God, Religious Tradition and the Australian Constitution

A discussion with the former Chief Justice of the High Court of Australia

and some further thoughts

Rabbi Dr Shimon Cowen

 

Two great issues trouble our society, because they clash with its traditions, particularly as these have been formed by the great world faiths. These two issues are abortion on demand, which has been instituted in an extreme form with the coercion of doctors in the Victorian Abortion Law Reform Act of 2008, and the concept of “homosexual marriage”, which has yet been resisted in Australia. The religious tradition of universal ethics permits neither of these.

In the following, I set out a portion of a discussion which I held with the former Chief Justice of Australia, the Hon. Murray Gleeson, on the judicial system and universal ethics, which focuses on the concept of marriage. This is followed by some thoughts I have gathered as to what might serve as the basis for a constitutional challenge to the Victorian abortion laws. In both cases—abortion on demand (with its Victorian component of coercion upon doctors) and “homosexual marriage”—the only remedy may be an appeal to the God of the Preamble to the Australian Constitution Act, and the religious heritage of this country, which states what the moral will of God is. I trust that this is consistent with the views of the former Chief Justice, who notes that we must look to religious tradition, which is our heritage and national background, to understand what constitutes marriage. So also the prohibition of abortion on demand, or at the least an abhorrence of coercion to participate in it, stems from the same God of the world faiths and the general ethics—known as the “Noahide laws”—which form their common denominator.

Law and universal ethics:

a conversation with the former Chief Justice Murray Gleeson[1]

Rabbi Shimon Cowen: There is a concept of “universal ethics” which ultimately arbitrates ethical human conduct. This concept is treated both by “natural law” thinking and also by the tradition of the Noahide laws, going back to Sinai, and before that to Abraham and Noah. How does the adjudication and application of “positive” law (law made by judges and by statute) take these universal ethics into account?

The Hon. Murray Gleeson: The idea of a level of justice over and above the positive law is widely accepted, but its practical implementation requires care. The enforcement of the law by courts is subject to an obligation of legitimacy. The law cannot rise above its source. The authority of judges cannot rise above the Constitution pursuant to which they are appointed. Problems in this regard come up from time to time. For example, in Fiji, to take a country in our region, as a result of activities in recent years, judges had to decide whether they would continue to sit in the courts and implement the law—and if so, what law? This was a society in which citizens were complaining that authority had been usurped. The judiciary in Pakistan, to take another example, has had to respond to changes in power, raising questions as to the validity of the appointment of judges and the exercise of judicial authority.

I think the way most Australian judges would approach the question of universal ethics is not that there is some higher law which authorises judges to overthrow a positive law or to refuse to implement a positive law which they do not like, with which they disagree. Most judges would say that if they can’t apply the law according to their consciences they ought to resign.

The approach of judges here is rather how universal ethics inform the content and the practical application of positive law. In our positive law, whether it is judge-made law or statute law enacted by parliament, there are many values from the tradition of universal ethics that inform the law and are taken into account by judges when they interpret and apply the law.

In the implementation of criminal justice, for example, respect for human life informs the content of the criminal law. All societies have a law against homicide. Respect for life and human dignity inform sentencing laws. In some societies the law permits capital punishment. In our society it does not. In some societies the law permits corporal punishment. Our law does not. But all [civilised] societies have a respect for human life and a respect for human dignity which they implement in practice, perhaps in different ways.

Similarly all [civilised] societies have said that public access to justice is an ideal that ought to be pursued. All societies try to make the civil justice system available to the citizens, for example by minimising cost and delay. All [civilised] societies enact what they regard as appropriate sentencing laws, though they reach different practical conclusions as to what is appropriate.

