Religious diversity,legislation,and Christian privilege

Abstract

This article examines the role of legal frameworks and everyday interaction in the negotiation of religious diversity in Victoria, Australia. We argue that both formal legal frameworks and everyday interactions are significant in encouraging the respectful negotiation of religious difference. Experiences of historical privilege and visibility impact how religious people and groups experience and understand these processes. Or, put another way, the social position of various faith groups in Australian society shapes how people engage with both legal frameworks such as anti-discrimination legislation, and with other people in everyday interaction. Further, people’s everyday interactions shape their responses towards legal frameworks. Anti-discrimination and anti-vilification laws also shape everyday interactions through an effect that can be described as the ‘shadow of the law’, in which legal decisions communicate information about normative expectations that particular forms of behaviour are acceptable or unacceptable.

Background

This article addresses three interrelated issues. First, it provides a case study of the negotiation of religious difference in Victoria, Australia, drawing on interviews with key stakeholders. More specifically, it is an analysis of the impact of religious anti-vilification and anti-discrimination legislation in Victoria, arguing that the legislation functions to enhance the constructive negotiation of religious difference. Finally, we consider the relationship between law and the everyday negotiation of religious difference, arguing that legislation is a necessary, but not a sufficient, factor for facilitating respectful everyday relationships between members of diverse religions (and those with no religion). The impact of religious anti-vilification and anti-discrimination law is found in its ‘shadow’ (Fokas, 2019), referring to its symbolic function as a promise of protection, and a representation of ideals of how religious diversity should be negotiated, as much as it is found in the consequences of actual cases. We argue that it is this symbolic ‘shadow’ aspect of the law that has the most significant impact on the everyday negotiation of religious diversity.

This article is also a response to calls to examine the impact of the law in the lived everyday practices of people (Babie, 2015; Fokas, 2019). This study focuses on Victoria, and particularly Greater Melbourne. The state of Victoria, Australia, is extremely diverse, both in terms of religiosity and ethnicity. Victoria has developed sophisticated legislative responses to this diversity. Victoria is unique in Australia for having both the Equal Opportunity Act 1995/2010 (anti-discrimination legislation), and the Racial and Religious Tolerance Act 2001 (anti-vilification). While anti-discrimination legislation is common across all Australian states and territories (and at the federal level), the Victorian Racial and Religious Tolerance Act 2001 is unusual (Gelber, 2011) in providing greater protections and avenues for legal redress. With Babie’s (2015) call for a more sociological approach in mind, we focus on how this legislation impacts the practices and experiences of religious people.

The Equal Opportunity Act has not been extensively discussed in the literature. In contrast, the Victorian Racial and Religious Tolerance Act (RRT Act) has been discussed extensively with mixed reviews (Brennan, 2011; Ezzy 2013, 2018; Gelber, 2011). Some see the RRT Act as having no benefits, arguing that it is potentially harmful because of the costs it imposes on participants (Brennan, 2011). Others argue that the benefits outweigh these problems, particularly for members of religious minorities who have benefited from cases brought under the legislation (Gelber, 2011). Mohr and Hosen (2011: 11) argue that the assessment of the usefulness of the RRT Act depends on one’s understanding of the relationship between the law and society:

law [may be viewed as] a minimum set of rules for a viable polity, an instrument for promoting good community relations, or a medium through which we converse with each other. Depending on those views, the case may be seen as a waste of money under a redundant and troublesome law, a necessary but not sufficient approach to challenging prejudice, or an opportunity to learn how to live together in a diverse society.

On the negative side, Frank Brennan (2011: 86) argues that the RRT Act has no benefits. Commenting on the Catch the Fire Ministries case (discussed later), Brennan (2011: 86) argues that ‘There are no grounds for thinking that such litigation does anything to foster greater religious understanding and tolerance.’ Brennan worries about the costs experienced by the pastors involved in the Catch the Fire Ministries case, but seems to have little awareness of the experiences of discrimination and vilification that motivated the Muslim complainants. Somewhat surprisingly, Brennan (2011: 78) goes on to argue that belief in God is required for people to respect human rights. This suggests that Brennan does not have a strong appreciation of the moral worldviews and ethical practices of religious people who are not Christians, or of non-religious people.

