Change ‘same-sex’ to ‘interracial’ and see how comfortable you are in granting people an exemption to anti-discrimination legislation based on a ‘conscientious objection’.
By
Ben Winsor

5 Oct 2016 - 9:31 AM  UPDATED 4 Oct 2016 - 5:02 PM

Last week Queensland Liberal MP George Christensen was asked by Emma Alberici on Lateline what religious exemptions he would like to see in the event that same-sex marriage was passed in Australia. 

"Well, obviously priests and ministers of churches need to be fully exempt," he said. 

“But, you know, it goes further than that. What about the person of faith who is a wedding photographer or a wedding cake maker or owns a particular venue that just doesn't agree with same-sex marriage and that venue's called upon for a reception?"  he asked.

Such service providers should be exempt from anti-discrimination laws, Christensen said. 

"Can you see how it would be potentially harmful to people of faith that are actually forced against their conscience to go and do something like that?" he said.

Look, I’ll be honest, when I first considered exemptions for cake makers, photographers and venue owners I thought sure, sounds fair enough.

Two dudes or two gals getting married may go against someone’s fundamental beliefs; maybe they can have a conscientious objection, and why would a same-sex couple want their services anyway?

But after thinking it through, I'm not so sure it's cool anymore.

Here’s a thought experiment – change ‘same-sex’ to ‘interracial’ and see how comfortable you are in granting people an exemption to anti-discrimination legislation based on a ‘conscientious objection’.

Would you want to live in a country where it was legal to deny a venue to a couple on the basis that one of them was black? Or where a bakery could refuse service to someone based on their race?

It’s not just an abstract counterfactual – we used to be that country.

In Australia, you once needed government permission for an interracial marriage, and it was entirely legal to discriminate against people on the basis of race. 

The fact that such legalised discrimination now seems so obviously wrong shows just how far we’ve come.

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As Christensen would probably say at this point, religious liberty is also a human right, and deserving of protection.

Shouldn’t a cake maker or photographer be protected from having their freedom of religion trampled by the insistence that they provide services to a ceremony which they vehemently oppose?

"Really you are then pitting people's right to freedom of belief, freedom of conscience and freedom of religion against another right," Christensen said.

Leaving aside the fact that the same argument was made upon the legalisation of interracial marriage - it’s an argument that appears superficially appealing.

(And for the record yes, I agree, religious freedom is a fundamentally important human right.)

But again, let’s look at what we’re really asking here.

Is religion an excuse for discrimination which would otherwise be illegal? Would we be comfortable allowing a person to bypass racial discrimination legislation based on a religious belief?

Currently, we don’t.

Marriage service providers – including celebrants themselves – must abide by racial discrimination laws. There is no religious exemption.

There is an exemption for religious bodies in the Sex Discrimination Act, but that only applies to religious bodies performing religious ceremonies.

There is no exemption relating to individuals providing goods and services.

To be clear, if a same-sex couple or trans person currently wants to celebrate their relationship – even if only informally at this point – goods and service providers would be bound to treat them equally.

In this country, you can’t discriminate on race. You can’t discriminate against transgender people. And you shouldn’t be able to discriminate against same-sex couples either.

To allow any alternative would be to enshrine discrimination into Australian law.

It would undermine any claim that we, as a country, value same-sex marriages as much as the heterosexual institution.

It would say we view you as equal, but only to a degree.

Now, the all too common middle-of-the-road and ‘pragmatically Australian’ way to deal with this is to say – “Hey, do you really want to have a homophobe bake you a cake anyway? Would you really want to get married in a homophobic venue?”

With respect, that misses the point.

Would it be okay to tell an Indigenous Australian to find another bakery?  To tell a woman to find a less misogynist employer? What if there’s only one venue in small country town?

With everything else in we’re more than happy to say hey, if you don’t want to provide goods and services to everyone equally, you don’t get to provide it at all.

So if we’re not cool with legalising other types of discrimination, why is my relationship any different?

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This is the part where I admit that yes, it’s probably a minor issue in the greater struggle for relationship equality. 

Yes, it’s unthinkable that religious bodies will be forced to treat us equally in the foreseeable future.

And yes, a small level of legalised discrimination is a pill most of us will happily swallow if we can get rid of the bigger injustice.

But it’s worth remembering that this is only the last in a long line of indignities for same-sex couples.

We’ve been legally fired for having committed relationships.

We have been banned from seeing our partners as they lay dying in hospitals.

We’ve been uninvited from their funerals, and we’ve been arrested for being intimate behind closed doors.

So yes, when you finally get around to recognising my relationship as legitimate, the least you can do is bake me my damn cake.

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