Privileging prejudice: the threat and opportunity posed by the movement for 'religious freedom'

I'm old enough to remember when Australians who didn't like LGBTI people were honest enough to say so.

I recall like it was yesterday, then Tasmanian Premier, Robin Gray, declaring homosexuals were not welcome in the state.

That comment in 1988 helped galvanise me and other LGBTI Tasmanians into a movement that finally rid Tasmania and the nation of criminal laws against homosexuality.

Thirty years on, in this post-marriage equality Australia, it is no longer respectable to be so overtly homophobic.

Instead, anti-LGBTI prejudice has found euphemisms to hide behind like "religious freedom", "freedom of speech", "freedom of conscience" and "parental rights".

Should you need these euphemisms translated here's a handy glossary:

"Religious freedom" means punching holes in discrimination law so LGBTI people can be legally denied services in the name of religion.

"Freedom of speech" means overriding hate speech laws so LGBTI people can be denigrated if a deity can be invoked to justify it.

"Freedom of conscience" means discrimination and hate speech against LGBTI people even if you don't believe in God.

"Parental rights" means two things: preventing governments from funding programs that promote inclusion for LGBTI students, and blocking laws that allow transgender teenagers to have their gender identity recognised.

How religious freedom came to mean legal privilege for anti-gay prejudice

This is a far cry from the original, noble meaning of religious freedom.

In the traditional Enlightenment sense "religious freedom" meant not being disadvantaged because of one's faith: Think of how Catholics or Jews where once excluded from particular professions or clubs but are no longer.

Now "religious freedom" has come to mean the opposite; the legal right to disadvantage LGBTI people in the name of religion.

Under this new twisted definition of "religious freedom", the license to discriminate is only available to people who have a religious or conscientious objection to the requirements of anti-discrimination law. The rest of us still have to abide by that law.

There are often no objective tests for what a religious objection might be. The basis for claiming an exemption from anti-discrimination law is defined by the person claiming it, not the state or society and sometimes not even established denominations.

In almost every case, the act of discrimination, the refusal of services, the hate speech, or whatever sin is committed in the name of "religious freedom", is directed against LGBTI people.

There are some exceptions. In the US, "religious freedom" has been used to justify denying women termination services and in some states there is a debate about whether religious freedom laws allow discrimination against interracial couples.

But nowhere has a special claim for "religious freedom" been made by people advocating for refugees, defending the poor, or in any way helping others.

To all intents and purposes, "religion freedom" is not about religion or freedom. It is about giving special legal privileges to prejudice.

The term mocks all those defenders of genuine freedom who believe in democracy rather than theocracy.

It particularly mocks those people of faith for whom religion means love for others, not power over them.

Christians "thrown to the lawyers"

The new "religious freedom" movement arose in the US as a backlash to marriage equality.

Some commentators have compared this new movement to America's former Jim Crow laws, not because anti-gay discrimination is as serious as racism, but because the legal cornerstone of both the racial segregation movement and the new religious freedom movement is the legalised refusal of commercial and government services to members of a stigmatised minority.

The other key parallel is a persecution narrative which makes out the dominant group, be it white people or people of faith, to be innocent victims of an aggressive minority determined to turn the tables on them with the full backing of the state.

This persecution narrative has deep roots in Christianity.

The idea that persecution results from, and testifies to, religious rectitude goes back to the time of the Gospels.

Scholars like Candida Moss have shown how anti-Christian persecution was greatly exaggerated by ancient Christian writers to bind Christian communities together.

But the myth is so deeply embedded in our culture that we all know what contemporary religious freedom advocates mean when they talk anxiously about "Christians being thrown to the lawyers".

Like the ancient persecution narrative, the contemporary version requires heroes and martyrs.

Hence the celebrity status of people like Kim Davis, a Kentucky county clerk who was taken to court after she invoked religion to justify her refusal to do her job of registering same-sex marriages, and Jack Phillips, a Colorado baker who was subject to an anti-discrimination complaint that was appealed all the way to the U.S. Supreme Court when he refused to serve a same-sex couple.

