Defining the interface of freedom and discrimination: Exercising religion, democracy and same-sex marriage

A number of recent cases in Australia have highlighted an emerging tension between religious freedom and anti-discrimination law, particularly in relation to sexual orientation and same-sex marriage. Opponents of same-sex marriage assert that if same-sex marriage is legalised, anti-discrimination law could be used to restrict religious exercise which conflicts with same-sex marriage. Any constitutional protection of religious exercise is questionable due to the historically narrow construction of the free exercise clause by the High Court. Consequently, this article defines the boundaries of the free exercise clause in this dynamic context, arguing that the High Court should adopt a broader interpretation of free exercise informed by the same priority for democracy reasoning which undergirds the implied freedom of political communication. Contextually appropriate and clear boundaries for the free exercise clause are required for law to effectively engage with this continuing tension between religious freedom and anti-discrimination in a same-sex marriage context