In contrast, Kath Gelber (2011: 95) provides a more positive review of the legislation, arguing that while it provides some protection from religious vilification, the protection is ‘far from comprehensive’, and highlights how aspects of the legislation benefit Christians. Reviewing the Catch the Fire Ministries case, Gelber (2011: 106) notes the problematic nature of the ‘love the sinner, hate the sin’ argument that was successfully deployed in this case. Saying that you love someone does not render vilifying comments any less harmful. She compares this to white supremacists’ desire to be seen as ‘decent and human people’ as they adapt their language to make it more ‘civil and respectable’ and therefore palatable. These cosmetic transformations do not change the underlying racism that motivates such actions.

While these analyses of the problems and benefits of the RRT Act raise some important issues, they do not adequately examine how the impact of religious anti-discrimination and anti-vilification legislation is related to the relative historical status and privilege of the religious groups involved. Christian privilege is not simply a product of the substantial financial resources and government funding available to Christians. Christians make up the vast majority of faith-based organisations that receive billions of dollars every year in Australian government funding to provide education, social welfare, health care, and aged care (Bouma, 2012). It also reflects the taken-for-granted nature of Christianity and Christian ideas as reference points for understanding religion. As Beaman (2013: 145) observes: ‘Despite a pervasive rhetorical commitment to religious diversity and religious freedom, the primary basis from which religion is imagined institutionally and against which the citizen self-assesses is a universal Christianity that is expressive of shared values.’ Christian privilege is institutionally embedded in the law and well-resourced organisations, and routinely experienced in everyday practices of discrimination.

The institutionalised nature of Christian privilege is noted by both Elizabeth Hurd (2015) and Saba Mahmood (2015) in relation to the United States, and beyond. Hurd (2015: loc. 103) argues that the current political debates about religious freedom result in: ‘a politics defined by religious difference, [that] privilege forms of religion favored by those who write laws, control resources, and govern societies, and marginalize other modes of belief, being, and belonging’. Similarly, Mahmood (2015) argues that Christian proselytization and the consolidation of Christian influence over the modern state has often been facilitated by legal arguments for religious liberty. More specifically, with reference to Australia, Luke Beck (2018: loc. 951) observes that ‘Australian social and political history is littered with examples of Protestant religious groups seeking to influence the law in areas of “morality” where their own rights to freely practise their own religion are not at stake.’

Our initial research questions were not primarily about Christian privilege (which emerged as significant through the research process). Rather, we began with questions about the relationship of ‘legal frameworks’ and ‘everyday interaction across difference’ (sometimes abbreviated in the discussion below to simply ‘interaction’). These questions were informed by our previous research on both the impact of religious anti-discrimination legislation (Ezzy, 2013, 2018) and everyday practices of equality in the context of diverse religiosities (Beaman, 2017). Our analysis suggests that what is required is an examination of the relationship between legal frameworks and everyday interaction across difference.

The research focuses on a key tension point in the negotiation of religious difference: the role of Victorian anti-discrimination and anti-vilification legislation. Cases drawing on this legislation are typically heard first in the Victorian Civil and Administrative Tribunal (hereafter ‘VCAT’). VCAT deals with a range of cases relating to religious conflicts. The most publicised and discussed case is that of the Islamic Council of Victoria v Catch the Fire Ministries Inc. (Final) (2004). It involved an allegation that the evangelical Christian group Catch the Fire Ministries had vilified Islam at a public event (Deen, 2008; Ezzy, 2013). Other cases have related to discrimination in Christian schools. For example, in Rocca v St Columba’s College Ltd & Rogers (2003), an Orthodox student alleged she was discriminated against by a Catholic school because of her Orthodox religion.

The impact of laws such as the Victorian RRT Act is both shaped by, and shapes, the everyday negotiation of religious difference. This effect is clearest in the impact of religious visibility and privilege. Visibility and privilege include how religious Australians feel that their religion, and other religions, are perceived and engaged with in the public sphere. In particular, Christian privilege and positive media representations produce a response to legal frameworks among Christians who interpret legal challenges to their privilege as a threat to their religious freedom. In contrast, everyday experiences and representations of minority religions in the public sphere are much more problematic, often involving discrimination. As a consequence, members of minority religions see laws as providing both a concrete pathway toward, and a symbolic representation of, more respectful and egalitarian approaches to religious diversity. The experiences of our participants are not representative of the experiences, perceptions, and concerns of all people of their religion. However, we argue these experiences reflect broader processes of values, debates, and power hierarchies in religiously diverse contemporary Australia.