The "religious freedom" movement establishes itself in Australia

In Australia, the religious freedom movement has been very successful in establishing the same narrative.

During the marriage equality postal survey the No campaign was almost entirely about threats to religious freedom, freedom of speech and parental rights.

With the help of sections of the media, the No campaign made Catholic Archbishop, Julian Porteous, an innocent victim of a hate speech complaint despite a ruling that there was substance to the complaint, despite him having to do no more than attend a conciliation session, and despite the complaint being dropped.

The No campaign relentlessly attacked Safe Schools for promoting "gender fluidity" despite clear evidence young transgender people are some of the most vulnerable members of the community, and despite the Safe Schools program improving educational outcomes.

The No campaign relentlessly pushed for "religious freedom" protections in marriage equality legislation allowing same-sex couples to be discriminated against ands refused services.

This push that was partly successful when Parliament agreed to allow civil celebrants with religious beliefs and commercial services with links to a faith, to refuse services to same-sex couples.

At the time, it was assumed the No case's postal survey strategy of focusing on religious freedom was about diverting attention from the main issue, which they singularly failed to do.

But if, as it now seems, their goal was to set up a new religious freedom narrative to roll-back LGBTI rights after marriage equality was achieved, the postal survey was a win for them.

A setback for the "religious freedom" movement came with last year's release of the report of the religious freedom inquiry set up by Malcolm Turnbull after the postal survey and chaired by Philip Ruddock.

It found there is no actual threat to religious freedom in Australia. By highlighting existing anti-discrimination exemptions for faith-linked organisations, the Ruddock report also sparked a push to remove exemptions in national discrimination law that allow faith-linked schools to expel LGBTI students and sack LGBTI teachers.

Outrage at such exemptions should come as no surprise. Successive polls, including one by YouGov in May last year, have shown around 80% of Australians oppose exemptions allowing LGBTI students and teachers to be discriminated against by faith-based schools.

But the strategy of the religious freedom movement, and the broader religious right, is no longer to win over the majority of Australians.

It has retreated from its former claim to represent "the silent majority" and now focusses on "the silenced minority".

The "religious freedom election" and a Religious Freedom Act

The recent election was an excellent example of this re-positioning.

The religious right claims the Coalition was re-elected and Labor defeated by a small but critical voter bloc that avidly supports religious freedom, and was stirred up all the more by sanctions against Israel Folau for comparing homosexuals to liars, thieves and other wrongdoers bound for Hell.

That voter bloc is said to exist chiefly in western Sydney and regional Queensland, areas that voted No in the postal survey.

The argument for 2019 being a "religious freedom" election is pretty weak.

The three to five per cent swings against Labor in those areas were not much different to swings in areas that voted Yes.

In Yes-voting seats that swung from Labor to the Coalition, like those in northern Tasmania, there is no evidence that religious freedom or LGBTI equality had any impact at all.

On top of that, Senate candidates who were the face of the No campaign, like Lyle Shelton and Sophie York, received miniscule personal votes.

Prior to the election, the ABC's Vote Compass found only one per cent of voters rated religious freedom as their number one issue, a figure the election result seems to confirm.

Despite the lack of evidence for a significant religious freedom constituency, the leaders of both major parties seem to have accepted the political myth that it exists, laying the foundation for legislation to protect "religious freedom".

Attorney-General, Christian Porter, says he will introduce legislation as early as July.

Porter's bill might simply prevent discrimination on the grounds of religion. This type of law already exists in most states and should be enacted nationally.

But there's also a strong possibility Porter's bill will go further, entrenching an unfettered right to religious freedom.

This is what religious freedom warriors have spent years campaigning for.

It will potentially override state laws that protect LGBTI people from discrimination and vilification.

It will be a stepping stone to the High Court for all those zealots who want the Bible to again be a cornerstone of Australian public policy.

Tasmania has most to lose

This is where it gets close to home for me.

