From Industrial Relations to Personal Relations:
The Coercion of Society

The Catholic Church---Freedom and Anti-Discrimination

Bishop George Pell

Like Henry Richard Nicholls I am proud to acknowledge a Ballarat connection, a beautiful city where I was born and bred and worked for many years as a priest.

My hope too would be that Australians will always retain the liberty to describe even the highest in the land as "a political judge"; just as they might legitimately describe someone as a "political bishop" or as an "impolitic politician" or even as an "unparliamentary parliamentarian". The theme of your conference is "From Industrial Relations to Personal Relations : The Coercion of Society."

My topic or sub-theme is "The Catholic Church, Freedom and Anti-Discrimination". I shall begin by describing some aspects of the intellectual and ideological situation within which the Christian churches in a Western society like Australia have to operate, before sketching some of the dangers to religious freedom, traditional values and institutions from an ideology of intrusive anti-discrimination. My particular focus of concern will be the consequences, short and long term, to social institutions and even the Churches of the Human Rights (Sexual Conduct) Bill of 1994.

With the fall of Communism in 1989 in Europe the American writer Francis Fukayama proclaimed the end of history, because of the world-wide consensus for liberal democracy and a market economy; the principle of votes and videos.1 This was a highly implausible claim, and won a justified notoriety, although I believe that the recent elections in South Africa were one example of the principle at work, perhaps redefined to votes and the promise or possibility of videos.

Where prosperity is not readily available, the system does not work (some might even see the popular vote as a hindrance to prosperity), but in Australia where we have enjoyed the vote for a long time and videos for some time other important struggles are continuing.

From a religious point of view probably the most important development in the West has been the steady spread of secularism. It has flowed and ebbed; and the fall of Communism must be seen as a spectacular and perhaps terminal reverse for the Marxist form of secularism, after Nazism the most virulent form of neo-pagan secularism; a massive blow to the whole Enlightenment project. On the other hand religion is far from vanquished: e.g. few societies in history have been as religious as U.S.A. society; there is a huge network of Christian institutions and influence in this country.

But religious practice continues to decline, the percentage of non-believers is rising, the Christian bases of much of our legislation are under regular attack, e.g. on abortion and the "chattering classes" in Australia at least are dominated by agnostics and atheists, including a good spread of "R.C.s" ie retired Catholics.

One Australian strength should certainly be acknowledged.

Australia still enjoys a high level of religious peace, very high even by the standards of the English speaking world. We are a world away from Northern Ireland, geographically and culturally, with its violence and overt sectarianism. There have never been anti-Popery riots as in England in the nineteenth century and there is little possibility of an anti-Catholic attack like that of Ferdinand Mount in The Spectator in early 1994. 2

We have little of the virulence of the U.S. anti-Catholic tradition here in Australia. Australia has never had a Catholic church or convent burnt down by a hostile mob! While we are a less religious society than the United States of America, we are also less anti-religious.3

There is no denying the existence of some anti-religious and anti-Catholic traditions in Australia. We recognize the religious tensions of the Conscription issue in the First World War, in the struggle for "state-aid" for Catholic schools, in the Labor party split of the 50s and even the simmering religious undertones in the Republic debate today. But acknowledging all this, we still have a commendable legacy of religious harmony which we must work to preserve.

Naturally religious tensions do remain, but they are not the religious/racial tensions of yesterday's Australia.

The religious tensions today in Australia are not Protestant versus Catholic, not Christian versus other religions, but Christian churches/values versus neo-pagan secularism. A minority of secularists are strong defenders of most of the traditional Christian ethic, but most are opponents of Christian influence and reject the one great God.

A subset of this struggle with secularism is taking place in all the major Christian denominations in the sometimes bitter battles between liberalism and "orthodoxy".

The developments in the history of moral thinking in the secular tradition since the 18th century Enlightenment also help us to situate our present political differences.

a. Christian moral content without Christ and the church and often without God., e.g. Kant.

b. Relativizing of Christian moral teaching, e.g. the contemporary American Jesuit Richard McCormick.

c. the attempt to reconstruct moral theory on an explicitly non-Christian and/or non-theistic base. Nietzsche, Marx and Freud provided the intellectual foundations. Nazism and Communism are the most unfortunate examples of these theories in practice.

