According to yesterday’s Age, the Victorian government is facing a new “political headache”, in the shape of a review of the state’s Equal Opportunity Act. The review is said to have “sparked widespread alarm among religious Victorians”, threatening “their religious freedom to discriminate within churches, schools and church-run welfare services.”

This raises a perennial issue: when should religions be exempt from laws that the rest of us have to obey? Three years ago Pru Goward, now a New South Wales MP but then outgoing federal s-x discrimination commissioner, controversially argued that churches should no longer be allowed to discriminate against women. The debate ranges over such cases as homophobic faith-based schools in the UK and ceremonial use of peyote in the US.

In relation to religion, the law tries to balance two desirable goals: that religions should not receive any special privileges (at the expense either of other religions or of the non-religious), and that people should be free to practise whatever religion they choose. Section 116 of the Constitution expresses both ideas: “The Commonwealth shall not make any law for establishing any religion … or for prohibiting the free exercise of any religion”.

The problem is that the two goals are not always compatible. A law that bans s-x discrimination, or drug use, or for that matter human sacrifice, will restrict religious freedom. But if joining a church allows you to disobey a law that everyone else has to abide by, that surely amounts to a special privilege for religion. That’s the objection to the churches’ position on the Equal Opportunity Act.

The logical course would be to start by asking whether society has a compelling interest in restricting a particular instance of religious freedom. If not, then the exemption should be widely drawn. An unreasonable restriction on freedom is just that — unreasonable; its reasonableness shouldn’t depend on whether the motive for exercising the freedom is religious or secular.

The question is whether something like s-x discrimination is a sufficiently vital matter that we are justified in overriding people’s deeply held personal beliefs. If we are, the churches should have to obey like everyone else. But if not, then exemption shouldn’t be confined to religious organisations or religious belief.

If there is no compelling interest to stop churches discriminating against women, or gays, or Muslims, there is no compelling interest in stopping anyone else either.

The debate involves two competing freedoms: freedom from discrimination against freedom of choice. Religious freedom is just one aspect of the latter. Its importance should lead us to recognise the importance of personal freedom in general, before deciding how far we are prepared to go in overriding it.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey