DREADTALK: 'Relationship Registers: What Does Justice Demand?' John Heard - MCLA, Victorian Relationship Bill, Federal Schemes & Interdependence II
[UPDATE] Robert T. Miller, of the Villanova University School of Law, testifies before the Appropriations Committee of the Pennsylvania Senate concerning S.B. 1250 (on "marriage between one man, and one woman").
[UPDATE] Last minute attempts to add marriage mimicking ceremonies to register Bill fail; the Bill passes the Victorian Upper House.
[UPDATE] Despite widespread opposition and parliamentary 'uproar', Victorian 'gay' and de facto register Bill passes provincial Lower House (54 - 24). Significantly, Premier Brumby - who unfortunately has form - didn't allow a free vote.* Many compassionate Liberal / National and Independent members spoke (.pdf), and most then voted, against the Bill.
* (Labor has 55 seats, or 63% of the chamber. The register was not mentioned during the Party's re-election campaign).
[UPDATE] MCLA opposition and arguments mentioned a number of times in Hansard (.pdf).
:: Update ::
DREADNOUGHT read the following paper before the Melbourne Catholic Lawyers' Association this evening. The speech was followed by a vigorous forty minute Q&A session. I answered questions from lawyers, judges, academics, students and journalists. Previous MCLA speakers here.
:: CATHOLIC LAWYERS, ‘GAY MARRIAGE’ AND THE VICTORIAN RELATIONSHIPS BILL (2007): WHAT DOES JUSTICE DEMAND? ::
Address to Melbourne Catholic Lawyers Association,
Neil McPhee Room, Owen Dixon Chambers East, 6:00PM, Tuesday 11 March, 2008
John Heard*
[CHECK AGAINST DELIVERY]
I The Common Good
The basic principles of human flourishing are fixed and unchanging, and, as the Holy Father wrote recently:
In saying as much we have mapped the limits of ethics, epistemology and jurisprudence. We have begun to serve the common good.
The relationship between justice and the common good is our key concern this evening. It is the voucher of peace, the mark of the order and good governance that bind us together as a community with a specifically legal character.
A law will be just, then, if it is productive of flourishing and contributes toward the common good. As natural lawyers put it, our human laws will have the character of justice inasmuch as they cohere with the Eternal Law:
That the task of discernment is often difficult, sometimes near impossible (there are so many seemingly conflicting drives for good), does not, however, diminish the importance of the quest for justice.
Certainly, a concern to see justice done, to expand the net of freedom and peace so that justice touches the lives all men, this is what divides good rulers from bad. A love of justice marks good lawyers out too. Justice is the highest aim of your profession and it is the precious hope of our community.
The reality is, however, that we live in a Fallen world and chances are that our human institutions, laws and regimes – indeed our current liberal democratic order - will only ever approximate the peace and tranquillity of the Eternal Law. This has ramifications for justice in our time.
Certainly, where states encourage and promote via their laws various social evils, they demonstrate the limits of the democratic method in securing justice.
What’s more, they call Catholic lawyers and other men and women of good will to determined action. We must strive to right such wrongs and make the way clear once more for justice.
But what does it mean to say that justice is hard to make out and that we must nonetheless seek for it always?
It means, first, that human laws must admit diversity. Because we cannot be sure, except in the most obvious outlines, what just human laws look like, we must be wary of claims like those made by positivists as to the definitive nature of justice.
We cannot know for instance, certainly not always and everywhere, that this or that legislation will definitely bring us closer to the common good.
Justice, then, is not simply that which the courts bring down, or that which the legislatures define. Justice is wider, deeper and altogether more mysterious than legal positivists and some politicians would have us believe.
It is not necessarily wrong, then, to object to laws and apparent ‘reforms’ that the current legal system characterises as unerringly just.
For these reasons, Catholic lawyers must be open to a plurality of legal options. We must never get too close to the sources of power; we should not be too intimate with lobbyists and interest groups. We cannot shut our minds and simply receive without questioning.
We must not, for instance, become a zealous Attorney-General who fights for capital ‘h’ and capital ‘r’ Human Rights but forgets the enduring truth that all Man’s rights derive from G-d and laws made in the name of the commonwealth will only have the character of justice inasmuch as they align with G-d’s law of love.
To forget this would be to separate our democracies from the source of justice.
We must be prepared to think outside the box, then, on almost every legal issue, standing ready to challenge the prevailing legal wisdom by testing liberal legal assertions and secular laws against the enduring justice promised by the natural law.
Where these fall short, we must work to correct and reform the legal system to bring the common good and justice closer to our fellow citizens.
II What Justice Demands: Building the ‘Culture of Life’
The task for Catholic lawyers, then, in Melbourne, Australia and across the world, is to recall an often confused and despairing, or otherwise ignorant, if not hostile system to justice.
This means that any work we do as Catholic lawyers will most often be piecemeal when it is not revolutionary.
For those of us in Victoria, certainly, and other contemporary Western, liberal democracies, our most pressing work more often consists in slapping down Government overreach. We are called on to correct policy missteps before they become unjust laws and then, if we fail at the initial battle of ideas, to carry on until we defeat unjust proposals through legal, political, spiritual and cultural struggle.
In conducting this mighty enterprise, we have a remarkable guide. Pope John Paul the Great, in his Encyclical Letter Evangelium Vitae, said that:
III Present Challenges: Marriage & Bioethics
Nowhere in contemporary culture is there greater call for decisive, enlightened action by Catholic lawyers than in those fields where the culture of life battles the culture of death. Things are very much in flux.
In the United States, for instance, there is good news. The Supreme Court looks poised to wind back the fallout from the egregious 1973 decision in Roe v Wade[5] and the decision itself might be overturned in the next decade. But, there is also bad news and it is closer to home. In Victoria, as most of you know, we face an unprecedented and shamefully undemocratic push to decriminalise the murder of innocent children under the barbaric methods of modern abortion.
On yet another front, the focus of the second part of this address, I have been asked to speak about an area where human life is also under attack, that is – where marriage and the family, so central to and productive of the culture of life, are threatened by attempts to force ‘gay marriage’ laws, extreme forms of civil union and various sorts of radical relationship registries upon an otherwise apathetic, if not overwhelmingly opposed, general population.
