Should discrimination in Victoria's religious schools be protected?: Using the Victorian charter of human rights and responsibilities act to achieve the right balance

Abstract

In 2007, a leading US academic, Professor Cass Sunstein, sought to explore what he referred to as the Asymmetry Thesis. According to this thesis, 'it is unproblematic to apply ordinary civil and criminal law to religious institutions, but problematic to apply the law forbidding sex discrimination to those institutions'. Sunstein came to the conclusion that there is no plausible rationale for this thesis in a liberal social order. However he was not prepared to accept that religious organisations should be automatically subject to any non-discrimination law. On the contrary he argued that 'whether it is legitimate to do so depends on the extent of the interference with religious convictions and the strength of the state's justification'. He recognised that '[r]easonable people can reach different conclusions about particular cases', but argued that 'at least in some cases the religious practice would have to yield'. The question left open by Sunstein was in which specific cases would the application of non-discrimination laws to religious organisations be justified?