (1 being deplorable and 10 being exemplary). The average score of the students was 7.4. That seems about right, perhaps even a little on the low side. But there is no need for complacency. The

^* Professor, Faculty of Law, University of Otago. This article is based on the author ’s Inaugural Professorial Lecture delivered at the University of Otago, 21 August 2008. The title of the lecture was inspired from the album of the same name by Bob Dylan (Columbia Records, 1979). I am most grateful to John Stenhouse for comments on an earlier draft of this paper and the cheerful research assistance of Simon Currie.

¹ See respectively: Stewart Dye, “School Split over Religion Club Ban”, NZ Herald, 10 June 2005, A9; Police v Razamjoo [2005] DCR 408; Irene Chapple, “Exclusive Brethren Attack Labour Over ‘Hate Speech’”, Sunday Star- Times, 10 September 2006, A4; “Communion wine banned from prisons”, NZ Herald, 20 April 2007; Elizabeth Binning, “Sikh plea for tolerance in air security”, NZ Herald, 18 May 2007; Caroline Gammell, “Christian registrar who refused to conduct gay weddings wins case”, Daily Telegraph, 11 July

2008; “Steyn watches as Tribunal winds up”, National Post, 7 June 2008 (complaint against journalist Mark Steyn and Maclean’s before the British Columbia Human Rights Tribunal); David Harrison, “Christian preachers face arrest in Birmingham”, Daily Telegraph, 2 February 2008.

“travail of religious liberty”² as the historian Roland Bainton wrote, has been just that – a long and difficult journey. Taking that as my cue, this article explores some of the potential “potholes” or “detours” in the road ahead.

The ominous phrase “the last days” perhaps needs a brief explanation. As used by the New Testament writers,³ it refers to the period between Jesus Christ’s first coming and His second coming (parousia).⁴ This time is, as the biblical writers view it, a perilous one marked by widespread moral decline. In St Paul’s words:

But mark this: there will be terrible times in the last days. People will be lovers of money, boastful, proud, abusive, disobedient to their parents, ungrateful, unholy, without love, unforgiving, slanderous, without self- control, brutal, not lovers of the good, treacherous, rash, conceited, lovers of pleasure rather than lovers of God – having a form of godliness but denying its power.⁵

No doubt some in every generation see the moral decay described by Paul present in their society, and to that extent they are right. Much of the twentieth century was tumultuous and, as some would see it, typified by social degeneration. I leave it to you to assess whether things are better at the start of the twenty-first century.

The plan of this essay is as follows. In the next, second, section I wish to describe the broad scope of religious liberty – how it extends to cover not just patently “religious” conduct, but all areas of life. The third part will canvass some of the major threats to religious liberty in the West. In the fourth section, I note that most conflicts between the state and the believer are satisfactorily resolved, but there are limits to how much Caesar will tolerate. I will then, in the fifth section, sketch some reasons why I consider religious liberty is vulnerable. I move then, sixthly, to a concrete illustration involving two evangelists accused recently of inciting religious hatred in Victoria, Australia. Finally, I conclude with some thoughts on the ultimate protection of religious freedom.

II The Broad Scope of Religious Liberty

Religious liberty is a broad right. It has an internal, inner aspect (the forum

² Roland H Bainton, The Travail of Religious Liberty (New York: Harper,

^{1951). See also Perez Zagorin, How the Idea of Religious Toleration Came to}

^{the West (Princeton: Princeton University Press, 2003).}

^{3 See 2 Timothy 3:1; 1 Timothy 4:1; Acts 2:17 (quoting Joel 2:28); James 5:3; 2}

^{Peter 3:3; Jude 18; Hebrews 1:2.}

^{4 See eg William D Mounce, Pastoral Epistles; World Bible Commentary, vol}

^{46 (Nashville: Thomas Nelson, 2000) at 544; Thomas D Lea and Hayne}

^{P Griffin, 1,2 Timothy, Titus: The New American Commentary (Nashville:}

^{Broadman Press, 1992) at 223; Raymond F Collins, 1 & 2 Timothy and}

^{Titus: A Commentary (Louiseville: Westminster John Knox Press, 2002) at}

^244-246.

^{5 2 Timothy 3:1-5 (italics added).}

internum) – the right to believe.⁶ Whilst that is obviously important, it is the outward, social expression of such belief that really counts and thus s 15 of the New Zealand Bill of Rights Act 1990 provides that:

Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.⁷

The right to “manifest” one’s religion or belief is not confined to explicitly religious ritual, acts of personal piety and devotion and the like. It embraces a huge variety of activity if you subscribe to the devout believer ’s stance that all of life is informed by faith. The most apparently mundane of human activities can be and is invested with religious meaning. The devout Muslim or Jew is practising her religion when she eats, drinks, works, plays, cooks and gardens, as much as when she reads scripture, prays or meditates.⁸ On this view, there is no activity that is not generated or directed by one’s obedience (or disobedience) to God.⁹

Here we sometimes encounter a familiar “dualism”. Life is commonly split into sacred and secular realms, with most human activity – business, recreation, art, schooling, politics, agriculture, sport – being slotted within the realm of the secular.¹⁰ This dualistic mindset is not confined to secular people, but has also been a common misconception amongst some believers. But as two Reformed Christian theorists explain:

We are called to serve the Lord and acknowledge his kingship in the whole range of our cultural activities. There are no sacred/secular compartments here. Our service to God is not something we do alongside our ordinary human life. The Bible knows no such dichotomy. In the biblical world view all of life, in all of its dimensions, is constituted as religion.¹¹

Take commercial enterprise and employment. Running a cafe,

⁶ This is expressed in s 13 of the New Zealand Bill of Rights Act 1990 which states that: “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.”

⁷ For analysis of sections 13 and 15, see Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights (Melbourne: Oxford University Press, 2003) ch 11.

^{8 In Christianity, “the righteous will live by faith”: Galatians 3:11 (quoting}

^{Habbakuk 2:4); “everything that does not come from faith is sin”: Romans}

^{14:23; “whether you eat or drink or whatever you do, do it for the glory}

^{of God”: 1 Corinthians 10:31.}

^{9 See Albert M Wolters, Creation Regained: Biblical Basics for a Reformational}

^{Worldview (Grand Rapids: Eerdmans, 1985) at 49-50 and Brian J Walsh and}

^{J Richard Middleton, The Transforming Vision: Shaping a Christian World}

^{View (Downers Grove, Ill: InterVarsity Press, 1984) ch 6.}

^{10 See Wolters, Creation Regained, at 54: “This compartmentalization is a very}

^{great error.”}

^{11 Walsh and Middleton, The Transforming Vision, at 67 (emphasis in}

^original).

gymnasium, or bookshop could be equally part of one’s religious calling as running an orphanage or a hospital; working as a shopkeeper, housepainter or chef can be just as much a vocation as serving as a priest, pastor and church minister.¹² Hence, all work, including the most seemingly “secular” and menial of jobs – Martin Luther ’s example was the milking of cows¹³ – may constitute a vocation where a person fulfils God’s purposes, and indeed, glorifies God.¹⁴

Seen in this way, the claim by the Christchurch car salesman and garage proprietor, Eric Sides, that he was running his business for the glory of God and to bear witness to Christ was not outlandish, nor was his desire to advertise for a “Christian” service station attendant manifestly illogical.¹⁵ Called as a witness in the 1981 Eric Sides case, the Reverend Rob Yule (a future Moderator of the Presbyterian Church) endeavoured to counteract the dualistic mindset by arguing that the separation of life into sacred and secular spheres lacked solid theological support.¹⁶ But the Equal Opportunities Tribunal would not accept the notion. To the Tribunal, running a car sales yard did not seem much like leading a church and filling petrol tanks bore little resemblance to filling parishioners with the Gospel.

