Human rights news in other jurisdictions

Marriage equality bill contains discrimination law loophole, NSW warns

Paul Karp, The Guardian | January 17, 2017

Anti-Discrimination Board says florists and bakers could refuse to serve gay weddings by claiming to be religious organisations.

The Australian government’s same-sex marriage bill contains exemptions to discrimination law that would allow religious bodies or organisations to refuse to provide goods or services to a gay wedding.

The federal government’s same-sex marriage bill contains a loophole that could see florists and bakers refuse to serve gay weddings by claiming to be religious organisations, the New South Wales Anti-Discrimination Board has warned.

The board, part of the state’s justice department, made the warning in submissions to the Senate committee looking at the federal government’s same-sex marriage bill exposure draft.

The bill, released before the Senate vote blocking the government’s proposed plebiscite, contains exemptions to discrimination law that would allow not only civil celebrants and ministers of religion to refuse to officiate gay weddings but also religious bodies or organisations to refuse to provide goods or services.

The board, which administers the Anti-Discrimination Act in NSW, warned that marriage law does not define a “religious body” or “religious organisation”, raising the possibility that anybody could claim discrimination law did not apply to them.

It said that nothing in the exposure draft “appears to limit [the exemption’s] operation to religious bodies or organisations that have been formally recognised as such”.

“Accordingly an organisation with no recognised religious connection could claim to be a religious organisation based on the beliefs of its owners or members” and refuse goods or services incidental to gay weddings, it said.

The loophole identified suggests that, in practice, florists and bakers and all other wedding service providers could claim to be exempt from discrimination law on the basis of their individual faith.

 In its submissions the Australian Christian Lobby called for the bill to explicitly exempt such providers from discrimination law, arguing that freedom of religion is a fundamental right that protects both individuals’ beliefs and practices based on those beliefs.

That call was echoed the Australian Catholic Bishops Conference, who also want a guarantee religious organisations and faith-based schools can discriminate by only hiring people who believe marriage is between a man and a woman.

The board called for the discrimination law exemption to be clarified “so that only recognised religious bodies and organisations can rely on it”.

“In this way a church hall could seek to rely on the exemption to refuse a venue booking but a civic function centre could not, regardless of the religious beliefs of its owners.”

The submissions were signed by the acting president of the Anti-Discrimination Board, Elizabeth Wing.

Veteran LGBTI rights campaigner Rodney Croome told Guardian Australia the NSW Anti-Discrimination Board had “confirmed our worst fears about the government’s provisions allowing refusal of service to same-sex couples”.

“They go beyond what most people would understand a religious body to be and could include any business – a baker, a florist, a reception centre – where the owner or manager has a religious or conscientious objection to serving same-sex couples.”

“Australians would abhor businesses putting up shopfront signs declaring ‘No Blacks’ or ‘No Asians’, and in the same way we shouldn’t allow businesses to stop serving LGBTIQ people.”

In its submission the Australian Capital Territory government opposed exemptions allowing civil celebrants, religious bodies and religious organisations to refuse gay weddings.

It said the exemptions appear “to formalise existing institutional prejudices and discrimination into law rather than remove them”.

The ACT accused the federal government of designing amendments that “appear to be intentionally designed to undermine the protection afforded to LBGTIQ people”.

The ACT said there was “no rational basis” to allow civil celebrants to refuse weddings to discriminate where the marriage was not between a man and woman.

It said the exemption for religious bodies and organisations went “significantly beyond” what was needed for freedom of religion and allowing the refusal of goods and services was inconsistent with state and territory discrimination law.

It suggested instead that ministers of religion should not be required to make a place of worship available for a wedding.

In its submission the NSW cross-party parliamentary working group on marriage equality, which includes Liberal MP Bruce Notley-Smith and National Trevor Khan, opposed the bill’s exemptions for civil celebrants, religious organisations and bodies.

The group said ministers of religion could already refuse weddings, and a new exemption did not need to be added “singling out same-sex marriages”.

Tasmania’s anti-discrimination commissioner, Robin Banks, opposed exemptions for civil celebrants, religious organisations and bodies because they would “maintain inappropriately discriminatory provisions” in the marriage law.

In separate submissions to the Senate inquiry, Australian Marriage Equality and Just Equal argued that religious freedom was adequately protected by the draft bill’s provision, allowing ministers of religion to refuse to perform weddings.

AME said the new exemptions for “religious organisations or bodies” to refuse to provide services to gay weddings should be removed or at least more clearly defined.

Just Equal similarly argued against discrimination law exemptions for religious organisations that provide commercial services, warning that gay couples in rural and regional areas may struggle to find service providers as a result.