A tolerant society?

As a policy, freedom of religion has been understood as providing a ‘negative freedom’ from interference in religious beliefs or worship.[11] Unsurprisingly, the process of democracy may place pressures on the state to be less tolerant of minority positions or to impose particular views of morality. For example, in recent political debates over gay marriage and abortion, people holding Christian beliefs may be seen as attempting to impose a particular religious conception of the sanctity of marriage and of life on other members of society. However, the structures that maintain a Christian domination of the moral norms of the state may not be explicitly stated in legislation. Wherever the law refers to ‘community standards’, it appears to refer to Christian values. For example, until recently in the United States of America, it was argued that laws forbidding the use of peyote did not impede religious freedom as drug laws were not laws that were directed towards religion. Such inexplicit domination may regulate the expression of religious belief in all areas of life, and law and social policy may be used as a means of regulating minority religions or sects.[12] The issue here is not merely that the law forbids some kinds of actions. The law must say something. But there is a problem where the law, or its application, unreflectingly fails to respect religious beliefs in areas that it has the capacity to do so, or is used as a form of harassment.[13] Inexplicit domination may reflect a systematic intolerance. Both explicit and inexplicit intolerance may be grounds for criticism of the state, and are one obvious cause of discontent for people belonging to minority religions.

On the surface, religious freedom and tolerance are hallmarks of liberal societies, and often-enshrined in constitutions, and enshrine the state as an arbiter of religious disputes. But it can be shown that the state’s tolerance is a tolerance to major religions in the Christian-Judaic tradition and that it will over-ride the impact of believers’ views where it regards those views as departing from what it considers community values. In dealing with the disposition of property left in wills, the courts use the standard of the wise and just testator to evaluate the fairness of the way in which an estate is bestowed, particularly where it benefits a religious group over a living relative or dependant. Thus, the principle on which the state operates will most likely disadvantage a minority group’s religious convictions.

Pauline Ridge points out that appeals against wills can be carried out under the Family Provision Act 1982, whereby the applicant can challenge the distribution of the estate on the grounds, essentially, of financial need (chapter 12). The test the court applies is whether the disposition of the estate accords, in the court’s view, with the judgment of ‘a wise and just testator’, in effect, in accord with community standards. Ridge shows in her analysis that the courts will over-ride testamentary gifts based on strong religious beliefs, since it will be unlikely for the testator’s bequest to be upheld in the face of the normative and idealised model of a testator used by the court. Ridge explains that people who hold strong religious convictions are labelled ‘obdurate believers’, that is, as believers who are guided by religious conviction to the exclusion of other concerns. This applies not only to minority religions, but, for example, to members of mainstream religions who use their beliefs as a way of disentitling their children. Notwithstanding this, overall the standards of law reflect the dominant religious groups in society. Indeed, as Ridge points out, biblical stories (the prodigal son) have been used in court decisions to justify the overturning of a will. In this case, as she puts it, ‘the general community, knowingly or unknowingly, upholds an ideal of parenthood that reflects Christian teaching’. In short, Ridge demonstrates that the courts will accept testamentary gifts motivated by religious belief only if they conform to the model of the wise and just testator, as determined by community standards. Ridge points out that there is far less likelihood of a challenge to religions stemming from Judaism—at least the dominant ones—since they incorporate in their teachings the responsibility of parents to provide for their family and children.

These problems of domination are not exclusive to Australia or Western democracies, as Colin Noble demonstrates in his examination of Catholicism in Japan (chapter 13). Under the Japanese constitution there is a separation of church and state, yet when the Emperor died in 1989, the state spent large sums of public money on his religious funeral. Japanese Christians mounted a legal challenge through the courts as they attempted to prevent the state from defining the realm of the sacred. However, the consequence was the opposite of what they hoped to achieve. In the presence of open hostility and indifference to their claims, Christians experienced further marginalisation, and the state strengthened its hold on the definition of the sacred.