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Wednesday, 1 March 2017

Why do we have an ambassador to the Vatican?

The Government should explain why it maintains a diplomatic relationship with the Vatican and the associated expense on the taxpayer of a permanent ambassador, particularly when it is telling us how we need to cut back on expenses.

 The Vatican claims to be a sovereign state. This is open to debate. It was established by an agreement (the so-called Lateran Treaty) between Mussolini and the Pope in 1929, to further the interests of both parties. Mussolini wanted the support of the Catholic Church, the Pope  wanted to establish a means to encroach on nations around the world. See, for background to the Treaty

Let's look at the Lateran Treaty. Firstly, is it legally a treaty? Treaties are agreements between two or more nations. This was an agreement between a government and an internal organization. It initially did not have any international bearing whatsoever. The idea of the Vatican as a sovereign state in international law is, by all accounts, a fiction. Only dealings by various nations with the Vatican have kept the fiction alive, for whatever reason (and it can't be for international trade, military alliance or citizenship matters as these are non-existent features of the Vatican). Geoffrey Robertson examined the legality of Vatican statehood in much depth in The Case of the Pope, Penguin, 2010, p. 76.
The Treaty limits the Vatican to religious activities only. Article 24 says:
In regard to the sovereignty appertaining to it also in international matters, the Holy See declares that it desires to take, and shall take, no part in any temporal rivalries between other States, nor in any international congresses called to settle such matters, save and except in the event of such parties making a mutual appeal to the pacific mission of the Holy See, the latter reserving in any event the right of exercising its moral and spiritual power.
The Vatican is in breach of the Treaty in interfering in temporal matters of national politics, both in Italy and elsewhere, which it often does. The Pope and his cohorts frequently seek to influence by pressure the policies and practices of other countries. The Vatican enters into agreement concordats with governments resulting in Catholic church predominance over local law and the enjoyment of grants and other temporal favours. The Vatican sits on UN bodies (although it is not a full member of the UN), seeking to influence UN policies and projects. The Pope involves himself very much with temporal matters.
This ties in with the very purpose of the Vatican as set out in the preamble of the Treaty: the furtherance of the Vatican's 'mission', which is to spread the church's religious influence around the globe. Geoffrey Robertson points out that furtherance of a vested interest has been established as a reason for refusing recognition of other bodies as states in international law (The Case of the Pope, p. 76).
The simple fact is that the Vatican is not a State in the normally recognised meaning of that term. The Vatican has no permanent citizens, no trade relationship with other countries, no army. There is no civil consultative government structure, as government revolves around the Pope and is based on religious dogma, not civil political principles. The diplomatic relationship will presumably not revolve around such civil matters as mutual trade or defense interests: it will be influenced largely by the church's 'mission'  its interest in morality. According to Robertson, most dealings with the Vatican are carried out at the Italian embassy, just down the road from the Vatican.
Indeed, the Vatican is not a civil state, it is the headquarters of a religious body. Formal relationship with the Vatican is a formal relationship with a religious institution. Its purpose is, says the Lateran Treaty Preamble, to ensure its ‘absolute independence for the fulfillment of its exalted mission in the world’. As Roberson says, ‘Would the world recognise Mecca as a state if Saudi Arabia negotiated a Lateran-style treaty with its religious leader in order to further an extreme Wahabi “mission to the world”?’ (The Case of the Pope, p. 76).
In appointing the first fulltime ambassador to the Vatican, then PM Kevin Rudd said the aim was to ‘enable Australia and the Holy See to be able to work together on the great challenges we face in the world’ (Sydney Morning Herald (Sydney), 22/7/2008, News 3).
The Vatican rejects many basic human rights and democracy within its walls through the theocratic and absolutist power of the Pope. Like many religions, Catholic teachings oppose establishing a Bill of Rights, and questions personal autonomy, women's rights, gender rights and childrens' rights in carrying out its 'exalted mission'. It stands accused of being less than conscientious in dealing with a horrendous amount of child abuse. It erodes freedom of Belief itself through its deals with governments (such as concordats) seeking to influence their policies and legislation throughout the world.
Since when did the Australian people vote to share government with the Holy See? This undermines the separation of church and state, which is the hallmark of a secular society, which we are supposed to enjoy in Australia.
Besides, even if this theocratic tendency could be justified, an embassy in Rome is an awful waste of money. The Australian Embassy to Italy is just down the road. We do not need to bankroll the expense of accommodating and otherwise funding a fulltime government representative, and associated resources, to a religious organisation. Apart from the fact that it involves discrimination (what about other religions?) it seems to involve little for a fulltime, live-in appointee to do. The position was not considered to require a fulltime appointment before. Why, when the number of believers is steadily decreasing do we need one now?
Finally, does the appointment require a religious test? One cannot imagine a Muslim or (god forbid) an atheist being appointed. If so, the Australian Government may be in breach of s. 116 of our Constitution, which proscribes the application of a religious test for public office. Perhaps a legal challenge is warranted.
Therefore one must ask, is it appropriate for Australia to continue diplomatic relations with, and appoint an ambassador to, the Vatican, with the associated taxpayer expense and government alliance with that religious organisation? Ireland has ceased its diplomatic relationship with the Vatican,
We need to tell our government that we object to being required to funding this entanglement of state and religion.

