The right is destined to lose the fight on Folau

How is the right’s push on religious freedom going? Terribly! It’s really great to watch — a bright spot in an otherwise bleak political landscape. There’s no way it can end well for them, and whatever happens will in someway benefit the left. As an added bonus, they are actively damaging previous successes they had in securing the autonomy of religious institutions in hiring practices. I’m loving every installment of this.

Let’s do a quick recap. During the same-sex marriage plebiscite, one of the right’s more desperate tactics was to allege that a “yes” vote would be an assault on religious freedom in this country, for reasons they couldn’t explain. Discrimination on the basis of sexuality was already outlawed — same-sex marriage simply added one more area in which they couldn’t be discriminated against.

The “religious freedom” scare came from a section of the conservative right identified with both elite Catholics like Paul Kelly — who see religion as a glue to bind society together whatever their real attachment to belief in God — and Protestant politico-cultural hysterics like Andrew Bolt, who believe the pagan endtimes are upon us. 

This gang has rode out before, in the great 18C debacle — remember 18C? — and had their arses handed to them by Tony Abbott and the Liberal Party, petrified of the reaction from Big Multiculturalism. They lost on 18C, and they had a lot better material to work with. The best they could come up with on religious expression was Israel Folau.

Personally I don’t think sports people should have to trade away their citizenship freedoms to do what they’re good at. But Folau appears to have flouted a contract he knowingly signed and it’s a far-from-ideal rallying point. Luckily for the right, the cultural left has come to their rescue, turning Folau’s childish just-so story pronouncements of “burning in hell” into potent political statements, by constructing them as potent hate speech.

Still, even with this sterling subaltern service from part of the left, the conservative right can’t get the religious freedom thing going. The reasons are not hard to see. A specific “religious freedom” statute — i.e. a right based on content, rather than on the form of activity, such as speech, assembly etc — is just junk rights of the type that the right has hitherto criticised as coming out of the Australian Human Rights Commission.

One trouble with content-based junk rights is that they accumulate and start to contradict each other. With other anti-discrimination rights on gender, sexuality etc already well established, a religious freedom statute sets up a nightmare of incommensurable rights claims. 

That would clearly clash with the religious right’s determination to extend the privilege of religious institutions to employ who they like, which has been their principal cause since the plebiscite. At the moment such organisations have exemptions that allow them to shape their staffing and composition. But what if a Muslim or a Jew wants the job, and is best qualified? What about a Buddhist waiter who won’t serve meat? Or an Islamist receptionist who won’t shake hands with the opposite sex? And on and on. 

The obvious point is that not only would this create a legal dodgem derby, it would do more than anything I can imagine to establish that the state — as the representative of public values — should have power over the market and capital.

In The Australian, Katrina Grace Kelly — her name at time of writing — noted that Folau’s claims were unlikely to succeed given the lean towards employers in such laws, but that if they did, they’d reset employment law entirely. The Institute of Public Affairs’ John Roskam is running a little dog ‘n’ pony show around the right (word is still out on whether Roskam is pony or dog), and Freedom Boy Tim Wilson made a cute little comment on the push by getting sworn in on a copy of Milton Friedman’s Capitalism and Freedom. 

Well, let it run. The whole thing will surely collapse in ignominy in a few months, leaving the Bolts etc to denounce Morrison as yet another leader who has disappointed them, while the corporate sector yells furiously at them for even suggesting more employee rights.

What could go wrong? The cultural left could get could get in the way and simultaneously claim the right to talk about “burning Australia down” or “hatefuck” people they disagreed with, while reserving the right to define other people’s words as “hate speech”. That would turn this into a populist v elites thing, which we’d lose.

But that’s not gonna happen. Right?