The main point here is that religious conduct, properly understood, encompasses the whole of life. For devout believers generally – a category that includes Muslims, Hindus, Sikhs, as well as adherents of indigenous religions – all conduct is religious conduct. If the right of religious freedom is going to do its work properly, it must embrace a wide understanding of the “religious”.

III Threats to Religious Liberty in the West

State Expansion into All Spheres of Life : Secularization and

^{Privatization}

For a considerable period historically, religion loomed large in the fabric

¹² Christians ought to work “with all [their] heart, as working for the Lord, not for men”: Colossians 3:23; Ephesians 6:7. Likewise, employers ought to provide their workers with what is ‘right and fair ’ since they also have a “Master in heaven” to whom they will one day have to account: Colossians

^{4:1; Ephesians 6:9.}

^{13 See John Stott, Issues Facing Christians Today 3rd edn (London: Marshall}

^{Pickering, 1999) at 193.}

^{14 See eg Arthur F Holmes, Contours of a World View (Grand Rapids:}

^{Eerdmans, 1983) ch 14. As Stott, Issues, at 195, observes: “laborare est orare,}

^{‘work is worship’, provided that we can see how our job contributes, in}

^{however small and indirect a way, to the forwarding of God’s purpose}

^{for humankind.”}

^{15 Human Rights Commission v Eric Sides Motors Co Ltd (1981) 2 NZAR 447.}

^{For discussion of the Eric Sides case, see Rex Ahdar, Worlds Colliding:}

^{Conservative Christians and the Law (Aldershot: Ashgate, 2001) at 136-}

^140.

^{16 Eric Sides (1981) 2 NZAR 447 at 461.}

of Western society. Religion played a significant role in family life, education, health care, poor relief and many other areas of society. The government’s role was, by comparison, comparatively limited. Harold Berman, speaking of the United States, but the same could be said of New Zealand, put it this way: government had “an auxiliary role, an implementing role, while religion...ha[d] a directing role, a motivating role.”¹⁷ If government was once “the handmaid”¹⁸ of religion, today the roles are reversed.

There are many technical polysyllabic words to describe this historic sea change wrought by modernity. One is “secularization” in the sense of “the decline in the social power of religious institutions.”¹⁹ More formally, secularization, according to the sociologist Bryan Wilson, is:

that process by which religious thinking, practice and institutions lose social significance, and become marginal to the operation of the social system. In advanced societies, religion has now lost that presidency over social activities which once it exercised, as various institutional orders of social life (the economy, the polity, juridical institutions, education, health, recreation) have ceased to be under religious control, or even to be matters of religious concern.²⁰

Over time, and driven by the inexorable secularizing logic of the Enlightenment, religion in the West became increasingly “privatized”, by which we mean it changed from being the basis of, and directing force for, public life and major public institutions and instead became a personal matter – located in the private realm of home, family and church. In Berman’s words:

Religion has lost most of its importance as a way of addressing publicly the major social problems of our society. Religion has become increasingly a matter of the private relationship between the believer and God. Worship remains collective, and the churches continue to play an important part in the individual lives and the interpersonal relations of their members, but the occasional gatherings of fellow worshippers make only a minor contribution toward solving society’s social needs.²¹

Admittedly, the 1990s witnessed something of a global “comeback”

^{for religion in the West, with the attempt by some religionists to assert}

17. “Religious Freedom and the Challenge of the Modern State” in his Faith and Order (Atlanta: Scholars Press, 1993) ch 9, at 229.

^{18 Ibid at 224.}

^{19 Rodney Stark and Roger Finke, Acts of Faith: Explaining the Human Side of}

^{Religion (Berkeley: University of California Press, 2000) at 59. Sociologists}

^{also refer to this as religious “differentiation” – “the process whereby}

^{social structures and institutions once suffused with religious significance}

^{are transformed into secular entities.” Rick Phillips, “Can Rising Rates}

^{of Church Participation be a Consequence of Secularization?” (2004) 65}

^{Sociology of Religion 139 at 140-141.}

^{20 Bryan Wilson, “‘Secularisation’: Religion in the Modern World” in Stewart}

^{Sutherland, Leslie Houlden, Peter Clarke and Freidhelm Hardy (eds), The}

^{World’s Religions (London: Routledge, 1988) 953 at 954 (italics added).}

^{21 Berman, “Challenge of Modern State”, at 231.}

their faith in public life once more.²² Nonetheless, I think the historic trend supports the classic secularization thesis, at least as it applies to the ongoing secularity of public institutions.

As religion has become a more private concern, its public or social functions came to be taken over by the government.

Today, the government is involved in many, perhaps most, areas of citizens’ lives. Herein lies the danger. To quote Berman again: “Society has become increasingly identified with government.”²³ A United States federal judge and former leading academic, Michael McConnell, echoes this theme: “When the state is the dominant influence in the culture, the

^{‘secular state’ becomes the equivalent of a secular culture.”24}

The point I wish to make is that because the state affects the activities of religious communities and believers in a fashion not dreamt of a century or so ago, this often cramps religious conduct and threatens religious liberty. As McConnell explains:

[State expansion] makes achievement of religious freedom far more difficult. As long as the domain of collective decisionmaking is small, and of little philosophical import, religious freedom is protected as it were naturally – as a byproduct of a limited state, as Locke supposed. As the domain of government increases in scope, some government involvement in religious activity becomes necessary if religious exercise is to be possible at all.²⁵

If I wish to construct a place of worship, physically discipline my children, refrain from taking advantage of life-preserving medicine, hire only workers who share my faith, the state will have something to say about it. These and myriad other concerns are matters upon which the state is not indifferent. What religious organizations and adherents do is increasingly an issue of regulatory concern. Religion may seek the quiet solace of the private sphere – the place where it has been relegated

^{– but even there the modern state’s writ runs large.}

I wish now to mention one recent development that enhances state power and control over its citizens’ lives. It poses a threat to religious liberty, indeed to liberty in general.

Combating Terrorism and Safeguarding “National Security”

The implications of the September 11, 2001, and July 7, 2005, terrorist attacks continue to be felt. History has always had its religious zealots who kill in the name of God, but this recent demonstration of religiously- motivated mayhem focused liberal democrats’ minds in a fashion that bloodshed in Bosnia, the Sudan, Indonesia and other cauldrons, did

22. See eg José Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, 1994).

^{23 “Challenge of Modern State”, at 231.}

^{24 “Why is Religious Liberty the ‘First Freedom?’” (2000) 21 Cardozo L Rev}

^{1243 at 1261.}

^{25 McConnell, “First Freedom”, at 1261.}

^not.

