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Freedom to discriminate

By Nicola Wright - posted Thursday, 30 November 2017

Now that the country has been surveyed on the question of same-sex marriage, it's time to turn our attention to the details of the same-sex marriage bill that is before parliament. Religious freedom to dissociate from same-sex weddings will be at the forefront of the minds of many Christians and Muslims who do not support same-sex marriage. Before and during the postal survey, assurances were given, by the Prime Minister no less, that 'religious freedom…will be protected in any bill that comes before this parliament.'

The Constitution of Australia makes provision for limited religious freedoms protections in s116 which states that 'The Commonwealth shall not make any law… prohibiting the free exercise of any religion.' However, this has been narrowly interpreted in the past to apply only to laws, the express purpose of which is to prohibit the free exercise of religion, not as an unforeseen consequence of anti-discrimination laws. The constitution in itself is no guarantee of freedom of conscience.

Dean Smith's same-sex marriage bill only offers protections for clergy to refrain from officiating over same-sex ceremonies and for businesses that are affiliated with religious institutions, and is now being fast-tracked through parliament. George Brandis and David Leyonhjelm both seek to amend the bill to protect both civil celebrants as well as those opposed to same-sex marriage on principle. In the words of Leyonhjelm 'people need to be able to hold a different point of view and not be hounded."


But how far will these amendments go, and will they even be considered? George Brandis has indicated that the government are not going to 'remove one form of discrimination, and at the same time instate a new form of discrimination.' Labor Senator Murray Watt has also said: "Australians delivered a resounding message that they want to reduce discrimination in this country, not increase it." That the Paterson Bill, that contained measures that explicitly protected religious freedom, was met with such outrage, shows that freedom of conscience to abstain from providing same-sex wedding services is being framed as discrimination and special privileges for homophobic bigots.

It is worth pointing out here that abstaining from providing services to same-sex weddings is distinct from discriminating against people on the basis of their sexuality. A person who does not wish to participate in a same-sex wedding is doing so because they do not support the idea, which is an issue of conscience and not discrimination. There have been no instances so far of bakers, photographers or florists breaking the law and turning customers away because of their sexual orientation since the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

Opponents of religious freedom protections claim that it isn't fair that a business can refuse service to a same-sex wedding because non-religious people will not be free to do so. Same-sex wedding specialists, for example, should also able to able to refuse service to a heterosexual wedding if they want to. They have a point. If a person who has a religious conviction is free to refuse service, why stop there? People and businesses ought to be able to refuse service to anyone they like through voluntary exchange, otherwise they are being forced by law to into non-consensual businesses relationships.

What would a truly free market look like without discrimination laws? If a business was to advertise that they do not serve or hire black people, for instance, the public outcry and sanctions would probably mean they would quickly change their stance, or go out of business. Additionally, businesses that do not discriminate make more money than businesses that do through access to a greater pool of customers and job applicants.

When customers take their business elsewhere, this naturally leads to fairer outcomes than would arise were the graceless hand of government to step in with fines and lawsuits. Society in this day and age does not tolerate blatant racism and bigotry, so why do we need to look to the government to enforce a 'code of conduct' on us all? Government have not exactly been a glowing example of moral superiority to date, so we ought not to continue to look to them for validation and correction of societal ills.

The grown-up thing to do if refused service for your same-sex wedding would be to take your business to the 99.5 per cent of other providers who would be only too willing to serve you. Let's give same-sex couples the benefit of the doubt; if confronted by such a situation perhaps most of them will take this option. But as the saying goes 'there's one in every crowd.'


With or without freedom of conscience protections, we all know what will happen to the first business in Australia that refuses service to a same-sex couple with retribution on their minds. Some people will call these conscientious objectors brave and principled, others will call them hateful bigots, but no matter what you think of these people, their punishment will be swift. They will be headline news across the country, they will be publicly denigrated, ostracised and suffer a trial by social media that will likely destroy their business. Surely this is punishment enough, without the iron fist of the law coming down on their heads as well?

The yes campaign has had a great victory; same-sex marriage will be legal in this country. But we would do well to remember that over a third of people who voted do not support it.

Call them what you will, they ought to be free to express their views through exercising their right to voluntary association, in the way they conduct their business. If they do not wish to service a same-sex wedding, then so be it.

After all, who wants to force someone to photograph their wedding, who cannot give their all in celebrating and preserving the memories of their special day? Find another photographer. Live and let live.

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This article was first published by The Spectator Australia November 21, 2017

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About the Author

Nicola Wright is a senior writer at Liberty Works Inc.

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