Sometimes you may ask a court to review a government decision that goes against you. You can do so if you can show that the relevant government agency had no jurisdiction (in general language, power) to make the decision. And you may be able to do that if you can show that the agency asked itself the wrong question. You might think that this would be a cheeky way to allow unelected judges to second-guess agents responsible to an elected government, but it doesn’t take long to see the merit in the suggestion. For example, a power to answer questions on health is not a power to answer questions about morals or business – and vice versa. Say that the AFL asks a panel of doctors to advise if its rules should be changed to improve the safety of the players. The panel says that in their opinion the rules should be changed to make the game safer, but that they advise the AFL not to so do so, as such a change would make the game less entertaining and would therefore be bad for business. The most polite response of the AFL would be – who asked you? You have asked yourself the wrong question.
English judges have spent about 900 years formulating rules for issues to be decided or questions to be answered in forensic contests. We don’t have any such rules for public debate – as the British are finding in their Brexit debates. We are now facing that problem in our debate about the role of religion in the discussion about marriage equality. It may help to look at some of the questions that may arise.
What is marriage?
Marriage is a union between two people who intend the union to be binding and which confers, as a matter of law, rights on the parties. Marriage confers status on a union between two people, just as the grant of citizenship confers status on one person. Putting God to one side for the moment, on what moral or political ground could heterosexual people deny the conferral of that legal status to homosexual people? If we deny that status to homosexual people, are we not saying that they are not entitled to all of the benefits of citizenship? Would we not then be marking homosexual people as second class citizens? If we say they cannot enjoy equal status with the rest of the community, how do we avoid the conclusion that they are inferior in status?
This first question – about a kind of legal status – leads to another. Why do we ask or worry about what people of faith may have to say on this issue? They don’t have any special rights or interest in how much tax we pay, what kind of submarine we build, or whether we should sell Blue Poles. Why is there such a fuss about their views on the legal definition of marriage? I don’t know – for reasons that I will try to give – but many of the questions discussed here overlap.
Is homosexuality against the word of a Christian God?
It’s not my faith, but parts of the bible say that it’s wrong for a man to lie with a man in the same way as he would with a woman. The penalty is death – by stoning, as I recall. Well, we couldn’t have that. Even Daesh might draw the line at death by stoning, whatever the offence. But, then, how much of the bible should we have? And, just as importantly, who says so – both for the members of the relevant church, and for the rest of us?
On that or some other ground, should people of the Christian faith decline to recognise or participate in same sex marriages?
It’s rare now for people to seek to impose their religious views on others – or to exclude from their company those people who have different religious views. A person who says ‘I will not tolerate a person whose views on religion are different to mine’ is a definitively intolerant person – a bigot.
Some religious people seek to avoid this conclusion on the issue of abortion by invoking the category of ‘murder’, and saying that ‘murder’ is non-negotiable in any moral code. But putting to one side the various defences to acts of homicide, those on the other side say that this mode of labelling is a cheap debating device. They also wonder about the sincerity of those accusing others of murder if they are content to remain in a community that allows if not promotes this crime.
To what extent, if any, should leaders or elders of that faith seek to impart their views to others of their faith or the world at large?
This question suggests that there are two other questions anterior to those I have put so far.
What business does religion have with sexuality?
That’s a very real question. And the bigger one may be: who gives the answer?
The Inquisition went after Galileo because his proven views on astronomy contradicted the bible. So they did. So what? Galileo took the view that the bible answered questions about religion, not astronomy. Should we still subscribe to the literal truth of the book of Genesis? Of course not.
Many people are very angry with one part of the Christian church. They say that the views of that church on contraception are causing untold misery around the world. Why is any church allowed to dictate to anyone – anyone – on any issue of sexuality? Is it not the case that the church is there to answer questions about religion – and not questions about sexuality? Put differently, why should we pay any more attention to what a church says about sexuality than we do for what a church says about astronomy?
What business does religion have with marriage?
