By Liam Elphick
THE GAY WEDDING CAKE DILEMMA WHEN RELIGIOUS FREEDOM AND LGBTI RIGHTS INTERSECT 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 LGBTIQ status. Discrimination is unlawful in a range of areas, including employment, education, accommodation, and goods and services. These prohibitions enshrine the human right to nondiscrimination in Australian law, in particular for social groups that have historically been marginalised.
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 2017 to February 2018. 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 it clear that LGBTIQ anti-discrimination laws, and religious exemptions to those laws, will be a particular focus.
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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 LGBTIQ 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.
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