Monday, 27 February 2017

‘Conscience Votes’ Jeopardise our Human Rights

Meg Wallace

In February 2015, the Supreme Court of Canada made a historic ruling on voluntary euthanasia.[1] 

It held that access to voluntary euthanasia is a basic human right. The Court declared that Canadian legislation prohibiting assisted suicide is invalid, as it is a violation of the right to life, liberty and security of the person, under the Canadian Charter of Rights and Freedoms. The Canadian Charter reproduces the human rights set out in the Universal Declaration of Human Rights (‘UDHR’). Australia is a signatory to the UDHR.

The Court pointed out that everyone has the right to make decisions concerning their bodily integrity and medical care. This principle allows a person with a grievous and irremediable medical condition to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment (they can also legally refuse nutrition and fluids). The Court held that prohibition of voluntary euthanasia interferes with this right to one’s bodily integrity and medical care, and thus ‘trenches on liberty’[2] It held that forcing people to endure intolerable suffering deprives them of their security of person according to the principles of justice, which are founded on a belief in the dignity and worth of every human person.[3] The alternatives, taking one’s own life prematurely when able to (often violently or dangerously), or suffering until death, are ‘cruel’.[4] The right to life, the Court said, is no longer seen to require that all human life be preserved at all costs.[5]

The existing law is inconsistent.

The Court pointed out that as the right to liberty and security of the person allows mentally competent individuals to refuse medical treatment, even where it is life-saving or life-preserving, prohibition of assisted dying constitutes ‘overbreadth’ of the law. This is because (1) it denies some individuals the right to liberty and security of the person, including autonomy in medical decision-making; (2) this denial is otherwise contrary to the general objective of the Canadian Charter, which is to ensure universal enjoyment of that right; and (3) this denial has no relation to the Charter’s objective, which is to establish that right for everyone. Outright prohibition of voluntary euthanasia, the Court found, is concerned instead with protection of specific societal interests, not the rights of the individual.

Societal interests are cited in advocating the prohibition of assisted dying – such as religiously-inspired opposition, the need to protect the vulnerable from exploitation, mistake or duress, or the reluctance of some physicians to be involved. These are consequential issues, that should be considered in determining how the right is to be implemented (that is, safeguards to prevent abuse of the vulnerable) but should play no part in influencing governments to deny the right itself, which is intended to be universal.

Societal interests are properly the consideration of safeguards
The Court accepted there are legitimate concerns to protect the vulnerable. It examined arguments of over 40 submissions from groups that both supported and opposed the prohibition of assisted dying. It also considered the administration of legislation in countries that permit it. As of October 2015, euthanasia is legal only in the Netherlands, Belgium, Colombia and Luxembourg. Medically assisted suicide is legal in Switzerland, Germany, Japan, Albania and in the US states of Washington, Oregon, Vermont, New Mexico, Montana and California).[6] The Court found that none of the jurisdictions that have permitted assisted dying showed that physicians are unable to reliably assess competence, voluntariness, and non-ambivalence in patients, ensure informed consent, and prevent abuse. Indeed, the Court also found that comprehensive consideration of options, outcomes and safeguards involved where assistance in dying is available has meant that palliative care of the terminally ill actually improved in those jurisdictions.

