Flat White

Why the religious freedom bill is bad for business

3 March 2020

6:01 PM

3 March 2020

6:01 PM

Last week, the ACTU and the AIG argued the religious discrimination bill would make life harder for businesses. If they’re right, then libertarians have a good reason for opposing the bill. Here are three others. The bill would entrench legal inequality. It would weaken religious freedom. And it would weaken freedom of association. 

The religious discrimination bill would make most forms of religious discrimination unlawful. It would make it unlawful for a law partnership to expel an existing partner because they were Christian, say.  

The bill wouldn’t protect regular moral or political beliefs. It wouldn’t protect you from employers if you’d tweeted capitalism was great, say, even if your capitalist beliefs were as strong as religious ones. This is one way the bill would entrench legal inequality.  

While the bill would protect some agnostic, atheistic, and religious believers, it wouldn’t protect them all. It wouldn’t protect a Christian aged care facility if it excluded people with brown hair on religious grounds, for example. It wouldn’t protect an atheist aged care facility that discriminated against brown-haired people because its owners believed atheism tells them to. It wouldn’t even protect a Christian aged care facility that excluded women due to an odd interpretation of scripture. The bill only protects beliefs or activities someone of the same religion, or non-religion, ‘could reasonably consider’ orthodox.  


This is not just another way the bill would entrench legal inequality. It is also a way it would weaken religious freedom: the religious freedom of dissenters, eccentrics, and fools. 

The bill would also strengthen constraints on religious freedoms in ways that affect all believers. It would sometimes prevent a religious or non-religious person from exercising their religious freedom by discriminating on grounds of religion. Some atheists would rather not hire Christians for religious reasons, even if it wouldn’t affect the inherent functions of a role. The bill would make this unlawful at the federal level. Some Christians would rather not rent four-bedroom properties to Satanists for religious reasons. The bill would also make this unlawful at the federal level 

Frustrating religiously motivated acts of discrimination undermines freedom of association, of course. You needn’t have any religious beliefs, though, for the bill to threaten your freedom of association. The bill would make it unlawful for some employers to impose “unreasonable” employer rules on employees, or prospective employees, that disadvantage them as religious persons. The “reasonableness” criteria are very permissive. For example, imagine you’re employed by a 50 million-dollar company and you want to say some fiery religious things online. The bill says your employer may only make rules to prevent you from doing so to avoid “unjustifiable financial hardship.” Despite complaints, “unjustifiable financial hardship” isn’t even defined in the latest draft of the bill.  

The mere fact the bill would constrain employers in these ways means it would further restrict freedom of association. 

Some believe no employer rules that constrained statements of religious belief could be a true expression of freedom of association, even given employee agreement.  Instead, such rules are “opinion slavery.” The libertarian account of freedom of association is different and more persuasive. We are free to associate under any rules that don’t violate the rights of third parties; even rules that constrain our future freedom. Rules that constrain statements of belief are no more “opinion slavery” than marriage is relationship slavery. 

These four reasons libertarians have for opposing the religious discrimination bill may turn out to matter less than ones they have for supporting it. Given the weight of libertarian commitments to freedom and legal equality, though, it seems extremely unlikely. 

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