Match made on Earth: a reply to Rabbi Gutnick by Troy Simpson

Sunday, 28 October 2012

Gutnick Reads From Different Rule Book

In “A Match Made In Heaven” (AJN 26/10), Rabbi Moshe Gutnick does not understand that Australia is secular. Whatever Gutnick’s objections to same-sex marriage, and however genuinely he holds them, those objections are based on the Rabbi’s particular form of Judaism. But the laws of Judaism and the laws of marriage are separate. Marriage, in its incredibly diverse forms, predates Judaism; marriage predates “God”. For much of its history, marriage has had little to do with religion, and more to do with control, power, and property. Some of the ways that the Rabbi impermissibly superimposes his brand of Judaism on to Australia’s secular system of law and government are outlined below.

First, Gutnick says “Judaism unequivocally recognises marriage as being only between a man and a woman.” But Australian law, namely the Marriage Act, only “unequivocally” recognised marriage as being between a man and a woman in 2004, when the Howard government explicitly inserted that definition into the Act. Federal Parliament can easily change the legislative definition of marriage again to allow same-sex marriage (subject to the Constitution as interpreted by the High Court). The federal definition of marriage might be unequivocal now, but that definition may not be unequivocal for much longer.

The term “marriage” in the Constitution is itself equivocal. The meaning of marriage will likely be tested in the High Court, either when a State passes its own marriage equality legislation or when a new Commonwealth Parliament passes a federal law on same-sex marriage. Many constitutional experts believe that the term “marriage” in section 51 is not unequivocally fixed to its meaning in 1901 but rather is flexible enough to support same-sex marriage. Even if the Commonwealth cannot legislate on same-sex marriage, then the States can. (The States might even refer their powers to the Commonwealth if needed, or the people can confer the requisite power at a referendum). So while “marriage” might be unequivocal in Gutnick’s rule book, under Australian law, “marriage” is equivocal and changeable.

Second, Gutnick says the Torah “irrevocably forbids homosexual relationships and overt homosexual behaviour.” Again, although Gutnick’s view of the Torah might irrevocably forbid homosexual relationships and homosexual behaviour, modern Australian law does not. The laws decriminalising homosexual conduct in the 1970s, 80s, and 90s further prove that what might be unequivocal or irrevocable for the Rabbi is equivocal and revocable under Australian civil law.

Third, Gutnick mentions “Parliament begins its deliberations with a prayer to the God of all mankind”. In fact, Parliament inserted the prayers with a particular kind of God in mind: a distinctly Protestant Christian God. According to constitutional law expert Anne Twomey, “Parliament did not introduce prayers because of ‘our Judeo-Christian heritage’. It introduced prayers in response to lobbying from churches.”  The first Standing Orders adopted by the Senate did not even provide for the offering of a prayer. Some delegates who helped frame our Constitution called the practice a “farce” and a “matter of indifference”. The Standing Orders to which the Rabbi refers can be easily changed.

Fourth, Gutnick says “all who stand in our court” swear “their oath on a Bible”. Here, the Rabbi is plain wrong. Australia’s Evidence Acts now give people a choice to take whatever oath their religion allows or dictates (on a Bible, the Koran, etc) or they can “affirm” without any religious text at all. This procedure proves further that Australia is secular.

Fifth, Gutnick says the Marriage Act recognises the religious nature of marriage. Again, the Rabbi is factually wrong. On the contrary, the Marriage Act recognises the secular nature of marriage. You can choose to have your marriage solemnised by a religious minister or not to have your marriage solemnised by a religious minister. So, under Australian marriage law, the State is separate from religion and not exclusively allied to any particular religion. This is the very meaning of “secular”.

Sixth, Gutnick concludes: “Our democratic principles are not those that espouse freedom from religion but freedom of religion”. Enough has been written above to show Gutnick’s conclusion is inaccurate. Australia’s democratic principles, as reflected by the laws and procedures listed above (and by section 116 of the Constitution), in fact rest on the freedom of all Australians to adhere to any religion of their choosing — or to none. Australian law will not be allowed to unduly interfere with Gutnick’s particular religious beliefs; but neither will the Rabbi’s particular religious beliefs, or anyone else’s, be allowed to unduly interfere with Australian law.

Troy Simpson can be contacted on Facebook here.

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