Readers may remember last month’s controversy in Victoria when it was suggested that certain exemptions religious organisations enjoy from the Equal Opportunity Act should be removed. The move drew attention to the apparent conflict between freedom of religion and freedom from discrimination.
Now comes an interesting counterpoint from the UK: the Equality and Human Rights Commission has begun legal action against the extreme-right British National Party for allegedly breaching the Race Relations Act by restricting its membership to white people. (The party tries to avoid using the term, but that is clearly what its elaborately stated restrictions are intended to achieve.)
One can try to distinguish the two cases: being denied employment is directly harmful in a way that being denied membership of a political party is not, and while it’s possible to answer the question of why gay people might want to work for the Catholic church (after all, a job is a job), it’s harder to see why black people would want to join the BNP. Nonetheless, the same basic conflict is at work in both.
Just as the Victorian proposal raised echoes of religious persecution to some, the British move is reminiscent of the many countries in which particular ethnic or religious groups have been denied political representation by the device of banning “sectional” parties. (The Kurds in Turkey are perhaps the most obvious victims of this.)
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Critics of the Victorian move focused on specifically religious discrimination: Peter Costello, for example, asked “whether the law should require [churches] to employ people who are indifferent or hostile to their religion in their schools.” But that is largely a red herring. No one seriously suggests that churches should have to employ atheist priests, or that the BNP should have to admit people who oppose its racist beliefs. The real issue is about grounds for discrimination that don’t obviously relate to the organisation’s purpose, such as race, gender and sexuality.
But there lies the heart of the problem: someone has to decide what counts as a relevant ground and what doesn’t and under the model of anti-discrimination law that someone is the state.
Like censorship, anti-discrimination law requires the state to assume an omniscience that it does not possess: the ability to decide with finality what words mean, or the ability to set down which parts of an organisation’s doctrine are fundamental to it and which are disposable extras.
Now, maybe racism and sexism are such dangerous beasts that we have to entrust the state with that power for fear of the alternative. But we should be wary of taking that step without full awareness of what we are doing. Beating up on the BNP may be a popular cause, but it could also set some dangerous precedents.