The gay wedding cake dilemma

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.

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.

24 FUSEFEATURE FUSEMAGAZINE.COM.AU

THE INFAMOUS “GAY WEDDING CAKE” SCENARIO IS THE MOST COMMONLY RAISED EXAMPLE OF LGBTI DISCRIMINATION ON THE BASIS OF RELIGION.

WHAT IS A ‘RELIGIOUS EXEMPTION’?

In addition to being a protected ground, religious belief has a particularly special status: it can be used to render discrimination against LGBTIQ people lawful through religious exemptions.

Broadly, religious exemptions in Australian anti-discrimination laws can be categorised in three main ways:

1 Specific religious exemptions2. Educational religious exemptions3. General religious exemptions

Specific religious exemptions relate to the appointment and training of priests and ministers. Educational religious exemptions apply to religiously affiliated schools. This means their employment decisions and provision of education can discriminate against LGBTIQ people.

But most recent controversy has focused on general religious exemptions. General religious exemptions typically apply only to religious bodies, where their conduct either:

a) Conforms to the beliefs of the religion; or

b) Is necessary to avoid offending or undermining the faith of their members

As such, if a church discriminates against a person because of their LGBTIQ status, but their conduct falls within one of these two categories, their conduct is excused from anti-discrimination prohibitions.

As an example, if a bakery run by the Anglican Church could establish that opposition to samesex marriage conformed to the beliefs of the Anglican Church, refusing to bake a gay wedding cake for that reason would likely be lawful.

DOES THE SAME TEST APPLY THROUGHOUT AUSTRALIA?

Unfortunately not. There are significant differences under various state and territory laws.

Victoria requires that the conduct be “reasonable”, and allows individuals to use the exemption rather than confining it to religious bodies. No other jurisdictions allow religious exemptions for individuals in relation to sexual orientation.

Tasmania does not exempt discrimination on the basis of sexual orientation for any religious reasons.

FUSEFEATURE

»

25