“Rights” as a Weapon in Culture War

The legislative season of the Victorian parliament in 2008 introduced profound changes to basic social institutions and norms, and opened up a fundamental conflict of values, in our society—and in the parliament itself. It has conjured the spectre of a “culture war” between two sets of values: one, anchored in the common tradition of the world religions, which holds to objective, universal and enduring values, representing the moral covenant of Creator and the conscience or soul of the human being; and the second, rooted in an essentially materialistic and secularist philosophy (whether or not consciously embraced by its supporters), which prevailed and spawned the legislative changes.

Conflict, and certainly “war”, are not virtues, but it is a virtue that as a public we should be forced to examine the fundamental choice of first principles, which is at issue in our society and globally.

1. Democracy and Values

In better times the idea of a bill of rights might have been greeted with pleasure by those who want to protect freedom of religion. Now it is rightly viewed with suspicion and apprehension, since it occurs in the midst of a culture war which is opening up in our society and could be used as an instrument against religion in that war. The suspicion and the tension are a good thing, not because conflict is good, but because the issues are becoming clearer.

Greyness, which results from a mixture of white and black, is sometimes welcomed as an expression of the complexity and subtlety of issues (“not everything is black or white”). At the same time greyness, like twilight for a motorist, can be dangerous. So too in a moral greyness, there is no contrast, the issues are not clear and judgment faces self-deception.

We live in a time in which (at the forefront of the zeitgeist) a state government in Victoria, in one legislative year, legislated abortion on demand (as is the case in Victoria for foetuses up to six months), potentially licensing the unlimited slaughter of unborn babies every year, should their mothers desire it (and without any reason being required), re-engineered the laws of de facto unions so as to create a functional equivalent of homosexual marriage (in all but name) in a “Relationships Bill”, and by IVF legislation established the notion of “commissioning” biologically parentless children. There are those who fought for these things—amongst them the “high media”, academia and the appointed bureaucratic commissions—and those who see them as great moral evils. The result of the implementation of these changes is a great rupture with thousands of years of human values. A great mass of people look on, not knowing what to think or what to teach their children.

The sides to the conflict appear intuitively to be (and indeed are) “religious” and “secular”. Yet those who wanted and achieved these changes invoked principles which purported to have to do with democracy. Two areas of democratic theory which were invoked in this regard are (a) “the separation of religion and state” and (b) “human rights”. In fact, we shall argue, the issue has nothing to do with either of these. They only obfuscate a conflict which is about values and the ideas which form the source of those values.

The Separation of Religion and State

With regard to the separation of religion and state, as this doctrine as expressed in both the American and Australian constitutions, the provision is that the state shall not establish a particular religion. Prima facie, this posed no conflict with the association of both societies with a neutral monotheism. The Preamble to the Australian Constitution speaks of its constituents “humbly relying on the blessing of Almighty God”, and the American Declaration of Independence speaks of “nature’s laws and nature’s God”, and indeed the American currency bears the motto “In God we trust”. The fact is that both of these societies were and in the overwhelming majority still are religiously identifying and believing societies. The statements of these prefatory documents expressed a grass roots fact: belief in God was and is the default empirical position of both societies.

The principle stated in section 116 of the Australian Constitution and in the First Amendment to the American Constitution does not require that religion be purged from the public square. The simple import of the separation of religion and state is that religion shall not be prescribed (or curtailed) by the state. The state, enjoying the exclusive legitimate power to exercise force, whether internally through the police or externally through its military forces, is an administrative entity. Religion is different: it is a source of values. The state per se cannot prescribe religion, but religion, just like other values, may well up within the body politic—the public—to influence the policies of the state.