Method

Participants were sought who could provide information on what we identified as ‘critical cases’ with respect to the role of the Victorian legislation in the negotiation of religious difference, beginning with participants in cases brought before the VCAT. Critical case sampling seeks to identify cases where the issues or processes under examination are most likely to be observed in a way that allows the research questions to be addressed (Rice and Ezzy, 1999). Each interviewee had two or more of the following characteristics: they had been substantially involved in various forms of religiously related litigation, subjected to legal and/or police action, substantially involved in interfaith negotiations, and/or were well networked in their community with extensive knowledge of practices and engagement with community-related projects. Utilising these selection criteria, we recruited 12 religious representatives in suburban Melbourne. The interviewees also reflect the diversity of religious groups in Melbourne – particularly with reference to the inclusion of minority religions and people who were born outside of Australia and do not speak English as their first language. The interviewees did not include high-profile media commentators, as we sought to focus on the lived experience of religious people. They were recruited by contacting them using publicly available information, and then by snowballing. ¹ The interviews took place between May and October 2019. The research was approved by the University of Tasmania Human Research Ethics Network.

One challenge associated with recruiting people who have appeared before VCAT is that many cases are resolved through mediation, and are therefore not recorded in case law, and often not reported in the media. This is one positive aspect of the legislation discussed below – it encourages resolution through mediation rather than litigation. However, it makes it difficult to identify many of the cases that are dealt with by VCAT. Our sample therefore includes people who have appeared before VCAT, people who have been involved with or supported people who have appeared before VCAT, and people who, for other reasons, have important perspectives on the law and the everyday negotiation of religious difference.

Specifically, the interviewees included a Catholic priest, an Asian-born Catholic, a Sikh who had migrated to Australia, a Muslim who is a leader of his local community and also a recent migrant to Australia, a Pentecostal pastor, two Protestant pastors, a Latter-day Saint (Mormon), a Pagan, two members of a stigmatised new religious movement, and a manager of a Christian organisation that had appeared before VCAT. All interviews were transcribed using Trint and coded and analysed thematically using NVivo. In order to protect the anonymity of participants, in the discussion we are sometimes deliberately vague about some specifics of the cases, religious affiliations, and organisations in which participants were involved.

We use the terms ‘Christian’ and ‘minority religions’ to differentiate a basic division within the interviews. We use ‘Christian’ to refer to members of Christian religions that have privileged positions in Australia: Catholics, Protestants, and Pentecostals. We use ‘minority religions’ to include Sikhs, Muslims, Pagans, members of the new religious movements, and the Latter-day Saints (LDS). LDS are a member of both categories: Christian and a minority religion. However, the experiences of the LDS we interviewed fit most closely with those of the minority religion category, so are classified with them. This classification is based on the empirical nature of the described experiences, and should not be seen as any theological or cultural assessment of the place of the LDS religion as a Christian religion.

The interviews had three foci: the nature of the religious community the participant was part of (including the ethnic diversity of that community); the theologies and practices of the negotiation of religious difference between the interviewee’s religion and members of other religions; and (if applicable) a detailed discussion of the particular VCAT cases in which they had been involved. The focus of the discussion about VCAT cases was less on the specifics of the case, and more about the impact of the case on the relevant religious community/organisation.

Findings

There are systematic and very significant differences in the way religious groups experience VCAT and the Victorian anti-discrimination and anti-vilification legislation. This is particularly noticeable in participants’ recommendations for how to negotiate religious difference. With some important exceptions, Christians in our sample tend to feel that difference can primarily be negotiated and resolved informally. Anti-discrimination and anti-vilification laws are viewed as required only for extreme cases, or even as unnecessary. In contrast, members of minority religions tend to see informal negotiations as inadequate to address the systemic forms of discrimination they experience. For them, legal cases are important as part of a process of changing the socially embedded nature of the discrimination and vilification they experience.

The Catholic priest discussed both these dimensions. He described how the Islamic Council of Victoria came to the Catholics for help with the Catch the Fire Ministries case, because ‘we get on well together . . . we’d met them before’. He went on to say:

I think you need both [legislation and relationships], of course. But I think it’s most important to have all those networks and that meeting. So people meet each other and work together in all sorts of ways, conversations, you name it, and then they begin to appreciate each other, they understand each other. Laws by themselves are very important, but they don’t really . . . they’re not sufficient. It is very important to have the right legislation so that the people are protected from vilification and all sorts of these glass ceilings and things. But that by itself is not enough.