Implications for ‘conscience votes’ against assisted dying
This judgment has important implications for legislators. It indicates that they have no business denying people their right to liberty and security. There is no room for a ‘conscience vote’ based on a politician’s personal religious or other life-stance to deny people their rights. The right to life ‘is no longer seen to require that all human life be preserved at all costs’.
This approach clarifies the appropriate nature of a ‘conscience vote’, at least in relation to voluntary euthanasia. Conscience votes are used as a cop-out when political parties are too timid to take a stand in fear of losing votes: they are sensitive to personal and religious interests. Legislators are there to act in the public interest, including protection of human rights. They should not deny rights established by the UDHR. They can develop, with their fellow party members, appropriate safeguards for preventing abuse, but rights must stand.
The reasoning of the Canadian Court is not irrelevant to the Australian justice system. The right to life, liberty and security of the person is established by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which have both been ratified by Australia. Based on the reasoning of the Canadian Supreme Court, one can argue that there is similarly a safeguarded right to assisted dying in Australia.

What does the UN say on human rights and euthanasia?
The UN Human Rights Committee has suggested that laws allowing for voluntary euthanasia with appropriate safeguards, are not incompatible with States’ obligation to protect the right to life, which does not go so far as to require that life and health be advanced against the express wishes of those affected. It also considered voluntary euthanasia with appropriate safeguards was not inconsistent with the right to privacy, freedom of religion and belief, and freedom from cruel inhuman and degrading treatment.[7]

[1]            Carter v. Canada (Attorney General), 2015 SCC 5
[2]            Ibid, [66].
[3]            Ibid, [81].
[4]            Ibid, [81].
[5]            Ibid, [63].
[7]               Australian Human Rights Commission, May 2016 Ethanasia, Human Rights and the Law, Issues Paper, 26.

Friday, 4 November 2016

Pat-a-Cake: should bakers bake me a ‘gay’ cake?

 Northern Ireland Court holds that baker's refusal to provide cake with same-sex decoration is discrimination. Here are the reasons why the judgment is right.
There has been an outcry from Christian groups at a Northern Ireland Appeal Court  ruling against the owners of a bakery who refused to decorate a cake with the message ‘Support Gay Marriage’. Once again, they claim, we are discriminated against and persecuted by being forced to act against our conscience. In the name of freedom of belief, they demand that the law be changed to allow them to practice their beliefs as they will.oppose the introduction of same-sex marriage (which not yet been legalised in Northern Ireland) as they believe that it is contrary to God’s law.
Had the Ashers ‘gay cake’ ruling gone the other way it would have seriously undermined equality lawThe Case
The McArthur family, owners of Asher Baking, a Northern Ireland business, refused to provide a cake for a LGBTI gathering with this image.
They claimed the requirement to provide the cake was forcing them to endorse same-sex marriage, breaching their right to freedom of conscience, and their act was not thus unlawful discrimination.
The trial judge rejected the McArthur’s claim, and this finding was endorsed by the Court of Appeal, thus refuting their allegation of persecution.
Was the message an ‘endorsement’ of same-sex marriage?

No, the judges declared. This was, it recognised, a message based on both religious and political conviction, but by providing the cake, the McArthurs themselves would not be ‘promoting and supporting a change in the law of Northern Ireland so as to enable same sex marriage’. They pointed out, for example, that people don’t believe that by a cake decoration for a customer the baker is intending to promote a football team or witches on Halloween. In fact, the Court said, ‘they would be doing no more than obeying the law and providing the Plaintiff with a service’. Indeed, by refusing to provide the cake, the McArthurs were discriminating in the provision of a service they were to provide equally to all potential customers.

Was refusal to provide the cake unlawful discrimination?
Yes, the judges said. As the court at first instance ruled that Ashers are not a religious organization; they are a bakery conducting a business for profit notwithstanding the owners’ religious beliefs, and ‘the Legislature, after consultation and consideration, has determined what the law should be’. It went on to explain the legal test of discrimination. Joshua Rozenburg, BBC legal commentator states it as follows:
...the correct comparison was not with a straight man who wanted a 'gay' cake, which Ashers would have refused. It was with a gay or straight person who ordered a cake celebrating traditional marriage - which the company would have supplied. (see here).
Similarly, a gay baker would be required by law to supply a cake with the words ‘support heterosexual marriage’. The law applies equally to and for all.
The judge determined that ‘the relevant anti-discrimination provisions were necessary in a democratic society and were a proportionate means of achieving the legitimate aim of protecting the rights and freedoms of the respondent. To do otherwise would be to 

…allow religious belief to dictate what the law is. The first and second appellants were entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them, but this must be done in accordance with the law and that included not manifesting them in the commercial sphere if the manner of doing so was contrary to the rights of others.

