The Frank Walker Memorial Lecture 2017: The Separation of Church and State — The Liberal Argument for Equal Rights for Gay and Lesbian Australians

In February last year, The Monthly published my essay It’s Time. The title was not simply channelling Labor’s 1972 campaign slogan.

It was rather a recognition of the fact that the time has come for marriage equality in Australia, and a reminder to those who deny marriage rights to gay and lesbian Australians that what we have in common matters more than the division and difference some wish to cultivate.

So many Australians are still asking “are we there yet?” And, sadly, the answer is still “no”. A policy issue that is one of the easiest to resolve politically languishes in the ‘too hard basket’ because of the intransigence of those who see it as their right to impose their personal views on the community as a whole.

You would all know that Frank Walker was passionate about rights, so passionate that he would put himself on the line. Here is Frank talking about a visit to Moree.

I went to Moree and I swam in the swimming pool that aborigines weren’t allowed to swim in with aborigines. And so the local coppers got me.
They gave me the biggest hiding I’ve ever received in my life. They never hit me in the face – only in the torso. But they broke five of my ribs. And I had to catch the train from Moree to Sydney – the Moree Mail – and it took fifteen hours, and I had fifteen hours of agony with broken ribs I’ll never forget.

That’s commitment. And it is a reminder that change comes about in small ways, and in large ones; and always demands courage.

So what I wish to do in this Frank Walker Memorial Lecture is to examine the grounds on which those who deny us our right to marry whomever we wish mount their case, review the jurisprudential thinking that has underpinned the separation of church and state since at least ‘the Glorious Revolution’ of 1688, and to reframe the issue of rights in a secular society.

The journey towards equality has been long and arduous, and it is not yet over. Women’s rights remain a work in progress, as the continuing opposition by a number of US states to the 1973 Roe vs Wade decision, the decriminalisation of domestic violence in Russia, and the weakening of protections against child marriage in Bangladesh indicate.

Women continue to lag in terms of equality of opportunity, equal pay and equality of political representation. Here in Australia, notwithstanding the passage of critical legislation such as the Racial Discrimination Act (1975), the Sex Discrimination Act (1984) and the Equal Opportunity Act (2010), the conferral of rights – as distinct from their acquisition – has been slow to follow. It is a reminder that formal and real equality are often not coincident.

The heavy hand of tradition continues to preserve many of the historical practices that would constrain opportunities for women. Whether in the law, medicine, engineering, accounting or politics, women continue to suffer institutional and practical disadvantage as accreditation systems discriminate against women and preselection practices too often allocate marginal or unwinnable seats to women.

Similarly, while the LGBTIQ rights movement has been successful in securing many legal rights relatively rapidly, legal changes are yet to be ingrained into the way which society thinks and talks about us.

At the centre of the opposition to equality of marriage rights for gay and lesbian members of the community is the conflation of religious concepts of marriage with secular concepts of marriage.

In the centuries before Magna Carta and through into the early Middle Ages, common law marriages were the norm, with religious ceremonies gaining currency among the landed classes and the nobility.

After the Tudors, and before the enactment of The Marriage Act of 1753, marriages in England and Wales had been conducted by the clergy of the Church of England in accordance with the church’s canon law. Only Jewish and Quaker marriages were excepted, with Catholics having their unions solemnised in an Anglican church.

The issue here, as I am sure you all recognise, is the sacramentality of marriage – that is, marriage as a sacrament of the church – determining the legal status of marriage.

Of course, those who argue against marriage equality on the basis of its sacramentality fail to recognise its history stretching beyond the involvement of churches in the institution.

Common law marriage had long been the usual practice among the poor, the right to property and inheritance being largely irrelevant to those without either status or possessions. Clandestine marriage, however, was a growing problem in the early eighteenth century as the landed gentry grew in wealth and numbers following the colonisation of the Americas.

Landowners did not want to see their sons squander their estates by marrying servant-girls ‘beneath’ their station, or their daughters fall into the hands of ne’er-do-wells. For the burgeoning middle class, marriage was more about property, succession and inheritance than it was about love, and even less about the sacraments.

The Matrimonial Causes Act 1857 removed the jurisdiction of divorce from the ecclesiastical courts to the civil courts and, more importantly, totally changed the marriage paradigm from sacrament to contract.

It also decriminalised adultery.

Women, of course, continued to get the rough end of the stick, with women subject to quite different rules in suing for divorce and in the naming of co-respondents.

Nor were property rights accorded until the Married Women’s Property Act 1870 when it became possible for women to retain income and to inherit property.

In actuality, the law slowly evolved to regard marriage as a contract rather than a sacrament and recognised that the marriage contract had particular reference to children and property.

But it remains the case that religious attitudes to marriage continue to impact on much of the political debate that has delayed the recognition of the marriage equality rights of the gay and lesbian community.

I, for one, am perfectly happy to accept the sacramentality of marriage. A marriage blessed by a member of the clergy is a wonderful thing for those who believe in the sacrament.

It is no less a wonderful thing for those whose marriage is celebrated by a civil celebrant, accepting the contractual nature of the affirmation “I do”. But, before the law, and in the minds of our family, friends and the broader society, the civil marriage is no less a marriage than the church one, and the church marriage is no more a marriage than its civil equivalent.

Sacrament and contract both exist, but in quite different spheres.

Church and civil marriages are each a public commitment, entered into by two people, having enormous familial and societal resonance – a public commitment that has an importance that goes far beyond either the sacrament or the contract.

The American conservative commentator Bruce Frohnen, like many of the religious commentators, advocates a utilitarian approach to gay marriage and the raising of children when he writes:

No one should deny the reality of love (after all, God Himself is love). Nor should we deny that love is an important good (after all, again, God Himself is love). The question, however, is not one of love, or even of commitment to and support for a particular person, but of what purpose a family serves. For example, the fundamental issue in the same sex marriage debate is not whether homosexual couples should be allowed to love and support one another, but whether that love should be recognized as familial.

In other words, such commentators remove from marriage the idea of love, companionship, common enterprise and the creation of family by positing that family can only serve the utilitarian purpose of raising children if the parents are man and woman. Their prescriptions are not just directed at the gay and lesbian community. They are directed at everyone.

And I’m pretty confident that the description of marriages as love-less relationships with the pure aim of procreating would not resonate with the vast majority of Australians. When the member for Moore, a bachelor, claimed that marriage was only for procreation, my friend the member for Griffith hilariously suggested that he ‘not roll that one out on a first date’. It would be advice well taken, I think.

Many of you will recall the outcry that greeted President Obama’s decision that his administration would no longer defend the Defense of Marriage Act (DOMA), signed into law by President Clinton in 1996.

DOMA reaffirmed the traditional view that marriage was a union between a man and a woman, and, more importantly, gave such states as might wish to the right to refuse recognition of same-sex marriages conducted in other states. So Micah Watson, a conservative ethicist at Calvin College, Michigan, converts the gay rights movement’s demand for recognition of marriage equality into a reductio ad absurdum.

. . . Gay-rights arguments have generally shifted from pleas to be left alone to demands that same-sex relationships be recognized and enforced as the moral and legal equivalent of heterosexual marriages. If the state cannot uphold a controversial traditional view of marriage because it lacks the moral warrant to do so, how can it then in turn uphold a controversial progressive view of marriage?

On this view marriage equality is only possible where the state lacks the moral warrant, whatever that might be.

The problem in all of this, of course, is the application of religious belief to the framing of law in a secular society. And in societies where church and state are constitutionally separate, as they are in Australia and the US, this leads not only to confusion, but also to inequity.

As I noted in my essay in The Monthly, to which I referred earlier, liberal democracy is not compatible with fundamentalism of any description, whether ideological or spiritual.

The separation of church and state is one of central planks on which liberal democracy stands. The equality of all citizens – the rule of law – is another.

When John Locke was deliberating on the momentous political events that brought about the fall of the Stuarts and an end to ‘the divine right of kings’, he saw intuitively that individual, political and religious freedoms were inconsistent with the imposition of religious belief.

It was his view, as expressed in De Toleratione, that “all the power of civil government relates only to men’s civil interests, is confined to the care of the things of this world, and hath nothing to do with the world to come”.

It is as though Locke was rediscovering the force of the injunction “render therefore unto Caesar the things which be Caesar’s and unto God the things which be God’s”.

For Locke, the separation of church and state rested on a fundamental and incontrovertible axiom: human beings are completely free and equal relative to each other.

As I said in The Monthly essay, one of the things that make liberal democratic societies both liberal and democratic is the equal treatment of people: granting the same rights, imposing the same responsibilities and giving access to the same opportunities.

Discrimination against people on the basis of an innate characteristic, like sexual orientation, is anti-liberal and anti-democratic.

Locke’s thinking had enormous influence on the framers of the US Declaration of Independence and the US constitution.

But like Jefferson, who owned slaves, Locke was a man of his times: his tolerance did not extend to Catholics (who “deliver themselves up to the protection and service of another prince”) or atheists (whose promises cannot be trusted – “promises . . . can have no hold upon an atheist”).

Nor did Locke tolerate homosexuality – “promiscuous uncleanness” – a fact that those who would deny marriage equality to the gay and lesbian community adduce as an argument against the separation of powers as it might affect legislative equality.

Those who cite Locke as the ‘authority’ for their opposition to the extension of marriage rights to all people, regardless of their sexual orientation, make a basic error in logic: they can’t distinguish principle from context. In my view, Locke identified a fundamental principle on which democratic politics is founded. It is the principle that matters, not who discovered it. One’s own views should not determine the rights of others.

Religious freedom means being free to worship and to follow your faith without suffering persecution or discrimination for your beliefs. It does not mean imposing your beliefs on everyone else.