Here the Catholic priest is confident that network building and informal conversations are generally sufficient for sustaining respectful relationships across religious difference. The legislation is important for the more extreme forms of vilification and discrimination that occur. Among the Christians, the Catholic priest was the most positive about the legislation.

In contrast, members of minority religions tend to see the law not only as ‘an instrument for promoting good community relations’ (Mohr and Hosen, 2011: 11), but also as a framework that facilitates social change in everyday practices. For example, the Sikh participant, drawing on his experience living on the Indian subcontinent and in Australia, said:

Both [laws and everyday interactions] are important, but at this stage, when they will take time for the acceptance [on the] community level, I think at this stage laws are very important . . . sometimes the acceptance doesn’t happen if the law is not there. Like, for example, the caste system in India. So when the Constitution came into effect in 1950, the Constitution said everyone is equal. But if they would have left it open, the people from the lower class, they would have never got a job.

Legal frameworks and everyday practices of respect are understood in different ways for members of different communities. Members of minorities, with substantial experiences of vilification, discrimination and harassment, are much more aware of the everyday and culturally embedded nature of discrimination and vilification. They have a stronger sense of the value of the law as a way of both preventing the worst aspects of vilification and discrimination, and of facilitating a transition of culture and practice to the more respectful negotiation of difference. Christian privilege tends to result in Christian participants downplaying the significance of the laws, emphasising the value of everyday relationships. With important exceptions, they are typically unaware of the privileges they enjoy and the discrimination experienced by members of minority religions. Christians perceive current social relationships as basically egalitarian, with minimal requirement for fundamental change.

Discrimination

Participants’ reports of concrete experiences of discrimination are heavily concentrated among the minority religious participants, particularly related to Muslims. The Muslim participant provided several examples of discrimination and harassment experienced by members of his community, including his wife (who wears a niqab) being honked at by car drivers, the vandalising of a halal shop and a place of prayer, and his concerns about the negative perception of Muslims in the Australian media. Relating these issues to police engagement with his local Muslim community, he said:

[When the halal shop was vandalised] police have been informed, police know this and they put a camera in.… Police are always supportive. Yes. Yeah.… [They] come to the [Islamic] school, yes . . . when the Christchurch incident ² happened, and for the next few Fridays, I saw the police. They are in the Friday prayer places. They are just keeping an eye. [It made me] feel good [that] the concern is there. I mean, the safety of the Muslim people.

Concerns about negative perceptions of Muslims were also echoed by the Catholic priest and the LDS participants. The Sikh participant also described instances of Sikhs being harassed or assaulted:

Many times . . . you hear here and there that there was an incident like someone coming getting out of the train and got pushed and [that sort of thing] . . . that could be sort of a criminal behaviour as well, like not just focusing on the Sikh people, yeah, but someone who feels a bit different or new to the country who can be sort of pushed easily.

Finally, a few participants noted that while Australia’s legal system may afford some protection for minorities from acts of public discrimination (such as employment discrimination), discrimination could still be experienced on a private level. As the Muslim participant put it: ‘from the legal or from the administrative point of view, anybody can’t discriminate to anybody. But in the private [level], in a micro level, those kind of discrimination can happen.’

The Pagan participant described the anti-vilification legislation as ‘a civilised method of redressing . . . victimisation’ of Pagans. He discussed the case relating to Pagans in the Melbourne suburb of Casey involving a city councillor calling for a ‘day of prayer’ against the threat of ‘Satanic cults’, and singling out unsuccessful council candidate Olivia Watts who was subsequently assaulted (see Ezzy, 2013). Olivia Watts was, in fact, a Wiccan, and not a Satanist. Reflecting on this situation, the Pagan participant discussed using the framework of ‘religious tolerance’ as a way to defend against stigmatisation and misconceptions about Paganism.

What is striking about these accounts is that the members of the minority religions are concerned to avoid acts of violence, harassment, and discrimination. The discrimination and harassment prevent them from being treated equally to other members of Australian society – a halal shop is vandalised, a Muslim stall can’t be run at an interfaith event, a Sikh is pushed off a train, a Pagan is assaulted. They are not seeking to impose their religious beliefs or practices on others. Rather, they are seeking to have the right to practise their religion and participate equally in society without discrimination or harassment. They see the law as a formal statement of these requirements that they hope will lead to less discrimination in their everyday lives. This highlights the role of anti-discrimination and anti-vilification legislation as providing a cultural context for making sense of experiences of discrimination and vilification for members of minority religions.