The temptation is to overreact and some states have responded with potentially draconian legislation that may yet significantly impinge upon the religious liberties of individuals and communities deemed to pose a threat to “national security”.²⁶ I say “may”, as much of this is still admittedly speculation. Some might feel I am being unduly alarmist. Nonetheless, there are warning signs.

^{For example, in the United Kingdom a proposal enabling the police}

^{to close places of worship was canvassed by the Home Office in 2005.27}

^{As it transpired, it was not included in the United Kingdom’s Terrorism}

^{Act 2006. The violent language of the more extreme Muslim clerics, such}

^{as those at London’s Finsbury Park mosque, were the impetus for the}

^{British proposal to close mosques. But, given the political reality, the}

^{proposal could not be worded in terms of mosques only and hence it was}

^{broadened to cover “places of worship” generally.28 In this respect the}

^{rise of radical Islam has been an unwitting catalyst for increased state}

^{powers and their consequent threat to religious liberty for all believers.}

^{The danger to religious liberty is not so much from a direct overthrow of}

^{the government by Islamic theocrats or the replacement of the democratic}

^{institutions by the Shari’a. It lies in the overreaction by governments to}

^{the challenge of extremist or radical Islam.}

Interestingly, our own anti-terrorist legislation, the Terrorism Suppression Act 2002, lists religion as one of the motivations for terrorism. The long, complex definition of a “terrorist act” defines it as an act “intended to induce terror in a civilian population or to unduly compel... a government to do or abstain from doing any act” and which results in designated outcomes such as “death ... serious risk to the health or safety of a population ... destruction of property of great value” and so on. The purpose of the conduct must be to advance “an ideological, political, or religious cause.”²⁹

The legislation was invoked in October 2007 when anti-terrorist raids resulted in the arrest of Maori activists in the eastern Bay of Plenty and disparate political and environmentalist groups in other parts of the country.³⁰ These were not religious groups. But it is conceivable that the legislation could be deployed against faith communities considered to be subversive “enemies of the state”.

Under the present climate of easy-going religious tolerance it is not easy to think of which groups might be targeted. The 1977 police raids upon

26. See Silvio Ferrari, “Individual Religious Freedom and National Security in Europe After September 11” [2004] BYUL Rev 357.

^{27 Ian Leigh, “National Security, Religious Liberty and Counter-Terrorism”}

^{(unpublished; on file with author).}

^{28 Ibid.}

^{29 Section 5(2)(3) (italics added).}

^{30 “Hunter alerted police to alleged terror camps”, NZ Herald, 15 October}

^{2007; Barry Wilson and Ian Macintosh, “Activists soft target for police}

^{exercises”, NZ Herald, 14 November 2007.}

the militaristic Christian commune, the Full Gospel Mission (popularly dubbed “the God Squad”) in Waipara, North Canterbury, are but a distant memory.³¹ And even further in the mists of time are the repeated instances of harsh government suppression of Maori millennialist movements, such as the arrest of the prophets Te Whiti and Tohu in Parihaka in 1881 and the apprehension of messianic prophet Rua Kenana and his followers in the Ureweras in 1916,³² interestingly the very same area where the 2007 raid on Maori activists was conducted.

The Driving Ideas: the Secular, Liberal Worldview

In 1948, Richard Weaver wrote his important and prescient work, Ideas Have Consequences.³³ The second major threat to religious liberty, after the expanding modern state, is the ideology or mindset that is held by the powers-that-be.

There subsists, among the powerful and influential in any society, a prevailing, and largely unconscious, worldview. In the United States, it might be called the Washington/New York Times worldview. In the New Zealand context I have dubbed it the “Wellington worldview”.³⁴

This is the latent mindset of many parliamentarians, bureaucrats, consultants, academics, business leaders, company directors, news media editors and journalists, medical specialists and doctors, judges and lawyers, and so on. It would take some time to fully detail the characteristics of this worldview – its scepticism of transcendence and the divine, its emphasis on empirical data and scientific reason over revelation, its relativism on ethical issues and so on. And one could quibble as to precisely what label to attach to it – “liberalism”, “modernism”, “secularism”, “scientific humanism”.

But for present purposes I wish to focus on its attitude toward religion generally and, in particular, fervent or deeply religious people. This can, I suggest, be fairly described as a prevailing suspicion, tinged by puzzlement and sometimes even contempt. British historian, Michael Burleigh in his recent book, Sacred Causes, remarks that the public culture of Europe is:

dominated by sneering secularists, who set the tone for the rest of the population and can make light work of the average bishop rolled out to confound them...Much of the European liberal elite regard religious people as if they come from Mars...³⁵

³¹ For a detailed account see Michael Hill, “To Define True Heresy: Deviance, Conformity and Religion” in Michael Hill, Sharon Mast, Richard Bowman and Charlotte Carr-Greg (eds), Shades of Deviance: A New Zealand Collection (Palmerston North: Dunmore Press, 1983) ch 9 at 143-158.

^{32 Harold Turner, The Laughter of Providence (Auckland: Deepsight Trust,}

^{2001) at 136. See further Bronwyn Elsmore, Mana from Heaven: A Century}

^{of Maori Prophets in New Zealand (Tauranga: Moana Press, 1989).}

^{33 (Chicago: University of Chicago Press, 1948).}

^{34 I describe this in Ahdar, Worlds Colliding, at ch 3.}

^{35 Sacred Causes: The Clash of Religion and Politics, From the Great War to the}

It would be unfair to stigmatize the New Zealand liberal elite in the same way, but Burleigh’s description does, I suggest, apply to a small section of it. New Zealand has a few of its own “sneering secularists” who regard passionate believers as from another (backward) planet, if not – in the case of bellicose groups such as the Destiny Church – from another galaxy. This sub-group, and perhaps the liberal elite generally, would rather see religious passions and energies channelled into more “mainstream” causes (“licensed liberal parameters”³⁶) such as fostering multiculturalism, preserving a nuclear-free nation, celebrating “diversity” (in all its guises), tackling climate change, and so on.

The antipathy towards deep religious conviction that one finds in some quarters today was not always so pronounced. If we take liberalism to be the dominant worldview of Western liberal democracies, then it is arguable that the nature of liberalism itself has changed. Early liberal political philosophy was not opposed to religion. Quite the opposite: many discern that classic liberalism emerged “from a set of ideas rooted in Christian theology and congenial to religious institutions.”³⁷ Liberalism and religion, specifically Christianity, mutually reinforced each other.³⁸

Thus, “[l]iberal democracy, with its protection for religious freedom, was good for religion; and religion, in turn, provided the moral and cultural underpinnings for a liberal society.”³⁹

At some point – one cannot put an exact date on it – a transformation occurred. Liberalism took, to borrow Wolfhart Pannenberg’s phrase, a “secularist turn”.⁴⁰ The expansion of the state that I described earlier coincided with (and may have itself generated) a change of mindset and, in turn, a change of tack.

