High Court decision on school chaplaincy - updated

This is a very quick, initial reaction to the recent High Court of Australia decision in Williams v Commonwealth of Australia [2012] HCA 23, relating to the capacity of the Commonwealth government to fund chaplaincy in schools.  (you can find a summary here).  The decision has been reported by the ABC and there is reference to it on the website of SU Tasmania.  (Although the ABC coverage seems unbalanced to me).

The case

The case was brought by the father of four children at a Queensland school (the Plaintiff).  He challenged a funding agreement made between the Commonwealth Government and Scripture Union Queensland.  The funding agreement was a fairly simple contract.  There was no Commonwealth legislation (law) that supported it specifically.  

The plaintiff argued a number of points - that the agreement was unconstitutional or unlawful; and/or that school chaplains could never be supported by the Commonwealth Government because it breached s. 116 of the Constitution, which prevents the Commonwealth from establishing a religion.

The decision

The High Court decided that the funding arrangement was not supported by the Constitution, nor by the Commonwealth Parliament.  On this basis, the plaintiff won the battle (because the specific funding arrangement that he challenged has been struck down by the High Court).  The "war" is as yet undecided, as you will see shortly.

The High Court also decided that school chaplains do not occupy an "office ... under the Commonwealth" (s. 116), and so the requirement that they be members of a faith community did not infringe the Constitution.

So the victory is a narrow one - I'll describe why below.

A narrow victory

The Commonwealth Parliament is a powerful body, within fairly strict boundaries.  The Commonwealth Government is limited by similar boundaries. When the Government wants to spend money, it needs the approval of the Parliament to do so.  Usually it gets this with a very short "line item" in what is called a "supply bill", which allows it to spend money for specified purposes or projects.  It is usually literally a "line item", along the lines of "Services for which money is appropriated: ... Attorney-General's ... $3,799,557" (from Appropriation Act (No. 1) 2011-2012).

The Commonwealth Government has a lot of scope to spend money this way, but it is still limited - it has to fall within the "executive power of the Commonwealth", as set out in section 61 of the Constitution (and the following sections).

The funding arrangement that was challenged in Williams was a contract between the Commonwealth Government and SU Queensland, supported by a line item in similar legislation.  The Commonwealth said that it was supported by the executive power.  The High Court said "no", and so the funding arrangement fails.

This is a narrow victory, because it struck down the way in which chaplaincy is funded, rather than the principle of commonwealth government support for chaplaincy itself.  Off the top of my head, there are two ways in which the Commonwealth can continue to fund school chaplains, it the Parliament and the Government decide that they want to.

Options to continue school chaplaincy

The first option (which would probably be challenged successfully), would be for the Commonwealth Parliament to pass legislation which permitted or required the Government to fund chaplaincy in schools, set out some guidelines/boundaries for what the program might look like.  The legislation would probably just look like the program guidelines which already exist.  If such legislation were passed, and approved by the High Court, then the Government could spend the money.  The problem with this approach is that the Commonwealth Parliament probably doesn't have the power to do this.

The second option would be by funding the program through a series of grants to State governments.  The Commonwealth has power to grant money to States, with or without conditions, under section 96 of the Constitution.  This power is very broad.  The Parliament could grant money for school chaplaincies to the states, which would then fund the program.

So the ball is now back in the Commonwealth Government and Parliament courts.  The Opposition Leader has come out in support of the program.  The Government says it is looking at options, and has some contingencies in place.

With sufficient political will, the program can and will continue, and there shouldn't be much noticeable difference on the ground.

(This post has been composed fairly hastily.  If I find any errors when I get time to look more carefully at it, I will publish transparently as an update to the post.  If you notice any errors, or find that I've misunderstood the decision or its effects, please comment!)


UPDATE 21 June: You can find a response by SU Queensland to the decision here.  SU Tasmania issued this press release along similar lines.

Stoopid

I'm reading Idiot America at the moment, by Charles Pierce.  

Ok, I confess that I got the book because I like poking fun at the good ol' USofA, and I thought that this book might be a good laugh.  It is, but it also cuts uncomfortably close the bone, even here in Australia.

The three Great Premises of Idiot America:

• Any theory is valid if it sells books, soaks up ratings, or otherwise moves units
• Anything can be true if someone says it loudly enough
• Fact is that which enough people believe. Truth is determined by how fervently they believe it

I suspect that Mr Pierce and I wouldn't agree on lots of things in the public policy debates in his country or mine.  I'm pretty certain that we have very different worldviews.  Some of what I believe he would comfortably (and maybe even fondly) label as "crank".  From him, I would probably take it as a compliment (you'll have to read to book to understand why).  