The Sikh participant frames ‘accepting difference’ as an important way to allow members of minority communities to maintain their identities. For him, Australia’s legal commitment to human rights is important:

with the Australian community and Australian law, I think that the main reason for me staying over here is [because] everyone is treated equal. There is more freedom.

He went on to discuss the case of Arora vs Melton Christian College – in which a Sikh family argued that their son was being discriminated against in not being allowed to wear a patka to school . Participants from minority religions typically described legislation as allowing people to pursue the opportunities and services to which they are legally entitled access:

if the school is not allowing [students who are] practising Sikh[s], then it’s sort of a big trouble for the community that they are not being accepted as they are . . . [if the school] just let it be a Christian school, not allow any other communities to come in – that is acceptable. And people can find their other colleges or schools. But if they are allowing people from other communities to get in, then it should be equal opportunity. (Sikh)

For members of minority religions, religious anti-discrimination and anti-vilification legislation are symbolically significant. They provide them with a sense that the discrimination and vilification they do experience is not socially endorsed. The vandalisation of a Muslim place of prayer is understood as illegal, and not a reflection of more general social values. Similarly, discriminatory practices in schools can be challenged, and changed. Preventing such discrimination and vilification requires more than legislation, but it provides an essential backdrop to the process of cultural transformation.

Christians

In contrast, Christian participants’ concerns are quite different. They are framed by a perceived decline of Christian influence in the public sphere:

For the first time in a very long time, Christians are finding themselves more and more on the outer, whereas it used to be a lot more that Christianity was accepted and it was respected. And whereas now I think Christians are finding that they are more on the outer, they [are] more likely to be rejected, criticised for their values. (Protestant2)

I feel like because of political correctness or whatever it might be, people shy away from being real about what they believe, which is what the Bible says. [In] context and all the rest. [But] I don’t shy away from the realities of what Christianity is because I think people are too scared to say what the Bible says because they’ll be labelled. (Pentecostal)

What is striking about these concerns is that they are not about the desire to be treated equally, but the desire to have Christian voices and values heard by others, including those who are not Christians. They also seem surprisingly unaware of the harm and violence that can result from the expression of these views. Their comments and concerns about religious freedom and freedom of speech illustrate this.

I would probably be concerned in in general of any legislation that comes in that I can’t voice my opinions…. I kind of understand where people are bigoted and forcing opinions and not doing it out of love. [But] I just need to be able to say what I believe and share what I believe…. It does concern me a little bit because I hear little bits here and there of how, you know, potentially as a pastor, I won’t be able to preach the Bible because – because of whatever legislation is in place. (Pentecostal)

I didn’t think [the backlash against Israel Faloua] ³ was right . . . we believe everybody has a right to their faith, their beliefs, their values, and everyone has a right to speak them. Doesn’t mean I agree with what he said or how he said it [but] he does have the right, I believe, to speak out. (Protestant2)

Note the structure of these arguments. They focus on the right to express opinions that may be discriminatory: attitudes toward LGBT+ people (Protestant2), for example. They do not focus on issues of vilification, violence or discrimination against Christians such as those described by the members of minority religions.

However, not all Christians shared this understanding of the legislation. Discussing the Catch the Fire Ministries case, the Catholic priest clearly described legislation as a way of protecting minority communities – in this case, Muslim Australians – against problematic mischaracterisation and vilification:

I was entirely in favour of it . . . because I think the type of meetings [Catch the Fire Ministries] were having and what they're saying at meetings, it was just abusive. And they’re public meetings . . . and to speak incorrectly, distortedly about anyone is, I think, something that really shouldn’t happen. Now, if it was just a passing thing, we would forget about it. But there’s a constant attack on Muslims in a whole variety of ways.

These comments by the Catholic priest point to the cultural context of increasing religious diversity in Australia, in which members of minority religions experience discrimination and vilification. The constraints on Christians that concern the Protestant and the Pentecostal are seen as relating to the right to act and speak according to their values. These constraints largely arise from the requirement to treat ‘others’ with respect: to not make derogatory, discriminatory, or vilificatory statements about Muslims, LGBTQ people, women, or other groups, and to provide members of these groups with equal access to publicly available programs and facilities, such as publicly funded education.

