The following is from Fr Frank Brennan's presentation at the Anglican Church of Australia's Public Affairs Commission Conference The Nathan Project, University of Melbourne, 19 November 2012. This nationwide forum was named for the biblical prophet Nathan who confronted King David with God's displeasure over his behaviour.
Introduction — the righteous Nathan and the compromising David
It is always a pleasure to return here to Trinity College to meet with Anglicans committed to social justice. I studied around this Melbourne University Crescent with some of you who were also students at the United Faculty of Theology. Ecumenical studying and working together often equips us better for engagement in the public square, using language and concepts accessible and familiar not just to those of our particular ecclesial tradition within Christianity. Thanks to my ecumenical formation, I learnt early that there was little point in quoting papal encyclicals as if they were trumps even though they might contain many pearls of wisdom. I learnt the value of communicating with concepts backed by authority, restricting myself to concepts and authority affirmed by my listeners.
27 years ago I was ordained priest in St Stephens Cathedral Brisbane. I was privileged to have the Catholic bishops of Queensland joined on the sanctuary by the Primate of the Anglican Church and the Moderator of the Uniting Church in Queensland. Archbishops John Grindrod and Frank Rush had worked together in the regional diocese of Rockhampton before going to Brisbane. John then became Primate of Anglican Church and Frank was President of the Australian Catholic Bishops conference. I worked with them and Doug Brandon, the Uniting Church moderator, in our joint commitment to improving the lives of Aborigines and Torres Strait Islanders during some testing political times including the Commonwealth Games held in Brisbane in 1982. When it came time for my ordination three years later, it seemed only natural and appropriate that the leaders of the three major Churches in Queensland pray together that the Spirit come upon me in priestly service. It was by doing something co-operative together for the cause of justice that we found our way clear to worship together and that we wanted to pray together in the most formal of liturgical contexts. But for our joint endeavour in the public square for justice, there is no way that we would have all prayed together on that sanctuary that night in Brisbane. We had learnt to communicate with each other and to pray together by committing ourselves in solidarity to action for justice.
I am one of those Christians in the public square who has always been helped by the considered reflections of Rowan Williams as Archbishop of Canterbury. In his new book Faith in the Public Square, he writes:
Every archbishop, whether he likes it or not, faces the expectation that he will be some kind of commentator on the public issues of the day. He is, of course, doomed to fail in the eyes of most people. If he restricts himself to reflections heavily based on the Bible or tradition, what he says will be greeted as platitudinous or irrelevant. If he ventures into more obviously secular territory, he will be told that he has no particular expertise in sociology or economics or international affairs that would justify giving him a hearing. Reference to popular culture prompts disapproving noises about 'dumbing down'; anything that looks like close academic analysis is of course incomprehensible and self-indulgent elitism. A focus on what many think are the traditional moral concerns of the Church (mostly to do with sexual ethics and family issues, though increasingly including 'end-of-life' questions) reinforces the myth that Christians are in only the narrowest range of moral matters; an interest in other ethical questions invites the reproach that he is unwilling to affirm the obvious an sacrosanct principles of revealed faith and failing to Give a Lead.
Contemplating your Nathan project against the backdrop of this last week's announcement of a national royal commission into institutional child sex abuse, I wonder whether it is any longer appropriate for us to see ourselves as being modelled on the good and irreproachable Nathan being sent to correct the bad and ever compromised David.
Nathan said to David, 'You are the man! Thus says the Lord, the God of Israel, 'I anointed you king over Israel, and I delivered you out of the hand of Saul. And I gave you your master's house and your master's wives into your arms and gave you the house of Israel and of Judah. And if this were too little, I would add to you as much more. Why have you despised the word of the Lord, to do what is evil in his sight? You have struck down Uriah the Hittite with the sword and have taken his wife to be your wife and have killed him with the sword of the Ammonites. Now therefore the sword shall never depart from your house, because you have despised me and have taken the wife of Uriah the Hittite to be your wife.'
Might not the chief problem with our Church language in the public square be that we tend to come from a position of moral superiority as if we have the answers, approaching those dreadfully compromised politicians who will do anything to be elected? In a democracy, those matters attracting the attention and energy of elected politicians tend to be ones which do not permit a univocal moral answer. It is precisely because such issues are contested that they end up in the political domain. Compromise is the essence of the deliberative political process. The abuse crisis reminds us that we the Church are not the irreproachable Nathan. We too are compromising sinners. Our listeners do more than listen to us. They first look to see what we do, and then they scrutinise our own structures for ensuring just relationships and attentiveness to all viewpoints. The message we communicate is affected just as much by our actions and structures as by the concepts we enunciate and the religious and philosophical authorities we invoke.
As a social justice advocate from a Church tradition, I have long had a simple rule of thumb. You need to be eyeballing both the decision makers and those most adversely affected by decisions. This will at least stop you from becoming sanctimonious. It will also force you to move beyond being the off-field 'know all' armchair critic to being a constructive contributor seeking workable compromise. In his 2010 Isaiah Berlin Lecture, Rowan Williams said:
But what religious practice claims, and what separates it from some sorts of universalism, is that public argument need not rule out discussion of tradition, of the histories of learning and usage that locate certain ideas in the fabric or corporate life, of the images we inherit and develop of human life well-lived and human relations working creatively. The universal horizon is a vision not of finally agreed rational discourse guaranteeing a right answer to everything and the fulfilment of all reasonable aspirations but of a corporate work of discernment in which no voice is silenced in advance and in which each participant is able to trust that they are the object of a measure of unselfish attention.
