I have previously written about the Israel Folau case here and here. I don’t intend to offer any more comment on the case itself because there really isn’t any more to say beyond what has already been said. But I do want to offer some comment on a troubling development. We have now moved beyond Folau’s contract being rescinded by Rugby Australia – which, whilst I wouldn’t make this argument, one could claim that his views (potentially) brought his employers into disrepute – to a point where those who would provide him with services are withdrawing access to them because of his views.
The specific point in question is outlined here. The salient facts are these: Folau set up a GoFundMe page in order to raise $3m (Aus) to help him fight the termination of his Rugby Australia contract. He had already raised $750, 000 for his own campaign when GoFundMe decided to unilaterally terminate his appeal.
In a statement regarding their decision, GoFundMe state:
While we welcome GoFundMes engaging in diverse civil debate, we do not tolerate the promotion of discrimination or exclusion
GoFundMe’s Australian regional director, Nicola Brittan, commented:
We are absolutely committed to the fight for equality for LGBTIQ+ people and fostering an environment of inclusively
Now, you may or may not agree with Rugby Australia’s decision. But this now goes well beyond any question of whether Folau is bringing his employers and profession into disrepute. This is now a straight up case of a service provider denying their service to an individual based solely upon the expression of their religious beliefs.
No doubt many will whoop and cheer this move. There is no right to service provision if you’re a bigot, they will say. Why should GoFundMe be forced to provide a service for someone who wants to mount a case with which they deeply disagree? A few comments bear consideration.
First, many of those cheering on this decision by GoFundMe are the selfsame people who had no problem when a couple running a Bed & Breakfast were told they must offer rooms to homosexual couples against their deeply held beliefs. They are the same people who supported cases against Christian florists who did not want to use their creative skills for a gay wedding (even though they would serve the same individual on any other occasion). They were often the same people who argued that bakers who did not want to make a cake that affirmed the message ‘support gay marriage’ should have been made to do so. How would they determine the difference in these particular cases other than their agreement with the particular sentiment being expressed?
Now, there is a case to be made for saying that one should not be permitted to discriminate against a person whilst allowing room to discriminate against ideas. So, as I argued in the Asher’s case here, the law was rightly on the side of the bakers because they were clearly against expressing an idea with which they disagreed whilst being quite happy to serve the customer any other cake. They would not make that cake for anyone, but they would serve that customer any cake that any other customer could buy. In the end, this was the decision reached in the supreme Court and it is, in my honest opinion, the correct one.
In this case with GoFundMe, one might argue that they object to the messaging of the campaign. The problem with this line of argument is that Folau’s campaign was not one in which he was asking for funds to promote a particular view. If this were the case, I think GoFundMe would be entirely within their rights to pull the page and say that the promotion of that view runs contrary to their values (such as there really is any such thing). But Folau is not asking for that. He is asking to crowdsource the funds to legally challenge the termination of his contract. If GoFundMe would provide their service for anyone else raising legal fees to fight a contract termination, it is hard to see how this isn’t straight up discrimination against Folau.
But the ramifications of such a decision go well beyond a GoFundMe page. If GoFundMe can refuse to provide their service because of Folau’s views, even though his views are not directly pertinent to the service being provided, what is to stop other companies refusing him their service because they don’t like his views either? What is to stop his bank from closing down his account, for example, on exactly the same grounds? Can a supermarket refuse to serve him food because they don’t like his views? What about a taxi company or just about any business you might think of? Where does that end if it is upheld that he might be denied this GoFundMe service because they don’t like his wider views, the promotion or affirmation of which are not the grounds of his using their service?
Whilst English law really isn’t the line for Folau – Australian law is what matters – the line drawn in England appears to be that it is wrong to discriminate against people but it is fine not to promote ideas. In this case, GoFundMe are not being asked to promote or support an idea. They are being asked to provide their service, as they would to anyone else, to allow somebody to legally challenge their contract termination. Unless GoFundMe would refuse to allow anyone to raise funds for a legal challenge, it is hard for them to deny their service to Folau who, in this case, is seeking the same.
If your view of Christian businesses is that they ought to bake cakes and arrange flowers for gay weddings irrespective of their conscience position, you cannot consistently argue that GoFundMe are able to deny their service in this case. If you believe that businesses should be allowed to deny their service when it involves the promotion of ideas with which they disagree, you have to demonstrate how funding Folau’s legal case amounts to affirmation and/or promotion of his particular views. You would also have to show how supporting other people’s legal actions, but denying it to Folau, is not discrimation of a person (as opposed to an idea). You would also have to show how this wouldn’t open the door to just about every service or goods provider being able to deny him service for his beliefs. I’m not at all convinced any of those those tests are met in this case.
We are at a point where some views are more permissible than others. Some views will place you beyond the pale. And it seems those who wish to be liberal and inclusive will gladly deny you their service to signal their superior virtues, all whilst insisting that you cannot deny them service when you disagree with them. But unless provision of your service is directly related to the promotion of the views with which you deeply disagree and believe it would be morally wrong to support, denial of service would appear to be against a person because of who they are or what they believe. And that can’t be considered fair or equitable because then we are back to the days of ‘no dogs, no blacks, no Irish’ just with different groups being ostracised instead. If all we do is change the groups against which we now discriminate, it would appear that we have no concept of what the word ‘progress’ means at all.