[With regard to the way universal values inform the application of the law, it could be noted that] the American Declaration of Independence begins with a declaration of universal values, which looks like a statement written by a natural lawyer. We know as a matter of historical fact that the authors of that statement were not believers in natural law. We know that some of the authors of the statement that all men are born equal were men who owned slaves. But they began their Declaration of Independence with an appeal to universal laws because of the nature of the Declaration of Independence. It is framed as an indictment of the King of England. It makes allegations of contraventions of universal principles of law by those who had authority to make positive law. Why did the authors do that? What else could they have done? If you overthrow the legitimate government and you are appealing to the universal public, the world, for recognition and legitimacy, you have to base your legitimacy on something. They based it on a declaration of principles of natural law or universal ethics. It is natural for people to appeal to universal principles to justify what they are doing in the conduct of their positive law.

How do you tell the difference between a good law and a bad law except by appeal to some value or standard outside the law which you are judging? How do you tell the difference between a good tax law and a bad tax law? You might say, one is inefficient, you might say, it doesn’t raise revenue; it discourages incentives. There are pragmatic criteria by which you might distinguish a good from a bad law. But suppose you had a tax law which unfairly discriminates. To what standard of fairness would you be appealing? [It would have to be to a concept of fairness] outside the Income Tax Assessment Act. People could say, a tax is a tax. If it is in accordance with the Income Tax Assessment Act you have to pay it, if not you don’t have to pay it. People complain from time to time that tax laws are unjust laws or unfair laws, and when they do that they can only argue their case by reference to some standard which must exist outside the law.

In conclusion, our positive law is suffused with values and principles that come from universal standards, universal ethics. And whether you find them in natural law, in Noahide law or more recently in declarations of universal human rights you are appealing to some standard outside the positive law. When governments enact statute law, they often appeal to universal principles to demonstrate that the law they are enacting is just law. When courts interpret positive law that stands in need of interpretation or to develop the common law they often appeal to these universal standards to justify their interpretation.

Thus, from the point of view of an Australian judge, universal values, universal ethics of the kind discussed here, are reflected in the content of the law and in the practical implementation of the law. But they are not seen as something justifying a court or a judge overruling the law in refusing to implement the law or bending the law to the will or the moral perceptions of the judge.

A case in point of law and universal value: marriage

Cowen: There are areas of crisis in the values of society. I think of the law in Sweden which allows half-siblings to marry, a case of incest. How do we identify values? In Australia there are legislative attempts to introduce homosexual marriage. How can the law here be related to universal values?

Gleeson: Because of the decline of the influence of organised religion, which is the biggest single change in society in my lifetime, people now seek alternative sources for much the same values. G.K. Chesterton said that “when people stop believing in God, they don’t believe in nothing—they believe in anything”. And other religions or quasi-religious beliefs for many people have supplanted [traditional] religion as the source of their values. The human rights movement is the most obvious example. Perhaps the conservation movement is another example.

Canadian writers on jurisprudence have coined a very apt description of the kind of society we live in. They refer to a culture of justification. By that they mean that people are no longer uncritically accepting of authority. They require authority to justify itself, and when people in authority, including judges, justify their exercise of authority, they seek to legitimise their legislation and their judgments; and still the most common way of justifying legislation, decisions, use of power with reference to universal principles.

The common law and statute law enacted by the Parliament[s] of Australia is full of values of the kind that Rabbi Cowen has mentioned and it is amazing and sometimes alarming how to see how little that aspect of the law is appreciated. Rabbi Cowen mentioned a development in Swedish law on marriage. The area of marriage provides a good example of the astonishing lack of reflection upon how and why [the law of marriage] got there. We have a definition in the Marriage Act which defines marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life. Where does that come from? There is another provision in the statute which is practically unmentioned. In any discussion about changes of the law with respect to marriage I would have thought it [ought to be mentioned]. The Family Law Act 1975 of the Commonwealth provides that the marriage is an institution, and the courts have the obligation to protect the institution of marriage as the union of a man and woman to the exclusion of all others voluntarily entered into for life. The Commonwealth Parliament in the Marriage Act has declared that marriage is an institution that needs to be preserved and protected. Again, where did that come from? Well, the answer, as a matter of history, is obvious. Until the nineteenth century, family law, the law of divorce and other aspects, was not administered by the ordinary courts. It was the concern of ecclesiastic authorities, the Church court. That definition of marriage and recognition of marriage as an institution came into our law from Rome and it was the Church and the ecclesiastical courts which administered it. The Church took it from the Judaic tradition and the Judeo-Christian approach to marriage. [This] has entered into our law and is now described as an “institution” that needs to be preserved and protected.

How often do you hear reference to that provision of the Family Law Act in the context of proposals to change the definition of marriage in the Marriage Act? One aspect of the definition of marriage in the Marriage Act is that marriage joins a man and a woman exclusively. There are societies in which polygamy is currently practised, and some people from those societies are now coming to Australia. If polygamists were a more active political force, then people would be forced to have another look at the definition of the institution of marriage and to ask where those values come from and what in those values may be threatened and if the nature of the institution is altered. That seems to me to provide a textbook example of a value that has come into law from a universal value, and that has not been widely appreciated. Many of our laws have come from religious sources [and this, like the] respect for human life, is an obvious example.

I append here a note written to me earlier by the Hon. Murray Gleeson on marriage as a legal institution.

The phrase “de facto” has no grammatical function unless, either expressly or by implication, it qualifies a noun. Its antonym is “de jure”. The expression was commonly used in the past to qualify the noun “marriage” (or “husband” or “wife” or “spouse”). Over time, people came to drop explicit reference to the noun, but “my de facto” meant “my de facto (husband or wife)”. It never meant “my de facto friend”, because “husband” or “wife” signified a legal (de jure) status; “friend” did not. A relationship can only be de facto (or de jure) if it is one that has a definable legal status. In the past a man’s de facto wife was a woman he wanted, for practical purposes, to have the status of his wife. The typical reason she would not be his de jure wife was that there was some legal or religious impediment to marriage (such as another subsisting marriage). As divorce became more common, and religious prohibitions were relaxed, impediments to marriage became less frequent. However, relationships between people who might have chosen, for any reason, not to marry, or who might simply not have contemplated marriage, became described as “de facto”. De facto what? Once the concept of a de facto relationship is cut loose from the defined legal status of marriage, what has it become?

As to marriage, if it is not the union of one man and one woman for life, then what is it? So far, the religious idea of marriage has provided our law the conceptual frame of reference by which a status is defined. That status has a host of legal consequences. If the religious idea of marriage is to go, what is to replace it? What will be the de jure status by reference to which our understanding of a de facto relationship is formed?

If marriage ceases to be a status defined by law according to a principle derived from social and religious tradition, and becomes a status people can confer upon themselves by acknowledging a certain commitment, what kind of commitment will suffice? Will exclusivity be a necessary feature of the commitment? Why? Self-evidently, care of children will not. If reproduction and marriage are unrelated, why should sexual attachment be any more significant than physical or emotional dependence, or commonality of interests? There could be many good reasons, having nothing to do with sex, why people would wish to “share their lives”.

The institution of marriage was not devised to cater for sex, but for the consequences of the procreative potential of sex. Specifically, it was a means of obliging males to take responsibility for their offspring[2]. The family unit was considered the optimal environment for the care and nurture of children. If society is to sever, formally, the relationship between procreation and marriage, why should it retain the institution at all?

Dame Leonie Kramer was once reported to have said (with particular reference to the word disinterested) that when the meaning of a word is corrupted, society often loses a value. I can think of no better example than the word marriage.

 

God, ethical tradition and the coercion to abort

Shimon Cowen

The letter of the Constitution

The Preamble to the Australian Constitution

Where does the name of God appear in the Constitution? It is found, not in the Constitution itself but, in the Preamble to the Act of the United Kingdom Parliament, which enacted the Australian Constitution (Commonwealth of Australia Constitution Act, 1900). This preamble of course was formulated by the drafters of the Australian Constitution. It states:

Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God have agreed to unite in one indissoluble Federal Commonwealth …

Here we have a secular state with a Constitution prefaced by a recognition of God. What does this amount to? Is it just a piety? Or does it have some actual constitutional significance and impact?

An abortion law which ostensibly cannot be challenged within the Constitution

The significance of the Preamble to the Commonwealth of Australia Constitution Act with its reference to God becomes apparent when we look at what the Australian Constitution internally (that is, after its Preamble) cannot rectify. This is a law enacted by the Parliament of Victoria in 2008, which some have called the worst abortion law in the Western world.