We do have something distinctive to say, speaking from the depth of our tradition and challenging the simplistic universal horizon which is often just the limited shared vision of the press gallery or the commentariat. Just as the modern day Nathan does not have all the answers, neither does the modern day David. In my Catholic tradition, the temptation is to think that the whole tradition can be subsumed in a natural law analysis avoiding all need for dependence on Revelation. Those from the more evangelical tradition face the challenge that propositions which can be founded only and justified and explained only by recourse to Revelation will command no assent in the public square from those who do not share our faith.
Nathan trying to speak with one voice — Lessons from the National Human Rights Consultation
Having spent thirty years as a Church person making submissions to government, I had the opportunity to sit on the other side of the table when I chaired the National Human Rights Consultation for the Rudd Government. It was impossible to make any coherent sense of the Church position on a Human Rights Act. Within the Anglican and Catholic Churches we even heard opposed viewpoints put by official representatives of the Churches.
The major concern expressed by some Church leaders was the threat that a human rights Act could be to freedom of religion. Cardinal Pell pithily expressed the concern 'that human rights statutes, such as the Charter of Rights and Responsibilities in Victoria, seem to end up violating and diminishing some human rights rather than protecting them'. That concern, if well founded, would be good grounds for opposing the introduction of a federal Human Rights Act.
What was my committee of religious and non-religious members to make of the varying formal positions on a Human Rights Act put forward by the governing bodies of the three major churches? Let's consider the evidence, bearing in mind that Catholics are 26 per cent of the population, Anglicans 21 per cent, and Uniting Church 7 per cent.
The Australian Catholic Bishops Conference submitted:
In considering the question raised by the terms of reference of the National Human Rights Consultation, it is noted that much discussion has been about whether or not there should be a Charter of Rights. On that particular issue, the ACBC does not take a particular stand at this stage.
In their submission, the Australian Catholic Bishops Conference restated: 'The Australian Catholic Bishops Conference does not have a position as to whether or not there should be a Charter of Rights.'
The Anglican General Synod submitted:
We support the enactment of human rights legislation because this has the potential to have a beneficial effect on government policy and the legislation and administration, which give effect to that policy. Legislators and administrators will be compelled by such legislation to consider the impact of their decisions on all Australians, especially the most vulnerable. Further, the existence of human rights legislation could encourage greater understanding of human rights in the community.
The Uniting Church National Assembly submitted:
The Uniting Church believes that a Human Rights Act, operating within Australia's system of open and democratic government, will provide greater protection for fundamental rights and freedoms, promote dignity, address disadvantage and exclusion, and help to create a 'human rights culture' in Australia. Furthermore, it will serve to promote Australia's commitment to human rights in the Asia-Pacific and globally, and formalise the current Government's commitment to the United Nations by those putting it into effect.
As if that is not confusing enough, consider that in contradistinction to the submission of the Australian Catholic Bishops Conference, the Archdiocese of Sydney (Dr Michael Casey) submitted:
There are initiatives which could be taken to better protect and promote human rights in Australia, but there are serious reasons for doubting that a statutory charter of rights is the best way of doing this.
This submission followed upon Cardinal Pell's address to the Brisbane Institute the previous year when he stated his opposition to a charter of rights in any form. He told the Brisbane Institute:
The suspicion of majority — that is, parliamentary — rule, the preference for judicial, as opposed to political, determination of fundamental questions, the unacceptable transfer of responsibility from the parliament to the courts, and the unspoken assumptions which inform not only these tendencies but the particular social and political agenda which a bill of rights is intended to implement, are some of critical problems with proposals for a bill or charter of rights. These problems are compounded by confusion over the foundations of human rights, freedom and truth.
Moving beyond the neutral position of the Australian Catholic Bishops Conference, the Archdioceses of Sydney and Melbourne co-operated in activities with the Australian Christian Lobby (ACL) during the inquiry. The Lobby was opposed to a Human Rights Act in any form. The Anglican Archbishop of Sydney, Peter Jensen, joined forces with other church leaders opposed to a Charter in any form, despite the submission from the Anglican General Synod supporting a Charter. For me and my committee members, it was difficult to get a handle on just who the ACL represented.
Once church leaders join forces with a group such as the ACL, it is then difficult to know how to assess the earlier formal statements of the church leaders which may not be fully consistent with the Lobby's implacable opposition to a measure such as a Human Rights Act. During the course of our inquiry, the Lobby's Victorian State Director Rob Lord explained the Lobby's profile to the Victorian Parliament in these terms:
The Australian Christian Lobby occupies a somewhat different space from some of the other church and church-related groups ... We are not a church, we are not a peak body seeking to represent schools or welfare agencies, we are certainly not a political party and neither are we a denomination. The Australian Christian Lobby has a vision, in that we seek to see Christian principles and ethics accepted and influencing the way we are governed, the way we do business and the way we relate to each other as a community.
We are, in the most commonly accepted term, a parachurch group, with a goal of speaking particularly in the political and public policy areas at both state and federal levels ... Parachurch organisations are, by definition, Christian faith-based organisations which work outside and across denominational boundaries. As such, the Australian Christian Lobby is in a unique position, I believe, to reflect to the committee today the depth and breadth of concern felt across the wider Christian community over some of the proposals contained in the Options Paper. Here in Victoria my role with the Australian Christian Lobby is as state director. As such, I caucus quite widely and am engaged with a number of different groups across the Christian community, ranging from Catholic to Pentecostal, to Baptist, to Anglican — quite broadly.
Given the diversity of opinion expressed by the ACBC and the Catholic Archdiocese of Sydney, as well as the diversity of opinion between the Anglican General Synod and their Sydney Archbishop, and given the ambiguous role and relationship between the ACL and some church leaders, it became too complex a task to try and represent in the report the viewpoint of the various churches on a Human Rights Act. Thus we omitted all reference to same. I daresay this will become a common response by public inquiries which doubt the public's interest in investigating the complex arrangements now in place for church leaders to express views under various guises. After our report was published, one Church leader wrote to me saying:
The decision to exclude different views expressed by the churches seems to suggest that on social issues, if the churches cannot speak in one voice they will not be given a say at all. You clearly foreshadow that this is what can be expected from similar sorts of public inquiries in the future. All this would do, if it were to happen, is to call into question the good faith of those conducting such 'consultations'.
I do not agree that the impugning of the standing of the consultation would be the only consequence; in fact it might not be one of the consequences at all. One consequence might be the churches condemning themselves to irrelevance. David could well lose interest in Nathan's internecine conflicts which provide neither light nor warmth for outsiders.
Nathan playing on David's Turf — Christian perspectives against a backdrop of secularist antipathy
A couple of years ago, to the disapproval of some of my family and friends I agreed to appear on the ABC's Q&A with the ubiquitous atheist Christopher Hitchens. As I said to family and friends at the time, it is part of my day job. Someone has to do it. Something crystallised for me that night when a young member of the television audience said:
Hello Comrades. Can we ever hope to live in a truly secular society when the religious maintain their ability to affect political discourse and decision making on issues such as voluntary euthanasia, same-sex unions, abortion and discrimination in employment?
Tony Jones and Hitchens were clearly simpatico with this approach, as were many in the audience, but I was dumbstruck, wondering how can we ever hope to live in a truly democratic society when secularists maintain their demand that people with a religious perspective not be able to claim a right to engage in the public square agitating about laws on issues such as voluntary euthanasia, same-sex unions, abortion and discrimination in employment? We have just as much right as our secularist fellow citizens to contribute in the public square informed and animated by our worldview and religious tradition. We acknowledge that it would be prudent to put our case in terms comprehensible to those who do not share that worldview or religious tradition when we are wanting to win the support and acceptance of others, especially if we be in the minority. But there is no requirement of public life that we engage only on secularist terms. And we definitely insist on the protection of our rights including the right to religious freedom even if it not be a right highly prized by the secularists.
One of my role models has been the US priest Fr Bryan Hehir who teaches at the Kennedy School of Government at Harvard. He put it well when reflecting on John Courtney Murray's mode of engagement in the public square. Hehir said:
I am deeply interested in, but not yet convinced by, the argument that a more explicitly theological style of assertion, using religious symbols to interpret and adjudicate justice claims, is more appropriate to the questions faced by the Church in the United States today. To specify both my interest and my skepticism, it is necessary to distinguish the need for shaping 'the mind of the Church' (as a community and an institution) regarding social questions from the task of projecting the perspective of the Church into the societal debate about normative questions of social policy.
Hehir concluded:
In brief, faced with both greater interdependence and an expanding framework of human-rights claims, I do not think we can do better than the style of public discourse found in We Hold These Truths and Pacem in Terris.
The Oxford academic John Finnis in his new book of essays Religion and Public Reasons identifies three types of practical atheism: that there is no God, that God is unconcerned with human affairs, and that God is easily satisfied with human conduct or easily appeased or bought off.8 He reminds us that 'neither atheism nor radical agnosticism is entitled to be treated as the 'default' position in public reason, deliberation and decisions. Those who say or assume that there is a default position and that it is secular in those senses (atheism or agnosticism about atheism) owe us an argument that engages with and defeats the best arguments for divine causality.' Though it might be prudent and strategic to suggest that religious accommodationists carry the onus of persuasion in a public square with a secularist prejudice, might there not be a case for arguing that the representatives of the more populist, majoritarian mindset in the public square need to be more accommodating of religious views?
Professor Finnis, a Catholic but making a point equally applicable to all faith communities, says, 'Outside the Church, it is widely assumed and asserted that any proposition which the Catholic Church in fact proposes for acceptance is, by virtue of that fact, a 'religious' (not a philosophical, scientific, or rationally grounded and compelling proposition), and is a proposition which Catholics hold only as a matter of faith and therefore cannot be authentically willing to defend as a matter of natural reason.'
For Finnis, much of what John Rawls in his Political Liberalism describes as public reason can be equated with natural reason. Whereas Rawls would rely only on an overlapping consensus not wanting to press for objective reality of right and wrong, Finnis would contest that the only content of an overlapping consensus would be that which can be objectively known through natural reason.