Well, most religions have something to say about marriage. There may I think be various models within Christianity, let alone the many other faiths followed in Australia. But there are also purely civil non-religious forms of marriage. The Christians can have their model, and the Jews, Muslims, and Buddhists can have their models. And the secular people can have their model. What gives one group the right to claim the supremacy of their model – or to deny the right of others to their own model?
There is a particular question here. If some Christians want to say that marriage should be confined by law to a union between a man and a woman, where do they get the right to claim a nation-wide monopoly of their kind of marriage? That is a large question. It is even larger in a nation that has the following in its Constitution.
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
It does seem curious that in a nation that outlaws establishing a religion, its people have to endure the efforts of one religion to impose its will and establish its definition on an issue as important to that people as marriage.
The no-sayers have of course gone further than that. They have deterred our members of parliament from doing what we elect them to do. And here we may as well identify the rhinoceros in the wine cellar. But for the Catholic Church, and some of its older, uglier and angrier votaries, we would not be having this discussion, and we would not have had to endure the tawdry farce of this plebiscite. (And do you remember that hilarious occasion when a former Prime Minister, while still in opposition, said that he would not let his strong Catholic faith interfere with policy choices? Not even the Ten Commandments or the Sermon on the Mount, Tony?)
There is an issue of substance here. We live in a nation that believes firmly in the separation of church and state. Why do some members of one church want to cross the line and impose their will on their secular brothers and sisters?
But to go back to the question that led to these digressions, it’s a matter for the leaders or elders of a faith to say how they should deal with their own faithful. The rest of us, however, have a say in how they should deal with us. And the most polite way of putting it is – don’t.
We are not talking about the legal entitlement of a group of religious people seeking to tie the civil law to their religious view of the world. We are talking about the moral worth and political decency of their attempting to do that when they know that their actions will divide their community and bring pain and suffering to other members of their community. It’s one thing to say that religious people have the legal right to try to have their religious view of the world become part of the law of the land. It’s altogether a different thing to say that in doing so they are acting as decent and responsible members of the community.
There is one very simple way to justify our resistance to people seeking to impose their faith on others as they are doing in the case of marriage equality. We are for the most part talking about some but not all Christians seeking to impose their faith on others on the subject of marriage. Can you conceive of the howls of outrage – and from the very same people – if we were talking about Muslims seeking to impose their faith on others on the subject of Sharia Law – or, say, the unilateral divorce pronounced by the husband? You would be very lucky to escape with a straight-jacket. Or you might get a group trying to promote polygamy; or the people into Voodoo might have some novel ideas. Why should we give in to the views of any one faith? Put differently, it’s fine for religious people to make their leap of faith – but how can they decently ask others to join in the beliefs they hold after they have made that leap?
The philosophical answer was given by Kant, to my mind unanswerably.
We have noted that a church dispenses with the most important mark of truth, namely, a rightful claim to universality, when it bases itself upon a revealed faith. For such a faith, being historical (even though it be far more widely disseminated and more completely secured for remotest posterity through the agency of Scripture) can never be universally communicated so as to produce conviction.
To return to the theme that we started with, it is the role of the church to answer questions about marriages made within that church, and not about marriage outside that church. If a church claims the latter right, is it not plainly going outside its power or jurisdiction?
Is it appropriate for people of one faith to seek to impose the consequences of their dogma on the world at large when that faith represents only a part of the community?
I have largely given my answer, and that of Immanuel Kant, to this question. Church-going Christians represent only a small proportion of Australians. To describe Australia as a ‘Christian nation’ is in my view as insulting and dangerous as it is absurd. But there are those who make that claim, and they just make it all the more desirable for the rest of us to resist having people trying to ram their religion down our throats and to create some form of de facto established religion.
Does it make good sense ‘politically’ for members of one faith to agitate about a change in the law if that agitation will bring bad odour on that faith and its followers?
This, too, is a matter for people of faith. But it must be obvious that there may be heavy price to pay for associating with people like Abbott and Bernardi and those people in the Murdoch press and Sky television who rely on the intolerance of their audience and who live off the earnings of conflict, and who seek to hold back yesterday by denying equality to a minority of their fellow citizens.
