The Israel Folau case has been mishandled from the start; is it too late to make things right?

Israel Folau and I don’t have much in common; but two things we share. The first is that we are both committed Christians within the evangelical tradition of faith. We take the Bible seriously as a book inspired by God. That helps me to understand Folau’s desire to share his beliefs ― his heart, his motivation, his passion.

The second thing we have in common is that neither of us are theologians. Nevertheless, I do have to disagree with Folau’s apparent view that any particular category of sinner is going to hell because their identified sins are egregious. To be sure, in 1 Corinthians 6:9-10 Paul does give a list of wrongdoers who will not inherit the kingdom of God, and Folau was paraphrasing this passage. However, passages of this kind are not only open to more than one interpretation, they also need to be set in a broader context. It is in the first eight chapters of his letter to the Romans that Paul sets out in a systematic way the Christian gospel. In Romans 3:23 he wrote that “all have sinned and fall short of the glory of God.” That’s me and Izzy Folau, the Pope and everyone else living today. Jesus was the only one to live a perfect life. It was his death on the cross that paid the price for our sins and which allows each of us to come into a relationship with God.

The Bible does not paint a clear picture about hell ― but whatever it may be, God’s judgment is entirely non-discriminatory. It calls every one of us to account, irrespective of our race, gender, sexual orientation, gender identity, or how good a life we may think we have led. Each of us must fall on the mercy of God and humbly accept the saving grace of God in Christ. If we do, we experience God at work in our lives in this life and are assured of eternity with God in the next. That is the traditional Christian message.

How Rugby Australia should have responded

That said, the saga that has enveloped Folau raises a number of profound social and legal issues that should concern us all. The entire débâcle, I believe, could have been avoided with a little more wisdom from Rugby Australia. To describe Folau’s views ― which addressed a range of forms of conduct he regards as sinful ― as “homophobic” was a massive distortion of the whole thrust of his Instagram post. It ignored the fact that he listed a range of categories of sinners or unbelievers.

Asking Folau to choose between his career and his faith was also utterly unreasonable ― and may yet prove to have been unlawful under s.772 of the Fair Work Act 2009 as discrimination on the basis of his religious beliefs. His faith includes a desire to help others to experience a relationship with God, in this life and the next.

All that Rugby Australia needed to do in response to Folau’s Instagram posts was to reaffirm its strong commitment to diversity, which includes acceptance of the range of religious and non-religious beliefs in a multicultural society. Rugby Australia could also have explained that it does not endorse Folau’s religious views and that rugby is a sport open to all. It could have pointed out that these were Folau’s own views expressed on a personal Instagram account which had no connection to Rugby Australia or his teams. It could have emphasised its commitment not only to diversity but to freedom of religion and freedom of speech.

It could have stressed that it has no right, as an employer, to control what its players say when they are not representing Rugby Australia. While Folau could not be allowed to express religious views while giving a television interview after a rugby match, he is not employed 24/7 by Rugby Australia. He is entitled to a sphere of life that is not under the control of his secular employer. If he chooses to preach on a Sunday morning, for example, Rugby Australia has no right to censor the content of his sermons.

By affirming its commitment to diversity, and its acceptance of the fundamental rights and freedoms of all Australians to hold and express their own religious, political or other views, Rugby Australia could have signalled its virtue and its principles.

What role did Qantas play?

It is widely believed that Rugby Australia was acting on, or anticipating, the perceived wishes of its major sponsor, Qantas. It communicated its intentions to Qantas long before it formally laid disciplinary charges. The Qantas CEO, Alan Joyce, has argued that sponsors do not want to be embroiled in controversy.

Fair enough; but Rugby Australia’s decision and the perception that Folau’s sacking was, to some extent, at the behest of Qantas, has embroiled that airline in huge controversy. People are now asking when the Australian people handed over control over the selection of the Wallabies to a private company?

If Qantas wanted Israel Folau gone, which other players might it in the future want removed from the team on the basis of their religious or political views or other attributes?

Rugby Australia’s contract with the nation

It has frequently been claimed that the dispute between Folau and Rugby Australia is merely a contract dispute. In a technical legal sense, that may be so; but Rugby Australia cannot contract out of anti-discrimination laws and the question remains whether Folau’s dismissal constituted unlawful discrimination.

The broader issue, however, is one about the implicit contract between Rugby Australia and the nation. Fundamentally, that contract requires the organisation to select the best 15 available players for the Wallabies and other representative teams. People talk about the contract between Folau and Rugby Australia as if this organisation is a purely private one. It is not. Insofar as the Wallabies run onto the field to represent their country, Rugby Australia is acting, in both the contractual and selection processes, on behalf of the nation.