In 2008 Rowan Williams gave an insightful address at the London School of Economics pointing out that rights and utility are the two concepts that resonate most readily in the public square today. But we need concepts to set limits on rights when they interfere with the common good or the public interest, or dare I say it, public morality — the concepts used by the UN when first formulating and limiting human rights 60 years ago. These concepts are no longer in vogue, at least under these titles. We also need concepts to set limits on utility when it interferes with the dignity of the most vulnerable and the liberty of the most despised in our community. Addressing the UN General Assembly to mark the anniversary of the UN Declaration of Human Rights (UNDHR), Pope Benedict XVI said, 'This document was the outcome of a convergence of different religious and cultural traditions, all of them motivated by the common desire to place the human person at the heart of institutions, laws and the workings of society, and to consider the human person essential for the world of culture, religion and science...(T)he universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity.' It would be a serious mistake to view the UNDHR stipulation and limitation of rights just as a western Judaeo-Christian construct. Then again it would be hard to envisage its formulation without a deep drawing on the western Judaeo-Christian tradition engaged intelligently and respectfully with other traditions. It is very tempting for David nowadays to assume that Nathan has no place at the table of public deliberation and that Nathan's past contributions could have been just as readily made by David. The humbling realisation for the modern Nathan is that David might now be giving more eloquent expression to Nathan's original insights. As Charles Taylor, the Canadian Catholic philosopher, puts it:
In modern, secularist culture there are mingled together both the authentic developments of the Gospel, of an incarnational mode of life, and also a closing off to God that negates the Gospel. The notion is that modern culture, in breaking with the structures and beliefs of Christendom, also carried certain facets of Christian life further than they were ever taken or could have been taken within Christendom. In relation to the earlier forms of Christian culture, we have to face the humbling realisation that the breakout was a necessary condition of the development.
Sometimes David shows more commitment to the universal dignity of human beings than does Nathan bound down by outdated patriarchal structures and modes of moral reasoning.
How Nathan and David might dialogue to ensure humanr ights for all
Human rights and non-discrimination are the key organising concepts for most contested law making activity impacting on those of us committed to social justice. But we need to be cautious about concepts which are so unquestioned as to become straightjackets for all future discussion. Rowan Williams in his 2011 Isaiah Berlin lecture 'Faith and Enlightenment' provides a salutary warning:
[Berlin] sets out with great clarity the quagmire into which the first generations of enlightened thinkers were blithely advancing, unaware of the horrors their ideals were to generate in more recent times. The paradigm of enlightened rationality was inseparable from a set of convictions about universal human values: whether at a distance or space or a distance of time, human beings were fundamentally the same and their needs could be worked out by the application of universal, reasonable principles, accessible to all. Acquaintance with these principles would guarantee the freedom to direct my life in accordance with my true nature and my deepest wants. But what Berlin draws out is the process by which the universalist utopia can become a totalitarian nightmare, because when decision makers have determined what is rational, they are bound sooner or later to regard opposition as irrational and so without legitimacy. They will embark on a coercive political pedagogy, to make citizens rational and capable of exercising 'positive' liberty, of realising their 'true' nature; and that entails sanctions against those who refuse to be taught. Not only does this enshrine 'the rule of experts'; it leaves no final possible appeal to any individual right to freedom of conscience, since the irrational conscience has to be educated out of its error. 'I use my orders and, if you resist, take it upon myself to repress the irrational element in you which opposes reason.'
Thus the conviction that rationality is one and the same in every human situation is politically and ethically perilous. Those who resisted enlightened universalism may have done so with various agendas that are no less perilous, but a mature liberal view ahs to reckon with their arguments.
Once we investigate much of the contemporary discussion about human rights, we find that often the intended recipients of rights do not include all human beings but only those with certain capacities or those who share sufficient common attributes with the decision makers. It is always at the edges that there is real work for human rights discourse to do. Its at the edges that we test our Christian affirmation of the inherent human dignity of all human persons created in the image and likeness of God. On one of my recent trips to Cambodia, I met a woman concerned for the well being of a handful of children who had both cerebral palsy and profound autism. There are more than enough needy children in Cambodia. It is not surprising that religious persons often have a keen eye for the neediest, not only espousing their rights but taking action for their well being and human flourishing.
Speaking at the London School of Economics on 'Religious Faith and Human Rights', Rowan Williams boldly and correctly asserted:
The question of foundations for the discourse of non-negotiable rights is not one that lends itself to simple resolution in secular terms; so it is not at all odd if diverse ways of framing this question in religious terms flourish so persistently. The uncomfortable truth is that a purely secular account of human rights is always going to be problematic if it attempts to establish a language of rights as a supreme and non-contestable governing concept in ethics.
No one should pretend that the discourse about universal ethics and inalienable rights has a firmer foundation than it actually has. Williams concluded his lecture with this observation:
As in other areas of political or social thinking, theology is one of those elements that continues to pose questions about the legitimacy of what is said and what is done in society, about the foundations of law itself. The secularist way may not have an answer and may not be convinced that the religious believer has an answer that can be generally accepted; but our discussion of social and political ethics will be a great deal poorer if we cannot acknowledge the force of the question.
Once we abandon any religious sense that the human person is created in the image and likeness of God and that God has commissioned even the powerful to act justly, love tenderly and walk humbly with their God, it may be very difficult to maintain a human rights commitment to the weakest and most despised in society. It may come down to the vote, moral sentiment or tribal affiliations. And that will not be enough to extend human rights universally. In the name of utility, the society spared religious influence will have one less impediment to limiting social inclusion to those like us, 'us' being the decision makers who determine which common characteristics render embodied persons eligible for human rights protection. Nicholas Wolterstorff says, 'Our moral subculture of rights is as frail as it is remarkable. If the secularisation thesis proves true, we must expect that that subculture will have been a brief shining episode in the odyssey of human beings on earth.'
