Illegal sacking Israel Folau and the sin of homosexuality

Celebrity rugby player Israel Folau is in a complicated legal position. He shared a “meme” on social media site Instagram recently, the text of which was: “Warning: Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators: Hell Awaits You- Repent! Only Jesus Saves.” To this he added his own personal comment: “Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him.” (The comment was similar to many other pictures shared on his account, many of which are Bible verses or exhortations to nominal Christians to follow Jesus Christ in deed as well as word.)

His remarks were not well-received by many members of the public, and in particular by the peak bodies in rugby. His employer, Rugby Australia, has announcedthat it (and the NSW Rugby Union) will terminate his contract unless he can offer some explanation for the comments which they are satisfied with (any “compelling mitigating factors”). They do not at the moment allege that he has behaved unlawfully; rather, they say that his comments breach a “code of conduct” which presumably forms part of his contract: “He cannot share material on social media that condemns, vilifies or discriminates against people on the basis of their sexuality.” They also allege that being “disrespectful to people because of their sexuality” would justify disciplinary action.

In theory it might have at first been thought that Mr Folau’s post was unlawful under NSW law. Under s 49ZTof the Anti-Discrimination Act1977 (NSW) it is unlawful to “incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group”. But s 49ZT(2)(c) exempts from that prohibition any act “done reasonably and in good faith, for… religious instruction”, and the overall theme of Mr Folau’s Instagram account could well be said to be “religious instruction”.

The more fundamental questions are these: (1) were the comments “vilifying” or any of the other negative epithets applied in the contractual codes? And (2) was it relevant that these comments were made by way of presenting the teaching of the Bible to an audience who had chosen to voluntarily “follow” Mr Folau in order to find out what he would say?

“Vilification”

On the first point, the question seems to boil down to this: can a statement that “homosexuals” (along with “drunks” and “thieves” and others) are destined for eternal punishment unless they repent, be said to be “hateful” or “vilifying”? Of course many in the community will reject the notion of a God who created the world, who cares about the behaviour of human beings whom he made in his image, who judges their rebellion, and who has graciously offered a way out of condemnation through sending his son Jesus Christ to die and rise again. But those are doctrines that have been held by the majority of people who have lived and died in the Western world for thousands of years. (And the essential features of this message are celebrated at Easter, coming up soon.) These are the clear teachings of the Bible, the book that has shaped our community and the legal system.

Mr Folau, it seems, shared this message because he wanted to warn those who followed him on Instagram that life contains serious choices, and consequences for eternity. In doing so he did not express any hatred for homosexual persons, or for others caught up in what he (and the Bible) sees as sinful behaviour. He did not express any contempt for them, or ridicule of them. Far from automatically “condemning” them (to use one of the Rugby Australia “code of conduct” words), he said that they were loved by Jesus, could be saved and receive eternal life if they chose to “turn away from your sin and come to him”.

Of course, the majority view in our society at the moment is that homosexual activity is a normal and natural part of human life and should be accepted and, indeed, celebrated. So Mr Folau’s view (shared by many who take the Bible seriously) is one that is now in the minority. But, to repeat, he does not call for those who choose to disregard God’s purposes for humanity to be hated, or stoned, or treated with contempt. He offers the love of Jesus and a way out of eternal judgment.
Religious freedom and social media

Second, he is presenting his views on the teaching of the Bible to a group of persons (large as that group is- as of today he has some 332,000 “followers” on Instagram) who have voluntarily chosen to find out his views on various issues and to see what photographs he posts. The only reason his post has become more widely known, of course, is because it has been publicised in the wider media. (There is a certain irony in the fact that, if his comments are “harmful”, that harm has been immensely magnified by them being widely broadcast by the media, to many people who had notchosen to follow Mr Folau.)

Nor is it irrelevant that his views are clearly based on his religious convictions. Agree or disagree with them (and not even all Christians will agree), they are an expression of his religion. For him to be summarily dismissed on the basis of his religious beliefs is arguably, as has already been notedin the press, unlawful under s 772 of the Fair Work Act2009 (Cth). That section provides:


An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:..(f)…religion.

Of course, it can be argued that the reason for the dismissal was not merely because Mr Folau was a Christian, but because he chose to express his Christian beliefs publicly. (Note of course, though, that it could still be unlawful if “religion” is oneof the reasons for dismissal.) But if that is the response, then it can be seen what a bad outcome that would be. “Freedom of religion”, under international law (which Australian courts can refer to, especially in the context of s 772, which is explicitly said in s 771 to be implementing various international agreements), is held to include not just a right to “believe” but also a right to “manifest” one’s belief. See, for example, art 18 of the International Covenant on Civil and Political Rights, which notes that such manifestation may be seen in “worship, observance, practice and teaching”.

There is no right under the current law of NSW for Mr Folau to argue that his proposed dismissal on account of sharing his religious beliefs, was unlawful discrimination on the grounds of religion. But the application of this Commonwealth law should have an impact on the situation.

Putting the legal issues to one side for the moment, however, the Australian community needs to ask: is this acceptable? Many may disagree strongly with the Bible’s view on homosexual behaviour. But have we indeed come to the point where someone can be dismissed from their job simply because they accept and speak about the teaching of the Bible? The list of sins that Mr Folau shared is very similar to a list in Paul’s letter of 1 Corinthians, 6:9-11, where a similar warning is issued, and a reminder is offered that forgiveness is possible:


9 Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practise homosexuality, 10 nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God. 11 And such were some of you. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.

There is no evidence that Mr Folau was in any way seeking to “impose” his views on others, whether members of the public or other team members. It cannot seriously be argued that someone is harmed merely by knowing that there are others in the community who regard their sexual activity as inappropriate.

After a previous episode a year ago where similar views were expressed, it can have come as no surprise to anyone following Mr Folau on social media that he held these views. Anyone following him on social media did so, presumably, because they wanted to know his views. If they were simply interested in football and did not want to hear about the Bible, they could either have chosen to “unfollow” him when comments from the Bible were posted, or to scroll past them and ignore them. If our society is to be serious about recognising the values of “diversity”, it needs to make place for people to have different views, even on serious moral issues.

In the context of religious freedom, Latham CJ, when discussing the protection of religious freedom under s 116 of our Constitution, said in the important High Court of Australia decision Adelaide Company of Jehovah’s Witnesses v Commonwealth(1943) 67 CLR 116 that:


The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities (at 124).



Biblical Christianity may indeed be an “unpopular minority”. But for that reason alone, protecting the religious freedom of those who adhere to it, to speak to those who want to listen to them, about the doctrines of the Bible, is all the more important. It is even possible that some of those old insights may offer guidance to a society devoted to the religion of “self-fulfilment”. But whether this is so, or not, as a tolerant and diverse multi-cultural community, we cannot shut down the voices of the minority simply because they disagree with the orthodoxy of the majority.