contra the Catholic Church

gravely delinquent

I know nobody reads this blog, but I would urge all conscientious Catholics to seriously consider the institution they belong to. It would not exist, of course, without its millions of worshippers and supporters.
There has been a stream of 'revelations' in recent times, many of which have come as no surprise to those who are students of history and who are aware of the corruptions of power. Still, let's struggle against the fatigue which wave upon wave of sickening tales of Church cover-ups and outrageous Church pronouncements are likely to cause, and be clear and courageous about this impossible organisation.
To me, the only good thing about the recently revealed behaviour of the Irish Catholic Church in colluding with the state and the police to obstruct justice is that it just might hasten the demise of a too-long lingering institution.
The latest comes from the police ombudsman for Northern Ireland. A priest, James Chesney, known by just about everyone to have been a high-ranking figure in the IRA, became the central figure in a cover-up in 1972. In the summer of that year, the village of Claudy, in Londonderry, was struck by three car bombs which killed nine people. The resulting investigation was woefully, and apparently deliberately inadequate, as you can read here. Chesney was moved over the border into southern Ireland where he died in 1980, aged 46. The case was opened up again in 2002, leading to a report, just released, by the ombudsman. This report has been criticized on the basis that Derry was a 'war zone' at the time, with some 500 deaths in that year, the height of the 'troubles'. While this no doubt made the police's job very difficult, it doesn't excuse the fact that a crime was poorly investigated, and that there seems to have been interference from political and religious authorities. Nobody was ever charged over the Claudy bombing, in spite of many claims that Chesney had his hand in much of the IRA killing at that time. Given what we know about how the Catholic Church has tended to deal with pedophiles in its employ, and how reluctant authorities have been to deal with this powerful institution in the way they haven't hesitated to deal with other clubs or societies, these latest 'revelations' are hardly revelations - they're just more examples of the corrupting power of power.
All this reminds me of something I never got round to writing about a little while back, when this same institution came out with some sort of edict about the ordination of women...
In June, new disciplinary rules were issued, declaring the ordination of women as 'a crime against the faith'. Crime? The Catholic Church still derogates to itself the right to define what is or is not a crime? Well, apparently only in Canon Law - which, one hopes, has about as much legitimacy as shar'ia law in this country.
So what status does Canon Law, or I should say canon law, have here? Or anywhere else? We'll return to that later. 
The Australian online reported it thusly on July 16:

The ordination of women is now on the same level as child abuse in the eyes of the Church.

A sweeping revision to the laws on sexual abuse of children by priests includes the "attempted ordination of a woman" to the priesthood as a "grave delict" subject that can lead to immediate excommunication at the hands of the Congregation for the Doctrine of the Faith, the disciplinary body once headed by the present Pope.

The newspaper doesn't mention what the status of these laws are, or what this organisation thinks it is doing in referring to what are presumably internal processes as laws. It can have rules, like a tennis club, but not laws. If you infringe the rules, you get kicked out of the club, fair enough, but those rules can't trump the laws of the land. The rules can't contravene anti-discrimination legislation, for example. And what is a delict? From Wikipedia:

In the most narrowly construed sense, delict is a Latin word and a legal term, which, in some civil law systems, signifies a wilful wrong, similar to the common law concept of tort though differing in many substantive ways

So, delict is not a term exclusive to the RCC, and I would question that institution's right to borrow this term from civil law systems, which are presumably backed up by proper state legislation. The remarks of the RCC's disciplinary body can only refer to a 'grave breach of its own rules or policy', not to any crime, for the RCC doesn't have the power [any more] to determine criminality of any kind. Much has been made of this elevation of the 'attempted ordination of women' to the status of a 'grave delict', which puts it on the same level as child abuse. Obviously some clever RCC watcher has noted the equivalence and put it about, and others have run with it. Not even the RCC would be arrogant enough to highlight such an equivalence, and its response is that 'grave delict' is a catch-all term which doesn't mean that all grave delicts are equivalent. perish the thought.
So what about the true legal status of canon law? A brief examination of the Wikipedia article on canon law makes it clear enough that it only governs the internal affairs of the RCC and affiliated bodies, such as the Anglican Communion. Maybe it has some state legal status within the Vatican, but nowhere else. Thus the term 'crime' or 'delict' [grave or otherwise] should only be understood in this highly circumscribed sense. The RCC should make this clear, but of course it won't, because it still believes it's the light of the world, and that it's 'law' is the only law that really matters.

