Sexual Orientation and 'Gay Wedding Cake' Cases Under Australian Anti-Discrimination Legislation: A Fuller Approach to Religious Exemptions

Abstract

Freedom from discrimination and religious freedom have long clashed in the context of religious exemptions to anti-discrimination legislation. Historically rooted in debates over gender and race, this legal battleground has largely turned to sexual orientation in recent years. This has been particularly borne out in various ‘gay wedding cake’ disputes in overseas jurisdictions, where bakery owners have been sued for refusing to bake a cake for a same-sex wedding on religious grounds. Though the continued definition of marriage as being between a man and a woman has so far precluded these cases from arising in Australia, an in-depth examination of how such gay wedding cake cases would be decided under Australia’s varying anti-discrimination laws remains lacking. Furthermore, existing approaches have tended to focus on the external morality of law and human rights, facing the difficult task of balancing freedom from discrimination with religious freedom. To avoid the uncertainty typical of external morality debates this article suggests an alternative approach, arguing that an application of Lon L Fuller’s natural law theory, and in particular his eight ‘excellencies’ of law making, could provide a path forward for this debate in the pursuance of the internal morality of law. This approach would suggest an expansion of the current definitions of sexual orientation in Australian anti-discrimination legislation, the application of religious exemptions to religious organisations and religiously-affiliated bodies but not to individuals, and a shift to a quasi-subjective test to determine religious beliefs under such exemptions. This would provide a clearer path forward for lawmakers and judicial decision makers in an area of law rife with uncertainty and inconsistency.

Keywords: anti-discrimination law, religious freedom, sexual orientation, gay wedding cake

JEL Classification: K10, K31