Professor Peter Singer of Monash University with his explicit approval of infanticide, abortion and euthanasia, his enthusiasm for animal liberation is an influential neo-pagan.4

These different approaches are reflected in our political and legal struggles of today.

An important question for all of us, Christian and otherwise, who appreciate and value the traditional strengths and stability of our liberal democracy, who value the rule of law, free speech, religious freedom, in other words, the virtues of our civil society is this: where are the agents who are maintaining and reinforcing the strengths of our civil society?

Much more than self-interest (economic or broader) is required for long term peace and prosperity.

The question is important; the answers difficult and controversial.

The continuing cohesiveness of civil society remains a mystery, resting on preconditions like religion, family structures, inherited moral habits and particular historical traditions.

Not all the signs, even in Australia, are good.

Just recently Fukayama reviewed a book by Ernest Gellner on "Conditions of Liberty". In discussing "fluid, secular late-industrial societies" like Australia, he wrote that "Gellner rejects the theory that secularized society lives morally on a kind of inherited moral capital, left-over from the age of faith. Yet it is hard to point to sources other than inherited moral capital to explain contemporary community and considerable evidence that that capital is slowly depleting".5

Let me give two examples.

The Decline of the Family

The first example is the decline of the family. In the U.S.A. today the rate of white illegitimacy (22%) recently passed the rate of black illegitimacy that prevailed 30 years ago when Daniel Moynihan issued his famous report on the crisis in the black family, warning that the gains of President Johnson's Great Society would be cancelled by a spiral of family disintegration. He was right.

American inner cities and their schools are now approaching a nightmare of total social atomization rarely seen in the West since the Dark Ages.

The Australian illegitimacy rate (24%) is today two points higher than the white rate in the U.S.A. Do the U.S. inner cities in North America now provide a glimpse of a significant section of Australian life thirty or fifty years into the future? Earlier today the correlation of youth suicides and unemployment was demonstrated. Family disintegration is another factor in this grim mix.

The search for effective policies to support the family should not be seen as an antiquarian enthusiasm of the "religious right" but as a prerequisite for the well-being of tomorrow's citizens.

Progress of Gay Liberation Movement

Family decline has run in parallel with the expansion of homosexual activism. Public opinion has changed. The overwhelming majority of Australian opinion now is that within limits these people "deserve a fair go"; there is no widespread acceptance of homo-phobic violence.

There is considerable merit in the old-fashioned view attributed to Edward VII, who is alleged to have explained that he was not too much concerned by what people did as long as it was not done in the streets to frighten the horses.

Naturally a percentage in this movement is not content with this; they want full public legitimacy and equality for their lifestyle and an end to any form of hostile discrimination. They seek a sexual revolution and a revolution in attitudes and culture.

Most Australians would have an intuitive and pre-articulate anxiety about this. A strong minority would be more outspoken in their opposition, their conviction being that the extreme claim for autonomy here undercuts the common good. This is my view.

Under the influence of gay and lesbian movements Australian society is progressing (in these matters) as the poet Alexander Pope wrote

"Vice is a monster of so frightful mien,

As to be hated---needs but to be seen;

Yet seen too soft, familiar with her face,

We first endure, then pity, then embrace."

Tolerance (endure) to compassion (pity) and then on to full affirmation (embrace) : this is the gay agenda. Some expressions of the first two steps are a Christian imperative, but the third step is socially undesirable (as I shall explain a little later) as well as being religiously unacceptable.

It is ironic that what were once considered private acts are now highly publicized, while public privilege is claimed for these same acts because they are private.6

Three personal conclusions can be drawn from this broad-brush picture.

1. Australian society (presently constructed) owes a lot to Christian influence and it is in the interests of the Australian community i.e. those who value our civil society for the churches to continue to be free to do their work and to teach their doctrines, however politically incorrect these might be in some areas.

2. The family remains the essential building block of sociability and the parliaments, the law, the churches must do more to protect and enhance the family, if only for financial reasons.

3. Genuine tolerance and compassion should be extended to gay and lesbian persons, but their wider claims to equality, affirmation and embrace for their activities should be resisted for social reasons.

These convictions help explain my attitudes to the Human Rights (Sexual Conduct) Bill 1994.