The Victorian Abortion Law Reform Act first of all provides for abortion on demand for foetuses up to twenty-four weeks for any reason or for no reason whatsoever. It also facilitates abortion up to birth, where two opinions can be found to support it—something not difficult in contemporary culture and society. It also has a set of extreme further provisions. One is that if a baby is aborted alive, it is left to die. To place a vulnerable born human being in a situation which hastens its death is clearly associated with homicide in Noahide law. But the most egregious evil of this law is that it forces doctors against their conscience to participate in what in Noahide law is forbidden killing, in a circumstance where there is no danger to the mother’s life.

This last point is the content of section 8 (1) of this law, which states that a doctor who does not want to abort, where there are no circumstances threatening the life of the mother, must refer to the client to another doctor whom the first doctor knows has no objection to performing the abortion. Recently a case came up under this law where a couple came to a doctor and said that the wife was pregnant with a foetus which is female, that they did not want a female and wanted the doctor to abort it. The doctor said that he would not abort the baby and would not refer to another doctor: he would not be a party to such an act. By saying that, under the Victorian abortion law he faces arraignment before a medical tribunal and losing his registration to practise as a doctor.

The moral evil

Now this is an incredible situation. The tradition shared and carried forward in their root (where it is known as the teaching of the Noahide laws) by the great faiths, including those which form the social and historical background of our society, prohibits abortion on demand. It is classified with forbidden killing. There are circumstances in which abortion is permitted: where there is danger to the mother’s life; or possibly after rape and incest, if the abortion is performed within forty days of conception, or possibly also where there is a foetal deformity so great that the baby has no prospect of survival beyond birth. But the idea that abortion could be a routine—and that beyond that one can force doctors to be a party to it against their will through the complicity of referral—is clearly forbidden by universal Noahide law.

So we are left with a law which forces doctors to be complicit in acts of killing which Noahide law manifestly forbids, and which various faith communities—Jewish, Christian and Muslim—have all found to be contradictory to their own traditions and have communicated this to the parliament. Not only is the killing wrong, but complicity in it is also wrong. It could be added that while this relates only to abetting a forbidden killing, outright killing of the innocent is something in which Noahide law requires a person to give up his or her life, rather than perform it, even under duress.

How could such a law be permitted by the Australian Constitution? Yet, when one explores the different avenues that one might take within the Australian Constitution to oppose it, one comes up against one dead-end after another. I wish now to indicate some various thinkable avenues of challenge against this law within the Constitution and to show how each fails; and here we are assisted by a writing of the Chief Justice of the High Court of Australia, His Honour Justice Robert French, on “Religion and the Constitution”[3].

Section 116 of the Constitution

Section 116 of the Constitution amongst other things provides that the Commonwealth shall “not make any law … for prohibiting the free exercise of any religion”. Ostensibly this should protect a doctor, whose religion forbids him or her to carry out abortion on demand, for a reason not justifiable under Noahide law and the faith of most traditional religions. It would seem also to offer protection from coercion to participate in it by referral. But this avenue is blocked by the fact that section 116 protects individuals only from laws enacted by the federal government which infringe the freedom of religious practice by individuals. The abortion law before us was enacted by a state government, to which section 116 does not apply. Nor, as Chief Justice French has said, does it “create an justiciable individual right to the free exercise of religion”[4] which could be exported to a state jurisdiction, but only freedom from federal laws which offend it.

