Freedom Beyond the Commons: Managing the Tension between Faith and Equality in a Multicultural Society
(2014) 40 Monash University Law Review 413
28 Pages Posted: 13 Oct 2015
Date Written: 2014
As religious traditions and equality norms increasingly collide, commentators in Australia have questioned the existence and scope of exceptions to anti-discrimination law for religious bodies. The authors argue that this presents a shifting understanding of anti-discrimination law’s purpose. Rather than focusing on access or distribution, anti-discrimination law is said to centre on self-identity. When justified by this and related values, anti-discrimination law tends towards a universal application — all groups must cohere to its norms. In defending religion-based exceptions, the authors argue that this universalising fails to recognise central principles of religious liberty (principally the authority of the group) and the multicultural reality of Australia. The authors argue that more attention should be given to a social pluralist account of public life and the idea of a federation of cultures. Non-discrimination norms ought to operate in the ‘commons’ in which members of the community come together in a shared existence, and where access and participation rights need to be protected. Beyond the commons, however, different groups should be able to maintain their identity and different beliefs on issues such as sexual practice through, where relevant, their staffing, membership or service provision policies.
Keywords: Religious liberty, non-discrimination, exemptions, multiculturalism, social pluralism
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