But I think that we would agree on this: the quality of public debate in America (and Australia) is now so poor that it's really no debate.  It's much more like this:

Mr Pierce's book seems to say that what passes for public debate now is little more than a series of unrelated pep-talks to the respective teams.  There is little-to-no engagement with fact, or even much effort to discern what the true facts are.  There is no engagement with the arguments and assumptions held by "the other side".  There is overweening arrogance and self-aggrandizement from those in power and authority (and from anyone who manages to get onto talk TV or talk radio).  There is extraordinary apathy and cynicism from the vast majority of people on most issues.  


Above all, there's the official dogma: Everyone is entitled to their opinion, and all opinions are entitled to equal respect.


Is it naive to hope for a culture in which most people learn to discern truth from falsehood?  In which most people can recognise nonsense, even when it's dressed up as serious opinion?  In which one is confident enough to say so?  In which one is humble enough to be corrected and to change his opinion?


How do we start to create a culture like that?


(I borrowed Idiot America from my local library, LINC Tasmania.  Or you can buy the book from Amazon, Kobo, Collins, Fullers or other bookstores)

Natural

There's another thread of argument that pops up periodically in the contemporary debates about homosexuality: the argument from nature.  In my reading it has taken one of two forms:

1. Human beings are just another form of animal.  In the animal kingdoms, there are instances of homosexual behaviour.  Homosexuality is therefore natural, and not to be shunned in humans.
2. Homosexual people have an attraction to members of their own sex from a very early stage.  They are therefore most likely born with these urges, rather than choosing them freely.  Genetics is the most likely explanation for homosexual urges, and consequently for homosexual behaviour.  Therefore, homosexuality is just as natural as heterosexuality, and is not to be treated differently.

These arguments underpin arguments in favour of equality, and against discrimination, that are so often advanced in the same-sex marriage debate.  For that reason, it is important to challenge such assertions, and the conclusions sought to be drawn from them.

The argument from animal biology

The chickens come home to roost

In past decades, one of the arguments against homosexuality was that it was unnatural - not found elsewhere in the animal kingdom.  Homosexuality must therefore have been a result of human depravity or sin, or else mental illness, because it was not natural.  Of course, when zoologists started to find instances of homosexual behaviour in other animal species, the argument was turned on its head and is now advanced by some as an argument in favour of homosexuality.  If homosexuality is natural (or at least, not uncommon) animal behaviour, and if humans are simply another species of animal, then we should expect to find it amongst humans.  We therefore should not treat homosexual individuals differently from heterosexual individuals.

There are two problems with this conclusion.

The argument is not reversible

The argument from nature cannot simply be reversed, because some instances of homosexual behaviour is found in some animal populations.  In its original form, people argued that homosexuality was a departure from the norms found in nature - such a great departure that no other species practiced it.  That position is clearly unsustainable today, given that homosexual behaviour has been found in some populations of some species.  However, the basic position is unchanged - homosexuality is still a departure from the norm.  This logic applies, whether the norm is taken as the vast majority of species where there is no observed homosexual behaviour, or the majority of populations and individuals which display no homosexual behaviour, even though it is present in their species.  The "old form" of the argument is clearly weaker, because the departure from the norm is more widespread, and therefore less remarkable.  But is is still a departure, and it is still significant, when one considers the vast majority of animal species.

This objection to the argument is the weaker of the two I want to advance, because it is possible that more instances of homosexual behaviour might be found in the animal kingdom.

The stronger objection follows.

Hidden assumptions and value judgments

The argument from the state of the animal kingdom hides assumptions and value judgments.  This may be most clearly seen with a few examples:

• Baboons organise in male-dominated troops of up to 200 baboons.  The males control the females, violently when necessary.  Subordinate males cooperate with dominant males in exchange for occasional access to females and mating rights.  Competition between baboon troops can lead to open warfare between troops.
• Female macaques mate with as many as four different males each season.
• Female Black widow spiders will occasionally eat the male after mating, although this does not occur every time.  There is significant attrition of the offspring, due in part to cannibalism.
• Unrelated Gorillas, living together in a troop, tend to have weak social bonds and will commonly act aggressively toward each other.  Although females often initiate sexual access and intercourse, female gorillas can be forced to mate with multiple males.  Infant gorillas are at risk of being killed by unrelated adult male gorillas.

Of course, no-one holds up this typical animal behaviour as a model for human behaviour.  Such behaviour is simply not appropriate, not right, for our society.  

And there it is - the flaw in the argument from animal biology.  There is some hidden value judgment operating.  Some value judgment that says that this animal behaviour should be acceptable in humans (say, homosexual acts), but not that (say, pack rape).  That value judgment does not come from nature - so where does it come from?

The argument from genetics

This can be simply dealt with.  The argument runs that homosexual people do not choose their urges or orientation.  They do not choose to be attracted to people of the same sex as them.  Yet those urges are there, they are part of the make-up of that person, part of their DNA.  And if that is so, then it must be right to act on those urges and attractions, and wrong for society or another person to discriminate on the basis of such behaviour.  The argument is one of genetic predetermination: you just can't fight genetics.

To my mind, it is an insufficient answer to this argument to say that no "gay gene" has been discovered - the absence of evidence is not evidence of absence.  (Of course, without the discovery of such a gene, the argument that genes determine sexuality is necessarily weaker.)

No, the real answer to the argument is this: just because there is a genetic pre-disposition to certain behaviour, does not mean that the behaviour is right.  Again, some examples will demonstrate the point:

• Some people are born with a short fuse.  They get angry rapidly, and respond violently.  Should they be excused on a claim that they are genetically predisposed to violence, and are just acting within their nature?
• Some people are "naturally" greedy - should they be excused when their greed impacts on the claims of another person?
• Some people are born with a tendency to stray - to look for the next relationship or sexual conquest while in the current relationship.  Are they excused by genetics?
• Some people are inherently less honest than others. Should we create a sliding scale of what is acceptably honest behaviour, with reference to parentage and race, perhaps?
• Some people are born with a tendency to addictive behaviour (alcoholism or drug dependency).  Do we expect them simply to give in to genetics?

Clearly, no-one reasonably expects such genetic claims to justify antisocial or immoral behaviour of this sort.  So why the special case for homosexual tendencies?  Again, it is apparent that there is another scale of values working here, under the camouflage of either of the arguments from nature.  And if that is the case, why resort to any sort of argument from nature? 

No-one seriously holds up the animal kingdom as the standard of right conduct, whatever side of the homosexuality debate, whatever ones sexual orientation.  We should all have the decency and respect for each other to truly say what is at the heart of our case, rather than resorting to zoological or genetic window dressing.

Motivation

(I am writing this post to my Christian brothers and sisters.  Unless you know Jesus, and follow him as saviour and Lord, then much of what I say here will be somewhat meaningless.  If you do follow him, then I think that you're in the same position as me - bound by our relationship with Jesus to follow his way, speak his truth and to obey his commands.
At the same time, I hope that non-Christian readers will understand my motivation in opposing same-sex marriage.  I am not a hate-filled bigot.  I am simply not content to leave one of God's creatures in a snare if anything I say or write can help that.)

The gay marriage debate comes over as fundamentally selfish. I'm not talking primarily about proponents, but about many opponents of gay marriage, often professing Christians.  I don't know if this facebook commenter is a Christian (probably not, given the way he talks about "you" and "your"), but this is the tenor of a lot of the discussion on the topic:

... if you are an orthodox christian with problems about Gay marriage follow your own Dam book and turn the other cheek, it is not going to affect you or your place "in God's Kingdom". Or a decidedly more Australian way to put it "Take a teaspoon of cement and harden the F$%k up!"

In other words: "It's not going to affect you", so shut up about it all.


And often our response is "yes it will affect us, and this is how...".  It is a self-centred response.


But let's leave that to one side for now and assume that an amendment permitting same-sex marriages would not affect anyone except those people entering into a same-sex marriage.  What then?  Would we all hold our peace and get on with our (self-centred) lives?

Why we can't just turn the other cheek

The phrase that the commenter refered to comes from Jesus' teaching about the right response when someone wrongs you in Matthew 5:38-48.  Jesus' refers to the Old Testament rules about punishment and retribution ("an eye for an eye"), which was always a limiting rule - any punishment or retaliation must not exceed the measure of the original wrong.  Jesus then turns it on its head, saying that we should prefer to suffer double wrong than to seek any measure of retribution.  He goes on to command his followers to love their enemies and to pray for those who persecute them.