This debate is one in which Catholic lawyers can make a crucial difference. As Princeton Professor and leading natural lawyer Robert P. George has pointed out:
Marriage and bioethics.
"In respect of both matters," George claims, "things will go one way or the other depending on the posture and actions of Catholics."
As someone who has attempted to alter the course of the ‘gay marriage’ debate in this country and in the United States, I can vouch for the truth of Professor George’s claim.
Catholic lawyers, Catholics and people of good will everywhere, can make a powerful difference.
Indeed, many times, when homoactivists appeared to have scored some victory or other in the ‘gay marriage’ debate in Australia, quick, decisive and humane activity by various notable and other less obvious leaders, writers, politicians and others of goodwill, helped to raise a groundswell of public awareness.
And once people are made aware of solid, well-reasoned objections to things like ‘gay marriage’ they are more willing to listen when change-agents move to inject fresh, family-serving ideas into political and cultural debate.
In this way we can change the terms of engagement. Instead of meeting homoactivists and others on a phoney playing field where the terms of debate are rigged against us, Christians and others - Catholic lawyers certainly - can speak instead to peace, order, hope and justice; the unbeatable language of love. We will be received as authentic on these grounds because these are, after all, the things that underpin our faith.
In this way, by ensuring that humane Christian ideas are available as solutions to any relevant contentious issue, we help to build up the culture of life. We serve justice.
On three occasions, such action has led directly to the defeat of ‘gay marriage’ proposals in Australia. The first two times were when the Commonwealth Attorney General disallowed backdoor ‘gay marriage’ legislation in the ACT[7] and the third time was more recently when the newly elected Labor Prime Minister, who seemed to waver momentarily, later recalled and reiterated – to his great and abiding credit - pre-election promises made to Christians and others across the nation.[8]
Prime Minister Rudd’s final decision on ‘gay marriage’, however, did not come about because he fears the Christian lobby, and Catholic lawyers should never operate in a ham-fisted manner. Rather, Rudd, I’m sure, and the Labor Party Conference found many of the arguments advanced by homoactivists less than convincing in light of the solid, well-researched and compassionate arguments put by those (including those who lead Australia’s largest Trade Union – the SDA) who work for the protection, expansion and edification of the family.
This is the best possible outcome.
It is proof of how Christian ideas are incredibly persuasive, especially when buttressed by academically rigorous arguments open to the latest empirical research. When boldly presented as the most humane, credible solutions for problems faced by the whole of society, they cannot fail to be irresistible. This is why Christians must be at the forefront of the debates on marriage and bioethics.
Catholic lawyers, certainly, must stand ready to carry these ideas into boardrooms, courtrooms, parliaments and even television stations, to advance the cause of life and secure justice for the vulnerable.
IV Improving the Victorian Relationships Bill 2007[9]
That is why, when I tell you that you can make a difference in Victoria, to ensure that the Brumby Government’s hasty Partnerships Legislation achieves the best possible outcome for the people of this State, you must sit up. Certainly, you must not doubt that the Federal Attorney-General and the Prime Minister are watching Victoria and Victorian groups to see how this plays out. I know they are. You must resolve to become involved, then, to share your G-d-given talents in a great common pool to build a force, an irresistible force, that draws along the best and brightest elements of our society and catches the interest of everyday voters. Only that will provoke their loyalty and ensure that Catholics and other Christians remain trusted counsellors at the table of power.
The first thing that needs to be said in this context is that the Brumby Bill is not ‘gay marriage’. Indeed, as far as these things go, the proposal on the table is relatively modest. It is far from the ideal, but we are not facing the worst-case scenario.
While Catholic lawyers cannot advocate for any change that would further wound the position of the family or dilute the importance of marriage,[10] we cannot simply throw up our arms and refuse to get involved when things don’t go our way. This is one of the key challenges that come with living in a liberal, plural democracy. When we lose the initial battle of ideas, to misguided government activism in this case, if not voter apathy, we must still offer advice on how any proposal might be, if not totally defeated, then at least improved.
In this way, otherwise unjust proposals might become less offensive to the common good, although it must be recognised that we’re entering the morally ambiguous zone of double effect. Some Catholic lawyers might prefer, legitimately, to stay well away from such complications.
For others amongst us, more closely engaged perhaps with the current social, sub-cultural and political realities, there is little room for that kind of isolationism.
So it is important to point out the least offensive aspects of the current Brumby legislation, before demonstrating how the whole package can be improved.
It is better, for instance, that this current Bill recognises, rather than creates, a relationship at law; that it excludes – for the moment - ‘gay’ adoption; and, in contrast to the thrice-defeated ACT model, that it does not seek to introduce marriage mimicking ceremonies.
However, there are a number of problems that should be, at the very least, ironed out if the Bill[11] is to become law. These include:
1. The fact that the current draft appears to include a sex test for same-sex domestic relationships;
2. The concomitant and unfortunate narrowing of the definition of relationship, so as to exclude stable, worthy interdependent relationships, such as those between a carer and her charge, or two un-wed, perhaps elderly cohabiting sisters; and
3. The need to signal that this is as far as good people are willing to go. We need to indicate now that this is not the first step in some incremental journey that will inevitably end in full-blown ‘gay marriage’.
It must be said, of course, when dealing with any new legislation that will alter the way marriage and the family are treated under Victorian law, that there are problems with giving any de facto relationship the same standing as marriages. Such attempts weaken the family. They have been tried here and elsewhere and the figures on resulting marital breakdown, and the associated damage to the family are stark. We must resist any further dilution in this direction and, indeed, campaign for a reversal of some of the more egregious missteps, especially those that threaten fatherhood and encourage a further heartbreaking rise in divorce rates.[12]
The campaign against ‘gay marriage’ is, then, part of the broader campaign for an increase in marital stability and family cohesion in the Western world. It is, rightly, at the forefront of many good people’s attempts to bring about a new culture of life. It is not, in this context, a movement based on fear, rather an outpouring of love – a chance to right some of the more tragic wrongs brought about by the so-called ‘sexual liberation’.
The good news is that, unlike in that broader struggle, we need not wait for a radical transformation of culture to make a lasting impact for good. Catholics and other good folk can engage with the debate on marriage now.
The rest, my friends, will come: to the lasting benefit of our families and friends and to the better, more compassionate ordering of our communities.
V Widening the Relationship Recognition Franchise: A Model for Transforming Culture
In the meantime, we have this proposal before us in Victoria.
In the task of discerning the demands of justice and building up the culture of life, we could certainly do worse than to follow an already tested course, and advocate a more humane approach to the too often divisive ‘gay marriage’ debate, one recommended (again) by Princeton Professor and natural lawyer Robert P. George.[13]
If there is to be a relationship register, it simply should not have an explicit or even an implicit sex test. We must insist on that.
Rather, why not open the thing up - at the highest levels - to all worthy interdependent relationships (carers, old friends, long-term cohabiting brothers and sisters, etc). This would help deal with concerns about any further dilution of the meaning of marriage, for the Bill currently opens registration up to opposite-sex couples as well. Instead of becoming yet another way for de facto couples to avoid marriage, the legislation would then move to separate and distinct, less hazardous ground.
Currently, Brumby’s proposal does not even rely on cohabitation, rather it asks for proof that the parties form a ‘couple’ providing ‘financial support of a domestic nature’.
This is a mistake that must be resisted, not least because it is ridiculous. It cannot be claimed, for instance, that such a lax standard is derived from a desire to recognise and solidify real, stable interdependencies. How real, stable and worthy are these relationships if the putative parties cannot even live together?
But a sex test must also be rejected because it is not what most same sex attracted men need.
Because, at a basic level and for whatever reason, sexual encounters between self-identified ‘gay’ males simply do not often correlate with long term, relationship-forming behaviour. Sure, some forms of homosexual partnership – especially lesbian – might approximate the longevity and exclusivity of marriage, but these partnerships are statistically very rare and would likely find relief under the more humane test I’m proposing anyway. There is also no evidence to support a claim that all or even most same sex couples desire ‘gay marriage’ or partnership registration of any kind, quite the contrary.
The truth is that most same sex attracted men, while often sexually active, are not in fact in any kind of companionate relationship at all and the vast majority of those who are do not indicate any plan to formalise these relationships.[14] A sex test is, then, not even tailored to the express interests of the target demographic. It is more likely the product of a peculiar form of extremist ideology. Such notions, and the anti-human, anti-family outcomes they encourage, should have no place in Victorian or Australian law.
Finally, like other schemes trialled around the globe, I have no doubt that this one, if left unchanged, will prove unpopular. The numbers willing to commit to even the base requirements Brumby intends to set up will soon fall off, as they have elsewhere, after any initial, activist-sponsored rush for the cameras.[15]
What a huge, expensive, divisive mess, and for what?
In an age when HIV infection rates are on the increase, most alarmingly among inner city, ‘gay’ identified male populations in Victoria and Queensland[16] – and drug use remains a serious, shocking problem, there are certainly more pressing, ethical and practical issues that face ordinary same sex attracted men and women than whether or not John Brumby ‘registers’ their sexual encounters and properly private financial arrangements.
Indeed, many same sex attracted men and women find the very notion of ‘gay marriage’ and relationship registration irrelevant, if not deeply offensive. LaTrobe’s Professor Dennis Altman, one of the founders of the ‘Gay Liberation Movement’, sharply criticised a few homoactivists’ fixation on ‘gay marriage’ and described the whole push as ‘self indulgent crap’.[17]
Alongside these broader, less philosophical concerns, Catholics lawyers must also look at the legislation through the prism of the natural law and reject it if it proves damaging to the common good. As it stands, Brumby’s proposal certainly seems to militate, in a most hurtful way, against the flourishing of same sex attracted men and women. It serves the interests of a slim minority of the tiny same sex attracted minority; and even then seems to serve only a dwindling homoactivist fringe. It is a highly divisive change, one that is completely unacceptable to most Christians and other ordinary voters. Depending on how the definition of ‘couple’ is to be decided, it might also mark a new, regrettable entry in Victorian law, the first time that sodomy or other non-procreative sex has been celebrated in our courts and Parliament.
Thus, the deletion of a sex test would remove these most serious objections to a relationship register in Victoria. The resulting legislation might then be something that the wider community, serious same-sex attracted men and women, and even some Catholic lawyers could, in good conscience, support. At least as a step towards a more perfect approximation of the ideal of a commonwealth of carers. Which is just to say that, by our efforts, this apparently inevitable, regrettable development might still come to more closely meet the demands of justice and serve myriad, legitimate interests in Victoria and beyond.
VI Increasing the Effectiveness of Christian Voices in the Public Square
Certainly, Catholic lawyers should favour an interdependency approach in the wider debate about ‘gay marriage’. It has, in other similar political circumstances, garnered high-level Church approval. Writing about a similar impasse in San Francisco in the 1990s, an American Vatican news specialist explained that, rather than forfeit government funding to the Bay Area’s Catholic Charities:
This politically moderate, socially compassionate and apparently orthodox model has since been urged by Catholic bishops and groups in Seattle,[19] New Jersey,[20] San Juan[21] and even Adelaide, where Archbishop Philip Wilson lent his support to the 2006 South Australian, so-called Partnerships Legislation[22] that recognised a whole range of worthy, interdependent relationships.
We have, therefore, a model for change.
If we must revisit the ‘gay marriage’ debate under the current political arrangements, at least we have before us a model that appears to meet the demands of justice and is sensitive to the common good in Victoria and elsewhere. It is a model that goes some way to meeting the legitimate needs of real same sex attracted men and women without reducing their relationships to sex acts and properly private financial arrangements. It also does not fail to celebrate and protect worthy relationships wherever they may be found, widening the franchise and promising to transform homoactivists’ sometimes selfish rhetoric into real-life, justice-bearing, inclusive reform. It is, therefore, the most practical, humane and acceptable model on offer.
It is the only model Catholic lawyers and other people of good will should support.
I commend it to you today and – on behalf of your organization – offer it to the lawmakers of this State and beyond them, to compassionate, reasonable parties throughout Australia, in our Federal Government in particular and out across the world.
VII Conclusions
In closing, let me return to the source I started out from. In his 2008 Message for Peace, Pope Benedict XVI called "the human family, a community of peace". He said that:
We are, in this way, called to compassionate, decisive action in Victoria.
To have before us those fixed and unchanging principles of human flourishing that offer the hope that our reforms and other efforts may ensure that the "law is [indeed] the premise upon which freedom is built; [and]…not its adversary".
Thank you very much.
- - END - -
:: Notes ::
* B.A., LL.B (Hons) Melbourne
[1] Pope Benedict XVI, Lecture to Students & Faculty at La Sapienza (Rome, January 17, 2008), Available here.
[2] Augustine of Hippo, De libero arbitrio I, v cited in Thomas Aquinas, ‘Summa Theologica’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 136-7.
[3] Thomas Aquinas, ‘Summa Theologica: Utrum omnis lex a lege aeterna derivetur’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 120-1.
[4] Pope John Paul II, Encyclical Letter ‘Evangelium Vitae’ (Rome, March 25, 2008), Available here.
[5] 410 U.S. 113 (1973).
[6] Robert P. George, ‘Danger and Opportunity: A Plea to Catholics’ in First Things Journal (New York, August 6, 2007), Available here.
[7] Australian Capital Territory, Civil Union Bill 2006 (Disallowed), Available here.
[8] John Heard, ‘Betray Families and Lose Power’ in The Australian (Sydney, December 17, 2007), Available here. See also, Siobhain Ryan, ‘No Labor Plans to Allow Gay Marriage’ in The Australian (Sydney, December 17, 2007), Available here.
[9] Parliament of Victoria, Relationships Bill 2007 (Second Reading), Available here. See also, Office of the Attorney-General, State Government of Victoria, Media Release: New Register to Recognise Committed Relationships (Melbourne, December 4, 2007), Available here.
[10] Archbishop Denis Hart, Homily: (Red) Mass for the Opening of the Legal Year 2007 (Melbourne, January 29, 2008), Available here.
[11] Parliament of Victoria, Relationships Bill 2007 (Second Reading), Available here.
[12] National Marriage Coalition, Marriage Manifesto: Strength and Support for Australian Families (Melbourne, September 18, 2007), Available here (.pdf).
[13] John Heard, ‘Gay Marriage: Not Sex, but Love’ in The Record (Perth, January 10, 2007), Available here; See also Witherspoon Institute, Marriage and the Public Good: Ten Principles (Princeton, May, 2006), Available here.
[14] Australian Research Centre in Sex, Health and Society (LaTrobe University), PRIVATE LIVES: A Report on the Health and Wellbeing of GLBTI Australians (Melbourne, March, 2006), Available here (.pdf).
[15] Indeed, source figures from New Zealand, Tasmania and overseas show that only something like 0.01% of the population in any given jurisdiction partakes in the civil union schemes and registers on offer. See also, Tony Jones, ‘Interview/Debate with Senator Bob Brown and Jim Wallace’ on Lateline (ABC Television Australia, February 20, 2008), Available here.
[16] Tamara McLeaen, ‘HIV Blowout in Victoria: Study’ in The Australian (Sydney, March 3, 2008), Available here.
[17] Doug Pollard, ‘Gay Marriage Passé: Interview with Professor Dennis Altman’ in BNews (Melbourne, November 28, 2007), Available here.
[18] Rocco Palmo, ‘In the Northwest, Echoes of Levada’ on Whispers In The Loggia (Philadelphia, January 27, 2007), Available here.
[19] Bishop Joseph Tyson, Quoted in ‘Domestic Partnership Bill Considered’ in AP Report (Rachel LaCorte) (Seattle, January 26, 2007), Available here.
[20] Supra.
[21] ‘Consideran Ciertos Derechos para Parejas Homosexuales’ in El Nuevo Dia (Spanish Article) (San Juan, November 26, 2007), Available here.
[22] Parliament of South Australia, Statutes Amendment (Domestic Partners) Act 2006 (No 43), Available here; Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (No 13), Available here. See also, Staff Writers (The Advertiser), ‘Adelaide Archbishop Backs Equal Rights for Gay Couples’ in CathNews (Adelaide, March 17, 2005), Available here.
[23] Pope Benedict XVI, Message for the Celebration of the World Day of Peace 2008 (Rome, January 1, 2008), Available here.
:: Additional Resources ::
- Robert P. George, Law and Moral Purpose;
- Latest Report on Family Breakdown in Britain (.pdf);
- Barney Zwartz on a Sage Alternative in Victoria; and
- French Parliamentary Report on the Rights of Children (Rejects 'Gay Marriage' and Adoption).
[UPDATE] Last minute attempts to add marriage mimicking ceremonies to register Bill fail; the Bill passes the Victorian Upper House.
[UPDATE] Despite widespread opposition and parliamentary 'uproar', Victorian 'gay' and de facto register Bill passes provincial Lower House (54 - 24). Significantly, Premier Brumby - who unfortunately has form - didn't allow a free vote.* Many compassionate Liberal / National and Independent members spoke (.pdf), and most then voted, against the Bill.
* (Labor has 55 seats, or 63% of the chamber. The register was not mentioned during the Party's re-election campaign).
[UPDATE] MCLA opposition and arguments mentioned a number of times in Hansard (.pdf).
:: Update ::
DREADNOUGHT read the following paper before the Melbourne Catholic Lawyers' Association this evening. The speech was followed by a vigorous forty minute Q&A session. I answered questions from lawyers, judges, academics, students and journalists. Previous MCLA speakers here.