The McArthurs are not deprived of their right to manifest their religion in their private life, nor of their right to free speech. But when it comes to their treatment of fellow human beings, they should respect the right of all individuals to equal recognition before the law. If you provide forum for the public to express views and beliefs, you should not discriminate in the messages you carry on the grounds of (legal) religious or other personal life-stance. 

Bakers are perfectly at liberty to refuse to fulfil an order for the cake with the pro-same sex marriage message, if they are to be non-discriminatory, they should also refuse one with a pro-opposite-sex marriage too. They should either make cakes with any religious, political, or other discriminatory message, or refrain from any such message at all. 

Otherwise, as has happened in the US as a result of the Burwell v. Hobby Lobby - Supreme Court case, religious organisations would be free to discriminate according to the (mainly religious) beliefs of their proprietors. That decision effectively extends what is a matter of personal conscience to constituting the policy of corporate enterprise, thus severely negating  the individual human  rights of individuals.

Are the McArthurs being ‘forced’ to act contrary to their beliefs? 

Well, no. They have options: (a) treat all those seeking wedding cakes with religious or political messages equally, (b) refuse to provide wedding cakes bearing any religious or political messages, or (c) cease making wedding cakes altogether. As a result of the Court decision, Ashers are now concentrating on birthday cakes, avoiding religious and political messages altogether.

The ruling is consistent with human rights and the public interest in the equal treatment of all.
This ruling, it is argued, accords with the UN interpretation of the right to have and manifest religious belief according to Article 18 of the Universal Declaration of Human Rights (‘UDHR’), to which all nations of the world subscribe. Article 18, based on the UDHR principle of liberal democracy, states that everyone has the right to have and ‘manifest’ a ‘religion or belief’. This statement is cited by those who would subject others’ rights to their personal conscience. But they ignore the critical exception to Article 18. That says that in the exercise of their rights, ‘everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’. A similar exception is contained in Article 18 of the International Covenant on Civil and Political Rights (‘ICCPR’), to which 175 nations also subscribe, requiring them to apply it to domestic law.
Anti-discrimination law is there to preserve the democratically accepted public interest in mutual recognition of everyone’s rights. As the National Secular Society points out, the ruling doesn’t mean Christians don't have rights. ‘It simply means their rights are not superior’ (see here).

Wednesday, 5 October 2016

Same-Sex Marriage was an early Christian Rite

Meg Wallace

Documented in Byzantine manuscripts from the ninth to the fifteenth centuries, prayers established participants as "'spiritual brothers' (pneumatikous adelphous) and contained references to sainted pairs, including most notably SS Sergius and Bacchus, who were famous for their friendship." (See note[4])

Conservative Christians may be surprised to learn of evidence that rituals for sanctification of same-sex unions predated those for heterosexual marriage, unsettling claims that the latter has always been the cornerstone of society, especially Christian society. Major research shows that marriage and "other solemnised relationships" have not always been between a man and a woman. In ancient times in many cultures marriages between two or more people created strategic alliances in and between families, for purposes such as strengthening bonds, expanding the labour force or joint enterprises. Historian John Boswell notes:
No marriages in ancient societies closely match their modem equivalents. Most were vastly more informal; some were more rigid.... No precise criteria could be specified as constituting a "legal" marriage... two people who lived together permanently and whose union was recognized by the community were "married”.[1]
He adds that love was not its essential feature, nor was sexual activity, or procreation. Polygamy was also common, even among  nobility of Christian Europe.
In the late Roman Empire, ‘marriage' came to be understood as the union of two people based on mutual affection (‘companionate’ or ‘brother-making’) between two or maybe more males or, occasionally, females.
These ceremonies appear from archives to have occurred in the Catholic Church up to the 14th century and in the Eastern Orthodox Church up to the 18th century.
Such companionate unions became prevalent coincidentally with the rise of Christianity, and may not have been considered to relate to sexual intimacy. Philosopher-historian Michel Foucault suggested that as the institutionalization of companionate marriage, with sexual partnership becoming intertwined with procreation, gave rise to official condemnation of same-sex relations within the church and government.[2]
Nevertheless, while being formally critical of same-sex intimacy, paradoxically the Catholic Church tolerated homosexual unions, ‘especially’, says William Eskridge, Professor of Jurisprudence at Yale Law School, ‘those within its own clergy’:
Homoerotic feelings repeatedly arose between teachers and students, clerics and their fellows, and priests and acolytes, yearnings which are documented in a proliferation of love letters, poems, and stories originating from the early and high Middle Ages.’ Clerics were at the forefront of this revival of the gay culture. St. Aelred, for instance, writes of his youth as a time when he thought of nothing but loving and being loved by men.[3]

