A reconstruction of religious freedom and equality: gay, lesbian and de facto rights and the religious school in Queensland

Abstract

Through the later months of 2002, as part of a program to equalise de facto couples’ rights and duties with those of married couples, the Queensland Government negotiated the passage of legislation that was intended to harmonise the State’s anti-discrimination laws with those of other States.1 This included the extension of anti-discrimination laws in respect of sexuality and religion, and introducing the protections of the Anti- Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’) to transgender and intersex people.2 Among the changes planned for the anti-discrimination laws was a narrowing of the freedom of religious schools and hospitals to discriminate. It was inevitable this would raise concerns from the churches - especially when the plan to enhance the rights and duties of de facto couples meant couples of any sexual orientation, and when the protection of homosexual people under the Anti-Discrimination Act was being extended. For Christians of a conservative bent have long opposed gay and lesbian rights and attempts to bring, as they see it, a sinful lifestyle into the social mainstream.3 In Queensland, even churches that are not characteristically tagged ‘conservative’ pressed the Government to let religious schools retain the right to discriminate on the ground of sexuality or marital status. They did not succeed, but bowed to a hastily arranged compromise that, in the long run, may prove unsatisfactory to gay and lesbian groups as well as to the churches and religious schools. In this article, I explain how the extension of gay and lesbian rights in particular impelled a reconstruction of religious freedom and equality in Queensland. The nature of the freedoms left to religious schools is then discussed, as is the extension of religious equality wrought by the 2002 amendments. I conclude with some observations on the political legitimacy of arrangements that, in a negative sense, leave Queenslanders with lesser rights of religious freedom than most other Australians but that, positively, lay more neutral legal groundwork for a secular economic and social life in the State.