Against all religious exemptions

Lisbeth Latham

Religious exemptions to various anti-discrimination laws within Australian jurisdictions have come to the fore of public consciousness since the portions of the Phillip Rudock led the Expert Panel’s Review of Religious Freedom was leaked on October 9. Whilst much of the focus has been on the report’s recommendations regarding exemptions it has generated a broader discussion re religious freedom and how Australia’s anti-discrimination legislation works.

The Review of Religious Freedom has its origins in the 2017 Australian Marriage Law Postal Survey and in the subsequent process of legislating for marriage equality. At the time ultra-conservative sections of the Liberal Party pushed for dramatic expansion in the religious exemptions, which would have expanded religious exemptions to enable the denial of goods and services relating to marriage to any person holding a "religious belief" or "conscientious" belief not just about the nature of marriage, but about having children out of wedlock or the existence of trans or intersex people. At the time the LNP leadership rejected this legislative proposal but on November 22, 2017, offered a sop to the right (a section of which was in the party’s leadership) of establishing an enquiry into religious freedom.

A secret review
While any review of religious freedom established by the LNP would be a concern, per Yes Minister, you never commission unless you know the outcome beforehand, fears were escalated when it was revealed that the review would operate in secret with submissions, unlike normal enquiries, not to be made public. Which would mean that right would be able to make submissions that played up or simply fabricated without being subject to any public review or oversight. Following a public outcry, it was announced that all subsequent would be made public, but those who had already made secret submissions would be given the option of making their submission public. Following the closure of written submissions, a small number of closed hearings, where participants were promised that they would not be recorded.  The Review report was delivered to Cabinet on May 18, with no schedule for when it would be made public

Things could be worse, so its ok?
The leaked recommendations do not go as far in attacking the anti-discrimination as many feared it would, it fell far short of the objectives of in the alternative “Marriage Equality Bills” put forward by the ultra-conservative wing of the LNP. Indeed Liam Elphick, Amy MacGuire, and Anja Hilkemeijer argue that the report seeks to further constrains religious freedom in that it would require religious schools to have clearly articulated policies in order to have protection and must “act in the interest of students” when looking to discriminate against them – the fact that these religious schools would argue that acting against gay, lesbian, and trans students are in the interests of these students seeming to have escaped the authors. While at one level this is a reason for relief, the proposals are still toxic and reinforce the right of religious organisations to discriminate particularly in seeking to expand the right of religious schools to exclude students on the basis of the sexuality and gender identity, something that not all state anti-discrimination laws currently allow, and affirming the universal right of religious organisations to exclude staff based on their sexuality and gender identity.

Freedom to be bigots
Central to the logic of both the Review’s recommendations and the objectives of the religious right, is that religious beliefs give, as former attorney general George Brandis would say, a “right to be bigots” and that any impingement on this right is an impingement on religious freedom. However, as Anna Brown pointed out in response to the conservatives’ push to expand exemptions to the anti-discrimination acts in the Marriage Equality bill in 2017, whilst human rights laws internationally protect religious freedoms, these rights are not unfettered, and they do not extend to breaching the rights of others. However, for the religious right – religious freedom is not about freedom for religious minorities – indeed the religious right are happy for Australia’s Islamic community to be persecuted including mobilising polygamy as “dangerous consequence” of marriage equality which is a marriage practice which is permitted under a number religious and so they were happy to mobilise hostility to religious rights of marginalised groups as part of their campaign against the LGBTIQ+ community. Of course, our entire legal system is based on limits on the enforcement of religious doctrines

One of the ironic things about the recommendations of the Review report is that in asserting the importance of defending the right of religious organisations to discriminate on the grounds of gender and sexuality based on their doctrines, it at the same time rejects this right on other attributes, including race and intersex status, and thus accepts that it is appropriate for it to be curtailed in these circumstances. Which really begs the question how is being gay, or bisexual, trans or a woman, different from other attributes which the Review accepts that it is not ok to discriminate against? Importantly the Review, in seeking to defend and reinforce the right to discriminate creates a beachhead for an expansion in the right for religious organisations to expand their right to discriminate.

Dishonest
The argument that religious exemptions from sex discrimination acts are necessary to protect the religious convictions, are morally turgid but detached from reality that these exemptions do not prevent lesbian, gay, bisexual and trans workers from working for religious organisations, it just impacts on the circumstances in which they work. It means these workers will be deeply in the closet, they will have to hide significant aspects of their life from co-workers and live with anxiety when participating in activities within the LGBTIQA+ community for fear that someone with some connection to them at work seeing them. Research shows that being in the closet It means that a worker that no one has ever had any problem with regarding their performance or ability to meet the expectation associated with the organisations' doctrines could be lawfully dismissed on the grounds that their sexuality or gender if it is discovered.

In November 2017, Craig Campbell a relief teacher at a Baptist High School in Rockingham Western Australia (he had also previously studied at the school), having attended a family wedding with his partner but having to hide the relationship at the wedding because three students from the school were in attendance. Campbell told OUTInPerth “It got to this point where I was like, ‘I can’t hide this anymore.’” He also found it challenging to be a teacher who is supposed to instil values like honesty into students, while also being required to lie and cover up his own identity. In response, the school told him that he would no longer be given any work.

Roll back all religious based exemptions

The public response to the leaked report demonstrates that there is widespread opposition within Australia to discrimination on the grounds of sexuality and gender identity. This opposition has forced the Morrison government to make noises about removing exemptions which allow LGBTIQA+ students to be discriminated against by religious schools – however reports on negotiations over potential legislation to achieve this shows a desire on the part of the government not fully remove exemptions and to leave ambiguity as to what action schools will be able to take.

The public backlash has also resulted in the ALP, which had previously supported the existing religious exemptions, to join with the Greens, who have had a standing position against such exemptions, in moving a private members bill in the Senate on October 18. It remains unclear whether the opposition parties will have the numbers to pass the bill in both houses. It is important that all exemptions are removed in all Australian jurisdictions otherwise religious organisations, which employ more than 200, 000 workers across Australia, will remain free to discriminate on the grounds of gender and sexuality. This beachhead into anti-discrimination legislation would remain to be used to justify the further roll back protections should a future conservative government be willing to go against public opinions. For this reason, it is important all progressive forces commit to an ongoing campaign to rollback and overturn all religious exemptions in Australian jurisdictions.

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