Many documents appended to Boswell’s work[5] describe ‘companionate’ ceremonies similar to those for heterosexual marriage (indeed the indications are that they predated, and were amended for, heterosexual marriage). The community would gather in a church, and the companionate union would be blessed. This union was often made for male missionaries before their departure. 
Eskridge describes the ‘brother-making’ ritual, extant in these archives: The ceremony started off with prayers and litanies celebrating earlier examples of same-sex couples or friends in the early Church. The couple are then girded with a single belt, signifying their union as one. They place a hand on the Gospel as they receive lit candles. The priest then reads from one of Paul's epistles (1st Corinthians) and the Gospel (John), After more prayers, litanies, the Lord's Prayer, and administering Holy Communion, the priest leads the couple around the lectern, each of them holding the hand of the other, while those assembled sing a hymn. Finally, the couple exchange a kiss, and the service concludes with the singing of Psalm 133:1 ("Behold how good and sweet it is for brothers to live as one.").
This early brotherhood liturgy was similar to what then became the ceremony for heterosexual marriage. There was a difference, however. The ritual for heterosexual marriage emphasised its procreative purpose, while the brotherhood liturgy focused on the companionate nature of the relationship. In an apparently important sense, though, the language of the brotherhood marriage is ambiguous. While the priest presiding prayed that God grant the couple ‘a love mutual and without offense’ or ‘scandal’, he goes on to note the fact that ‘God willed to bind as brothers not only by nature but by bonds of the spirit Your most celebrated Apostles Peter, the Chief of them all, and Andrew; James and John the Sons of Zebedee; Philip and Bartholomew. You made as very brothers Your Holy Martyrs Sergius and Bacchus, Cosmas and Damien, Cyrus and John.’ According to their hagiography, Sergius and Bacchus, who are saints, are considered by some as being lovers.
Eskridge cautions that while ‘Christianity was indifferent, if not accepting, of gay people and their feelings for a longer period of time than it had been hostile to them’.[6] We do not know just what was considered acceptable –and to whom in these same-sex marriages: they could be recognised as excluding sexual relations. They may have been little more than send-offs for missionaries. In light of the early Church's ascetic approach to sexuality, he doubts that these ceremonies contemplated sexual unions. But he does conclude that
Roman Catholic and Greek Orthodox Churches performed same-sex enfraternization rituals for centuries, glorified the same-sex intimacy of Sergius and Bacchus, and openly published same-sex union liturgies in their official collections.[7]
Professor Boswell’s research shows that these ceremonies represented, at least, public acceptance of same-sex ‘unions’ by the early Church. Whatever the private religious beliefs and practices of those involved, the unions were a public religious recognition of living together, for social (and potentially legal) purposes.

[1]               Christianity, Social Tolerance, and Homosexuality 26 (1980):
[2]           Michel Foucault, The History of Sexuality 72-80 (Robert Hurley trans., PantheonBooks 1986) (1984).
[3]               William N. Eskridge Jr A History of Same Sex Marriage, 79 Va. L. Rev. 1419 1993
[5]           John Boswell (1994) Same-Sex Unions in Premodern Europe Villard
[6]           John Boswell: The Church and the Homosexual: An Historical Perspective, Excerpts from the keynote address made by Prof. Boswell to the Fourth Biennial Dignity International Convention in 1979.1979
[7]               Ibid 1497