Remember what I said about Robin Gray and the movement to decriminalise homosexuality in Tasmania?

Since then, Tasmania has adopted the most progressive LGBTI human rights laws in the nation and the world.

Alone in Australia, our Anti-Discrimination Act prevents discrimination against LGBTI people by faith-based organisations including faith-based schools, hospitals and charities.

Alone in Australia, our Anti-Discrimination Act prevents hate speech even when it is perpetrated in the name of religion.

We have Australia's strongest laws officially recognising the gender identity of transgender and gender diverse people and protecting them from discrimination and hate speech.

Several times the religious right has tried and failed to have these laws watered down by the state parliament.

Now it is pinning its hopes on federal legislation.

Just as the federal government and High Court helped overturn Tasmania's anti-gay laws in the 90s, the "religious freedom" movement wants Canberra to now step in and overturn the progressive laws Tasmania adopted in the wake of decriminalising homosexuality.

Indeed, some advocates for religious freedom have explicitly drawn that parallel.

In a "Freedom for Faith" submission to the Ruddock review, written by Prof Patrick Parkinson, Parkinson cites the Keating Government's 1994 sexual privacy law, that was specifically designed to overturn Tasmania's anti-gay laws, as a precedent for a religious freedom law.

I imagine the irony that a quarter of a century later a religious freedom law might now bring LGBTI equality states like Tasmania to heel was not lost on Prof Parkinson or his colleagues.

All the states will be losers if a positive, unqualified right to religious freedom is enacted because it will potentially cap their capacity to protect their citizens from discrimination.

But Tasmania has most to lose.

Have no doubt that after working hard for three decades to turn Tasmania around, my colleagues and I will not let the Island's landmark LGBTI human rights laws be dismantled by Canberra.

Turning the threat of the "religious freedom" movement into opportunity for real change

To stop the "religious freedom" movement steam rolling LGBTI human rights, supporters of LGBTI equality must do two things.

The first is to call out the religious freedom movement for what it really is, one of the 21^st century's greatest threats to an inclusive, plural, equal and free society.

I was deeply disappointed that the postal survey Yes campaign opted not to challenge the "religious freedom" narrative during the postal survey.

With the resources available to it, the Yes campaign could have alerted Australia to the dangers this movement poses without denting support for marriage equality.

I have been equally disappointed that Labor, the Greens, the Human Rights Commission and the Yes campaign's successor, Equality Australia, continue to talk about "striking a balance" between "religious freedom" and LGBTI equality as if it's possible to reason with a hungry crocodile.

It's time for all supporters of the LGBTI community and of human rights to abandon the pretense that the "religious freedom" movement is making a genuine claim on justice and instead campaign against it.

But such a campaign must be for something good, not just against something bad.

The second thing supporters of LGBTI equality must do is turn the challenge of the "religious freedom" movement into an opportunity for transformative legal and social change.

The threat the "religious freedom" movement poses to Australia's anti-discrimination laws provides an opportunity for those of us who believe in such laws to again explain to the nation why they are important.

We should be telling the stories of those people whose lives have been improved by anti-discrimination laws.

We should be talking about how such laws have created a more inclusive and compassionate Australia, freer of prejudice and hate than it was before we enacted anti-discrimination statutes.

We should develop a narrative in support of anti-discrimination law that is more compelling than the narrative that seeks to pull it down.

In the fertile soil of a new anti-discrimination and pro-equality narrative we should nurture a new movement to improve our anti-discrimination laws even further.

Most of all, we should make the case that it is a backwards step to enshrine one right and protect one group, at the expense of others.

We should match the religious right's call for protection of "religious freedom" with even louder calls for a national charter of rights.

We should call the religious freedom movement's bluff. It says it wants rights protected. Fine, but let's do it properly.

We should use this small and nasty rights debate as a platform to launch a fuller and more generous debate about genuine human rights and freedoms for all Australians, and why they matter.

These are the opportunity the current "religious freedom" challenge gives us. My hope is that, as a nation, we're up to it.