Religious freedom is not an absolute right

Following an Australian Law Reform Commission report recommending substantial curtailing of existing anti-discrimination law exceptions, the government is seeking bipartisan support for - as-yet unknown - changes to the law.

Among other alterations, the ALRC report recommends the abolition of section 38, which exempts religious schools from discrimination laws in respect of sex, sexual orientation and gender identity (among other factors). Unsurprisingly, some religious school leaders are upset about this change.

While the government has sought to distance itself somewhat from the controversial ALRC report recommendations, this is completely disingenuous.

The fact is, the terms of reference specified by the government almost direct the ALRC to this finding.

The terms of reference outline up front the government's commitment to ensuring educational institutions do not do exactly what section 38 contemplates. It also explicitly identifies section 38 for consideration of reform.

The government is claiming it wants to balance the rights of religious schools to hire teachers of their faith with discrimination protection for LGBT staff and students.

However, it's easy to see examples that will make this borderline impossible in practice.

Consider a Jewish school looking at three potential applicants: a Jewish teacher, a gay teacher and a Catholic teacher. Is the school building "a community of faith" if they pick the Jewish teacher or are they discriminating against an applicant on the basis of sexual orientation by rejecting the gay teacher, or discriminating on the basis of religion by rejecting the Catholic?

The ALRC report is, at least, clear: rights for religious schools will be subordinate to discrimination protections under the Sex Discrimination Act. In practice, this will mean they don't exist.

The justification for picking one potential staff member over another will not be able to be made on the grounds of faith alone; provided the losing candidate falls within the very broad protections of anti-discrimination law.

In our example above, the Jewish school could only pick the Jewish teacher if they were a demonstrably better candidate than the others.

Of course, when put that way, many may argue this is not a bad thing. Why should a school choose a worse candidate just because they have the right faith (or lifestyle)?

Nor should we ignore genuine cases of discrimination. For example, a religious school that happily employed teachers flagrantly in breach of the tenets of their religion but refused to employ gay teachers should be caught by discrimination law.

Moreover, for many religious schools, the change in the law probably wouldn't matter; precisely for this reason. They are essentially academic institutions seeking excellence, not religious communities seeking to offer comprehensive schooling in their faith.

They are effectively 'homeopathic' religious schools, with the religious element heavily diluted. These reforms may increase the dilution but that's about it.

But for others, it will be potentially threaten their existence - at least, as communities of faith.

Of course, for some activists this is exactly the point of these reforms. They see religious schooling institutions as valueless - if not actively harmful - to society, and needing to be brought to heel effectively.

We also cannot ignore the prospect some activists will seek employment within institutions they are hostile to, specifically to undermine them.

Continuing the example of the Jewish school, in light of the current furious debate sparked by Hamas' terrorist actions on October 7, should they be able to refuse to employ someone who publicly supports Hamas or regularly posts on social media about how "all Jews are complicit in Israel's genocide"?

There are plenty of such people on university campuses around the world; no doubt some are studying teaching.

The big question then, is whether society as a whole sees any value in the freedom to choose to associate with others and establish flourishing communities built around a shared faith?

This framing also makes clear that is the huge difference between adults - who can choose to join (or not join) such a community - and students, who may be part of such a community through their family and not by their own choosing.

And while the debate has largely been framed around the employment of teachers, there have been prominent examples of schools taking action against LGBT students.

The strong backlash directed towards these schools makes clear the public has far less toleration for this.

In some respects, there is a quasi-settlement on the issue that allows religious schools not to employ teachers outside their faith (and to an extent control their personal conduct during their employment) but not take discriminatory action against LGBT students.

It would be easy enough to remove exemptions for religious schools in respect of students and leave them for staff.

However, it is not clear that enshrining such a settlement in law has the support of a majority of those most fervently engaged in the debate.

The Labor government is saying any changes must have bipartisan support. It is unclear if, absent Coalition approval for a comprehensive settlement on the issue, they will make some change to the law anyway. Or what that change will be: presumably, if they had intended to adopt the ALRC recommendations they would have published their proposed changes - rather than withholding them.

Fundamentally, religious freedom is not, and cannot be, an absolute right. It must be read and considered in the context of other rights and freedoms.

It is not clear there is a better solution to protect religious liberty than the status quo.