The Business of Exemptions

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A submission to the Ruddock inquiry into religious freedom by Walter Lee. 
You have until Valentines Day Feb 14 to make your submission: for more details see http://www.thestirrer.com.au/how-to-write-a-submission-to-the-ruddock-review/

You have probably received submissions from a number of supporters of same-sex marriage about why businesses should not be given exemptions to discriminate against same-sex weddings.

In this regard, I would like to highlight the testimony of Professor Patrick Parkinson, who is not a supporter of same-sex marriage, below:

Very Very Few Examples

To quote the words of Professor Patrick Parkinson at the Senate Hearings in January 2017, he believes that there will be “very, very few examples” where businesses would seek to discriminate against same-sex weddings. As the number of instances are very, very few, is it worth changing anti-discrimination law for these few cases? Such a change to anti-discrimination law will disproportionately affect a large group of people.

Making discrimination legal will affect how these people regard themselves as equal citizens – of equal worth and belonging in the community.

The following is the full quote from Professor Parkinson from Hansard:

Pages 55-56, Official Committee Hansard, Senate, Tuesday 24 January 2017, SELECT COMMITTEE ON THE EXPOSURE DRAFT OF THE MARRIAGE AMENDMENT (SAME-SEX MARRIAGE) BILL. (Emphases mine.)

Senator PATERSON: Could you give us a bit of an indication practically what that would include and what it would not include? I will give you an example from what we talked about this morning. We had representatives from Anglican and Catholic churches here and each of them gave one example that they thought should not be exempt. The Catholic bishop said that a taxi driver driving someone to a wedding clearly should not be exempt. That is not related closely enough to the wedding. And the Anglican archbishop said someone providing chairs for hire should not be exempt. So, in your vision of how this would have been achieved, where would that line be drawn?

Prof. Parkinson: It is a really hard one because no parliament can possibly work through, with general words, an exact dividing line. But I think that, if you go broader rather than narrower, it will be respectful of people who genuinely have beliefs about these things, and there will be very, very few examples of it. I just find it hard to imagine the chair-owner who has a problem! But I do think the wedding reception venue owner might. So I would say: let us not try to be too precise in law. Let us deal with the problem five years down the track, should same-sex marriage pass, if we discover it is causing great conflict in the community. I suspect it will not.

Would the Review Committee be willing to commission a survey of wedding suppliers, to see how many would desire to discriminate against a same-sex wedding (or any other type of wedding) – are we looking at large numbers here? This survey could also help to identify which professions in particular would feel they are “close enough to the wedding ceremony” in order to have their consciences affected by it. This would be helpful as, as you can see in the above quote from Hansard, there is some debate about which wedding-related occupations or services are ‘close enough’.

Review

In the quote above, Professor Parkinson proposes that if we allow businesses to discriminate, we can then review how this is working in our community five years down the track.

Instead, could I propose an alternate suggestion? Could I suggest that we don’t allow businesses to discriminate, and review how this is working in our community five years down the track?

Same-sex marriage has already been legal in New Zealand for five years (since 2013) and it has not caused great conflict in the community there.

Existing businesses only

Professor Parkinson says that people of faith make choices about which professions they can enter, based upon their faith. Certain careers are not open to committed Christians, for example, he says. (Please see Professor Parkinson’s full quote at the end of this submission).

Should the Review Committee decide to allow exemptions for businesses to discriminate, I am in agreement with Professor Parkinson that such exemptions should only be allowed to existing businesses (not new ones).

I feel it is therefore important to make clear to all new businesses (or those thinking of entering certain professions) that they will not be allowed to discriminate against same-sex marriages. And that if this does not comply with their faith, then they can choose an alternate future profession, as Professor Parkinson indicates below**.

New business owners should be under no illusion as to what their obligations and responsibilities are under anti-discrimination law – therefore pre-knowledge of such obligations will afford them the opportunity to direct their path away from a certain profession, should their faith require them to do so.