This pattern is illustrated in Christian concerns about religious anti-discrimination legislation. Protestant1, Protestant2, Christian3, the Catholic priest, and the Pentecostal all expressed concern about the right of Christian organisations to hire employees or volunteers on the basis of shared values, and/or conduct their business on the basis of self-determination and Christian values:

To think that . . . people, staff members could be employed who did not share that value – is very difficult for us…. I think [Christian organisations] should be allowed to employ people [who] share the same values so that [their work] can be done in the best way possible. (Protestant2)

If one in four children are in Catholic schools and the [government] made the Catholic school system impossible to continue – what would the government do? So there’s got to be a bit of take both ways and to allow the religious organisation to be true to itself, otherwise it must logically close down…. This issue is coming up in overseas more than Australia . . . but I can imagine a time when it would become intolerable and the Catholics have to close shop. (Catholic priest)

The challenge would be . . . if we were unable to recruit and appoint people who were in belief and practise [as] Christians. That that would be, um, an assault on our identity…. I think being self-defining, self-determining, self-identifying is a really important prerogative. (Christian3)

Again, what is striking about these observations is the standpoint of privilege from which they are spoken. Each of these quotations refers to Christians working in organisations that receive substantial portions of their funding from government sources to provide services to the general public, such as a Christian school, or a Christian social welfare organisation. These observations are not about the rights of Christians to employ or discriminate in churches, or to engage in basic practices relating to their religion, about which there is no debate. Neither are they about Christians being discriminated against or vilified. Rather, they are about the right of Christians to themselves engage in discriminatory practices in their involvement in the provision of government-funded social services for the general public.

Minority religions

Members of minority religions described very different experiences of public ‘resistance’ to their own faith, even while the specific nature of this resistance varied considerably. Non-Christian participants expressed concerns about facing stigma when publicly practising their faith. Controversies surrounding the building of mosques in Australia is a good example of this. As the Muslim participant argued:

So some Muslim community, they want to build up that mosque [in Bendigo, a regional Australian city] and then it has gone up to the high court or something . . . if there can be like two different kinds of church and the pagoda and all these things, then why not a, why not a mosque can happen? . . . two, three, four different kind of church, Catholic churches, Anglican church…. The Hindu temples are there. The Sikh, Sikh temples are there . . . but whenever [Muslims] want to make something . . . [whenever] any Muslim do anything wrong, it goes into the media. Whenever a non-Muslim do anything wrong, it goes [under] the ground.

Reflecting on a public event associated with Islam – an interfaith Iftar dinner – the LDS participant noted that the event was seen (unnecessarily) as a possible security issue:

[The Iftar dinner is] again, a good community event.… [I] remember the first one we did, they said, ‘oh you better have the police there for security’ and the police came along. But there is no need for any security . . . we’ve never had any problems.

Minority groups may also be concerned about practising their faith too publicly. The Sikh participant thought that there were Sikhs in Australia who did not engage in practices such as wearing a turban or having uncut hair, because of concerns about discrimination. However, he also described a growing trend of Sikh migrants raising their children to be observant (e.g. wearing a patka) due to concerns about erasure of Sikh culture. The Pagan participant was similarly concerned about practising in his backyard, for fear of reprisals. Finally, the new religious movement participants noted the stigma they had experienced meant that some members of their congregation were unwilling to be publicly identified as such.

The concerns of members of minority religions focused on their rights to be able to engage in core practices of their religion: the building of a mosque, having an Iftar dinner, wearing religious clothing, and publicly identifying with one’s religion. None of these contexts involved government funding for the religious organisations involved, and none of them involved members of minority religions seeking to discriminate against others. These differences between Christian and minority religion participants demonstrate very different experiences of both everyday interactions and legislation.

Accepting difference

All participants discussed principles of accepting differences and having respect for others of different religions. However, the specific ways in which participants experienced, practised, and valued these principles varied. For the members of minority religions, the acceptance of difference was something to be embraced as part of participating in a religiously, ethnically, and culturally diverse society. Working in health care, the Muslim participant framed his engagement with his patients through the Hippocratic Oath, citing his ethical obligation to treat all patients with equal respect. For him, this includes those patients whose issues he might find challenging or uncomfortable, such as LGBT+ patients, or patients seeking an abortion.

For some participants, formal interfaith engagements offer a sense of ‘protection’ against tensions and discrimination. The LDS participant sees his local interfaith network as an important part of responding to increasing diversity in Greater Melbourne, and reflected on how interfaith had helped the LDS community to strengthen connections and counter discrimination in the local community. Similarly, the Catholic participant describes interfaith and learning about others as a way to challenge misconceptions and assumptions, and to learn to ‘agree to disagree’ harmoniously.

Conversely, most of the Christian participants tend to see the ‘acceptance of difference’ in a more abstract way, specifically resisting concrete practices that might result in engagement with religious ‘others’. For example, Protestant1 says he holds a ‘traditional Christian definition of tolerance . . . we’re all for religious freedom and religious diversity’. But the congregation of Protestant1 would not be inclined to participate in interfaith events, and would have concerns about interfaith marriage. Protestant1’s use of the word ‘tolerance’ here is illuminating. It illustrates Beaman’s (2017: 1) point that talking about ‘tolerance’ is a way of ‘effectively maintaining the status quo, preserving the hegemony of religious majorities and indeed of cultural majorities’. Recalling attempts to engage with other Christian churches in community service, the LDS participant describes experiences of other denominations ‘gatekeeping’ Christianity, and avoiding interfaith engagement: ‘they weren’t too enthused about it. Because what happens . . . it really depends on the local leader, your local group. But there’s still some people don’t consider our [LDS] church Christian.’

Not all Christian participants take these exclusionary views, as the comment from the Catholic priest above illustrates. He was heavily involved in interfaith dialogue in concrete ways that demonstrate respect and engagement. Victoria has a strong interfaith movement (Halafoff, 2013), and it would be a mistake to characterise more general patterns in Victoria from the small sample of Christians in this study. Similarly, not all members of minority religions are enthusiastic about interfaith negotiations.

Discussion

This research focuses on the negotiation of religious difference when such differences lead to significant conflict, such as taking legal action before the VCAT. The Christian participants in our research are largely silent about, and seemingly unaware of, their privilege and power. Not the least of these Christian privileges is the relative rarity of experiences of discrimination, harassment, and vilification, at least as issues that come before the VCAT. The silence about Christian privilege is a wider cultural phenomenon in Australia. Elenie Poulos (2019: 10), in her review of Australian government inquiries and reports into religious freedom, notes that it is only the earliest report, the 1984 NSW Anti-Discrimination Board Inquiry, that draws ‘attention to how majority or mainstream religious groups are spared the discrimination suffered by minority religious groups’. Subsequent reports do not raise the disparity. Our research confirms this observation.

Christian participants in our research tended to have a sense that they were ‘on the outer’. Poulos (2019: 13) notes a similar trend and argues that this perception is a product of the increasingly problematic disjuncture between the truth claims of Christians, and the demands of treating others respectfully in a diverse society:

With the increasing legal protections afforded to women and especially to LGBTIQ people, most religious groups in Australia are seeing their traditional beliefs and moral codes eroded by society and contradicted in law. In the balancing rights problematisation, the privileged Christian majority (as identified by the loci of Christian institutional power) becomes the persecuted minority because the truth claims of its beliefs have been challenged in law. (Poulos, 2019: 13)

We would add ‘legal protections afforded to members of religious minorities’ to Poulos’ list. Legal constraints on what can be said about Muslims, or whether Christian schools can discriminate against members of religious minorities, confront some Christians with the vilificatory and discriminatory nature of some of their beliefs and practices. However, it should be noted that discrimination and vilification of members of minority religions are not solely, or perhaps even primarily, the result of actions by conservative Christians. There is a broader cultural and political practice of demonising members of minority groups in Australia (Maddox, 2005).

Conservative Christian voices seek to portray themselves as ‘on the outer’, arguing for religious freedom as a way to defend their right to discriminate in a range of public contexts. Elenie Poulos (2019: 10) identifies this shift to the ‘right to discriminate’ as occurring in the 2011 inquiry into freedom of religion: ‘in 2011, came the shift from religious freedom being about the right to be free from discrimination because of one’s religion, to being about the “right” to discriminate against others in the name of one’s religion’. The use of the language of ‘religious freedom’ elides, hides, or ignores the fact that the right to discriminate is sought in public contexts, such as in organisations that provide services to the general public using government funding. The religious freedom of Christians is not being challenged in their churches. Rather, their right to discriminate is being challenged in their role as a provider of public services in schools, social welfare, health care and aged care, and in other public contexts.