:: CATHOLIC LAWYERS, ‘GAY MARRIAGE’ AND THE VICTORIAN RELATIONSHIPS BILL (2007): WHAT DOES JUSTICE DEMAND? ::
Address to Melbourne Catholic Lawyers Association,
Neil McPhee Room, Owen Dixon Chambers East, 6:00PM, Tuesday 11 March, 2008
John Heard*
[CHECK AGAINST DELIVERY]
I The Common Good
The basic principles of human flourishing are fixed and unchanging, and, as the Holy Father wrote recently:
"The law is the premise upon which freedom is built; it is not its adversary"."But," as the Holy Father went on:
"...this raises…[an important]…question. How can we identify what the standards of justice are, that is, those standards that make freedom…possible?"[1]As lawyers and judges, politicians and legal academics, we need to discover what these standards are, or, to put it more precisely, we need to ensure that we always work so as to create the conditions - and encourage the kinds of environment - that allow flourishing individuals and communities to discover these standards of justice for themselves.
In saying as much we have mapped the limits of ethics, epistemology and jurisprudence. We have begun to serve the common good.
The relationship between justice and the common good is our key concern this evening. It is the voucher of peace, the mark of the order and good governance that bind us together as a community with a specifically legal character.
A law will be just, then, if it is productive of flourishing and contributes toward the common good. As natural lawyers put it, our human laws will have the character of justice inasmuch as they cohere with the Eternal Law:
"…lex esse non videtur, quae iusta non fuerit…" [2]The discovery process, however, is problematic. How do we know that any particular human law is just? This is the great dilemma thrown up by political and legal authority. It is the perennial concern of jurisprudes.
"Human law has the quality of law only in so far as it proceeds according to right reason: and in this respect it is clear that it derives from the eternal law. In so far as it deviates from reason it is called an unjust law, and has the quality not of law but of violence".[3]
That the task of discernment is often difficult, sometimes near impossible (there are so many seemingly conflicting drives for good), does not, however, diminish the importance of the quest for justice.
Certainly, a concern to see justice done, to expand the net of freedom and peace so that justice touches the lives all men, this is what divides good rulers from bad. A love of justice marks good lawyers out too. Justice is the highest aim of your profession and it is the precious hope of our community.
The reality is, however, that we live in a Fallen world and chances are that our human institutions, laws and regimes – indeed our current liberal democratic order - will only ever approximate the peace and tranquillity of the Eternal Law. This has ramifications for justice in our time.
Certainly, where states encourage and promote via their laws various social evils, they demonstrate the limits of the democratic method in securing justice.
What’s more, they call Catholic lawyers and other men and women of good will to determined action. We must strive to right such wrongs and make the way clear once more for justice.
But what does it mean to say that justice is hard to make out and that we must nonetheless seek for it always?
It means, first, that human laws must admit diversity. Because we cannot be sure, except in the most obvious outlines, what just human laws look like, we must be wary of claims like those made by positivists as to the definitive nature of justice.
We cannot know for instance, certainly not always and everywhere, that this or that legislation will definitely bring us closer to the common good.
Justice, then, is not simply that which the courts bring down, or that which the legislatures define. Justice is wider, deeper and altogether more mysterious than legal positivists and some politicians would have us believe.
It is not necessarily wrong, then, to object to laws and apparent ‘reforms’ that the current legal system characterises as unerringly just.
For these reasons, Catholic lawyers must be open to a plurality of legal options. We must never get too close to the sources of power; we should not be too intimate with lobbyists and interest groups. We cannot shut our minds and simply receive without questioning.
We must not, for instance, become a zealous Attorney-General who fights for capital ‘h’ and capital ‘r’ Human Rights but forgets the enduring truth that all Man’s rights derive from G-d and laws made in the name of the commonwealth will only have the character of justice inasmuch as they align with G-d’s law of love.
To forget this would be to separate our democracies from the source of justice.
We must be prepared to think outside the box, then, on almost every legal issue, standing ready to challenge the prevailing legal wisdom by testing liberal legal assertions and secular laws against the enduring justice promised by the natural law.
Where these fall short, we must work to correct and reform the legal system to bring the common good and justice closer to our fellow citizens.
II What Justice Demands: Building the ‘Culture of Life’
The task for Catholic lawyers, then, in Melbourne, Australia and across the world, is to recall an often confused and despairing, or otherwise ignorant, if not hostile system to justice.
This means that any work we do as Catholic lawyers will most often be piecemeal when it is not revolutionary.
For those of us in Victoria, certainly, and other contemporary Western, liberal democracies, our most pressing work more often consists in slapping down Government overreach. We are called on to correct policy missteps before they become unjust laws and then, if we fail at the initial battle of ideas, to carry on until we defeat unjust proposals through legal, political, spiritual and cultural struggle.
In conducting this mighty enterprise, we have a remarkable guide. Pope John Paul the Great, in his Encyclical Letter Evangelium Vitae, said that:
"What is urgently called for is a general mobilization of consciences and a united ethical effort to activate a great campaign in support of life. All together, we must build a new culture of life…to permeate all cultures and give them life from within, so that they may express the full truth about the human person and about human life."[4]It is this culture of life that Catholic lawyers are called on to build up and serve. This is what justice demands of us.
III Present Challenges: Marriage & Bioethics
Nowhere in contemporary culture is there greater call for decisive, enlightened action by Catholic lawyers than in those fields where the culture of life battles the culture of death. Things are very much in flux.
In the United States, for instance, there is good news. The Supreme Court looks poised to wind back the fallout from the egregious 1973 decision in Roe v Wade[5] and the decision itself might be overturned in the next decade. But, there is also bad news and it is closer to home. In Victoria, as most of you know, we face an unprecedented and shamefully undemocratic push to decriminalise the murder of innocent children under the barbaric methods of modern abortion.
On yet another front, the focus of the second part of this address, I have been asked to speak about an area where human life is also under attack, that is – where marriage and the family, so central to and productive of the culture of life, are threatened by attempts to force ‘gay marriage’ laws, extreme forms of civil union and various sorts of radical relationship registries upon an otherwise apathetic, if not overwhelmingly opposed, general population.
