It is hard to conceive that in 2019 a reactionary minority within government are legislating for religious protection laws that strengthen the rights of religious institutions to discriminate against members of the community based on sexuality.
The Scott Morrison Coalition government’s proposed legislation would not only prevent discrimination against those of faith, but would also solidify — and perhaps broaden — exemptions from anti-discrimination laws that religious institutions are already afforded.
Although the debate is framed around “religious freedoms”, it is all about the nation’s largest religion: Christianity. Those directing the debate adhere to that faith. Other religions do not really rate a mention. And its quintessential example is rugby player Israel Folau publicly condemning homosexuals.
Pentecostal Prime Minister Morrison is the poster boy of the religious privilege crusade. Back when he was treasurer, he announced in December 2017 that it was a priority of his to change religious protection laws. This was straight after the passing of the marriage equality bill.
Make no mistake: the campaign for greater religious protections is all about same-sex marriage. Powerful conservatives are conducting this assault on LGBTIQ communities, as they felt threatened when the nation voted to uphold the human right of marriage for all.
Community Action Against Homophobia (CAAH) co-convener Cat Rose said religious discrimination has lately “asserted itself as the new frontier in an ongoing homophobic culture war”. She stressed it should be remembered that the PM was “a key figure in the No campaign”.
Following the return of the Yes vote in November 2017, Morrison was one of the main politicians pushing for greater religious exemption amendments to be made to the marriage equality legislation. When it came time to vote on the bill, he left the parliamentary chamber and abstained.
“The Liberals in general felt like the postal vote would legitimise a homophobic definition of marriage, even if it was a minority one,” Rose said. “But with millions of people mobilising for the Yes vote, and a win that was so decisive, it ended as a huge blow against them.”
CAAH is organising a protest at Sydney's Taylor Square on August 3 to remind those in power that the overwhelming majority of the public — including a significant number of Christians — voted in favour of LGBTIQ rights at the time of the national postal survey. And this was no aberration.
Rose put it to Sydney Criminal Lawyers that the conservative politicians attempting the “right-wing push back” should “expect resistance” to their agenda. “We have fought hard for equality and we will not go down easily,” she made clear.
Pesky anti-discrimination laws
The religious freedoms debate emerged as the prospect of same-sex marriage drew nearer. Indeed, then-PM Malcolm Turnbull announced the establishment of a religious freedoms review just a week after the Yes vote.
Turnbull selected former attorney general Philip Ruddock — the person behind the 2004 amendments to the Marriage Act 1961 that ensured same-sex marriage was outlawed — to head up the review on “whether Australian law adequately protects the human right to freedom of religion”.
The Ruddock review was not the first religious freedoms inquiry sparked by marriage equality. During the same month the postal vote result was announced, a parliamentary inquiry into religious freedoms established 12 months prior tabled its interim report.
The Joint Standing Committee on Foreign Affairs, Defence and Trade found that Australian religious freedom protections are limited and that a major issue is state anti-discrimination laws, “which do not allow for lawful differentiation of treatment by religious individuals and organisations”.
“While religious exemptions within non-discrimination laws provide some protection,” the report states, “these place religious freedom in a vulnerable position with respect to the right to non-discrimination.”
The right to discriminate
Religious exemption laws allow for religious institutions to disregard certain anti-discrimination laws. These exemptions exist in state and territory laws, as well as at the federal level, where they are contained within sex and age discrimination legislation and industrial relations laws.
For example, section 38 of the federal Sex Discrimination Act 1984 allows religious educational institutions to discriminate against employees and students based on “sex, sexual orientation, gender identity, marital or relationship status or pregnancy”.
The Ruddock review recommended that these provisions specifically be reassessed, not with the aim of removing them, but so that the fact that “the discrimination is founded in the precepts of the religion” is made clearer and institutions make their policy on this matter publicly available.
Another recommendation made by the Ruddock review was that a Religious Discrimination Act be established that makes it “unlawful to discriminate on the basis of a person’s ‘religious belief or activity’”, which is exactly what the Morrison government is up to at present.
The all-Anglo Australian review panel further suggested that while drafting the act, “consideration be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities”.
Rose said “this bill is clearly designed as a backlash against the marriage equality campaign by Morrison and those who want to embark on culture wars”, adding it relies on the false premise of a “silent homophobic majority” that the major parties propagate to push their agendas.
As part of its continuing post-election lurch to the right, federal Labor has stated its willingness to work with the Coalition on religious discrimination laws, seemingly not due to any need for them, but in a scramble to secure the religious vote it has surmised it lost at the election.
But, as far as Rose is concerned, “Labor are looking for a cheap excuse as to why they lost the election.” She said the success of the Yes campaign has only strengthened popular support for LGBTIQ rights and about 80% of the population want existing religious exemptions revoked.
“In this context, Labor’s support of the bill is just appalling,” Rose concluded.
[A Protest Religious Discrimination Bill: No Right to Discriminate rally will be on August 3, 1pm, at Talyor Square, Sydney and on August 31, 1pm, at State Library, Melbourne. Paul Gregoire is a Sydney-based journalist and writer for Sydney Criminal Lawyers.]