when religious freedom and LGBTI rights intersect

Last year, 61.6% of Australians voted in favour of marriage equality, leading to the passage of legislation to allow same-sex couples to marry.

In response to religious concerns and as a concession to ensure marriage equality would pass through parliament, Prime Minister Malcolm Turnbull announced in November that former Liberal frontbencher Philip Ruddock would chair a panel to review Australia’s religious freedom protections.

More than 16,000 submissions were received by the panel from December to February. Most of these will be made public on May 18 when the panel reports its findings.

Read more: As Australians say 'yes' to marriage equality, the legal stoush over human rights takes centre stage

Though the terms of reference are broad, submissions made by key stakeholders such as religious leaders and Australian Marriage Equality focused largely on whether current anti-discrimination laws adequately protect religious freedom.

The timing of the review, and Turnbull’s public statements linking the review to marriage equality, also makes clear that LGBTI anti-discrimination laws, and religious exemptions to those laws, will be a particular focus.

What is discrimination?

Broadly, discrimination means treating a person less favourably because of a protected characteristic they possess, or imposing a condition on a person that will disadvantage them because of their protected characteristic. Protected characteristics include race, gender, age, and LGBTI status.

Discrimination is unlawful in a range of areas, including employment, education, accommodation, and goods and services. These prohibitions enshrine the human right to non-discrimination in Australian law, in particular for social groups that have historically been marginalised.

In every jurisdiction in Australia – territory, state, and federal – discrimination against a person on the ground of their sexual orientation is unlawful. Discrimination based on gender identity is also unlawful, while intersex status is only protected in some jurisdictions.

With the exception of New South Wales and South Australia, religious belief is also itself a protected characteristic. This means that, for example, a person cannot be fired from a job simply because they are Christian or Muslim.

The infamous “gay wedding cake” scenario is the most commonly raised example of LGBTI discrimination on the basis of religion. This is when a baker refuses to bake a cake for a gay wedding because of their opposition to same-sex marriage, based on their religious views.

In doing so, the baker seeks to treat a gay customer less favourably than a heterosexual customer, in order to manifest their religious belief. If no exemption is applied, this would likely be unlawful discrimination.

What is a ‘religious exemption’?

In addition to being a protected ground, religious belief has a particularly special status: it can be used to render discrimination against LGBTI people lawful through religious exemptions.

Broadly, religious exemptions in Australian anti-discrimination laws can be categorised in three main ways:

1. Specific religious exemptions

2. Educational religious exemptions

3. General religious exemptions

Specific religious exemptions relate to the appointment and training of priests and ministers. Educational religious exemptions apply to religiously affiliated schools. This means their employment decisions and provision of education can discriminate against LGBTI people.

But most recent controversy has focused on general religious exemptions. General religious exemptions typically apply only to religious bodies, where their conduct either:

a) conforms to the beliefs of the religion; or

b) is necessary to avoid offending or undermining the faith of their members.

As such, if a church discriminates against a person because of their LGBTI status, but their conduct falls within one of these two categories, their conduct is excused from anti-discrimination prohibitions.

As an example, if a bakery run by the Anglican Church could establish that opposition to same-sex marriage conformed to the beliefs of the Anglican Church, refusing to bake a gay wedding cake for that reason would likely be lawful.

Does the same test apply throughout Australia?

Unfortunately not. There are significant differences under various state and territory laws.

Victoria requires that the conduct be “reasonable”, and allows individuals to use the exemption rather than confining it to religious bodies. No other jurisdictions allow religious exemptions for individuals in relation to sexual orientation.

Tasmania does not exempt discrimination on the basis of sexual orientation for any religious reasons.

The Australian Capital Territory and Queensland require that both categories, rather than just one, be satisfied – the act must conform to the beliefs of the religion and must also be necessary to avoid offending the faith of religious members.

Among many other jurisdictional differences, these inconsistencies can lead to significant problems where conduct stretches across state or territory borders.

It also makes it difficult for people to understand where the boundary between lawful and unlawful conduct is.

Have any cases considered these exemptions?

Few reported court cases in Australia have considered these exemptions in an LGBTI context. This is largely because most discrimination complaints are resolved before going to court.

Two key recent cases came to opposing views on how these exemptions may operate.

In the Victorian case of Christian Youth Camps, a youth camp associated with the Christian Brethren Church refused an LGBTI youth suicide prevention group access to the campsite.

The camp was unable to show that it was a religious body. It was also held that opposition to homosexuality could not be a “fundamental doctrine” of Christianity, because of widespread disagreement within the Christian faith on this point.

However, in the NSW case of OW & OV, Wesley Dalmar Child and Family Care was able to legally refuse a same-sex couple access to their foster care services.

This was because the organisation was considered religious in nature. It was able to establish that if the mission were “required” to appoint homosexual foster carers, this would be unacceptable to its members.

These cases only illustrate how difficult it can be to determine whether a certain “belief”, such as opposition to homosexuality, is enough to excuse discriminatory conduct.

Where to next?

The Ruddock review provides a timely way for these inconsistencies to be resolved. The panel may suggest certain amendments to unify these laws, or even propose a more easily understandable test for religious exemptions.

However, it is crucial that any changes to the law adequately balance the right to religious freedom and the right to non-discrimination.

The right to religious freedom in reality comprises two rights: the right to hold a religious belief (which is absolute), and the right to manifest religious belief (which is qualified).

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Believing something does not usually impact on or harm anyone else, and that is why religious belief is already protected in most Australian jurisdictions. Expanding this protection to NSW and SA would be appropriate.

Manifesting religious belief, however, often does harm others – and can undermine the right to non-discrimination.

In the gay wedding cake example, the baker may privately believe homosexuality is wrong, which is not unlawful. But when that belief is manifested by treating the gay customer less favourably than a heterosexual customer, this causes harm and discrimination. It is in these situations that a balancing act is required.

Whatever the proposals put forward on May 18, we must ensure that any additional protection of religious freedom does not further undermine the right to non-discrimination. Rather than one right trumping the other, the best path forward is that which maximises the potential of both rights.