So immediately we can see two things:

1. Jesus' words about turning the other cheek apply when we are wronged.  I cannot see how it has any application to the content of the marriage debate in Australia. (Although there may be plenty of opportunity to practice this teaching in responding to personal attacks during the debate!)   The debate itself about setting future public policy.  
2. Jesus' words about loving our enemies still have general application.  (At least, I assume they do - I consider those opposed to me in the debate as opponents rather than enemies, but I see no reason that the principle would be any different).  What does it mean to "love my enemies" in the context of the marriage debate?

The common understanding of being loving towards others (at least as that applies in the context of the marriage debate) is of leaving the other in peace to live life by his own lights, or according to his own choices.  It is most usually expressed in secular debate by the word "tolerance".  But tolerance falls very far short of love.  One can only tolerate something or someone of whom one doesn't approve.  You might tolerate someone else's whiny, smelly, grasping and selfish toddler; you don't tolerate your own - you love her.  So you take care to correct the whiny, selfish behaviour.  You stoop to the indignity of changing the dirty nappy and cleaning up your child.  Tolerance, or leaving someone in peace, does not show love - it shows indifference.

So I do not show love to my opponent in the marriage debate by leaving them alone, by tolerating their argument.  How do I show love in this context?  And why?

What is love?

I've already claimed that love is not the same as tolerance.  So what is love?


Biblically, love is most vividly in God's actions, as Father and Son, to restore the rebellious humanity to a relationship with him.  We are told in the bible that God created all things good (Genesis 1 and 2), but that humanity rebelled against its creator, choosing instead to follow its own lights and to try to become like God (Genesis 3 onwards!).  Humans wilfully obscured their knowledge of God.  They deserved to be rejected by God, and left to dwindle and die, cut off from the source of life, goodness and joy.


But God pursued his creation, refusing to see them left in the snare of their conceit and pride.  He chose a specific people group in the middle east (the Israelites, descended from Abraham: Genesis 12), and promised that from these people, a blessing for all the world would come. Notwithstanding that privileged relationship, Israel continued to rebel against God.


Ultimately, God himself came to earth: Jesus Christ.  He lived amongst the people he created, taught amongst them, healed them, drove out demons, and fed them.  Jesus lived a life of perfect obedience and submission to God's word - that life that all humanity should have lived.  


But the people still rejected God, and put Jesus to death in a painful, humiliating fashion reserved only for the worst of criminals.  Jesus willingly accepted this death, as the means of restoring his people to God.  By this self-sacrifice, Jesus made his perfect record of obedience to anyone that would cast their lot in with him.  He took on himself the rejection and death that our rebellion deserved.  It was a place swap, like Charles Darnay and Sydney Carton in Charles Dickens' Tale of Two Cities, only infinitely greater.


And then the seal on the whole arrangement: God raised Jesus from death.  Those who have (and continue to) cast their lot in with him are beyond the clutches of rebellion (sin) and its consequences (death), and enjoy a restored relationship with God.  In fact we are called children of God!  This is a completely free gift - not earned at all by its recipients (us), and in fact entirely beyond our capacity to earn.


So this is love: God's action in laying down his own honour, glory, comfort, and life, for the sake of his creatures who deserve the reverse.

What does this have to do with same-sex marriage?

Sadly there are many who refuse the gift, and prefer instead the lesser status of a petty King in their own life.  Many do so, blinded by things or ideas that continue to promise: this will make you happy, will give you control, will give you security, will give you comfort, will let you regulate your own life by your own lights, will make you like a little god in your own world.

• Some people are caught by wealth, spending their lives pursuing more things, more money, more financial security.
• Some are caught by a desire for novelty - travel, food, leisure activities.  Always pursuing the next thing that will distract from the reality of life.
• Some are caught by addictions - drugs, alcohol etc.
• Some are caught by sex - promiscuity, adultery, homosexual behaviour.

The bible, in multiple passages, warns that these are all snares that can and do trap people, distracting them from God and causing them to reject the free gift of a friendship with God through trusting Jesus.  As such, the snares are deadly - unless a person is freed from such a snare, the result is alienation from God and, ultimately, death.  Or, to use another metaphor, they are all poisonous fruit of the same poisoned tree.  That tree is the rebellion against God that is a deep-seated part of human nature; the fruit are the various "sins" that are spoken of.  Christians have a responsibility to warn people of these dangers - to do otherwise is neglectful and unloving.


So the link with the same-sex marriage debate is this: I believe that all expressions of sexual conduct outside of biblically defined marriage are forms of this trap that leads to death.  Society generally does not accept this, and is permissive of many different sexual arrangements. But in so doing, society contributes to the strength of the trap by rendering it less visible.  That is so, because a person will not seek an escape until she perceives a danger.  In the same-sex marriage context, a societal sanction of homosexual unions by equating them with marriage removes one of the warning signs that shows it to be a snare, drawing a person away from God.  


So one of the roles of the church, of the Christian, is to point out the danger, and to resist the gently lullaby by which society tranquilises those who are ensnared.  Specifically, this means arguing against same-sex marriage, and constantly pointing to the need for Jesus.

Some objections

Non-christian, heterosexual marriages.  

One facebook commenter wrote:

If gay marriage devalues the institution of marriage to Christians as it is a "Christian Tradition" then by the same token so must Hindi, Muslim, Taoist unions must be similarly abhorrent to your god. Marriage is a tradition that predates Christianity (if you believe in Science) and to claim ownership over what is considered by most (these days) as a legally binding union (not an anthropomorphic bound union) seems unfair.

I think this objection misunderstands both the Christian claims about marriage, and the Christian motivation for opposing gay marriage.

1. Christianity claims that marriage was ordained by God at the beginning of humanity's existence as being a union between one man and one woman, until ended by death, to the exclusion of all others.  It was a gift given to all of humanity, not just to the Christian community.  It was a gift given before the Christian church began, and before Jesus walked the earth.  As such, marriages contracted in other societies and religious traditions are still valid marriages, as they adhere to the "creation ordinance".  Gay marriage simply doesn't.  As Christians believe that marriage was created by God, they believe that humanity is not free to redefine it.
2. Some of the Christian discussion about gay marriage is about the risk it poses of devaluing marriage as an institution.  I note that some non-Christian opponents to same-sex marriage make a similar point.  It may well be the case (although I've assume not for the purpose of this blog post only!).  My point is that, whether it does or not, Christians will continue to oppose it - not because it's abhorrent to God and he needs the caped crusaders to come in a fight on his side.  We will oppose it because of the danger it poses to those caught in the trap of the idolisation of sex.  We oppose it, therefore, for the same reason that we oppose all rebellion against God - out of love and concern for the rebels.

The bible might be true for you, but not for me

Throughout this post, I have referred often (albeit generally) to the bible, and it should be clear that I accord it a very high authority.  I am aware that most people do not, and so much of my argument rests on assumptions that will be rejected.  But my purpose is not to convince you of the strength of my argument, but to show that my motivation for opposing same-sex marriage is not hatred, but love.  My purpose is to show that, given my assumptions and the evidence I accept as trustworthy, my claim is supportable by reason.  You might disagree with my actions, my words and my conclusions, but please have the decency and honesty to accept that I act out of love, not hatred or fear.

It is unloving to force your morality on me - Jesus never did that

I agree.  Jesus did not force other people to live moral lives.  Jesus did not exercise political power.  But Jesus never drew back from telling the truth.  Having saved the woman caught in adultery from stoning, he told her to "go, and sin no more".  During his trial, when Jesus was struck by one of the guards, he did not retaliate (ie, he turned the other cheek), but he also challenged the man: 

"If I said something wrong, testify as to what is wrong.  But if I spoke the truth, why did you strike me?"

So in arguing for the traditional description of marriage, I am following Jesus' example in telling the truth, even where that is unpopular.


Am I forcing morality on someone?  No.  I see a danger.  I warn of consequences.  I do what I can to keep the cultural undergrowth from obscuring the snare.  The freedom of others to choose their actions is intact.


And if the laws change?  Well, as I argued here, the nature of our democracy is such that all citizens have a right and obligation to argue their viewpoints, and that our institutions are strongest when that occurs.  Participation in those democratic processes is not force.

Conclusion (finally)

This has been a long post.  I suspect that it will have persuaded no-one to change their opinion on same-sex marriage.  But I do hope that those of us who follow Jesus can see the importance of standing up for our beliefs - not for our own benefit, or to defend God's honour or our social way of life, but out of love and concern for those who are perishing.

And I hope that those who disagree with me might nonetheless be able to see that, from within my own worldview, I am acting out of love, not hate.