The comparatively disengaged, limited, live-and-let-live, process-based liberalism of earlier centuries changed into a much more ambitious, assertive animal: a “comprehensive ideology”,⁴¹ a “hegemonic” and “transformative” liberalism.⁴²

War on Terror (New York: HarperCollins, 2007) at 473-474.

^{36 Burleigh’s felicitous phrase: ibid at 474.}

^{37 See McConnell, “First Freedom”, at 1257.}

^{38 See Robert Booth Fowler, “Religion and Liberal Culture: Unconventional}

^{Partnership or Unhealthy Co-Dependency” in Luis Lugo (ed), Religion,}

^{Public Life and the American Polity (Knoxville, Tennessee, 1994) ch 8, at 201;}

^{Wilfred McClay, “The Judeo-Christian Tradition and the Liberal Tradition}

^{in the American Republic” in T William Boxx and Gary Quinlivan (eds),}

^{Public Morality, Civic Virtue and the Problem of Modern Liberalism (Grand}

^{Rapids, Mich: Eerdmans, 2000) ch 8, at 128.}

^{39 McConnell, “First Freedom”, at 1257. See also the fuller treatment by}

^{Fowler, “Religion and Liberal Culture.”}

^{40 “How to Think About Secularism”, First Things, June/July 1996, 27 at}

^28.

^{41 McConnell, “First Freedom”, 1258.}

^{42 Stephen Macedo, “Transformative Constitutionalism and the Case of}

^{Religion: Defending the Moderate Hegemony of Liberalism” (1998) 26}

^{Political Theory 56; Stephen L Carter, “Liberalism’s Religion Problem”,}

A supposedly neutral theory and constitutional framework – working to abstain from resolving questions about its citizens’ pursuit of the good life – came to be a theory with quite definite views of the good life, coupled with – and this is the rub – an inclination to use coercive apparatus to enforce this vision when necessary. It was not enough, argues McConnell “that the government should be neutral, tolerant, and egalitarian, but so should all of us, and so should our private associations.”⁴³ Thus, he adds, “Open-mindedness, not conviction, is the mark of the good liberal citizen. Indeed, there is something suspect in those who are sure that they are right, since it might imply that someone else is wrong.”⁴⁴

The leading candidates for “those who are sure that they are right” are those intolerant religionists unable to see “reason” (as secularist liberals define it), in other words, the undemocratic “Other”, often pejoratively labelled “fundamentalists”.

Here we have it then. The liberal state is not always so liberal after all, but seeks to squeeze its illiberal religious citizens into good liberal ones. And thus, ”To the extent that the state pursues this new vision of the liberal citizen and enforces its vision by force, religious freedom is gravely endangered.”⁴⁵ Although it disavowed it was doing this, liberalism succumbs to the temptation to become another form of establishment or orthodoxy, perhaps even ”a narrow and sectarian program enforcing its dogmas by force.”⁴⁶ Conformist liberalism of this type is a contradiction in terms.

Worse than that, it threatens to stifle the different voices, ideas, arguments and methods of reasoning that lie outside the prevailing concepts and ways of thinking of liberal democracy.⁴⁷ These are the voices, religious but not just religious, that liberal democracy needs to hear. As Yale law professor, Stephen Carter, contends:

The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic. Yet the idea is a popular one – and religions, precisely because the meanings they offer can be so radically different from those proposed by the state, often bear the brunt of hegemony.⁴⁸

Blinded perhaps by its own success, some modern liberals insist on

First Things, March 2002, 21 at 23.

^{43 McConnell, “First Freedom”, at 1259.}

^{44 Ibid.}

^{45 Ibid.}

^{46 Ibid. See also Michael McConnell, “The New Establishmentarianism”}

^{(2000) 75 Chicago-Kent L Rev 453.}

^{47 Paul Horvitz, “The Sources and Limits of Freedom of Religion in a Liberal}

^{Democracy: Section 2(a) and Beyond” (1996) 54 U Toronto Fac L Rev 1}

^{at 52-53; Frederick M Gedicks, “Towards a Constitutional Jurisprudence}

^{of Religious Group Rights” [1989] Wisc L Rev 99 at 116.}

^{48 Carter, “Liberalism’s Problem”, at 24.}

seeing religion as something to be domesticated and tamed, “reduced to a set of moral conventions that promote social harmony.”⁴⁹ Here, of course, liberalism draws upon historic memories, nightmares really, of the wars of religion and the dangers of the fanaticized religious consciousness.⁵⁰ Liberalism thus prefers an “’open-minded’... stripped down and soft-edged” religion as Stanley Fish jibes,⁵¹ “a tepid, civic version of the faith”, as Justice Antonin Scalia termed it.⁵² History tells us that religious passions are suspect and ought to be quelled. Religion should be “quarantined” to those contexts (the home, the church) where it can cause the least infection.⁵³ Faith is best treated by the good liberal citizen as a merely subjective, individual interest among the many, akin to a mere “hobby”.⁵⁴

Those who form public opinion and drive agendas are a small minority: “an international cultural elite”, suggests renowned sociologist Peter Berger, “but a very influential one.”⁵⁵ Importantly, they have the coercive apparatus to shape society according to their vision.

IV Resolving Conflicts

Few, if any, laws today directly aim to suppress religion or restrict religious practice. New Zealand has had its examples of laws suppressing religious freedom – one recalls the Tohunga Suppression Act 1907⁵⁶ and the ban on Jehovah’s Witnesses during World War II.⁵⁷ But these are notable exceptions in our generally good historical record of religious tolerance.⁵⁸

A rare modern example of a direct restraint upon a cultural-cum-religious matter would be Parliament’s ban on the practice of female genital mutilation (circumcision) in 1995.⁵⁹

⁴⁹ Peter Schotten and Dennis Stevens, Religion, Politics and the Law (Belmont: Wadsworth, 1996) at 13. There were those early liberal theorists such as Benedict Spinoza and Thomas Jefferson who sought to reformulate religion into just this: see ibid at 12-13.

^{50 Schotten and Stevens, ibid.}

^{51 “Mission Impossible: Settling the Just Bounds Between Church and State”}

^{(1997) 97 Colum L Rev 2255 at 2281. He adds (ibid) that, in this form,}

^{“they are indistinguishable from other enlightenment projects and are}

^{hardly religions at all.”}

^{52 Locke v Davey, [2004] USSC 16; 540 US 712 at 733 (2004).}

^{53 Stanley Fish, “Liberalism Doesn’t Exist” [1987] Duke LJ 997 at 999.}

^{54 On the notion of religion as a “hobby”, see Stephen L Carter, The Culture}

^{of Disbelief (New York: Basic Books, 1993).}

^{55 “Secularization Falsified”, First Things, February 2008.}

^{56 See Malcolm Voyce, “Maori Health in New Zealand: The Tohunga}

^{Suppression Act 1907” (1989) 60 Oceania 109.}

^{57 See Paul Rishworth, “The Religion Clauses of the New Zealand Bill of}

^{Rights” [2007] NZ Law Review 631 at 653-654.}

^{58 For an interesting qualitative study of “creedism” – the author ’s term}

^{for religious prejudice, intolerance and discrimination – see Bronwyn}

^{Elsmore, Creedism: Religious Prejudice in New Zealand (Palmerston North:}

^{Nagare Press, 1995).}

^{59 See s 204A of the Crimes Act 1961. The ban was added by the Crimes}

The more likely stage for conflict arises from the inadvertent impact general laws have upon religious conduct. Given the breadth of religious conduct and the expansion of the state into most areas of life, both of which I detailed earlier, the opportunity for conflict becomes apparent.

