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Should religious protection extend to the marketplace?

By Chris Fotinopoulos - posted Friday, 18 May 2018

Take a drive along any arterial road in Australia and you're likely to pass dwellings dedicated to various deities with its congregants practicing their brand of faith free of external interference.

Apart from the exclusive varieties, most churches are open to anyone seeking respite from secular life. But as much as most churches are welcoming, they are free to exclude anyone who disrespects church ethos. Just as I can ask an unruly guest to leave my home, so too can a church official determine who leaves God's home.

Unlike the government school that I now teach at, faith-based schools are free to refuse gay teachers, reserve the right to teach anti-evolutionary 'Biblical' theories in science classes, and enforce moral views that are offensive to the non-religious.


Although the law under Section 75 (2) of the Equal Opportunity Act permits certain religious practices out of respect for religious freedom, the free market is probably not as tolerant.

This is because businesses enter the marketplace on quid pro quo basis. In exchange for access to a massive market, a business agrees to trade with everybody regardless of race, color, sexual orientation or religious belief. Religious privilege is traded for market privilege.

This does not mean that businesses cannot impose certain conditions on trade. I can think of many cases where a customer request can be legitimately declined. Take the straightforward example of a car manufacturer that offers a particular model only in the colors blue, green, and white. If a customer asks for pink and the manufacturer says, 'we don't do pink,' the manufacturer cannot be accused of discrimination.

Clearly, the standard model must be available to all, but the manufacturer is not expected to accede to all customized requests. Refusal can be justified on the grounds of cost, marketing or business objectives.

I see no ethical different between this situation and the US Christian Baker who refused service to a gay couple. The controversy with this baker did not center on his refusal to sell a wedding cake to the couple. To do so would be outright discrimination.

The controversy revolved around the baker's refusal to inscribe a personalized message that was inconsistent with the baker's religious values. It may have been a bad business decision, but there is no law against running a business badly.


The way I see it, the baker's refusal to accede to the request is no different to a Christian baker refusing to inscribe the words 'Mohammad is the messenger of Allah' on a Simnel cake or, to take an extreme example, a Jewish jeweler refusing to inscribe "Die Juden sind unser Ungluck " on a traditional wedding band.

Within the Australian legal context, the refusal to supply a wedding cake to a same sex couple would be a clear breach of the Sex Discrimination Act, which since the 2013 amendments makes it unlawful to refuse supply to persons because of their gender.

There should, however, be space for, say, a socially progressive non-religious feminist baker to decline a request for an inscription on a wedding cake that reads, A wife will serve and obey her husband. If the non-religious baker can say "no" to such a request on personal moral grounds, then a religious baker should be equally free to say 'no' to a groom and groom wedding cake topper.

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About the Author

Chris Fotinopoulos is a philosophy teacher and ethicist who taught medical ethics at Monash University and The University of Melbourne.

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Creative Commons LicenseThis work is licensed under a Creative Commons License.

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