On this point, I would like to note that there is disagreement among theological experts as to whether or not it would be OK for a Christian to supply a cake for a same-sex wedding. So it may be incorrect to say that a certain faith may require a business not to service a same-sex wedding – it may be more correct to say that a business owner’s interpretation of that faith requires him/her not to service same-sex wedding. Examples of the different opinions among theological experts can be seen at this link from Eternity News, a newsletter of the Bible Society of Australia:
https://www.eternitynews.com.au/in-depth/would-you-bake-a-cake-for-a-gay-wedding/

Suggestions

If the Review Committee does decide to allow exemptions for business, could I please suggest the following:

  • Only allow exemptions for existing businesses, not new ones.
  • Allow exemptions for small business only (not medium or large business) as it may be seen that for a larger business, the business owner may be ‘too far away’ from the offending incident to have their conscience affected by it.
  • If the owner mostly resides overseas, then again, that business will be not allowed to have exemptions, as the owner may be seen to be ‘too far away’ from the offending incident to have their conscience affected by it.
  • If there is a transfer in ownership of the business, then the right to discriminate does not pass to the new owner – this includes the inheritance or gifting of a business.
  • If the business is owned by multiple owners, then the majority shareholders of the business will get to decide on the religious conscience of the business, and whether the business is going to discriminate.
  • The owner(s) will get to decide what the religious conscience of the business is and the staff will then have to comply with the owner’s conscience. Therefore, please allow a three-month window for staff to move out of this employment, once they realise that their own individual conscience does not accord with that of the employer they work for. During these three months, staff will not have to act contrary to their own individual consciences. Please also note that an employee may change religion or beliefs after having started employment – therefore this three-month window should be afforded to these employees too. Please also afford this window to public sector employees as well as private sector employees.
  • Businesses should be required to specify in all job listings the conscience or beliefs that prospective staff will need to abide by if they gain employment. (Please note I do not think it is sufficient to say, for example, “Staff need to abide by Christian values”, given the diversity of Christian beliefs, interpretations and practices. Instead specific behaviours need to be explicitly specified in job advertising or job descriptions which can be downloaded.)
  • Perhaps allow these exemptions for a period of say 25 years, after which no business in Australia will be allowed to discriminate. Provide financial assistance to those businesses which wish to transition out of their industry after 25 years due to their religious conscience (in 2043).
  • Please discourage businesses from putting up signs specifying the events or people against which they discriminate. Such prominent, every-day reminders of discrimination work against social inclusion and community building. Instead perhaps businesses can put up a sign with a link to their website. The sign might say something innocuous like “Please see here for our terms of business www.xyz.com.au”.

Could the Review Committee also be aware of a loophole which may allow religious organisations to set up large umbrella organisations, which then allow other smaller businesses to operate under their umbrella, and to therefore be considered a part of a religious organisation. These smaller businesses will then have the right to discriminate on any religious basis.

Could the Review Committee also please consider that allowing businesses such exemptions could cause further disruption in our community, as businesses which choose to discriminate may be the subject of vandalism, boycotts, verbal abuse and threats on social media. Such behaviour may in fact work against religious tolerance, and create a backlash against these businesses and religions.

Again, I would like to re-state my preference for no exemptions for business, and to perhaps revisit this issue in five years’ time. But if the Review Committee would like to recommend the introduction of exemptions, then I ask you to please consider my above suggestions. Thank you.

Walter Lee

You have until Valentines Day Feb 14 to make your submission: for more details see http://www.thestirrer.com.au/how-to-write-a-submission-to-the-ruddock-review/

**Page 55, Official Committee Hansard, Senate, Tuesday 24 January 2017, SELECT COMMITTEE ON THE EXPOSURE DRAFT OF THE MARRIAGE AMENDMENT (SAME-SEX MARRIAGE) BILL.
(Emphases mine.)

Senator PATERSON: Right. So if for any reason the parliament did not see fit to grant an exemption for civil celebrants, are there other paths that would ensure that those civil celebrants of a religious nature could still have some kind of exemption or separation?

Prof. Parkinson: I am sure that could be done. The question is this: is it only ministers of religion who have freedom of conscience? It is a fundamental question. At least a civil society would grandfather provisions and say people who are already in the job, already have maybe for 20 years been doing this should be allowed to continue accepting freedom of conscience. There are ways of putting it on a register which you can do respectfully.

Senator PATERSON: I do understand that argument about grandfathering but, equally, your religious freedom or your right to freedom of conscience should not depend on when you took up your profession or indeed what your age is. If you are born today and have the same days as someone who is born 50 years ago and who is a religious celebrant, I do not think you should be treated any differently by the law.

Prof. Parkinson: I am hardly going to disagree with you but I do think, given there is so much opposition to any exemptions at the moment from some people, that we do have to find compromises. I have been a committed Christian since I was 17 years old and there were certain careers that were not open to me. One of them was prostitution.

I think that is okay. People who, because of their faith, hold Sabbath traditions will not be able to do jobs that require them to work on Saturdays. We make these choices as people of faith.

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