Where the state perceives a potential clash it will often make allowance for religious conduct by carving out an exemption for the believers adversely affected. This accommodationist strategy is used widely in the West. In the United States the debate rages over the role of the judiciary in accommodating believers caught by general laws, but in New Zealand the matter has been left to the legislature.

Examples where the New Zealand Parliament has done this include conscientious exemptions from abortion procedures for medical personnel and permitting religious employers to deny access to union officials to their workplaces.⁶⁰ There is a raft of exceptions in the Human Rights Act 1993. For instance, s 28(3) requires an employer to accommodate an employee’s particular religious practice unless this “unreasonably disrupt[s]” the employer ’s business. Religious institutions are allowed to discriminate on the basis of sex or religion when appointing persons to positions of leadership.⁶¹ There are a number of instances where, pursuant to Treaty of Waitangi obligations and recognition of tikanga Maori, Maori spiritual beliefs have been recognized in legislation and the relevant tribunal is required to take these concerns into account when reaching its decision.⁶²

Parliament may grant an exemption but it is not obliged to do so. This leads us to the limits of liberal tolerance.

“Religious conviction is not a solvent of legal obligation”, said the High Court of Australia.⁶³ The most horrible abuses could be (and regrettably sometimes have been) committed in the name of religion. So, plainly, limits are necessary to prevent a veneer of religious justification operating as an excuse for intolerant, oppressive behaviour towards others. As Lord Nicholls said in a 2005 House of Lords judgment, beliefs “must be consistent with basic standards of human dignity” and so “manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection.”⁶⁴

Amendment Act 1995. See Elisabeth McDonald, “Circumcision and the

^{Criminal Law: The Challenge for a Multicultural State” (2004) 21 NZULR}

^233.

^{60 See respectively the Contraception, Sterilisation and Abortion Act 1977,}

^{s 46, and the Employment Relations Act 2000, ss 23-24.}

^{61 Human Rights Act, s 28(2). Other religious exemptions are found in s}

^{27(2)(domestic employment) and s 39(1)(qualifying bodies).}

^{62 See Ahdar, “Indigenous Spiritual Concerns and the Secular State: Some}

^{New Zealand Developments” (2003) 23 Oxford J L Stud 611 and Fiona}

^{Wright, “Law, Religion and Tikanga Maori” (2007) 5 NZJPIL 261.}

^{63 Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria)(1983) 14}

^{CLR 120 at 136 per Mason CJ and Brennan J.}

^{64 R v Secretary for State for Education and Employment, ex p Williamson [2005]}

Restricting religious conduct where demonstrable harm is inflicted on others – the standard Millian justification for curbing liberty – is uncontentious and s 5 of the New Zealand Bill of Rights Act⁶⁵ operates to limit the right of religious freedom accordingly.

But the limits of liberal democratic tolerance are also reached in a less obvious fashion. Here I refer to intellectual or ideological challenges to liberalism that dispute its contemporary position as an organizing philosophy of life. “Tolerance is,” as Stanley Fish observes, “exercised in an inverse proportion to there being anything at stake.”⁶⁶ Any comprehensive philosophy or ideology must deal with those who oppose its basic tenets, what Larry Alexander calls the “foreign policy problem”.⁶⁷

Liberalism, at least of the modern triumphal hegemonic type, is no exception. It will defend itself when its fundamental premises or major institutions are directly challenged. As political theorist William Galston observes: “A liberal democracy must have the capacity to articulate and defend its core principles, with coercive force if needed.”⁶⁸

Take, for example, the core liberal value of “tolerance”. New Zealand today is proudly held out as a pluralistic, multi-ethnic, multi-religious society, where tolerance is the ultimate virtue. Tolerance here means being “nonjudgmental” – one ought to be accepting of, if not celebrate, all (or nearly all) moral, social, religious, sexual and behavioural differences.⁶⁹

Some religious believers, however, stubbornly challenge such moral pluralism. They simply do not see how society benefits from “diversity” if this means the endorsement of what are (to them) destructive or immoral lifestyles. There is a right way revealed for people to live. Yes, it may be very difficult to live up to, but it is still the right way. It is a brute sociological reality that people do in fact pursue different philosophies and religions, but that does not make it a good thing, nor something the state should endorse, celebrate or require its citizens to pay homage to. The protests by some religious conservatives at the government- sponsored Asia-Pacific Interfaith dialogue at Waitangi in 2007, as well as their antipathy towards the Human Rights Commission’s National Statement on Religious Diversity, exemplify this attitude.⁷⁰

UKHL15 at [23]. See also O’Sullivan v Canada (1991) 84 DLR (4th) 124 at

^137.

^{65 “Reasonable limits” upon rights and freedoms may be imposed provided}

^{they “can be demonstrably justified in a free and democratic society.”}

^{66 “Almost Pragmatism: Richard Posner ’s Jurisprudence” (1990) 57 U}

^{Chicago L Rev 1447 at 1466.}

^{67 “Liberalism, Religion and the Unity of Epistemology” (1993) 30 San Diego}

^{L Rev 763 at 763-764.}

^{68 “Expressive Liberty, Moral Pluralism, Political Pluralism: Three Sources}

^{of Liberal Theory” (1999) 40 Wm and Mary L Rev 869 at 904.}

^{69 Schotten and Stevens, Religion, Politics and the Law, at 18-19.}

^{70 See Simon Collins, “Lockout sparks unholy row”, NZ Herald, 29 May}

“Serious”⁷¹ religionists of this sort decline to play the game of acquiescing to the idea that one religion is as good as another, or that all moral codes are on a par. Ignoring the unwritten rule to stay in the private domain, these believers assert that Truth (capital ‘t’) has a public, universal character and must be proclaimed. Speaking at a major gathering of New Zealand Evangelical Christians in 2008, two presenters scold that “today Christians and their churches have almost universally bought into the post-Enlightenment secularist story that religion of whatever persuasion is essentially a private affair.”⁷² This is, they insist, an error, for:

the gospel is not a matter of private taste but rather a matter of public truth; a rational discourse about what is believed to be, in significant ways, actually the case. Therefore... the gospel is something that like any other public truth should not be, indeed cannot be, swept under the mat as a mere private matter.⁷³

Here religion is acting as a rival to the state by operating, in Stephen Carter ’s words, as a “competing system of meaning”.⁷⁴ To the liberal, however, illiberal advocates of this type cross the line demarcated for them and are a danger. They should be discouraged and, if need be, silenced.