This debate is one in which Catholic lawyers can make a crucial difference. As Princeton Professor and leading natural lawyer Robert P. George has pointed out:
"There are many profound respects in which our culture is in need of transformation. ...There are two issues, however, that are so central to our future ... that they must, surely, be given a certain priority. Both are on the table now and will be resolved – for better or for worse – in the next decade or so. Critical (possibly irreversible) decisions will be made in the next year or two."[6]Which two issues does Professor George point out?
Marriage and bioethics.
"In respect of both matters," George claims, "things will go one way or the other depending on the posture and actions of Catholics."
As someone who has attempted to alter the course of the ‘gay marriage’ debate in this country and in the United States, I can vouch for the truth of Professor George’s claim.
Catholic lawyers, Catholics and people of good will everywhere, can make a powerful difference.
Indeed, many times, when homoactivists appeared to have scored some victory or other in the ‘gay marriage’ debate in Australia, quick, decisive and humane activity by various notable and other less obvious leaders, writers, politicians and others of goodwill, helped to raise a groundswell of public awareness.
And once people are made aware of solid, well-reasoned objections to things like ‘gay marriage’ they are more willing to listen when change-agents move to inject fresh, family-serving ideas into political and cultural debate.
In this way we can change the terms of engagement. Instead of meeting homoactivists and others on a phoney playing field where the terms of debate are rigged against us, Christians and others - Catholic lawyers certainly - can speak instead to peace, order, hope and justice; the unbeatable language of love. We will be received as authentic on these grounds because these are, after all, the things that underpin our faith.
In this way, by ensuring that humane Christian ideas are available as solutions to any relevant contentious issue, we help to build up the culture of life. We serve justice.
On three occasions, such action has led directly to the defeat of ‘gay marriage’ proposals in Australia. The first two times were when the Commonwealth Attorney General disallowed backdoor ‘gay marriage’ legislation in the ACT[7] and the third time was more recently when the newly elected Labor Prime Minister, who seemed to waver momentarily, later recalled and reiterated – to his great and abiding credit - pre-election promises made to Christians and others across the nation.[8]
Prime Minister Rudd’s final decision on ‘gay marriage’, however, did not come about because he fears the Christian lobby, and Catholic lawyers should never operate in a ham-fisted manner. Rather, Rudd, I’m sure, and the Labor Party Conference found many of the arguments advanced by homoactivists less than convincing in light of the solid, well-researched and compassionate arguments put by those (including those who lead Australia’s largest Trade Union – the SDA) who work for the protection, expansion and edification of the family.
This is the best possible outcome.
It is proof of how Christian ideas are incredibly persuasive, especially when buttressed by academically rigorous arguments open to the latest empirical research. When boldly presented as the most humane, credible solutions for problems faced by the whole of society, they cannot fail to be irresistible. This is why Christians must be at the forefront of the debates on marriage and bioethics.
Catholic lawyers, certainly, must stand ready to carry these ideas into boardrooms, courtrooms, parliaments and even television stations, to advance the cause of life and secure justice for the vulnerable.
IV Improving the Victorian Relationships Bill 2007[9]
That is why, when I tell you that you can make a difference in Victoria, to ensure that the Brumby Government’s hasty Partnerships Legislation achieves the best possible outcome for the people of this State, you must sit up. Certainly, you must not doubt that the Federal Attorney-General and the Prime Minister are watching Victoria and Victorian groups to see how this plays out. I know they are. You must resolve to become involved, then, to share your G-d-given talents in a great common pool to build a force, an irresistible force, that draws along the best and brightest elements of our society and catches the interest of everyday voters. Only that will provoke their loyalty and ensure that Catholics and other Christians remain trusted counsellors at the table of power.
The first thing that needs to be said in this context is that the Brumby Bill is not ‘gay marriage’. Indeed, as far as these things go, the proposal on the table is relatively modest. It is far from the ideal, but we are not facing the worst-case scenario.
While Catholic lawyers cannot advocate for any change that would further wound the position of the family or dilute the importance of marriage,[10] we cannot simply throw up our arms and refuse to get involved when things don’t go our way. This is one of the key challenges that come with living in a liberal, plural democracy. When we lose the initial battle of ideas, to misguided government activism in this case, if not voter apathy, we must still offer advice on how any proposal might be, if not totally defeated, then at least improved.
In this way, otherwise unjust proposals might become less offensive to the common good, although it must be recognised that we’re entering the morally ambiguous zone of double effect. Some Catholic lawyers might prefer, legitimately, to stay well away from such complications.
For others amongst us, more closely engaged perhaps with the current social, sub-cultural and political realities, there is little room for that kind of isolationism.
So it is important to point out the least offensive aspects of the current Brumby legislation, before demonstrating how the whole package can be improved.
It is better, for instance, that this current Bill recognises, rather than creates, a relationship at law; that it excludes – for the moment - ‘gay’ adoption; and, in contrast to the thrice-defeated ACT model, that it does not seek to introduce marriage mimicking ceremonies.
However, there are a number of problems that should be, at the very least, ironed out if the Bill[11] is to become law. These include:
1. The fact that the current draft appears to include a sex test for same-sex domestic relationships;
2. The concomitant and unfortunate narrowing of the definition of relationship, so as to exclude stable, worthy interdependent relationships, such as those between a carer and her charge, or two un-wed, perhaps elderly cohabiting sisters; and
3. The need to signal that this is as far as good people are willing to go. We need to indicate now that this is not the first step in some incremental journey that will inevitably end in full-blown ‘gay marriage’.
It must be said, of course, when dealing with any new legislation that will alter the way marriage and the family are treated under Victorian law, that there are problems with giving any de facto relationship the same standing as marriages. Such attempts weaken the family. They have been tried here and elsewhere and the figures on resulting marital breakdown, and the associated damage to the family are stark. We must resist any further dilution in this direction and, indeed, campaign for a reversal of some of the more egregious missteps, especially those that threaten fatherhood and encourage a further heartbreaking rise in divorce rates.[12]
The campaign against ‘gay marriage’ is, then, part of the broader campaign for an increase in marital stability and family cohesion in the Western world. It is, rightly, at the forefront of many good people’s attempts to bring about a new culture of life. It is not, in this context, a movement based on fear, rather an outpouring of love – a chance to right some of the more tragic wrongs brought about by the so-called ‘sexual liberation’.