Australia is a multicultural society. It includes, for example, both those who supported the legalisation of same-sex marriage and those who opposed this reform. It includes people who hold religious views like Folau’s as well as the atheist cognoscenti. We have to live and let live. That’s what diversity and tolerance involve in multicultural Australia.

Rugby Australia was wrong to criticise Folau’s Instagram post, let alone to dismiss Folau because of it, for the simple reason that, as a secular organisation representing the nation in a sporting code, it must be institutionally agnostic on matters of faith. It can no more deny the existence of Folau’s God than it can affirm the deity’s existence. It can have no view on whether there is life after death, in what that life consists and who will get into heaven, if heaven exists. To disagree with Folau’s interpretation of the New Testament is to take a theological position which it is institutionally disabled from taking.

The same is true for Qantas ― a secular business.

GoFundMe and viewpoint discrimination

The latest instalment in this saga is the decision of a multinational corporation to take down Folau’s crowdfunding page because it claims Folau violated its terms and conditions. It is hard to see how he could have done so. He sought funding for a legal case to test important legal issues: whether Rugby Australia has the right to control Folau’s speech and restrain the expression of his religious views 24/7; whether he was in fact in breach of his contract; whether his dismissal constituted unlawful discrimination against him; whether Raelene Castle, the CEO of Rugby Australia, prejudged the issue by declaring that Folau’s contract would be terminated before he was even given a chance of a hearing.

Folau said nothing on his GoFundMe page that was hostile to same-sex attracted people, drunkards, adulterers or any of the other categories of person listed on his Instagram account. Based upon its public statement, the real issue seems to have been that GoFundMe did not like his religious viewpoint. However, like Rugby Australia and Qantas, GoFundMe must be institutionally agnostic ― or at the least, it must not engage in discrimination against any user of its platform, including Folau.

GoFundMe is in the same position as any other commercial provider ― for example the baker or florist who might want to decline to provide services for a same-sex wedding. As the law currently stands, they cannot discriminate by choosing to whom they provide a service. It seems hard to argue with the proposition that the only reason why GoFundMe refused Folau, and the thousands of his supporters who made donations on his GoFundMe webpage, was on the basis of the religious viewpoint Folau had expressed.

The way forward ― or back

You can disagree with Folau about homosexuality, the existence of God, heaven, hell or any number of other issues. However, perhaps we can all agree that the issues raised by this saga are profound and far-reaching. If employers can control the expression of your views and beliefs in situations unconnected to your workplace, what freedom will Folau’s greatest critics have in the future? Will someone be able to be sacked by a conservative employer for expressing a point of view on social or political matters contrary to the views of the Board of Directors?

Rugby Australia’s greatest mistake has been overreach. The fact is that rugby players are not chosen to represent NSW or Australia because of their virtues, their wisdom or their theology. They are chosen because of their abilities on the field, not their personal opinions expressed off it. In this regard, Rugby Australia’s problems about consistency have just begun. Will it dismiss a player who argues that immigration from Islamic countries should cease? Will it dismiss a player who posts angry and disrespectful social media posts against climate change deniers? There is any number of views that rugby players might express that may cause offence or of which the management of Rugby Australia ― or its sponsors ― may disapprove.

The only way to resolve this situation consistent with Australian values is to accept that Folau should once again be wearing the Wallabies jersey ― and that will probably require the resignations of those leaders responsible for this quagmire. Raelene Castle may disagree with Folau on matters of theology. However, that disagreement is irrelevant to his selection to play for his country. He should not be discriminated against by Rugby Australia on the basis of his religion. It has a responsibility to select the best players, and has no right to insist that Folau not express his theological views on social media or in a Sunday sermon, away from the playing field.

Of course, there are limits ― limits that the criminal law already provides. No one should be able to incite violence. However, Israel Folau is by all accounts a gentle soul whose only crimes have been to express his love and concern for the eternal destiny of his followers and to refuse to accept that Rugby Australia has a right to control what he says either from his Sunday pulpit or his much larger platform on Instagram.

Those of us who agree neither with all of his theology nor with the wisdom of all of his communications need nonetheless to defend his right to speak.

Professor Patrick Parkinson AM is Dean of Law at the University of Queensland and Chair of Freedom for Faith. The views expressed here are, of course, his own.

This article appeared on ABC Religion & Ethics on Thursday 27 Jun 2019


Patrick Parkinson is a Professor at the TC Beirne School of Law. Professor Parkinson was Dean of Law at the TC Beirne School of Law from 2018 - 2021. He is a specialist in family law, child protection, law and religion and the law of equity and trusts.He was President of the International Society of Family Law from 2011-14. Professor Parkinson is also well-known for his community work concerning child protection. He has been a member of the NSW Child Protection Council, and was Chairperson of a major review of the state law concerning child protection which led to the enactment of the Children and Young Persons (Care and Protection) Act 1998.