And it most emphatically does not mean deploying the power of the state to enforce one set of religious beliefs. “Religious liberty”, writes the philosopher John Corvino, “does not include the liberty to live in a world where the law enforces your particular religion’s conception of marriage. Just the opposite”.

In democracies, the basic role of the elected assemblies, whether they are called parliaments, congresses or legislatures, is to enact the laws that govern the social contract that exists between the members of the community. These laws must protect and extend rights equally.

Yet we are presently witnessing a global backlash against gay rights, as Omar Encarnación has noted in his recent Foreign Affairs essay. He writes, “By openly embracing anti-gay violence and extremely homophobic legislation, many autocratic regimes across the world are doing what such regimes have done for centuries to groups as varied as Jews, heretics, and various ethnic minorities: scapegoating a socially despised minority as a way to consolidate power, to justify conservatives’ policies, and to distract from other issues”.

As John Locke wrote, “Wherever law ends, tyranny begins”.

Russia, in particular, has taken its “gay propaganda law” to the extremes of repression. But anti-gay violence is nowhere more prominent recently than in the semi-autonomous Russian republic of Chechnya.

According to The Guardian, Chechen authorities have rounded up more than 100 people, including local TV and religious personalities, and killed at least three.

The Chechen interior ministry, of course, dismissed the reports as ‘an April fool’s joke’. To her great credit, The German Chancellor, Angela Merkel, raised the matter with the Russian President, Vladimir Putin, during their meeting in Sochi on 2 May 2017.

It goes without saying that Labor is fundamentally opposed to the oppression of anyone on the grounds of their sexual orientation or their religious beliefs.

And we, as supporters of equal marriage rights, need to be both vigilant and active when there is any regression to criminalisation or re-criminalisation of gay relationships. We also need to be vigilant and active when those on the right move to restrict or curtail programs that are designed to foster a more inclusive, harmonious and accepting society.

The campaign by the Australian Christian Lobby against the Safe Schools program is a case in point: knowing about and understanding difference is an essential pre-condition for an inclusive and harmonious society. The Prime Minister might have shown more character and courage than to give in to right wing pressure against protecting LGBTIQ children in schools.

One of Australia’s great protections against all forms of extremism is the fact that we are a secular society. Yet the very fact that we are celebrating the life and work of Frank Walker tonight reminds us that securing and defending broad-based rights remains a work in progress. Religion-based moral codes continue to limit the freedoms and the rights of those who, in the view of religious groups, do not ‘conform’ to their views. In advocating, and indeed proselytizing, their own views, they too often restrict and constrain the rights of others.

Why, one might ask, should gay people be expected to show ‘gratitude’ that their sexual relationships have been decriminalised? The ‘royal pardon’ extended to Alan Turing, for instance, is no compensation for a brilliant mathematician whose work was critical to the Allied victory in WW2. His conviction and subsequent suicide were the direct consequences of an unjust law.

And why, once might also ask, should the gay and lesbian community be merely ‘tolerated’ when the heterosexual community takes for granted ‘acceptance’ and recognition of their sexual preference as ‘the norm’.

In a secular society, ‘the norm’ is not the view of the majority. Rather, ‘the norm’ is the ability of everyone to believe what they wish, to practise their religion as they see fit, to express their ethical and moral preferences, to say what they wish – but all without imposing their beliefs and views on anyone, and without inflicting injury or hurt.

For a secular society recognises the basic worth, dignity and value of each of its citizens precisely because of their humanity and their citizenship. A secular society is one that is based upon and enshrines the rule of law.

And while we are talking about ‘the norm’, we should also beware of the term ‘normal’ as it is often applied to the LGBTIQ community. History is replete with examples of language being hijacked by the majority, to the detriment and any minority that might be scapegoated.

‘Normal’, of course, is a mathematical and statistical term that has a precise meaning: it concerns distributions and averages.

Just as one person’s personal attributes cannot be normative for any other person, so the attributes of the majority cannot be normative for any given minority.

Rights in a secular society give expression to the fundamental values of freedom, equality, compassion, care, kindness and respect that are central to our common humanity. That is why it is so important that we reframe and refurbish the idea of the secular society as one that is not anti-religious, any more than it is anti-government or anti-political.

As a person of faith, I do not believe that a secular society is one that is characterised by its disregard for God. Rather it is one that is characterised by the personal freedom of its members to hold God in whatever regard they wish. A secular society is the creation of its own freedom, which is itself a consequence of the basic equality of human beings.

As William B. Turner notes in his essay Of Marriage and Monarchy, “the strongest argument for equality by lesbians and gay men rests on the assertion that . . . respect for natural rights depends on a foundational commitment to equality as the first moral good and a defining feature of our political and legal traditions”.

And that freedom and equality in Australia’s secular society extends to equal rights, including the right to marry, for all gay and lesbian Australians.