The idea that state institutions—parliamentary, educational or other—must not in their legislation or policy or other content express religion or religious values or views has nothing to with the separation of religion and state. It is a covert ideology of secularism, which proscribes the embodiment in public policy of ethical values based on the authority of religious teaching. Secularism of this kind is an ideology which, paradoxically, seeks the absolute unity of the state with religion—its own “religion” of atheistic materialism. According to the intent of the Australian and American constitutions, state policy and state institutions must allow currents of values, including religiously inspired values, to proceed from the public square, and give them representative significance. The a priori exclusion of religiously inspired values from public institutions is, in this constitutional setting, an ideological coup against religion.

The attempt to exclude religious values from public institutions by an ideological secularism operates on both theoretical and practical planes. There is first of all the theoretical construct, set out by writers such as John Rawls and Amy Gutmann, of a shared “public reason”: a religious discourse, it is argued, cannot be admitted to the discussion of public policy, because it does not represent accepted shared values. The fact that personal religious identification is acknowledged by 70 per cent of the Australian and more of the American public—that is, that religious identification is the salient fact of the “public”—is overlooked.

The practical aspect of the attempt on “democratic” grounds to create a religiously neutralised public is to argue that wherever public funding is concerned, religious institutions or providers must yield to purported “neutral public” standards. This reasoning threatens religious schools in Victoria. The problem with this reasoning is that these funds come from a public which overwhelmingly identifies with religious experience. The “public”, in truth, is no more than a space, in which values which are held may enter into discussion and be given their representative weight.

Human Rights

The second area of democratic theory which is claimed as support by those who wished to introduce the changes has to do with “human rights”. The former Chief Justice of the High Court of Australia, Justice Murray Gleeson, has introduced here a vital caution, stated in the clearest simplicity, that purported rights are anchored in values. A “right” is as good or as true as the value it represents. The only problem is that the language of “rights” insulates the claimed “right” from public discussion and consigns it to a judicial preserve, whilst that of “values”, as a plainly political and morally discussable, does not. When rights become the subject of international law, they acquire an even greater mystique. We struggle to accommodate our positions to international charters of rights. The difference is that international law, which is binding only by subscription (and then is weakly enforceable), bites less. But these too are no more than statements of values, and are no truer or more binding than the values which underpin them.

The point could be highlighted by the question: “Is there a right to marry one’s sibling?” The answer is simply a matter of held values. For one coming from the great religious traditions, the answer is obviously, no. For an atheistic and materialistic secularism, the answer might be, yes. The question has been tested in Sweden. In Sweden incest is legal and moreover half-siblings may marry. By definition incest has become a right. In Australia and in America it is illegal and therefore there is no such right.

The very term “rights”, with its Enlightenment lineage, has to do with a concept of the autonomy and sovereignty of the human being. Religion, whilst acknowledging human free will, looks also at the sovereignty of God and the role of human agency in the fulfilment of Divine purpose. The deficit in the Enlightenment version of rights is often corrected by adding to the word “rights”—“and obligations”. There is after all, “freedom from” and “freedom to”, negative and positive freedom. But both posited rights and obligations are ultimately anchored in values, and it is the values which found them—not the arcane privilege and fundamental status conferred upon them by the term “rights”—which needs to be kept in the foreground of discussion.

What we see, however, is that religious viewpoints in public policy are by no means intrinsically precluded by democratic concepts such as the division of religion and state or by human rights under the Australian or American constitutions. On the other hand, a democratic society is capable of legitimating and installing (in the case of Sweden) values which for millennia have been considered as contrary to civilisation. At issue is not democracy, but the values which will in fact prevail within the public and so find their way through to public policy.

2. The Philosophy of Contemporary Secularism: “Hedonomat”

To characterise the teaching of the dominant school of contemporary materialistic secularism, I have chosen the word Hedonomat. It is a nickname for what I would in full term “Hedonistic Materialism”. It contains a conscious allusion to the formulaic term “Diamat”—short for “Dialectical Materialism”—which was the official doctrine of Eastern European and Russian communism before it collapsed. The allusion has a hint of caricature, meaning to suggest that as squarely as Diamat dominated a vast empire, so also does the self-disciplined officialdom of Hedonomat seek to exert hegemony in Western liberal democratic societies. It is not backed by naked force, a secret (and not-so-secret) police as was Diamat in the communist world. Rather it is achieved in the academic world, by a vast voluntary self-censorship or collective repression of the experience of personal expression of faith, described by the outgoing President of the British Royal Society of Psychiatrists in 1994, as the “unspeakable” taboo at the end of the twentieth century. Its adherents staff academia, major sections of the non-tabloid media, state television and radio and bureaucratic elites: in other words the non-grass-roots culture of our society.

One of the ideological parents of Hedonomat is Darwin, from whose work a cosmology has been fashioned, a thoroughgoing materialism, which places the amoeba and the human being in a one-dimensional developmental spectrum. Under the Diamat of the communist empire (in its classical Hegelian and Marxian terms), the driver of the human self-concept was essentially the concept of freedom and the overcoming of human self-alienation. The human self-concept in the materialism of Hedonomat, however, has a hedonistic driver, which comes from Freud and a revamped utilitarianism, the calculus of pleasure and pain. The Darwinism of Hedonomat places the human within nature; its Freudianism and utilitarianism align human self-realisation with the interest of animals in the achievement of pleasure and freedom from pain.

The novelty of Hedonomat is thus that it looks at the fundamental characteristic of the human being as its animality, its instinctualism and its pleasure principle. In public policy this may mean killing in order to escape pain at either end of life: the foetus, the vegetative young, the elderly incurably sick, all of whose conditions stand in the way of their own, or in the case of the foetus, someone else’s pleasure. Another hallmark of Hedonomat is the deregulation of sexual activity: including not just the normalisation (and thereby in the educational system, also the cultivation) of homosexual practice, but in Peter Singer’s writing, also the permission, of bestiality and, in Swedish society, the institutionalisation of incest.

The Atheism of Hedonomat

It is clear that the social cosmology developed out of Darwinism does not allow the concept of a qualitatively different human soul, about which the Bible writes, that this, the essentially human, was fashioned in the image of God. By definition, its materialistic developmentalism negates the concept of a Creator God. It removes the great God from universe and the small God, the soul, from the human being.

To preserve a concept of the human soul as constituting perhaps the major significance of the life of a human being, and its difference from the rest of creation, according to Hedonomat, is not only false but “speciesist”. According to the biblical account and traditional religion, on the other hand, the soul (and primacy in the creation) was given to the human being, not for the sake of simple domination, but to the contrary that the human being act as an agency of the Divine in the creation, transforming and elevating it and emancipating it. From the religious standpoint the human being is at least two-dimensional, possessed of a material body and a spiritually—a soul—informed mind.

The recognition of the transcendent Divine (and with this transcendent, Divinely mandated values) is achieved essentially by the human soul, not by the human intellect. The soul non-cognitively experiences God. From the soul comes a humility, which allows the person to embrace the concept of a Divinity which transcends human intellect. The adage goes that “There are no atheists in the trenches”, but the art is to recognise one’s creatureliness and dependency outside the trenches, even when, materially, one is “riding high”. Humility extends—and perhaps even primarily—to the recognition that not only the human body, but also the human intellect (the choicest item within creation) is also a created item, and is therefore quite limited in its grasp of its Creator. Only the soul, a reflector of the Divine, can truly recognise and thereby “ground” the existence of an infinite Creator.

For Hedonomat, the intellect is little more than a scientifically sophisticated guardian of the animal within the human: such was the function of the “ego” for the “id” in Freud. Intellect is there to organise, as rationally as possible, the maximisation of pleasure and the minimisation of pain. Mind has the task of grasping and organising the material world, not of submitting to the transcendental guidance of the soul.

Because the mind of Hedonomat cannot explain suffering, seemingly incompatible with the notion of a benevolent God, it therefore rejects God. The response of religion, that “My thoughts are not your thoughts and My ways are not your ways”, and that a transcendent logic and providence operates, which will eventually make evident God’s goodness, notwithstanding and even through the bad of present suffering, is beyond the Hedonomat practitioner. This is because it calls for self-transcendence, including transcendence of the limits of intellect. The biblical text (and millennia of religious tradition) is discredited by Hedonomat’s summary attacks on passages of the Bible without any understanding of these passages, which alone a genuine exposure to theology and the tradition of commentary on these passages can make understood.

Hedonomat and the Morphing across Boundaries

The primacy of the “animal”—the “desiring”—component in the human being, opens Hedonomat into the realm of what Freudianism terms “polymorphous perversity”. Just as, in Freud’s writing, the unformed child experiences bisexual desire, incestuous impulses and so forth, so the liberation of the essential (the pristinely animal) human being must give expression to the morphing across boundaries. Indeed the human is here accorded a freedom which the animal does not possess: whilst generally the animal does not cross boundaries, human freedom is to be expressed in the social facilitation of “polymorphous perversity”, the crossing of boundaries.

Two fundamental aspects of the untamed instinctual complex of the human being are sexuality and aggression. Civilisation is supposed to sublimate and transform these instincts into constructive moral structures.

Sexuality has been governed by the structure of marriage, and the system of permitted and forbidden sexual relationships. It is significant that under Hedonomat the boundaries of sexual morality have been broken, primarily through the movement to vindicate homosexuality in society. No one will deny that homosexual impulses are part of the polymorphous perversity of the human being, and the impulse may be physically an extremely powerful one in certain individuals. But the boundaries established by morality, the concept of Divine purpose and function established by revealed morality, require its containment and inhibition in actual practice.

Human aggression or force has been governed by civilisation through concepts of justice, and of the use of force to back up legitimate authority and to punish breaches of justice. Without this discipline, power is a lust, like human sexuality. The raw concept of power is taken up by certain aspects of feminism, encouraged by Hedonomat, in the notion that equality demands that women find their essential identity in taking up all the functions that men have traditionally fulfilled.

Whilst there is nothing wrong (and everything right) with dignity and respect and fairness of treatment for women, features of this outlook have actually denatured the distinct and unique qualities of the female vis-à-vis the male because of the preoccupation with the desire for power: the desire to command resources and people. It has led to the devaluation of the unique nurturing role of the woman in the family. It has denigrated the function of the woman as a moral shaper of her family and children in favour of the notion of her as a corporate power-wielder.

Hedonomat thus through promotion of homosexuality as co-normative produces the feminisation of the male and through an unbalanced feminism the masculinisation of the female (as my wife has put it); it blends the boundaries between animal and human in an environmentalism which relativises the value of human life and negates the distinct role and purpose of the human within nature (which does not entail the despoiling of nature or gratuitous cruelty to animals).

3. The Discussion of Values

The philosophy and practice of Hedonomat have been successful in overriding the expression of the grass-roots religiosity of the mass of the publics of Western societies. Religion and the concrete values which religion espouses have been driven into retreat. This is evident not only in the area of sexual morality, in which biblically and throughout the history of civilisation fundamental prohibitions on adultery, homosexuality, incest and bestiality prevailed. A concept of marriage existed, which meant the permanent designation of a spouse: this has been replaced by a de facto culture, which in England, for exampole, sees one out of two children born out of wedlock—producing a parentless and family-less generation—with indescribable consequences for youth violence, substance abuse and promiscuity.

Hedonomat has promoted much of this, with its primary emphasis upon personal gratification, starting with parents who are not prepared to take upon themselves the commitment and consequences of child-rearing. Hedonomat is big also on areas deemed by the religious tradition to be killing. It favours abortion on demand (beyond the justifiable grounds of danger to the mother’s life), and it favours euthanasia because it does not know of the life of the soul, and the spiritual value of life.