The good news is that, unlike in that broader struggle, we need not wait for a radical transformation of culture to make a lasting impact for good. Catholics and other good folk can engage with the debate on marriage now.
The rest, my friends, will come: to the lasting benefit of our families and friends and to the better, more compassionate ordering of our communities.
V Widening the Relationship Recognition Franchise: A Model for Transforming Culture
In the meantime, we have this proposal before us in Victoria.
In the task of discerning the demands of justice and building up the culture of life, we could certainly do worse than to follow an already tested course, and advocate a more humane approach to the too often divisive ‘gay marriage’ debate, one recommended (again) by Princeton Professor and natural lawyer Robert P. George.[13]
If there is to be a relationship register, it simply should not have an explicit or even an implicit sex test. We must insist on that.
Rather, why not open the thing up - at the highest levels - to all worthy interdependent relationships (carers, old friends, long-term cohabiting brothers and sisters, etc). This would help deal with concerns about any further dilution of the meaning of marriage, for the Bill currently opens registration up to opposite-sex couples as well. Instead of becoming yet another way for de facto couples to avoid marriage, the legislation would then move to separate and distinct, less hazardous ground.
Currently, Brumby’s proposal does not even rely on cohabitation, rather it asks for proof that the parties form a ‘couple’ providing ‘financial support of a domestic nature’.
This is a mistake that must be resisted, not least because it is ridiculous. It cannot be claimed, for instance, that such a lax standard is derived from a desire to recognise and solidify real, stable interdependencies. How real, stable and worthy are these relationships if the putative parties cannot even live together?
But a sex test must also be rejected because it is not what most same sex attracted men need.
Because, at a basic level and for whatever reason, sexual encounters between self-identified ‘gay’ males simply do not often correlate with long term, relationship-forming behaviour. Sure, some forms of homosexual partnership – especially lesbian – might approximate the longevity and exclusivity of marriage, but these partnerships are statistically very rare and would likely find relief under the more humane test I’m proposing anyway. There is also no evidence to support a claim that all or even most same sex couples desire ‘gay marriage’ or partnership registration of any kind, quite the contrary.
The truth is that most same sex attracted men, while often sexually active, are not in fact in any kind of companionate relationship at all and the vast majority of those who are do not indicate any plan to formalise these relationships.[14] A sex test is, then, not even tailored to the express interests of the target demographic. It is more likely the product of a peculiar form of extremist ideology. Such notions, and the anti-human, anti-family outcomes they encourage, should have no place in Victorian or Australian law.
Finally, like other schemes trialled around the globe, I have no doubt that this one, if left unchanged, will prove unpopular. The numbers willing to commit to even the base requirements Brumby intends to set up will soon fall off, as they have elsewhere, after any initial, activist-sponsored rush for the cameras.[15]
What a huge, expensive, divisive mess, and for what?
In an age when HIV infection rates are on the increase, most alarmingly among inner city, ‘gay’ identified male populations in Victoria and Queensland[16] – and drug use remains a serious, shocking problem, there are certainly more pressing, ethical and practical issues that face ordinary same sex attracted men and women than whether or not John Brumby ‘registers’ their sexual encounters and properly private financial arrangements.
Indeed, many same sex attracted men and women find the very notion of ‘gay marriage’ and relationship registration irrelevant, if not deeply offensive. LaTrobe’s Professor Dennis Altman, one of the founders of the ‘Gay Liberation Movement’, sharply criticised a few homoactivists’ fixation on ‘gay marriage’ and described the whole push as ‘self indulgent crap’.[17]
Alongside these broader, less philosophical concerns, Catholics lawyers must also look at the legislation through the prism of the natural law and reject it if it proves damaging to the common good. As it stands, Brumby’s proposal certainly seems to militate, in a most hurtful way, against the flourishing of same sex attracted men and women. It serves the interests of a slim minority of the tiny same sex attracted minority; and even then seems to serve only a dwindling homoactivist fringe. It is a highly divisive change, one that is completely unacceptable to most Christians and other ordinary voters. Depending on how the definition of ‘couple’ is to be decided, it might also mark a new, regrettable entry in Victorian law, the first time that sodomy or other non-procreative sex has been celebrated in our courts and Parliament.
Thus, the deletion of a sex test would remove these most serious objections to a relationship register in Victoria. The resulting legislation might then be something that the wider community, serious same-sex attracted men and women, and even some Catholic lawyers could, in good conscience, support. At least as a step towards a more perfect approximation of the ideal of a commonwealth of carers. Which is just to say that, by our efforts, this apparently inevitable, regrettable development might still come to more closely meet the demands of justice and serve myriad, legitimate interests in Victoria and beyond.
VI Increasing the Effectiveness of Christian Voices in the Public Square
Certainly, Catholic lawyers should favour an interdependency approach in the wider debate about ‘gay marriage’. It has, in other similar political circumstances, garnered high-level Church approval. Writing about a similar impasse in San Francisco in the 1990s, an American Vatican news specialist explained that, rather than forfeit government funding to the Bay Area’s Catholic Charities:
"…the city's then-archbishop pushed to have the benefits extended to "any legally domiciled member" of a household. The city signed off on the idea, and a crisis was averted."[18]The man who brokered that deal between the San Francisco authorities and the Catholic Church was William Levada. A great bishop, as many of you will know, he has since gone on to take over from Joseph Cardinal Ratzinger as Prefect of the Congregation for the Doctrine of the Faith. A most encouraging sign.
This politically moderate, socially compassionate and apparently orthodox model has since been urged by Catholic bishops and groups in Seattle,[19] New Jersey,[20] San Juan[21] and even Adelaide, where Archbishop Philip Wilson lent his support to the 2006 South Australian, so-called Partnerships Legislation[22] that recognised a whole range of worthy, interdependent relationships.
We have, therefore, a model for change.
