Last year a group which aims to raise awareness about the needs of same sex attracted young people planned a weekend forum. Their request to book facilities was refused by an organisation affiliated with a Christian association on the basis that they were unable to accommodate ‘a group such as yours’. This event should not be surprising; it is lawful in Victoria to discriminate on the basis of sexuality, disability, marital status, race, sex and other attributes as long as the discrimination conforms to religious doctrines or is necessary to avoid injury to religious sensitivities.
This regime is the subject of a current parliamentary inquiry into the exceptions and exemptions in the Equal Opportunity Act. It’s time for us to seriously question the blanket carve-outs for religious groups.
After all, religious groups have to comply with other civil and criminal laws. Australians can only be married to one person at a time; regardless of how deeply entrenched polygamy is in their religion. Similarly, sexual abuse, ritual use of narcotic drugs and misleading and deceptive trade practices are all prohibited even where the prohibition infringes upon religious beliefs.
So why do we allow religious groups a blanket exception from anti-discrimination laws?
Answers to this question often rely on the right to freedom of religion. Freedom of religion is protected under the Victorian Charter of Human Rights and Responsibilities and has been described by the UN Human Rights Committee as ‘far-reaching and profound’.
However, the government also has an obligation to promote equality. In addition to the ethical and rights-based arguments for equality, effective anti-discrimination laws bring important social and economic benefits.
Neither freedom of religion nor equality is an absolute right. This means that in cases of conflict neither should act as an automatic, pre-determined trump. Instead, it is necessary to consider the particular circumstances of the case and to strike an appropriate balance between competing rights and interests.
The blanket exceptions for religious groups undermine equality by excluding consideration of individual cases and permitting discrimination in the name of religious freedom, whether the discrimination is fair and reasonable or not. This regime perpetuates a false hierarchy of rights.
The exceptions also entrench systemic discrimination. Religious organisations set social standards and provide moral guidance to many members of our community. While religious groups do important work which contributes to social inclusion and promotes equality, there are some instances where they fall short. If religious organisations do not have to comply with anti-discrimination legislation, we are walking towards equality with our feet bound.
Contrary to much of the misinformation that has surrounded the Parliamentary inquiry, removal of the religious exceptions would not result in a situation where a person or organisation could never discriminate in order to comply with their religious beliefs. Christian churches would not be required to hire a Satanist to teach Sunday school.
Repealing the exceptions would simply open up discussion and allow a line to be drawn between those religious practices that can be accommodated in a fair and functioning society and those which cannot. All groups that do not receive special protection from a permanent exception in the Act are already subject to a similar process.
If, for example, a government-funded community housing organisation doesn’t want to rent accommodation to a single mother on the basis of its religious belief, it would need to explain and justify its decision. If it can’t provide a good reason, taking into account the effect on the woman in question and on women generally, then the discrimination should not be allowed.
A society that is committed to equality should listen to and respect the needs and interests of religious bodies and individuals. However, the law should not pay undue deference to religious groups by providing a free licence to discriminate.
Rachel Ball is a lawyer at the Human Rights Law Resource Centre