Charles Taylor has written a wonderful essay A Catholic Modernity? which should have an appeal to Anglican readers too. He writes:
Our age makes higher demands for solidarity and benevolence on people than ever before. Never before have people been asked to stretch out so far, so consistently, so systematically, so as a matter of course, to the stranger outside the gates. A similar point can be made, if we look at the other dimension of the affirmation of ordinary life, that concerned with universal justice. Here too, we are asked to maintain standards of equality that cover wider and wider classes of people, bridge more and more kinds of difference, impinge more and more in our lives.
When confronting porous national borders in a globalised world, Nathan and David need all the help they can get from each other in determining an ethical and workable asylum policy while maintaining the integrity of national borders. In such policy areas, rarely if ever do we love our neighbour as ourselves; rarely if ever do we act like the Samaritan in treating the stranger as a neighbour. Rarely if ever do we treat the asylum seeker as our equal. While espousing human solidarity, we set limits. As Taylor says: 'A solidarity ultimately driven by the giver's own sense of moral superiority is a whimsical and fickle thing. We are far, in fact, from the universality and unconditionality which our moral outlook prescribes.'
In the end, it is not a matter of Nathan flying into Canberra and delivering the definitive moral judgment to David. Rather it is a matter of respectful dialogue conceding that there is no perfect moral answer to the predicament at hand. Taylor puts it like this:
We are challenged to a difficult discernment, trying to see what in modern culture reflects its furthering of the Gospel, and what its refusal of the transcendent.
The danger is that we will not be sufficiently bewildered, that we think we have it all figured out from the start and know what to affirm and what to deny. We then can enter smoothly into the mainstream of the debate that in already going on in our society about the nature and value of modernity....this debate tends to become polarised between 'boosters' and 'knockers' who either condemn or affirm modernity en bloc thus missing what is really at stake here, which is how to rescue admirable ideals from sliding into demeaning modes of realisation.
Rather than wholesale condemnation or adoption, we are called into dialogue: moving from bewilderment, 'we would gradually find our voice from within the achievements of modernity, measure the humbling degree to which some of the most impressive extensions of a Gospel ethic depended on a breakaway from Christendom, and from within these gains try to make clearer to ourselves and others the tremendous dangers that arise in them. It is perhaps not an accident that the history of the twentieth century can be read either in a perspective of progress or in one of mounting horror. Perhaps it is not contingent that it is the century both of Auschwitz and Hiroshima and of Amnesty International and Medicins sans Frontieres.
Nathan reminding David that non-discrimination is not as simple as it seems — the same sex marriage debate
The same sex marriage debate is not going away in Australia or the US. It may be delayed in the UK, and it is concluded in Canada. It is not a debate about what restrictions church communities might continue to impose rightly on church weddings. It is a debate about what recognition the civil law should give to committed monogamous partnerships which may or may not involve the nurturing and education of children.
I remain committed to legal recognition of civil unions while maintaining the distinctive institution of civil marriage as the bond between a man and a woman open to bearing and nurturing each other's children. I am aware that the maintenance of this distinction is causing hurt to some people, while others think it is too compromising.
It was a galvanising moment in the same sex marriage debate when audience member Ross Scheepers asked Joe Hockey on the ABC Q&A to 'tell us and Senator Wong why you think you and Melissa make better parents than her and Sophie'. Hockey replied: 'I think in this life we've got to aspire to give our children what I believe to be the very best circumstances and that's to have a mother and a father ... I'm not saying gay parents are any lesser parents but I am being asked to legislate in favour of something that I don't believe to be the best outcome for a child.'
Compere Tony Jones then asked Penny Wong for her opinion. 'It is sad', she replied, 'that some families have to feel that they have to justify who they are because when you say those things, Joe, what you're saying to not just me but people like me is that the most important thing in our lives, which is the people we love, is somehow less good, less valued. And if you believe that then you believe that, but I have a different view.' When asked if it was hurtful Wong replied, 'Of course it is but, you know, I know what my family is worth.'
When Wong's partner Sophie Allouache gave birth to daughter Alexandra a year ago, many Australians delighted in the front page photograph of the newly founded family. Allouache and Wong are not married but they are committed in love to each other and they have now committed to bringing up their child.
Like all children, Alexandra has a biological father. Unlike the children of Hockey and his wife Melissa, Alexandra will be brought up and nurtured primarily by a couple not including her biological father. In future, couples like Allouache and Wong may have the option of producing a child who does not even have a biological father.
The essence of equality is that things which are the same are treated the same and things which are marked by relevant differences are treated differently. If things marked by irrelevant differences are treated differently, there might be a breach of the principle of equality and there might result an unjustified act of adverse discrimination.
It would be wrong for the state not to recognise mixed race marriages. The marriage of a mixed race couple should be treated in the same way as the marriage of a couple of the same race. Race is not a relevant difference when it comes to marriage. On the same reasoning, I've argued that the time has come for the state to recognise the unions of same sex couples who are committed to faithful, supportive, long term exclusive relationships.
The state has an interest in seeing such relationships supported even though some citizens for religious or other reasons may have reservations or objections about the sexual relations and sexual acts which might be entailed in such relationships. Basically that's none of the state's business, nor is it the business of religious persons whose views about the good life are not being sought by people living in such relationships.
I have continued to draw the line at civil unions. If a same sex relationship was to be treated exactly the same as a heterosexual marriage, then the couple in a same sex relationship recognised as marriage should have exactly the same entitlements as the couple in a heterosexual marriage. I have two substantive reservations, which could be held in good faith by people of any religious conviction or none whatever.
