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.

A match made in heaven | AJN

October 26, 2012 – page 25
The Australian Jewish News Melbourne edition

A match made in heaven

Marriage isn’t a right for all.  It’s between men and women and, civil or not, its roots are in religion.

Rabbi Moshe Gutnick

Judaism unequivocally recognises marriage as being only between a man and woman. However, while the Torah irrevocably forbids homosexual relationships and overt homosexual behaviour, it adopts the distinction found in numerous rabbinical texts, between the person and his or her behaviour. Tolerance and love must be shown to all.

However, while such tolerance is consistent with the core values of Judaism, there is a great difference between tolerance for an individual, and recognition of a movement which wishes to turn something clearly prohibited by Judaeo-Christian teaching into something not only tolerated, but recognised and solemnised through the institution of marriage.

There is no doubt that society must protect all citizens from discrimination, including from discrimination on the basis of sexual preference, but this can be done in other ways, without granting a homosexual union the sanctity of marriage.

It is indeed a complex debate as to the degree with which Judaeo-Christian ethical positions should be translated into public policy in a pluralistic democratic society. However, one thing is clear, at this point in Australian history, our great Commonwealth still bases itself on those values taught to mankind through the great religions of Judaism and Christianity.

Our Parliament begins its deliberations with a prayer to the God of all mankind: “Our Father who art in heaven, hallowed be thy name … Thy Will be done on Earth, as it is in Heaven.” Parliamentarians swear their oath on a Bible, as do all who stand in our courts. Our constitution acknowledges the blessings of God.  While indeed we make provision for all, including those who do not believe in God, and that indeed is an essential part of our democracy, the overwhelming majority of our citizens build their lives, indeed not necessarily around organised religion, but around belief in a Creator.

Indeed, as Chief Rabbi Jonathan Sacks convincingly argues, it is only democracies that have at their foundations belief in a Supreme Being and subservience to a higher morality that indeed ensure the rights of all their citizens precisely because they are “created in the image of God”.  Without God, human government becomes supreme and the arbiter of morality.  Inevitably the rights of their citizens become subservient to the needs of the state, and as we have seen with the Third Reich and the Soviet Union, the results are catastrophic.

Gay people can be protected from discrimination without tampering with marriage.

Justice Rothman (AJN 12/10) argues that it is hypocritical for the rabbinate in our democracy to argue on the one hand against same-sex marriage while on the other hand insist on the right to brit milah (circumcision).  The argument, with respect to His Honour, is flawed.

It is indeed a universal human right to be able to freely practice religion, including the practice of brit milah.  However, there is no such universal human right for all persons to be able to marry.

As late as March 2012, the European Court of Human Rights found that same sex marriage is not a human right under the European Convention on Human Rights.  Marriage indeed is not a right, but in our society it is the voluntary union of  man and a woman as uniquely defined in the Judaeo-Christian ethic.

Indeed, the Marriage Act recognises the essentially religious nature of marriage.  No other act of Parliament includes in it outcomes achieved by a minister of religion.  In some other parts of the world, the recording of a marriage is purely a civil matter totally unrelated to the performance of a ceremony by a minister of religion; the certificate of marriage does not mention religion at all.

However, in our Marriage Act, marriage can be performed by a minister of religion; this and the fact that the marriage was performed according to the rites of that religion are all recorded on the certificate of marriage.  Indeed, we do provide for a civil celebrant to perform a civil marriage, but that does not take away from its essential Judaeo-Christian, and indeed biblical, foundation.

If there was a universal right to “marriage”, as Justice Rothman suggests, and marriage was just the conferring and acceptance of certain mutual legal rights and obligations, why would that not have to extend to allowing a (consenting adult) brother and sister to marry?  Or for that matter a man to marry two women or a woman to marry two men, as indeed does take place in other cultures and other parts of the world?  Should a minority of our citizens wish to have such unions, would Justice Rothman seriously suggest we are denying them their rights?

Gay people can be protected from discrimination without tampering with marriage.  Maintaining the definition of marriage, in accordance with the Judaeo-Christian ethic, is not a denial of rights nor an act of homophobia; it is simply the maintaining of a definition, and with it the sanctity of marriage.  Our democratic principles are not those that espouse freedom from religion but freedom of religion.  And indeed it would appear, by the recent overwhelming vote in the House of Representatives against changes to the Marriage Act, that the vast majority of our elected representatives agree.

Rabbi Moshe D Gutnick is president of the
Orthodox Rabbis of Australasia and a dayan
on the Sydney Beth Din.