There is an “asymmetry”⁷⁵ at work here. Whilst in theory all views are welcome, in reality, strong religious voices – those that challenge the key planks of liberalism – are not:

secularist pluralism, by employing tolerance, sets limits that more or less rule out any significant contribution of spiritual understanding to public life; certainly it excludes any such understanding that might challenge the normative constructivist shape of secular society... secularism now actively promotes pluralism within limits, but those limits are such that no religious take on things should be especially significant to the way society as a whole is conducted or significant to the values that may be generally assumed by those exercising social power and political control.⁷⁶

Ironically, there is “boundless tolerance for everything – except for

2007; “PM defends religious diversity statement”, Otago Daily Times, 31

^{May 2007. The Commission’s Statement on Religious Diversity is at:}

^{h t t p : / / w w w . h r c . c o . n z / h o m e / h r c / r a c e r e l a t i o n s /}

^{tengirathenzdiversityactionprogramme/statementonreligiousdiversity/}

^{statementonreligiousdiversity.php}

^{71 Carter ’s term: “Liberalism’s Religion Problem”, at 22.}

^{72 Gavin Drew and Duncan Roper, “Worldviews in Conflict...’with}

^{Gentleness and Respect’” in Bruce Patrick (ed), New Vision New Zealand,}

^{vol III, 2008 (Auckland: Tabernacle Books, 2008) ch 2, at 24.}

^{73 Ibid at 35.}

^{74 Carter, “Liberalism’s Religion Problem”, at 24.}

^{75 Robert W Jenson, “The God-Wars” in Carl Braaten and Robert Jenson}

^{(eds), Either/Or: The Gospel or Neopaganism (Grand Rapids: Eerdmans,}

^{1995) 23 at 25-26.}

^{76 Drew and Roper, “Worldviews in Conflict”, at 38 and 56.}

dissent from the dogma of toleration.”⁷⁷ Liberalism has, necessarily, an in-built antipathy to religions that oppose its teachings about truth, goodness and meaning.⁷⁸

V The Vulnerability of Religious Liberty

Although liberal democracies have legislative protections for religious freedom, the lessons from history do not inspire confidence that they will always do the job.

We might think that the judges would be champions of religious freedom. The American experience, however, points to the relative impotence of the courts. Judge John Noonan notes that the US Supreme Court “has never found a law made by Congress to infringe religious liberty.”⁷⁹ In one US study of 2109 court cases on religion from 1981 to 1996, the results showed that what it termed religious sects and cults (those religious communities holding a high level of separation, antagonism and distinctiveness in relation to the surrounding society) were more likely to be involved in court cases and to receive unfavourable rulings.⁸⁰ The only group which seldom appeared in the courts, and whose rate of favourable rulings towered above all other religious groups, were “mainline Protestants”.⁸¹ This should not surprise us as it is this group who are most attuned to, and in agreement with, the tenets of the liberal state. (It is segments within this group to whom Carter is probably obliquely alluding when he refers to those “who have caved in to the pressure to organize according to the meanings propounded by the state, more or less agreeing with the proposition that the same rules that guide the state should also guide private institutions within the state, and so they have decided to change their teachings to fit the changing beliefs of the people – they have tried to be, in a word, popular.”⁸²)

⁷⁷ McConnell, “New Establishmentarianism”, at 463.

^{78 “[A] liberal society must be intolerant and nonneutral towards the forms of}

^{life that are inconsistent with or threatening to its liberal values of human}

^{society and the values necessary for its preservation.” Polycarp Ikuenobe,}

^{“Diverse Religious Practices and the Limits of Liberal Tolerance” in}

^{David Odell-Scott (ed), Democracy and Religion: Free Exercise and Diverse}

^{Visions (Kent: Kent State University Press, 2004) 309 at 316 (original italics}

^omitted).

^{79 “The End of Free Exercise?” (1992) 42 DePaul L Rev 567 at 575. See}

^{similarly Carter, “Liberalism’s Religion Problem” at 25: “The courts are not}

^{usually helpful...no adherent of a non-Christian, non-mainstream faith}

^{has ever won a First Amendment religious freedom case in the Supreme}

^{Court.” See also Steven D Smith, Foreordained Failure (New York: Oxford}

^{University Press, 1995) at 125-126.}

^{80 John Wybraniec and Roger Finke, “Religious Regulation and the Courts:}

^{The Judiciary’s Changing Role in Protecting Minority Religions from}

^{Majoritarian Rule” (2001) 40 Journal for the Scientific Study of Religion}

^427.

^{81 Ibid at 441.}

^{82 “Liberalism’s Religion Problem”, at 25.}

Writing in 2002, Carter concluded that neither non-Christian, non- mainstream faiths, nor dissenting Christians, had fared well in recent years “as the courts have more or less abandoned any serious protection of religious liberty as a distinct constitutional right.”⁸³

This leaves the legislature as the main protector. This of course has its risks, particularly for smaller and less popular religious groups. Such groups may lack enough influence in the political process to garner support for an exemption for them.⁸⁴ One would think a community such as the Catholic Church can barely still, if it needed to, lobby effectively to secure its right to ordain only men as priests, whereas Rastafarians would struggle to convince Parliament they deserve an immunity to permit them to consume marijuana as a sacrament.⁸⁵

The overall pattern seems unlikely to change. First, the modern welfare state will continue to penetrate deeply into most areas of society. Second, the prevailing worldview of those in power will remain antagonistic to those religionists it perceives to be “exclusivist” “bigoted” and “unreasonable”. Justice Scalia suggested recently that: “one need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction.”⁸⁶ Mary Ann Glendon, of Harvard Law School, similarly comments:

The current [US Supreme] Court majority has pressed forward with a six- decade long trend of cabining religion in the private sphere while eroding protections of the associations and institutions where religious beliefs and practices are generated, regenerated, nurtured, and transmitted from one generation to the next. . . .

If the present trend continues, it is not fanciful to suppose that the situation of religious believers in secular America will come to resemble dhimmitude

– the status of non-Muslims in a number of Islamic countries. The dhimma is tolerated so long as his religion is kept private and his public acts do not offend the state religion.⁸⁷

Conservative religion is increasingly viewed negatively by the general populace. A UK survey this year indicated that 6 out of 10 Britons believed that all religion was fundamentally sexist and 56 percent thought religions discriminate on grounds of sexual orientation.⁸⁸

Third, some devout believers will continue to defy the spirit of the

⁸³ Ibid.

^{84 Smith, Foreordained Failure, at 126.}

^{85 Here I adapt an illustration from Carter, “Liberalism’s Religion Problem”,}

^{at 25.}

^{86 Dissenting in Locke v Davey, [2004] USSC 16; 540 US 712 at 733 (2004)(Thomas J}

^concurring).