Human Rights (Sexual Conduct) Bill 1994

The operative provision of the Bill states:

Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of article 17 of the International Covenant on Civil and Political Rights. Clause 4.

An adult is defined as a person of 18 years or over.

The International Covenant states:

No-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence nor to unlawful attacks on his honour and reputation. Article 17.

The Commonwealth has used the external affairs power to introduce this law. The High Court has so interpreted the external affairs power that when Australia adheres to an international treaty or covenant, the Commonwealth can pass laws to give effect to the treaty or covenant, even if that means overriding State laws in areas hitherto the exclusive preserve of the States, e.g., the criminal laws of a State.

In the Explanatory Memorandum which accompanies the Bill, the Attorney-General has explained that it is not intended to affect present State and Territory laws against, among other things, incest, bestiality, prostitution and child pornography. Omitted from the list is any mention of abortion or adult (as against child) pornography.

Does the Bill leave open the door for such matters, notwithstanding what the Attorney-General said or left unsaid? The short answer is: it all depends on how you interpret the words used in the Bill.

The Bill as drafted gives a wide scope to those who must interpret its meaning. There is no definition in the Bill of: sexual conduct, arbitrary interference or privacy.

The United States experience shows that "privacy" can be interpreted to mean freedom to engage in certain activities without government interference. This underpins Roe v Wade, the US Supreme Court decision which legalised abortion.

It is not possible to say whether the High Court of Australia would take such a path. However, this Bill makes it highly likely that it will be asked to do so some time in the future by one or other litigant.

If the Bill was amended to exclude abortion laws, this danger would be removed.

The Australian Catholic Bishops Conference wrote to the Attorney General on 27/10/94 to express their disquiet about the Bill, picking up the points outlined in the previous synopsis:

1. No definition of critical terms.

2. The Bill, unlike Explanatory Memorandum, gives no assurance that existing laws on e.g. incest would be unaffected.

3. No reference to laws on termination of pregnancy and adult pornography.

They also expressed their concern about the educative role of this bill.

There was a reply from Federal Attorney General Michael Lavarch (undated) and a further letter from Cardinal Clancy of 18/11/94.

Archbishop Peter Hollingworth of Brisbane expressed his concerns8 as did the Conference President of Churches of Christ in Queensland. Generally the concerns are shared across the Christian Churches.

In the view of the Catholic bishops two serious difficulties remain:

1. The inconsistency in content at the heart of the Attorney General's response.

2. The Attorney General's unwillingness to amend the Bill itself, not just his own Explanatory Memorandum.

Let us turn to the first difficulty.

In his letter to the Bishops, Mr Lavarch wrote,

All Australian jurisdictions make incest a criminal offence. There is a clear consensus throughout Australia that such laws are justified on medical and other grounds. Such laws recognise and protect the special nature of the relationship between grandparents, parents, children and siblings.

Surely that is very well said.

But on pp 4 & 5, after recalling the Bishops' suggestion that the Bill can be taken to condone or to promote sexual practices between consenting adults in private which can be promoted as alternative practices and lifestyles to the dignity of marriage and the procreation of children the Attorney General states:

"The Bill does not purport to endorse nor condemn any alternative to the dignity of marriage and the procreation of children."

Yet it appears to equate them. This equation is unacceptable to the Christian Churches: more importantly in a pluralist society such an equation is completely undesirable on social and economic grounds.

Secondly we also regret the unwillingness to amend the Bill itself. As Cardinal Clancy wrote to the Attorney General9

"Your proposal to amend the Explanatory Memorandum for the Bill will make the Government's intentions even more explicit. However, our concerns are not with the Government's present intentions for the legislation but with future interpretations of it by the courts.......... Similarly, we note your assurance that the Government has no intention of endorsing or condemning sexual practices outside the marriage relationship. However, what counts in assessing the educative impact of legislation is the meaning which the community, not the Government, attributes to it."

The Attorney General in his letter had offered to amend the Explanatory Memorandum to deal with the termination of pregnancy and pornography.

We believe that Parliament's moral leadership is important: a fact explicitly recognized by the gay lobby in this whole exercise.

Until a few decades ago, parliamentarians were often nervous to speak out, or legislate on issues of morality: they were intimidated by a school of jurisprudence which held that there was no intrinsic connection between law and morality, and a taboo which said that morality was "not the Law's business".