Australia’s subscription to international treaties involving human rights

Another possible recourse against the coercion of conscience of doctors by the Victorian abortion law is the fact that Australia is a party or signatory to international treaties, such as the International Covenant on Civil and Political Rights, which in its Article 18 guarantees freedom of conscience and religion. This, one would hope, would provide succour for the Victorian doctor who does not want to violate his or her religious conscience by performing or having any truck (by referral) with an abortion forbidden by religious law. Here again we are foiled by the constitutional rule, that only by enacting a law at a federal level through the “external affairs power” conferred by section 51 of the Constitution can a provision of an international treaty become part of Australian law. Only then, by virtue of section 109 of the Constitution, which specifies that federal law shall override a state law inconsistent with it, could such a federal law (once enacted) embodying the principle of religious freedom impact the anti-conscience clause of the Victorian Abortion Reform Law. Similarly, were the federal government to enact a law disallowing discrimination on religious grounds, by section 109, this could also override a state law which discriminated against doctors (forcing them out of their profession) because of their religious objections to various kinds of supposed grounds or groundlessness for abortion. Yet as the present Chief Justice points out, the Commonwealth has never legislated such a law[5].

The doctrine of implied rights

There appears another possible avenue within the Constitution which might assure the Victorian doctor the right to resist forced complicity in an abortion which revolts his conscience. This is in the concept of “implied rights”. “Implied rights” are those rights which can be argued to be implicit in certain provisions of the Constitution. Thus the High Court of Australia has developed (in the Unions NSW v State of NSW case) a doctrine of an implied right of “political communication”. This right was held to be implied by the provision of the Constitution for the election of Houses of Parliament, something which cannot proceed in a democratic manner without the communication of political views. And the High Court further argued that such a right cannot be limited only to federal politics, but must cut through to the state level also. This would be helpful in the case of the Victorian abortion legislation were an implied right of freedom of conscience to be found in the Constitution. The problem here is that the only implied right which has been deduced from the Constitution by a majority decision of the High Court of Australia is that of “political communication”. Others, such as freedom of conscience, have not. In conclusion, therefore, within the Australian Constitution, there seems to be little succour for the doctor who does not want, and yet is forced by these laws, to participate in an abortion, which violates universal (Noahide) law.

The “envelope” of the constitution

The subservience of social “positive” laws to laws of God

Having come to all these dead-ends within in the Constitution, it may be that a solution can be found in the “meta-doctrine” which envelops the Constitution from without. This is to be found in (and perhaps is the significance of) the wording of the Preamble of the Australian Constitution Act which enacts the Constitution. It states that “permission”—a “blessing”—has been presumed to write and promulgate the Constitution. Who gave permission for the Constitution of Australia to be written and promulgated? The answer is in the words of the Preamble, “humbly relying on the blessing of Almighty God [the States] have agreed to unite in one indissoluble Federal Commonwealth”. In other words the constitution proceeds upon the humble assumption of, and “reliance” upon, God’s permission—His “blessing”.

One of the great commentators on the law of England, from which our law derives, William Blackstone in the eighteenth century, wrote in his great classic Commentaries on the Laws of England that there are two kinds of laws. There are laws of God, sometimes termed laws of nature, and there are laws enacted by society, known as “positive” law. He states that no positive law can override a law of God, the content of which, Blackstone further writes, is made known in Scripture. In other words nations have sovereignty, but their sovereignty is subordinate to God’s sovereignty and the laws and rights which God bestows upon the peoples of all nations. We have seen this in recent history. The Germans had a sovereign parliament under Hitler, but some of its laws were voided, and the acts performed in accordance with them were punished, as crimes against humanity. Crimes against humanity are in fact crimes against the laws of God. There is a higher sovereignty which voided those laws. This applies also, we could argue, in regard to the Victorian Abortion Law Reform Act.

The Divine law mandating the protection of life

One of the laws of God is the entitlement of a human being to protection of his or her life and the prohibition of killing. As both Noahide law (and Blackstone) state, a liability for killing begins also in relation to pre-natal life. This law of God informs us that pre-natal life is not freely disposable. It doesn’t mean, as mentioned above, that there are no grounds for abortion. But, the law of God, as revealed in Scripture (and expounded in the oral law) is plain that abortion on demand, and the compulsion upon a doctor to participate by referral in abortion on demand (that is, where there is no danger to the life of the mother or other compelling ground) is prohibited.