If we must revisit the ‘gay marriage’ debate under the current political arrangements, at least we have before us a model that appears to meet the demands of justice and is sensitive to the common good in Victoria and elsewhere. It is a model that goes some way to meeting the legitimate needs of real same sex attracted men and women without reducing their relationships to sex acts and properly private financial arrangements. It also does not fail to celebrate and protect worthy relationships wherever they may be found, widening the franchise and promising to transform homoactivists’ sometimes selfish rhetoric into real-life, justice-bearing, inclusive reform. It is, therefore, the most practical, humane and acceptable model on offer.
It is the only model Catholic lawyers and other people of good will should support.
I commend it to you today and – on behalf of your organization – offer it to the lawmakers of this State and beyond them, to compassionate, reasonable parties throughout Australia, in our Federal Government in particular and out across the world.
VII Conclusions
In closing, let me return to the source I started out from. In his 2008 Message for Peace, Pope Benedict XVI called "the human family, a community of peace". He said that:
"The first form of communion between persons is that born of the love of a man and a woman who decide to enter a stable union in order to build together a new family...The family is therefore rightly defined as the first natural society, “a divine institution that stands at the foundation of life of the human person as the prototype of every social order”."[23]From this humane, timely teaching, we have as Catholics, lawyers and people of goodwill, a solid template for right action. In our attempts to express something of the beauty of the natural order, to articulate in a political and jurisprudential context the demands of justice, we can journey together towards the common good, encouraging those most worthy varieties of human friendship. Truly, to bring about a proper commonwealth of carers, not just a loose association of competing self-interests.
We are, in this way, called to compassionate, decisive action in Victoria.
To have before us those fixed and unchanging principles of human flourishing that offer the hope that our reforms and other efforts may ensure that the "law is [indeed] the premise upon which freedom is built; [and]…not its adversary".
Thank you very much.
- - END - -
:: Notes ::
* B.A., LL.B (Hons) Melbourne
[1] Pope Benedict XVI, Lecture to Students & Faculty at La Sapienza (Rome, January 17, 2008), Available here.
[2] Augustine of Hippo, De libero arbitrio I, v cited in Thomas Aquinas, ‘Summa Theologica’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 136-7.
[3] Thomas Aquinas, ‘Summa Theologica: Utrum omnis lex a lege aeterna derivetur’ in Aquinas: Selected Political Writings A. P. D’Entreves (Ed.) and J. G. Dawson (Trans.) (1954) 120-1.
[4] Pope John Paul II, Encyclical Letter ‘Evangelium Vitae’ (Rome, March 25, 2008), Available here.
[5] 410 U.S. 113 (1973).
[6] Robert P. George, ‘Danger and Opportunity: A Plea to Catholics’ in First Things Journal (New York, August 6, 2007), Available here.
[7] Australian Capital Territory, Civil Union Bill 2006 (Disallowed), Available here.
[8] John Heard, ‘Betray Families and Lose Power’ in The Australian (Sydney, December 17, 2007), Available here. See also, Siobhain Ryan, ‘No Labor Plans to Allow Gay Marriage’ in The Australian (Sydney, December 17, 2007), Available here.
[9] Parliament of Victoria, Relationships Bill 2007 (Second Reading), Available here. See also, Office of the Attorney-General, State Government of Victoria, Media Release: New Register to Recognise Committed Relationships (Melbourne, December 4, 2007), Available here.
[10] Archbishop Denis Hart, Homily: (Red) Mass for the Opening of the Legal Year 2007 (Melbourne, January 29, 2008), Available here.
[11] Parliament of Victoria, Relationships Bill 2007 (Second Reading), Available here.
[12] National Marriage Coalition, Marriage Manifesto: Strength and Support for Australian Families (Melbourne, September 18, 2007), Available here (.pdf).
[13] John Heard, ‘Gay Marriage: Not Sex, but Love’ in The Record (Perth, January 10, 2007), Available here; See also Witherspoon Institute, Marriage and the Public Good: Ten Principles (Princeton, May, 2006), Available here.
[14] Australian Research Centre in Sex, Health and Society (LaTrobe University), PRIVATE LIVES: A Report on the Health and Wellbeing of GLBTI Australians (Melbourne, March, 2006), Available here (.pdf).
[15] Indeed, source figures from New Zealand, Tasmania and overseas show that only something like 0.01% of the population in any given jurisdiction partakes in the civil union schemes and registers on offer. See also, Tony Jones, ‘Interview/Debate with Senator Bob Brown and Jim Wallace’ on Lateline (ABC Television Australia, February 20, 2008), Available here.
[16] Tamara McLeaen, ‘HIV Blowout in Victoria: Study’ in The Australian (Sydney, March 3, 2008), Available here.
[17] Doug Pollard, ‘Gay Marriage Passé: Interview with Professor Dennis Altman’ in BNews (Melbourne, November 28, 2007), Available here.
[18] Rocco Palmo, ‘In the Northwest, Echoes of Levada’ on Whispers In The Loggia (Philadelphia, January 27, 2007), Available here.
[19] Bishop Joseph Tyson, Quoted in ‘Domestic Partnership Bill Considered’ in AP Report (Rachel LaCorte) (Seattle, January 26, 2007), Available here.
[20] Supra.
[21] ‘Consideran Ciertos Derechos para Parejas Homosexuales’ in El Nuevo Dia (Spanish Article) (San Juan, November 26, 2007), Available here.
[22] Parliament of South Australia, Statutes Amendment (Domestic Partners) Act 2006 (No 43), Available here; Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (No 13), Available here. See also, Staff Writers (The Advertiser), ‘Adelaide Archbishop Backs Equal Rights for Gay Couples’ in CathNews (Adelaide, March 17, 2005), Available here.
[23] Pope Benedict XVI, Message for the Celebration of the World Day of Peace 2008 (Rome, January 1, 2008), Available here.
:: Additional Resources ::
- Robert P. George, Law and Moral Purpose;
- Latest Report on Family Breakdown in Britain (.pdf);
- Barney Zwartz on a Sage Alternative in Victoria; and
- French Parliamentary Report on the Rights of Children (Rejects 'Gay Marriage' and Adoption).
by DREADNOUGHT at 9:53:00 PM
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