Couples who are unable to bear their own children can avail themselves of medical and scientific assistance. Naturally couples would like to be able to bear and nurture children who have their genetic imprint, and only theirs.
I am enough of a 'natural lawyer' to think that all persons have a natural right to a known biological mother and a known biological father. The idea that the state would routinely authorise state assistance for the creation of children without a known biological father and a known biological mother concerns me. It will not be long before scientists will be able to create a child from the genetic material of just two men or two women. Such children and their advocates would need to concede that but for such a technological breakthrough they would not exist.
But some of these children will undoubtedly face existential challenges of novel dimensions when they realise that they do not have a known biological father and a known biological mother. I am very wary about the state writing a blank cheque in the name of non-discrimination committing itself to the development and provision of artificial reproductive technology such that children with these challenges will be routinely created. I think the state is entitled to resist the creation of children without both a genetic father and a genetic mother, whether the request be made by one person, by a same sex couple, or by a man and a woman.
Though I have no objection to adoption being available to same sex couples when the child for adoption is related to one of the couple (and that is usually the case), I do think that a child who is not related to any prospective adoptive parent should be given in adoption to the available couple most suited to bringing up the child. All things being equal (which inevitably they are not), the state acting in the best interests of the child should be able to show a preference for a family unit including an adult male and an adult female.
Can we have 'marriage equality' while maintaining a ban on reproductive technology using the genetic material of just two men or two women, and while maintaining a state entitlement to choose adoption in the best interests of the child who has no adoptive relations?
If not, then we should settle for civil unions which remove all adverse discrimination against a same sex couple by virtue of their relationship while maintaining state preferences for all children having a biological mother and a biological father and for adoption of any unrelated child into a family with an adult male and adult female.
I think the same sex marriage debate is a good instance of how Nathan can respectfully engage David to ensure that the interests of all persons are considered, including future children created without a biological mother and father, and children being adopted by couples to whom they are not genetically related. I respectfully disagree with those Church leaders who decline to endorse civil unions on the basis that such recognition might put us on the slippery slope to same sex marriage. There can be no disputing the entitlement of same sex couples to state recognition of their committed monogamous relationships. Eventually it is likely that the state will name such relationships as marriage. In the meantime, I think Nathan is doing his job cautioning David about the rights and entitlements of children whose voices might not be heard. Non-discrimination for some might still mean an interference with the basic rights of others and a failure adequately to consider the common good. I do not see any coherence in the argument that same sex marriage undermines the notion of marriage for all persons. My own church has a highly developed theology and canon law of marriage which does not recognize most civil marriages as marriages. A civil marriage in Australia is a contractual relationship terminable on one year's notice by either of the parties. It is not a solemn commitment before God in which the couple pledge themselves to each other, open to the bearing and nurturing of their children, until death they do part. Marriage already means two very different things whether one be before a Catholic Church tribunal or in the public square. Over time, it will for all citizens, particularly those already married in the eyes of the state, to determine whether a wider definition of marriage is warranted in civil law without undermining the coherence and contours of existing civil marriages. I would hope that due regard will be had to questions about the common good and the best interests of children.
Nathan seeking help from David, for once — the sex abuse crisis in the Church
Those of us committed to justice will always give our first attention to vulnerable persons rather than institutions even if the institution be our Church community. Too often Nathan conducts himself as if his Church is a perfect society or at least a community sufficiently committed to truth and justice as to be excused interference by the State or heightened scrutiny by civil society. The sex abuse crisis has changed all that. There are times when Nathan needs to seek the assistance of David, though always aware that there are many aggressive secularists who will revel in the exposure of Church failings. How to communicate in such circumstances? What language should we use?
Since the ABC 4 Corners program Unholy Silence which went to air in July, I have seen fit to make three public interventions in print and to be interviewed twice on television — first on the ABC 7.30 and then on the ABC Lateline program. Not being sought as an advocate for victims nor as a spokesman for my Church, I see a need to be very selective in my interventions on this issue. When I do speak, I usually see myself as a priest who speaks for those members of my church community who tend to express gratitude for one prepared to stand up in the public square, admit Church failings, and espouse the primacy of the believing community's concerns for the vulnerable who have been traumatised by others occupying positions of trust in the Church. My approach has been that Nathan humbly needs David's help, knowing that many of Nathan's critics would take the opportunity to vent their spleens regardless of the evidence at hand.
Immediately after the 4 Corners program Unholy Silence portraying the dastardly deeds of Fr F in Armidale and the resultant trauma of the families of his victims Damian Jurd and Daniel Powell, I wrote:
Even the Church's harshest critics need to remember that this case arose before the Church set up the Towards Healing protocol in 1996. That protocol has been comprehensively revised and fine tuned in 2000 and again in 2010. A bishop receiving complaints about Fr F today would have far better processes available to him. Also the church authorities would work closely with any child's parents who brought a complaint to the bishop helping and encouraging them to go to the police. If a victim came forward years later making a complaint today as an adult, the church authorities would continue with their own processes only if the victim decided that he or she did not want to go to the police.
Let's hope and pray that the bereaved families of Damian Jurd and Daniel Powell can at least be assured that the Church is doing all it can 20 years later to disclose all that happened in dealing with Fr F, learning belatedly any lessons that might be learned. Lets' spare a thought for those other priests who, following the procedures of the day, did their best to remove Fr F from ministry and access to children. Let's also hope that any other victims of Fr F will come forward to the newly launched police inquiry and tell their story. Should they think the Church could help them, they could engage the Towards Healing protocol.