Hedonomat, against the wishes of its idealists, can also promote a culture of greed and theft, not only on account of its materialistic culture, but also for the simple reason that the child or adult can ride a train without paying because “no one” (not the conductor and not God, Hedonomat teaches) is watching. Hedonomat can corrupt justice, where judges are beholden not to tradition, but to their own maverick sense of justice. And needless to say in the realm of belief in, and respect for, God, it has mounted its greatest assault.

There can be a return to the true discussion of values only when the elites which circumscribe the public discussion of values are themselves forced into a social moral accountability. First of all, the staffing of all government-funded non-political entities of social influence must reflect a true plurality of standpoints, including religious ones. The Law Reform Commission of Victoria of recent years has been driven by an atheistic and materialistic philosophy; so also the philosophy of the personnel of the Australian Human Rights Commission should be examined. State-owned media, the ABC pre-eminently, have also been a seat of Hedonomat.

Second, the trend to establish charters of human rights must be minimised because they encrypt ethical assumptions (very often those of Hedonomat) and then hand over interpretation and application to individual judges, who with calamitous consequences can change the course of publicly resolved social policy. The personnel of non-political policy elites, as well as maverick judges, should be as open to public criticism as any politician.

There needs to be vigorous demythologisation of Hedonomat within the universities. For academic staff themselves, this calls for an ethic of honesty and courage of personal conviction. No one should be afraid to criticise the values of a professor, to whom respect can be due only on account of intelligence and work, not to any a priori claim, as “professor”, to moral rightness.

The public must become that place where no one is afraid of, or ridiculed for, mentioning the name of God or values which traditional religion has associated with God. Above all what is needed is a demythologisation of “public reason”, which excludes moral and other knowledge derived from the religious traditions. We must come back to a public which is precisely that: a space in which one is freely able to speak about the first principles of human conduct and knowledge.

Deprivatisation and Demarginalisation of Religious Life

Hedonomat’s version of the separation of religion and state has been to declare the public, the space of the state, as one which precludes religious values, and to drive religion into a private space, where religion is acceptable so long as it has no impact upon policy and does not intrude into public institutions.

Not only this, Hedonomat holds that religion may not be able to create its own moral environment within its own institutions. This is the import of a recent “Options Paper” to revise the exceptions provided for in the Victorian Equal Opportunity Act for religious schools. The paper proposes to allow religious schools to select their staff by their own criteria only in regard to the personnel actually teaching a religious subject. Other staff members in the school environment should not be subject to the criteria of the school—for example an overtly practising homosexual maths teacher may have to be taken by the school, even though this conduct contradicts its ethic. The school may not model its own ethic through its staffing.

Thus an article published by the author of the Options Paper makes a spurious distinction between the private and public life of religion (an assumption which runs through the Options Paper). Religion can be tolerated in a private sphere of worship; but it must defend and justify itself when it assumes a public activity such as education. This is because in the view of Hedonomat, the public sphere does not belong to religious values; it has been staked out already for Hedonomat.

The attempts to force a retreat of religion into a private space where religion is no longer “lived” and practised as an integral lifestyle are fortunately challenged by section 19 (1) of the Victorian Charter of Rights and Responsibilities, which provides:

“All persons with a particular cultural, religious, racial or linguistic background must not be denied the right in community with other persons of that background to enjoy his or her culture, to declare and practice his or her religion and to use his or her language.”

This is correct, not because a mystique of “rights” has been accorded to it under a politically legislated “charter”; but rather because it happens to represents true values.

The same issue arises with regard to the entitlement of a religious community to live in an environment which resists forms of commercialisation such as nightclubs and sleazy culture or even of overt offensive, suggestive advertising. The public square belongs as much to its religious constituents as to its non-religious constituents and it has to be liveable for everyone. In other words, the “public” cannot be seized and regulated as a non- or anti-religious domain: the schools, the parliament, the streets belong as much to, and must be as congenial to, religiously minded individuals as to those who are not. Government funding may not be withheld from religious schools “because the public domain is not religious”. To say this is to drive vast constituencies out of the public sphere.

Coercion against the Expression of Conscience

Hedonomat has succeeded in various domains in achieving coercion in an unexpected qualitative degree. One may argue that a group, which by a claim of personally held values wants to practise harm to others, should not be allowed to have this expression of values: it may be forced to desist from carrying out its values. However, in the form Hedonomat has taken in contemporary Victorian abortion legislation, it forces individuals actively to commit crimes against their consciences. Thus abortion legislation enacted in Victoria in 2008 compels doctors, opposed to what is regarded in religious tradition as killing (abortion without any threat to the life of the mother) either to be an instrument to that killing (to perform the abortion) or to be an accessory to it (to refer to another abortionist)—at the risk of penalty and punishment. They cannot refuse both.

A second measure of Hedonomat is to foreclose discourse by linguistic, and possible also legal means. There is a danger that speech will move from an etiquette of political correctness and silencing to political repression and punishment. The suffix “phobic” already demonises and pathologises attitudes not held to be politically correct. Criticism of the practice of homosexuality, and its institutionalisation as co-normative in society, becomes “homophobia”—censurable and potentially (under certain entertained legislation on hate crimes and hate speech) punishable.

Hatred based on racial prejudice is a base value, and society should do everything it can to educate against it. Nevertheless, it may be that legislation which makes “hatred” directed towards certain characteristics a crime or an aggravating factor can contribute worse dangers. The principal danger is that such legislation will become a new instrument of coercion and repression based on the ideology of Hedonomat. This will be particularly so if hate crime law is used by those who are ideologically opposed to the teachings of traditional religion to prohibit speech critical of sexual behaviour prohibited by religious tradition, as a product of a God-given law.

The Canadian law C-250, passed in 2003, included sexual orientation as an area to be protected against speech construable as “hate propaganda”. Even though an amendment was passed to the bill, which created “a defence from prosecution for opinions expressed ‘in good faith’ or based on a belief in a religious text” like the Bible, this has been reviewed by some critics as an irrational exception.

This exception had already been ironed out by a Swedish bill in 2002 (finally made law in 2003) which criminalised “hate speech” against protected groups including persons of varying sexual orientations including homosexuals. A prosecution of a Christian minister resulted in a conviction which was subsequently overturned on appeal. What this shows is that even where criticism is levelled on biblical and religious grounds against the practice of homosexuality, it may be prosecuted on the grounds of “hatred” towards a “protected group”.

There is a real danger that were this “hate crime” legislation (or its import in a particular bill of rights) to be introduced in Australia (with hate speech against racial groups very easily being extended to other groups such as those with different sexual orientations) it would not be with any of the tenuous “mercies” of the Canadian amendment or the Swedish court which overturned the prosecution.

Conclusion

We live in a time of powerful contrast between two philosophies: one which believes in God and in a transcendent, an objective and an enduring morality; the other which does not believe (or suppresses its belief) in God, and allows the morphing of values and moral institutions in accordance with mere desire.

To resolve this conflict, we have therefore come to a time when first principles must be exposed and openly addressed. We need a public discussion in the most open and freest sense to check the true resonance of values, to remove all privilege from specific centres of influence, whose agents are insulated from the public and political arena.

The building of understanding and the formation of a social consensus, to the extent that that is possible, can be done only where the “public” is the space where values are freely made into topics for discussion; where individuals can openly live, teach and exemplify their values, where no coercion, policing of speech or action forces conscience against, or into, itself; where every piece of legislation, every proposal of “rights”, is laid bare in its most pristine assumptions and values; and where the word God can be heard as openly, loudly and freely as the word rights.

Rabbi Dr Shimon Cowen is Director, Institute for Judaism and Civilization, Melbourne. This paper was prepared as a contribution to a conference held recently in Canberra on “Cultural and Religious Freedom under a Bill of Rights”.