Indeed the philosophy which upholds this law to the extent of coercing doctors to comply with it, inverts the law of God, by postulating an unfettered right to kill unborn life. Indeed it has been formulated as a so-called “reproductive right” which reduces the child to little more than a corn on its mother’s foot which no one can prevent her from removing and beyond that, which one can force another to remove, as a service to which one is entitled. The foetus becomes, in this view, a mere thing.

The universality of the God of the Constitution and the universality of His laws

The God who prohibits the brazen claim to an unqualified “right” to destroy prenatal life, the God of the Constitution, is the God of all peoples, not specific to anyone religion. The words “Almighty God” in the Preamble are neutral and universal to all religions. Marion Maddox quotes Archbishop Peter Hollingworth in the 1998 Constitutional Convention, who in turn spoke about a discussion of the term “God” in the 1898 Australian Convention. She writes:

 

A reference to God also links us to the founders. On Archbishop Hollingworth’s reading,

Sir John Downer [at the 1898 Australian Convention] summed up the debate in these words:

“… that the Christian religion is a portion of the English constitution … is part of the law of England … that the Commonwealth will be from the first stage a Christian Commonwealth …”

Archbishop Hollingworth went on,

“Clearly, that is not the way things have worked out. We cannot claim that Australia is, ever has been or perhaps is ever likely to be—certainly not in our time—a Christian Commonwealth, but that does not imply that we should become a purely secular republic.”[6]

 

Maddox goes on to demonstrate from the transcripts of the 1998 Convention that the neutral term “God” in the Constitution continued to find a common resonance with major faiths in Australia other than Christianity. Even though most who participated in the framing of the Constitution were Christian, the words are and have proven to be acceptable to Jew, Christian, Muslim, Hindu and Buddhist alike and they are associated with a set of universal, shared ethics, stemming from the roots of religious tradition in general.

This is not just the view of religious people. Even persons such as the former Prime Minister Julia Gillard, who described herself as a non-believer, can also recognise the role of biblical values in our society[7]. My interpretation of this goes along the same lines as Viktor Frankl. He stated that every person is capable of self-transcendence and finding a higher purpose of life. The key ingredient of this self-transcendence is humility—which is to ask whether there something bigger than I and than what I want. Frankl said that to come to this you do not have to be religious. He stated that even the “non-believer” who begins the process of self-transcendence is in fact en route to God, and consequently, I would add, tends to share the same values of the believer, which are God’s laws. I dare say that the humble non-believer is closer to God than the arrogant religionist. The gun-toting jihadists talk about God, but when they say that word, they mean themselves. Humility is the road to God. Both the 70 per cent of Australians with a religious affiliation and many non-believers (the humble grass-roots, not the “doctrinaire” ones) have lived with the Preamble to the Australian Constitution and its God. It took its place in 1901 and has been left in place.

In the Preamble is the reference to a God who permitted us to write a Constitution, but not to violate his laws. The anti-conscience clause of the abortion law is particularly abhorrent to all decent and reasonably straight-thinking people, even to the otherwise pro-abortion Age. The Victorian Abortion Law Reform Act works to create a culture in which life is cheap and life is disposable. If the Australian Constitution was based on permission by God, how can a law be promulgated within its ambit which so negates the laws of God? The suggestion that there is an unfettered right to kill pre-natal life is a rebellion against God, who has told us to protect life.

For a good reason God was put into the Preamble of the Constitution, and in a Preamble which is not even part of the Constitution, but a Preamble to the act which enacts the Constitution. Its position teaches us that there is a radical break and a transcendent separation between God and the Constitution. He is not part of it; he is the enveloping condition, within which it has permission to exist. No constitution and no system of government crafted by human beings can guarantee the decency and morality of its “positive” laws. No “bill of rights” is secure against perverted interpretation. Only the knowledge of the laws of the “King of all kings”, the Creator, can guarantee that.

It may be that, as discussed in the preceding discussion with the former Chief Justice of Australia, no judge can disqualify the law of a parliament by reference to universal ethics. A judge can only resign, if the law given to him or her to apply violates conscience. For law-makers, who can remake laws, and for judges who are asked to innovate doctrines, not previously in the law, the reference to universal ethics and to God, must be real and actual[8].