Then in September I published a speech to a Catholic audience in which I said:
On 31 August, the day of Cardinal Martini's death, we received word of a speech delivered by Cardinal Raymond Burke to bishops in Kenya about the issue of sexual abuse in the church. Cardinal Burke is now the Church's most senior canon lawyer. He told his fellow bishops:
The 'hermeneutic of discontinuity and rupture,' which has tried to highjack the renewal mandated by the Second Vatican Ecumenical Council, is marked by a pervasively antinomian culture, epitomized by the Paris student riots of 1968, and has had a particularly devastating effect on the Church's discipline. It is profoundly sad to note, for instance, how the failure of knowledge and application of the canon law, which was indeed still in force, contributed significantly to the scandal of the sexual abuse of minors by the clergy in our some parts of the world.
Indeed, in the United States of America, my homeland, in which the scandal has been great, it is often asserted that it was caused by the absence of a proper discipline in the Church to deal justly with such abhorrent situations. In the typical approach of the hermeneutic of discontinuity, it is assumed that the Church lacked the proper canonical discipline with which to investigate such crimes and sanction them. The truth of the matter is that the Church had dealt with such crimes in the past, which should come as a surprise to no one, and that she had in place a carefully articulated process by which to investigate accusations, with full respect for the rights of all parties involved, including the protection of potential victims during the time of the investigation; to reach a just decision regarding their truth, and to apply the appropriate sanction. The discipline in place was not followed because it was not known and, in fact, was presumed not to exist.
We then received word of Cardinal Martini's final interview in which he described the church as being 200 years out of date. An urbane, educated Jesuit, a long time scripture scholar and Archbishop of Milan, Martini aged 85 said, 'The Church is tired, in prosperous Europe and in America. Our culture is out of date; our Churches are big; our religious houses are empty, and the Church's bureaucratic apparatus is growing, and our rites and our vestments are pompous.' Some of you will have seen Cardinal Burke in his prosperous, pompous and excessive ecclesiastical attire on the internet.
The good news is that these two cardinals represent the book ends of the spectrum which is the modern church. The mistake of some is to think that Cardinal Burke is the embodiment of the true Church and that somehow Cardinal Martini was simply a minister to the disaffected and the marginalised. Since Vatican II, we have all been called to live along the length of this spectrum. Martini gave three antidotes to the contemporary church weariness: conversion in the face of the contemporary abuse crisis, rediscovering the power of Scripture, and reliving the energy of the sacraments. In contradistinction to Burke, Martini said 'The Church has to recognize its own errors and has to travel a radical journey of change'.
Let's make no mistake. The church processes and canonical procedures for dealing with child sexual abuse have in the past been highly deficient. It was not theological reflection by the likes of Cardinal Burke that led to change. Rather that pressure came from the faithful and other persons affronted by church actions which failed to meet the contemporary secular standards of our culture. We now insist on due process and transparency. We do not concede exclusivity to the hierarchy in dealing with serious complaints of child sexual abuse.
I then had the opportunity to address 400 lawyers and community workers in the Strangers Dining Room at Parliament House Sydney on 31 October 2012. In the presence of the State's legal community, including the Attorney-General, this is what I said:
You will all know that these are not easy times for Catholic priests; and they have never been easy times for those children in our society who have been sexually abused, a disproportionate number of them by Catholic priests. When in Sydney in July 2008, Pope Benedict XVI apologised in these words: 'I...acknowledge the shame which we have all felt as a result of the sexual abuse of minors by some clergy and religious in this country. Indeed, I am deeply sorry for the pain and suffering the victims have endured and I assure them that, as their pastor, I too share in their suffering. These misdeeds, which constitute so grave a betrayal of trust, deserve unequivocal condemnation.' I adopt his apology without demurrer.
Whatever our religion or none, whatever our love or loathing of the Catholic Church, what is to be done in the name of law and justice? Clearly, the Church itself cannot be left alone to get its house in order. That would be a wrongful invocation of freedom of religion in a pluralist, democratic society. The State may have a role to play. As our elected politicians prudentially decide how best to proceed, they need assistance from lawyers committed to justice, not lawyers acting primarily to protect the Church or to condemn it. The Catholic Church in Victoria has admitted that 'in the past 16 years, about 620 cases of criminal child abuse have been upheld by the Church in Victoria'. In the Archdiocese of Melbourne alone, 301 complaints have been upheld since 1996.
Professor Patrick Parkinson, probably the nation's most experienced academic lawyer in the field, having conducted the 2009 Study of Reported Child Sexual Abuse in the Anglican Church and having advised the Catholic Church on its Towards Healing protocol, informed the Victorian Parliament last month:
[T]here were 44 allegations of abuse [since 1990] within the Anglican diocese of Melbourne which fitted within the criteria of our study.
Archbishop Hart [the Catholic Archbishop of Melbourne] referred to 60 priests...of the archdiocese of Melbourne, who are substantiated offenders against children. We found 78 across the country against whom allegations were made in the Anglican Church. It gives you a sense of the scale of the problem.