In recent years, however, this has changed very much. Members of Parliament frequently insist that a given proposal involves a moral issue, and that this fact makes it very much their business: the moral aspect must be intrinsic to any considered judgement which they reach on the proposal.

There is one current in our society which has fierce antipathy to such strong and specific leadership on moral issues. They have a different concept of rights, different ideas about where the limits of personal freedom are to be set. Some voices become quite shrill against those who firmly declare that in Australia's mores, sexual promiscuity is unacceptable on moral grounds, as always, and now also on the new public health and hygiene grounds that it spreads sexually transmitted diseases. Parliament's firmness and confidence in this will be a powerful step towards eliminating sexually transmitted diseases.

For these reasons the Catholic Bishops wrote to the Attorney General

"Law plays an educative, as well as a punitive role. The Government appears not to have paid sufficient attention to the educational impact on the community of legitimising 'sexual conduct between consenting adults in private'. For example as an instrument of community education the Bill can be taken to condone or to promote sexual practices between consenting adults in private which can be promoted as alternative practices and lifestyles to the dignity of marriage and the procreation of children."

It is a political fact that small groups, who receive disproportionate publicity, want to destroy any special status for heterosexual marriage. Just as certainly the leadership of the Judaeo-Christian communities in this country would want to preserve marriage and family, protect it and enhance it: as does a clear majority of Australians at this time. Every political party clear headed enough and courageous enough to realise this and work persistently for such goals, would not only be doing a favour to the future and the nation: it would also reap real political benefits, as well as a torrent of abuse from the politically correct. This is one issue where the silent majority does exist. It only needs consistent leadership and intestinal fortitude to translate these semi-dormant popular convictions into effective policies.

In some imaginary world, smoking, drunkenness and sodomy might be immune from harmful consequences. In the real world, however, smoking can cause cancer and heart disease, and drunkenness often leads to violence in the home, and to death and terrible injury on the roads. Sodomy has been the principal means of transmitting the HIV virus in Australia.

Until recently opponents of smoking and drinking were stigmatised as puritans and wowsers. Today however Parliaments and Governments are forthright in denouncing the harm that they lead to. It is to be hoped that they will be equally forthright about the appalling consequences of sodomy, whether between heterosexuals or homosexuals.

Criminal Law is concerned not only to punish, but also to educate. It guides public opinion. Even with slight or moderate sanctions it bears powerful witness to society's approval or disapproval of various kinds of human acts, whether because of their intrinsic nature, or because of their likely consequences, or both.

We know of dreadful new consequences of sodomy. It would be quite bizarre if Parliament chose this very moment to take a step which would plainly suggest that society has now become complacent about it: to take a step which would encourage the homosexual minority to claim endorsement for their lifestyle rather than tolerance for their activities.10

This Bill should be radically amended: even better would be its defeat.

Notes

1 F. Fukayama's article "The End of History?" first appeared in The National Interest, Summer 1989. He discusses the theme once more in The End of History and the Last Man, Penguin Books, 1992 e.g. pp. XI---XXIII.

2 The Spectator, London. 29/1/94.

3 George Weigel, "The New Anti-Catholicism", Commentary, June 1992. pp 25-31 provides a fascinating catalogue from the culture wars of today "Get your rosaries off my ovaries" back through the Ku Klux Klan, the opposition to Al Smith, the American Protective Association of the 1880s, the Know-Nothing Party of the 1850s and the Philadelphia riots in 1844.

4 Peter Singer, Rethinking Life and Death. The Collapse of our Traditional Ethics. The Text Publishing Co. 1994. See index for abortion, euthanasia, infanticide.

5 F. Fukayama, The Times Literary Supplement. 28/10/94. Pg 4.

6 "The Homosexual Movement. A Response by the Ramsey Colloquium" is an interesting statement of position by Jewish and Christian scholars on this issue. First Things (41), March 1994. pp 15-20.

7 This section is heavily dependent on the evidence of Archbishop E. D'Arcy of Hobart before the Senate's Legal and Constitutional Legislation Committee on 1/12/94.

8 Sunday Mail, 6/11/94.

9 Letter of November 18.

10 These previous four paragraphs are an almost verbatim account of one section of Archbishop D'Arcy's submission to the Senate Committee on 1/12/94.