Michael Sexton SC makes a good point ($) in The Australian today:
…the Tasmanian legislation — and similar legislation in some of the other states and territories — poses real problems on its face for churches and other religious groups.
To take an example, as anyone who has read Brideshead Revisited will recall, it is Catholic teaching that unmarried heterosexual couples are “living in sin” and so doomed to the eternal fires of hell.
Why is it not open to such a couple to complain that they are offended and insulted by church publications to this effect because those publications are made on the basis of their relationship status?
It then would be up to the church to argue that a reasonable person would not have this reaction but that decision might depend very much on the personal views of the Anti-Discrimination Commissioner.
This last paragraph is an important point, and it’s one that tends to be missed by lawyers. Judges are not automatons. Judges are people that bring their own values to bear on legal decisions they are required to make. They are not infallible, and personal biases often play a role.
The correct response is to ensure that contentious decisions about thoughts, ideas, and the limits of public debate are not left to judges, but are debated freely by individual citizens.