If the Anglican and Catholic figures are statistically comparable, we all need to know the explanation for the discrepancy. If there be particular problems in the Catholic Church, they need to be identified for good of all citizens, not just Catholics. Professor Parkinson says that 'we have come a long way.....The reality is that we have come light years on from 1997. Most churches — I think all churches — have radically changed their attitudes to all of this.' Speaking of those things which helped to influence the change, he told the Victorian parliamentary committee that 'the Wood Royal Commission in New South Wales was very important, and generally an awareness that this was a problem not just for the Catholic Church.' In 1997, the Wood Royal Commission noted: 'While a good deal of evidence and assistance was provided by the Catholic Church, it is not the case that the Commission finds particular fault with that Church or its constituent bodies. Indeed, its response to the matters disclosed by the Royal Commission is held up as a model for other Churches and religious organisations to follow'.
Recently there have been unresolved questions raised about Catholic Church processes by the ABC 4 Corners Program. I am one lawyer and dedicated Catholic who is mightily relieved that Tony Whitlam QC has been appointed to inquire into the Church processes in the Armidale case which featured on that program. Meanwhile in Victoria, the parliamentary inquiry is obviously strapped for time and resources, but it is a relief to know that Frank Vincent QC is assisting that inquiry. These two eminent and reputable, retired judges will hopefully assist all persons including victims and church members wanting transparency and better processes. Presumably if they think more State resources are needed to accelerate prosecutions for past criminal offences or to enhance procedures for contemporary detection, avoidance and deterrence of child sexual abuse, they will say so, and they will be heard loud and clear by Church and State authorities.
At the moment, there is little more that any Catholic priest can credibly say on this issue in the public square. I make this plea to all lawyers having a commitment to justice. While putting aside any religious prejudice, please contribute fearlessly to the debate on how religious and other organisations increasingly charged by the State with responsibility for the oversight of the care and nurture of our most vulnerable children can perform their tasks freed from the abuse of the past and with State protection of all children assured; and please advise how we can better deal with complaints which surface decades later, whether or not the now adult victims want to go to the police.
As I understand, the most common instance has been where a victim comes forward years later as an adult. He (and it is usually a male) says to the Church: 'I don't want to go to the police. I just want to make sure Fr X is no longer in ministry where he is a risk to children; I want an apology from the Church; and I want some financial help for coping with the ongoing trauma. But I don't want to put myself or Fr X through police and court processes so many years later.' What to do is now the question. If we insist on going to the police, many of these victims might no longer want to come forward at all.
This issue requires further respectful dialogue between Nathan and David. Nathan acting alone is not the one best suited to determine in a federal system the best means for ensuring the protection of vulnerable children. I have strong reservations about a broad ranging national royal commission rather than more targeted, well resourced state based inquiries into particular institutions with proven bad records in dealing with abuse, including a couple of notorious Catholic dioceses at Ballarat and Newcastle. I fear the Gillard government has had insufficient regard for the federal-state complexities in sponsoring a national commission of inquiry into an issue which is virtually the sole preserve of State laws and bureaucracies. But I welcome the opportunity for the sake of victims, their families and loved ones and all church communities to have the legal spotlight turned on practices, protocols and processes which pay insufficient regard to the wellbeing of vulnerable children in positions of public trust.
Conclusion
For too long, Nathan has conducted himself as if he were the sole repository for good moral thinking, right action, and just structures when encountering David who is always presumed to be only self-interested and wrong-headed. David alone will never extend solidarity to all in the human community, having a propensity to exclude or neglect some, claiming that individual liberty and non-discrimination always trump the common good or the public interest, and having a tendency to overlook some groups especially on the basis of nationality or their absence from the table whether that absence be generational or at either end of the life cycle. There are times when Nathan needs David's help — and we should have the humility to admit that. In a robust pluralist democracy like Australia, David always needs an attentive Nathan inspired by his faith community whose members enjoy tripartite affiliation to a state subject to the rule of law, to a civil society committed to rigorous and respectful dialogue and to a faith community inspired by Revelation and a tradition committed to the full human flourishing of all persons created in the image and likeness of God — a flourishing which can be achieved only by living in community.
While Nathan and David hold a mirror to each other, Nathan must always remind David that there is more at stake than the next electoral cycle, the next opinion poll, and the populist solution to the complex demands of the examined life of those of all faiths and none. Thinkers like Rowan Williams and Charles Taylor provide us Nathan practitioners in the public square with the tools for polishing the mirror and calculating our distance from David. If we get too close, we forfeit our prophetic role, and if we get too far, we lose our ability to help those who least expect to be treated as neighbour. If David and Nathan are eyeballing each other, they might help each other to keep on the right path — the Kingdom breaking in here and now, while we await the Kingdom to come which far surpasses even all that is best in a robust pluralist democracy underpinned by the rule of law. I conclude with the eulogy of my brother Jesuit John Langan for the late Fr Robert Drinan SJ who was both priest and congressman, both Nathan and David:
Any society built on the practice of rights is not so sweetly transcendent as the holy mountain of feasting and joy which Isaiah summons up for us; it is not so intimately and delicately responsive as the virtue of charity or agape which St Paul commends to us. But it is essential to the realisation of the common good in a world which is marked by enormous human diversity and intermittently intense social conflict. It is a reality which protects those of us who are neither beasts nor angels from our own worst impulses and from the harms which others would do to us. It is not the realm of the best but of the imperfect good and the necessary.
It is in this realm that we must always speak. Let's communicate in language appealing and confronting to those who dare to discern beyond bewilderment to action in such a realm.
Fr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University, and a board member of St Vincent's Health Australia.