To some extent, the problems being experienced by conservative Christians are a product of their involvement in the provision of social services in Australia. The late 1990s and early 2000s, saw a substantial growth in the involvement of Australian Christian churches in the provision of education, social welfare, health care, and aged care (Maddox, 2014) so that now upward of one third of these services are typically provided by faith-based organisations (Richardson-Self et al., 2020). Some conservative Christians feel unhappy that while being asked to volunteer and contribute to these services, that they are not allowed to also engage in discriminatory practices that they see as true to their religious beliefs and conscience. From the other side of the argument, legislation that prevents discrimination against, and vilification of, Muslims, women, LGBT+ people, and members of religious minorities has been adopted for good reasons. Discriminatory practices inflict considerable harm on the people involved (Zucca, 2018).

Entrenched Islamophobia further complicates the notion of Australia as a nation that protects and celebrates the expression of religious diversity. Religious buildings, dress, and insignia act as focal points for these fears and tensions. For example, such fears are expressed through the opposition to building a mosque and enacted through lodging a complaint through the Planning Act (as noted by the Muslim participant above). Other examples of this process include bans on wearing religious clothing such as niqabs or turbans in public areas or during employment, or in a school setting, as in the Arora case referenced by participants. The Catch the Fire Ministries case turned on whether the expression of Islamophobic sentiments was protected by the Christians’ freedom of religion. Embedded in each of these examples of discrimination – whether the right to discriminate, or the right to be free from discrimination – are patterns of historical privilege and stigma that shape both engagement with legal frameworks and everyday experiences.

The experiences presented here demonstrate the impact of the ‘shadow of the law’ (Fokas, 2019). As Effie Fokas (2019: 4) argues: ‘a great deal of a court’s influence is enacted through transmission and reception of information, rather than by concrete imposition of policy changes through judgments issued’. While judgements made by VCAT do have a concrete impact on the litigants, there are many significant ‘general effects’ (Galanter, 1983: 117). These general effects relate to ‘the communication of information by or about the Court’s action, and effects of the response to that information’ (Fokas, 2019: 71). These effects include deterrence against engaging in particular behaviours, such as speech that could be considered Islamophobic, as a consequence of the Catch the Fire Ministries case. More broadly, Fokas and Galanter highlight how court decisions contribute to normative expectations that particular forms of behaviour are acceptable or unacceptable. These effects are less the consequence of particular court or tribunal decisions, and more closely related to how the information about these decisions is interpreted and understood in relevant communities. In this way, the ‘shadow of the law’ illustrates the complex interaction of law and everyday life.

Our data suggest two significant general effects of the communication of information about court, tribunal, and police decisions. First, members of minority groups perceived experiences of discrimination, harassment, and vilification as exceptional, and not socially endorsed. The Victorian legislation played an important role in sustaining this perception. This is particularly significant in the light of Marc Sageman’s (2011) argument that the sense of a state-endorsed war on Islam is one of the key factors that encourages home-grown terrorist activities. This finding deserves further empirical research to identify whether the few cases described here reflect a more general pattern of understanding among members of minority religions. Second, our data suggest that members of the Christian majority religions are adjusting their behaviour and expectations to manage their role in a complex multifaith society, albeit these changes are somewhat resisted and reluctantly embraced, particularly by conservatives.

It is important not to make generalisations about the negotiation of religious diversity more broadly from the cases reported in this research. The responses examined here are of a particular type, typically involving instances of significant conflict associated with taking legal action before VCAT. As illustrated by some of the comments of the Catholic priest, there are Christians who are committed to respectful relationships with religious others, and there are members of minority religions who are much less respectful of religious diversity, and seek to impose their own views on others. Nonetheless, the patterns described here are indicative of potentially significant trends in the negotiation of religious diversity. We are also concerned to avoid essentialising religion. Religion is not a primary identity marker for all religious people (Beaman, 2013) and any analysis of religion must be considered in a context of other identity markers, social relations and the broader social context (Altglas and Wood, 2018). Someone who is a nominal member of a faith community will likely experience legal frameworks and interfaith interactions very differently from someone who is a highly involved, observant, or easily identified member.

This study of the negotiation of religious difference in Victoria highlights a more complex picture of legal frameworks and interactions than is typically considered. This has implications for how we conceptualise and debate anti-discrimination legislation and religious freedom. The experiences reported here illustrate the influence of Christian privilege in shaping how people understand the significance of anti-discrimination and anti-vilification legislation. The resistance of some Christians to such legislation reflects their discomfort at being required to treat religious and cultural ‘others’ with respect. Members of religious minorities see such legislation as an important stepping stone toward preventing the vilification, harassment, and discrimination they experience, and towards a social contract in which all are treated with respect and as equal partners in the societal project of living well together.