Veteran LGBTI rights campaigner Jamie Gardiner’s piece on balancing religious exemptions with equality is more food for thought as you prepare your personal submission to Philip Ruddock’s “expert panel” on religious liberty and same sex marriage.
One area in which freedom of religion has been suborned by its transmutation into unjustifiable religious privilege is the granting of blanket exemptions to discriminate on some or all attributes covered by modern anti-discrimination laws, rendering them ineffective for large portions of the workforce and the population.
Except for the training and appointment of religious officials such as pastors, imams, priests, bishops, rabbis, sheikhs and the like, and the conduct of religious rites and observances, these exemptions are an unacceptable violation of the human right to equality before the law and under the law. Exemptions which privilege religious bodies and beliefs over laws of general application—such as the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the anti-discrimination laws of most states and territories, for starters—should be repealed entirely or, at the very least and as an interim measure only, firmly limited in application.
Equality is in fact at the heart of religious freedom, or religious tolerance as it was called in the nineteenth century, when still a very novel idea.
There are dozens of major religions in Australia, and the Australian Bureau of Statistics counts hundreds in total. Most believe they hold the One and Only Truth, and that the others and their gods are heretics, heathens, impostors or worse. One thing their leaders seem to agree on, however, for themselves and often for others, is that they are or should be above the law. In particular they seem to think—and have successfully lobbied governments for decades—that laws prohibiting discrimination should not apply to them. As Acting Chief Justice Mason and Justice Brennan said, however, in a High Court decision on what “religion” means in Australian law, “canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.” (Scientology Case, (1983) 154 CLR 120, 136.) Discrimination today, unlike fifty years ago, does “offend against the ordinary laws.”
The Commonwealth Government has an opportunity this year, in its Religious Freedom Review, to revisit a great anomaly. This anomaly, found in every state but Tasmania, and in territory law as well as the Commonwealth Sex and Age Discrimination Acts, is the blanket “exemption” given to religious bodies. It places them effectively above the law.
Blanket exemptions are wrong. The human right to freedom of religion is not a peremptory norm of international law; it has the same status as other human rights. Like the human right to equality, it may be limited for legitimate purposes, by proportionate measures likely (on evidence) to be effective, and to the least extent possible. A blanket exemption for religious bodies imposes an unjustifiable limitation on the human right to equality.
While full repeal is desirable, some compromise may be possible. Bringing clarity, openness and transparency to the law may be sufficient.
Current laws give religious bodies, or “educational institutions established for religious purposes,” a licence to discriminate when to do so “conforms with” their “doctrines, tenets, beliefs or teachings,” or is “necessary to avoid injury to the religious susceptibilities of adherents of” the religion. The latter test in particular is impossibly vague, subjective and of uncertain meaning. This licence is not only unprincipled, it is neither clear nor transparent. But it could be made so.
Many religious bodies, moreover, wish neither to discriminate nor to be tarred with the same brush of bigotry that the loudest lobby calls for.
Legal clarity, openness and transparency, the reputations of fair-minded religious bodies, and the political realities can all be accommodated.
The key is to provide religious bodies the opportunity to claim a formal licence to discriminate, time-limited but renewable, conditional only on specifying precisely on what grounds and in which areas it is required, and in each case which specific “doctrines, tenets, beliefs or teachings” necessitate it. The limits of the licence would thus be clear, and outside them ordinary law would apply.
For example, the claim might be that the employment of unmarried mothers as primary teachers violates particular religious tenets. Or the provision of accommodation to divorced persons or unmarried couples (mixed sex or same-sex, perhaps with different doctrinal particulars for each) is contrary to specified teachings.
The claim would be lodged with the Australian Human Rights Commission, in the case of Commonwealth laws, or the equivalent State or Territory bodies as required. It would be in writing and be displayed on the claimant religious body’s website and in other promotional material so that any potential employee, recipient of services or other person interacting with the body can be duly alerted to the body’s intended discrimination practices. A condition of the licence would be that the religious organisation “should also be required to detail the procedures with which they intend to invoke their exemption, and publicly report back to the relevant human rights body when they use their exemption.” If it appears to the human rights body that the licence is being invoked in an arbitrary manner the licence can be revoked.
This process would apply to all attributes where a religious exemption currently exists, other than the primary exemption for employment and training of religious officials and the conduct of religious observance. It would not extend to attributes such as race and disability.
The licence to discriminate would (within its terms, and subject to the bona fides of the claimed justificatory doctrine) exempt the body from the operation of the law in question in relation to the specified conduct in its own activities with its own adult members and guests.
It will not, however, apply to anything done by the body in carrying out any activity or providing services funded in whole or in part by Commonwealth, State or local government, directly or through statutory authorities or other government-funded entities. Public funds should not be expended on supporting discriminatory activity. For the Commonwealth, giving financial support to religious bodies automatically goes against the spirit, and arguably the letter, of Section 116 of the Constitution, as it inevitably discriminates between those who hold, or do not hold, some religious or other beliefs.
The licence to discriminate will also not apply to permit discrimination against minors. They do not have legal capacity to assess the conditions represented by the licence and cannot give informed consent to them.
The default position must be to respect, protect and fulfil the human right to equality. To depart from that principled position is the exception requiring specific action.
 This and subsequent paragraphs in this section are adapted from: Jamie Gardiner, “Equality and Religion” 20/1/2012, http://www.equalitylaw.org.au/elrp-guest-blogs/equality-and-religion
 Jim Woulfe, Comment, 20/1/2012, http://www.equalitylaw.org.au/elrp-guest-blogs/equality-and-religion
Jamie Gardiner was a Commission Member of the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) from 2000 to 2009. He is a vice-president of Liberty Victoria; Secretary, Vic ALP LGBTI Affairs policy committee; member LGBTI Taskforce; member of the LIV Human Rights Committee; and a member of the board of the Human Rights Law Centre.