^{87 “The Naked Public Square Now: A Symposium”, First Things, November}

^{2004, 11 at 13.}

^{88 “Survey: Most Britons Say Religion is Sexist, Discriminates Against Gays”,}

^{Christian Post, 19 May 2008. On the other hand – and this demonstrates the}

^{ambivalence toward religion – over two-thirds of the survey respondents}

^{said they thought religion had a place in modern life.}

times. In the case of Christianity, believers are urged: “Do not conform any longer to the pattern of this world, but be transformed by the renewing of your mind.”⁸⁹ Carter comments: “These resisting faiths, as we might call them, are those that insist on teaching different meanings from those imposed by the state, even in the face of public disapproval or, in many cases, actual state pressure.”⁹⁰ Christians always have a dual allegiance, “two sets of loyalties and obligations.”⁹¹ They are to obey civil authority and God, but in the event of a conflict, the first and higher duty is to God.⁹²

VI An Illustration: Religious Vilification Law

In 2004 an Australian tribunal ruled that two Pentecostal pastors, and their evangelical organisation, Catch the Fire Ministries, had engaged in religious vilification of Muslims in the statements they had made at a seminar in 2002 and in the Ministries’ website article and newsletter.⁹³

The seminar was called “Insight into Islam: What is holy Jihad?” and the speaker was a Pastor Daniel Scot, an Assemblies of God pastor. Pastor Scot had been born and raised in Pakistan and had fled that country when accused under Pakistan’s blasphemy law. Ironically, he was to become the catalyst for major public controversy in his adopted country. The purpose of the seminar, conducted at a Melbourne Pentecostal church attended by some 200 to 250 people, was “to encourage Christians to testify to Muslim people about the Christian faith, and for that purpose to equip Christians with a knowledge of Muslim beliefs.”

Three converts to Islam attended the seminar and lodged a complaint, claiming that it incited hatred against Muslims. The Islamic Council of Victoria also became involved. Following unsuccessful attempts at reconciliation, the Victorian Civil and Administrative Tribunal ruled, in

2004, that there had been a breach of the Racial and Religious Tolerance Act 2001. Pastor Scot had given what was, in the Tribunal’s view, an “unbalanced”⁹⁴ discussion of Muslim religious beliefs and conduct. He had supposedly “made fun” of Muslim beliefs and practices, presenting

⁸⁹ Romans 12:2.

^{90 “Liberalism’s Religion Problem”, at 25.}

^{91 Michael McConnell, “Religious Souls and the Body Politic”, Public Interest,}

^{Spring 2004, 126 at 128.}

^{92 Speaking of the Christian position, Charles Colson, explains: “where a}

^{state either demands what God prohibits or prohibits what God demands,}

^{the believer is to obey God and graciously accept the state’s imposed}

^{consequences.”: “Kingdoms in Conflict”, First Things, November 1996,}

^{34 at 35. See also Acts 4:29. See further Kent Greenawalt, “Conscientious}

^{Objection, Civil Disobedience and Resistance” in John Witte Jr and}

^{Frank Alexander (eds), Christianity and Law: An Introduction (Cambridge:}

^{Cambridge University Press, 2008) ch 5.}

^{93 For a full discussion and detailed references, see Ahdar, “Religious}

^{Vilification: Confused Policy, Unsound Principle and Unfortunate Law”}

^{(2007) 26 U Qld LJ 293.}

^{94 [2004] VCAT 2510 at [384], [389].}

them in a fashion that was “essentially hostile, demeaning and derogatory of all Muslim people.”⁹⁵

Now there is no doubt that the speaker did not mince his words and the seminar contained controversial assertions about Muslims’ attitude to women and to people of other faiths and many blunt quotations from the Qur ’an that suggested Islam was not such a peaceful religion as its followers claimed. All the statements critical of Muslim teachings were, nonetheless, accompanied with constant exhortations by Pastor Scot to accept and love Muslim people.

The newsletter written by a Pastor Daniel Nalliah and the website article were also found to infringe the Act and both pastors were ordered to publicly apologize in the form a specified statement of apology. The pastors stubbornly refused to comply.

The saga continued and in 2006 the Court of Appeal of the Supreme Court of Victoria⁹⁶ found the Tribunal had erred on a number of interpretive points and remitted the matter back to be re-heard. The orders requiring a public apology were set aside. The proceedings were finally resolved without the need for a rehearing. After mediation between the parties, an agreement was reached in June 2007 to end the long-running five-year battle – one that had cost the defendants more than $500,000. Hands were shaken and a joint public statement was issued whereby each side affirmed the dignity of each other and the rights of each to “robustly debate religion”.

The Catch the Fire case is an inglorious example of a religious vilification

^{law in action.}

Recently, the United Kingdom and three Australian states introduced laws prohibiting religious vilification – using words that might incite hatred towards people because of those citizens’ religious beliefs and conduct. In 2005 New Zealand considered introducing a similar law⁹⁷ but so far nothing has come of it. Last year the issue briefly raised its head. A conference in Auckland led by an Australian pastor, and organised by Christian missionary groups, warned of the dangers of Islam. Visiting firebrand United Kingdom MP, George Galloway, lambasted the conference as nothing more than “Islamophobia” and “spreading poison”, something that would be banned under British law.⁹⁸

⁹⁵ Ibid at [383].

^{96 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA}

^284.

^{97 The Government Administration Select Committee conducted an}

^{inquiry into hate speech, including religious hate speech. The majority}

^{of submissions were firmly against it: see Stuart Dye, “Backlash on hate}

^{speech proposal”, NZ Herald, 18 March 2005; Andrew Butler and Petra}

^{Butler, The New Zealand Bill of Rights Act: A Commentary (Wellington:}

^{LexisNexis, 2005) at 366.}

^{98 Simon Collins, “Evangelist – Muslims want ‘to rule over the whole}

^{world’”, NZ Herald, 28 July 2007; “Provoking religious hatred should be}

^{crime – MP”, 28 July 2007: www.stuff.co.nz/print/4143199a6160.html.}

Religious vilification laws have the entirely laudable aim of promoting religious tolerance pursuant to the broader policy of fostering multiculturalism. But the Catch the Fire case demonstrates the counterproductive effects of a policy to legislate for tolerance.

There is something inherently paradoxical about “enforcing tolerance”⁹⁹ or “coercing virtue”.¹⁰⁰ The cultivation of a true and authentic tolerance for one’s neighbour is surely the job of the institutions of civil society

– those “mediating institutions” such as the family, schools and churches. The law is a blunt and poorly designed tool for this purpose.¹⁰¹ But liberalism is not sure it can leave the task of values formation to the community – after all, it sighs, look at the intolerant, bigoted attitudes some citizens display.

Liberalism seeks impatiently to mould its citizens. As liberal theorist Stephen Macedo says, “there is no reason to think liberal citizens come about naturally”.¹⁰² Similarly, “we need to avoid making the mistake of assuming that liberal citizens – self-restrained, moderate, and reasonable

– spring full-blown from the soil of private freedom.”¹⁰³ No, if a liberal society is to prosper the state “must constitute the private realm in its own image, and it must form citizens willing to observe its limits and able to pursue its aspirations.”¹⁰⁴

Religious vilification laws and Catch the Fire show how hegemonic liberalism seeks to refashion serious religion into something fit for liberal society.

First, there is the state penetration into the private sphere. The seminar, although advertised to the public, was given at a church and was essentially an “in house” exercise to educate other believers so they could reach out to them. Yet the state’s interest in its citizens’ having “right” attitudes to people of other faiths extended into this forum.