And the no-sayers should at least dissociate themselves from some of the more dishonest posturing about religious freedom. To the extent that some of the faithful are alarmed that the Commonwealth might use the occasion to make a law for prohibiting the free exercise of any religion, they are expressing alarm over the possibility of a law banned by the constitution. It is, I suppose, par for the Australian political course for a group of people to have us submit to a process that most Australians object to and then assert that they should not give the answer sought by most Australians – because their government has not told them enough!
To my mind, these crab-walkers are saying that we can’t trust this government. I agree with them entirely, but it just doesn’t lie in their mouth to say so. That is particularly the case for that little master of dog-whistling and obfuscation – John Howard – who now wants to do to marriage equality what he so squalidly did to the republic. He has a genius for negative mediocrity. And no one pretends that this is anything but a doomed holding exercise principally brought about to appease the followers of one fading religion.
Is the answer to that question different because it is asked in a nation that insists on the separation of religion from politics and which has very bad memories of people of one sect infecting its politics?
My answer will be apparent from what I have said. We may not be as strong as the French on keeping religion out of politics, but this shabby little exercise shows why we should not relax our vigilance.
Is the answer to that question different where opinion within a faith is split on this issue on reasonable grounds?
We are just weeks away from the 500th anniversary of the start of the great schism in Christianity. For half a millennium each side has challenged the other’s integrity and accused the other of heresy. It’s morbidly ironic that some of them now can come together and stand shoulder to shoulder for the purpose of denying the aspirations of others within their community. Their unity on this issue leads to division within the wider community. What drives these people to do this? If the answer is that they are driven to that course by the religious beliefs that they hold, then that answer might give pause to those on all sides.
As I understand it, there is no uniform view on the issue either within Christianity or Judaism. I may be wrong, but I think that only the Catholic Church has the machinery to set forth a binding view – and that’s not a model that other religious sects are keen to follow. Some clergy (including rabbis) welcome the possibility of marriage equality and are keen to participate. Others reject the notion and will opt out. A Presbyterian minister has just broken the world land speed record for intolerance by refusing to marry a straight couple who were in favour of marriage equality. This split among the faithful hardly helps the cause of religion on this issue. If the faithful are split on the question, it’s not one to go to the stake for. Why then do the rest of us have to be put to this ignominious trouble and expense?
Doesn’t it just come to this? Religious people should look after religious marriages and allow secular people to look after secular marriages. In other words, the people of faith should be a bit more careful in framing the question that they are fit to answer. As matters stand, they look to me to resemble the hypothetical panel of doctors giving gratuitous commercial advice to the AFL. It’s just none of their bloody business.
And is it not so sad to see the name of the man Einstein called ‘the luminous Nazarene’ being invoked in aid of that cancer of mankind that we call exclusion? It’s even sadder than watching bishops or the odd cardinal take their breakfast at the Melbourne Club.
When I drive from Malmsbury to Ballarat, I pass many unused churches, stuck on hills in the middle of nowhere. It’s very sad; they are like sullen artefacts to a lost way of life. But for better or for worse, those churches had nothing to say to most Australians – that’s why they died. Our world has changed greatly and it will of course keep on changing. I suppose that I have a bias as a lapsed straight Protestant, and an admirer of Spinoza and Kant (both of whom were sharply rebuked by their orthodox faithful), but on looking back at how I would answer the questions set out above, I simply can’t understand what all the bloody fuss is about. And, for the removal of doubt, I’m bloody furious that we have been put to this demeaning and hurtful farce because our members of parliament have allowed a small religious claque to stop them doing their duty. They should all be deeply ashamed of themselves.
At my age, and with my disposition, it’s very unlikely that I will marry again. It’s even more unlikely that I would choose to marry a bloke. But if I did, I would expect my country to honour my right to equality before the law uninfected by the dogma of a faith that even the faithful can’t agree on. Is that too much to ask for in Australia in the year of Our Lord 2017?
Poet of the month: Emily Dickinson
How far is it to Heaven?
As far as Death this way—
Of River or of Ridge beyond
Was no discovery.
How far is it to Hell?
As far as Death this way—
How far left hand the
Sepulchre Defies Topography.
With Compliments 