Second, there was the emphasis the trial judge placed upon the need for a “balanced” presentation of Islamic beliefs. While one judge did point out that it was not for a secular tribunal to evaluate the theological accuracy or propriety of what was said, such an exercise is hard to avoid. It seems wrong to require an evangelist or other religious preacher to become a sort of impartial, “open minded” purveyor of information – in

⁹⁹ Patrick Parkinson, “Enforcing Tolerance: Vilification Laws and Religious Freedom in Australia”, paper delivered at the Eleventh Annual International Law and Religion Symposium, “Religion in the Public Square: Challenges and Opportunities”, Provo, Utah, 3-6 October 2004. A revised version of this address is published in (2007) 81 Aust LJ 945.

¹⁰⁰ Robert Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington: AEI Press, 2003).

¹⁰¹ See David A Skeel and William J Stuntz, “Christianity and the (Modest) Rule of Law” (2006) 8 U Pa J Cons L 810.

^{102 “Transformative Constitutionalism”, at 58.}

^{103 Ibid at 59.}

^{104 Ibid at 58.}

other words to squeeze them into the liberal ideal.¹⁰⁵

Third, the truth of the statements about Islam was, the Tribunal ruled, no defence to a breach of the Act, which is concerned with whether upset or hatred is stirred up. But for the devout believer, truth is primary. One cannot refrain from proclaiming the truth because feelings are hurt or liberal sensibilities ruffled.¹⁰⁶

Fourth, in deciding whether the defence set out in the Act was met, the court unerringly voices the liberal attitude to religion. The speaker is protected where the conduct complained of is “engaged in reasonably and in good faith.” What is “reasonable” is what would be so regarded “by reasonable persons in general judged by the standards of an open and just multicultural society.”

When those given the freedom to express their religious views do so in a manner that the hypothetical reasonable and tolerant person considers excessive, the limit has been reached. Unacceptable religious expression is that which the tolerant find intolerable. Open multicultural societies can tolerate some criticism by adherents of one religion of another. But there is a limit, namely: “when what is said is so ill-informed or misconceived or ignorant or so hurtful as to go beyond the bounds of what tolerance should accommodate that it may be regarded as unreasonable.”¹⁰⁷

As a practical guide to the operation and scope of the law, these broad statements about the limits of tolerance are entirely circular and vacuous. We might learn the limits of religious criticism after a tribunal has discerned the reactions of the hypothetical tolerant citizen, but not before then.

The message behind this is clear though. Public religious sentiment must satisfy the liberal litmus test of being “reasonable”. And what is “reasonable” is seems to be a tamed, soft-edged version of the faith.

Catch the Fire illustrates that a law to promote religious tolerance can do the opposite and increase religious friction and suspicion. It may be used to effectively “chill” religious speech, to muzzle religious people from bearing public witness or tempt them to either abandon the more inconvenient truths of scripture (concerning the world’s “guilt in regard to sin and righteousness and judgment”¹⁰⁸) or at least water-down the message to make it inoffensive. The New Testament may teach that the preaching of the cross brings offence,¹⁰⁹ but that is no answer in modern

¹⁰⁵ See Joel Harrison, “Truth, Civility, and Religious Battlegrounds: The Contest Between Religious Vilification Law and Freedom of Expression” (2006) 12 Auckland ULR 71 at 80.

¹⁰⁶ As Drew and Roper, “Worldviews in Conflict”, at 40 put it: “We cannot disregard the [Christian] story for the sake of a secularly dictated peaceful co-existence with those with whom we might otherwise come into conflict. To do so is to fail to enter into the conditions of authentic discipleship. It is to allow a plurality of other stories to shape us.”

^{107 [2006] VSCA 284 at [98].}

^{108 John 16:8.}

^{109 Galatians 5:11.}

^{multicultural society.}

Evangelism is an integral part of exercising one’s religious liberty.¹¹⁰

^{For instance, in the Christian faith, it is not just as a suggestion but a}

^{duty to “witness” and to preach the Gospel to all nations.111 But such}

^{speech, especially where it advances strong truth claims and indirectly}

^{points to the falsity of other beliefs, may be seen as an instance of}

^{religious intolerance. For a secular tribunal, operating on the unspoken}

^{assumptions of liberal thought, it may represent nothing less than}

^{illegitimate religious hate speech.}

VII Conclusion

One challenge to religious freedom is self-inflicted. It comes in the form of strident, knee-jerk reactions by religious people to infringements of their religious practice. It would be wise to avoid “the wages of crying wolf.”¹¹² Certainly, real restrictions upon religious conduct ought to be resisted. An expanding bureaucratic state that seeks to mould its citizens into its own open-minded, liberal image will continue to jostle with both conservative, truth-affirming, traditional believers, as well as the comparatively newer and smaller, but similarly countercultural and unpopular, religions. And there is something in “thin end of the wedge” type arguments that prompt battles on the small encroachments lest they develop into wider curtailments of freedom. That said, believers who make too much of every minor infraction of their conduct face the danger of more serious restrictions falling upon deaf ears. There is a time for everything and believers of whatever faith must choose their battles.

Besides, testing and pressure is not necessarily a bad thing for a religious community – at least in the abstract. We might recall the stirring words of Tertullian, “The blood of martyrs is the seed of the church.”¹¹³

The early history of Christianity witnessed spasms of persecution which, paradoxically, led to growth. On the other hand, one would be wise not to be too blasé about it. History also tells us that sustained religious repression has choked many a budding stripling of faith. In addition, many believers today might lack the resolve of their predecessors.

In the end, a devout Christian, Muslim, Rastafarian, Buddhist, Sikh, Hindu or atheist, cannot look to the state nor the courts for the full safeguarding of their beliefs and practices. As Judge Learned Hand once put it:

I often wonder whether we do not rest our hopes too much upon

¹¹⁰ See eg the European Court of Human Rights in Kokkinakis v Greece (1993)

^{[1993] ECHR 20; 17 EHRR 397 at 426.}

^{111 See eg Matthew 28:19.}

^{112 John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v Wade”}

^{(1973) 82 Yale L J 920.}

^{113 Quoted in James Wood, “Biblical Foundations of Church-state Relations”}

^{in James Wood et al (eds), Church and State in Scripture, History and}

^{Constitutional Law (Waco: Baylor University Press, 1985) at 54.}

constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.¹¹⁴

But even the hearts of one’s fellow citizens may be hardened and unable to extend much sympathy to the believer in times of trouble or persecution. Those co-religionists who share one’s faith may also distance themselves when affliction comes.

In the end, it may be that resistant believers will have to draw from the deepest convictions and the unquenchable faith that has brought them to this very moment of crisis.¹¹⁵

¹¹⁴ “The Spirit of Liberty”, a 1944 address given at Central Park, New York, in Irving Dilliard (ed), The Spirit of Liberty: Papers and Addresses of Learned Hand (New York: Alfred Knopf, 1952) at 189-190 (italics added).

¹¹⁵ For Christians who find themselves in this quandary in “the last days” they must turn to God himself and console themselves with the words of St Paul (Romans 8:35-39): “Who shall separate us from the love of Christ? Shall trouble or hardship or persecution or famine or nakedness or danger or sword? As it is written: ‘For your sake we face death all day long; we are considered as sheep to be slaughtered.’ No, in all these things we are more than conquerors through him who loved us.”