further remarks on gay marriage

protesters in Tasmania this weekend

Further to what I've written, there were other responses that our government, or rather the Labor opposition of that time - for I have no great faith in the illiberal coalition - could have made to the challenge of 'the gay revolution' I've written about. They chose to support a discriminatory piece of legislation in 2004. What has been the response elsewhere?
The Marriage Amendment Act came hard on the heels of, and was 'inspired' by, the United Kingdom's Civil Partnerships Act. This Act presented gays with a kind of 'half-way house' arrangement, it provided gays with a solemnized, contractual arrangement that was identical to marriage in terms of rights and responsibilities - yet it was not allowed to be called 'marriage'. Presumably, it was only allowed to be called 'marriage in inverted commas'. This system of gay 'marriage in inverted commas' was presumably intended to please, or fool, one constituency, while soothing the ruffled feathers of another [ie conservative, religious, homophobic heterosexuals]. It's unlikely to succeed either way.
The Australian Liberal government's response was not to follow suit, but to make explicit that marriage [with or without inverted commas] was not to be granted to homosexuals. The Marriage Amendment Act is entirely exclusionary.
Two things about the Civil Partnerships Act. First, note the word 'civil', that's to say, secular. It's as if the government is pointing out that gays aren't allowed to be religiously married, they can only be 'civilly' married [in inverted commas]. Considering that there's supposed to be a separation between Church and State, you'd have to wonder at the State panderng to religious institutions in this way. It certainly seems to imply that 'real' marriage is religious. This is all very murky.
Second, the Brits weren't the first to try to resolve this issue with the idea of 'civil partnerships'. Many states have brought in legislation, using titles such as 'civil union', 'registered partnership', 'domestic partnership' and the like, beginning with Denmark back in 1989. Other states have bitten the bullet and gone all the way with same sex marriage. Considering that, in those states that have taken the 'civil partnership' route, apparently ungrateful homosexuals have insisted on mounting legal challenges and demanding their right to marry without inverted commas, this half-way house approach looks unlikely to be viable in the long term.

So the gay marriage issue is a long way from being finished with, in Australia and elsewhere. Look forward to further pressure in this area, especially if Labor wins the election. Bob Brown has already urged a conscience vote on the issue - as a response to nationwide protests over the mean-spirited amendment to the Marriage Act six years ago.

some reflections on the gay marriage issue

I've been ignoring the election, largely - not that my mind hasn't been on it. Far from it. Though it's a comparatively minor issue as things go, I was interested in Julia Gillard's response, on Q and A, to a question by an extremely nervous young women on gay marriage. Under Rudd, of course, the government undertook a sweep-out of legislation which discriminated against same sex couples. All to the good, but it had the unfortunate effect of highlighting what they didn't reform. On Q and A Gillard re-emphasised Labor's attitude towards same-sex marriage:

'the position of the Labor Party, which we worked out at our national conference, is we believe that the Marriage Act should stay in the same way that it is now, so marriage would be defined as marriage between a man and a woman..'

At the time of these changes, I felt that Labor's holding out on gay marriage was driven at the top, by the religious Rudd. However, the Labor party endorsed the Marriage Amendment Act in 2004, before Rudd was leader. Gillard, an atheist, has since endorsed the Rudd government's position, on Q and A and elsewhere. tonight. Yet, as before, nothing resembling an argument has been presented. The line has simply been 'we see no need to change it'. The argument is implicit, and it is an argument from tradition. Marriage has traditionally always been between a man and a woman. The Marriage Amendment Act was intended to enshrine that tradition in law. 

It's interesting that this issue has come up again, in the light of the recent ruling that California's Proposition 8, banning same-sex marriage, was unconstitutional. Of course the legal issues in the USA are very different from what they are here, but the ethical issues are much the same, and some are discussed at talking philosophy, most notably the tyranny of the majority.
However, having done my little bit of research, I note that the Marriage Act first became law only in 1961, and, apparently, it didn't stipulate that marriage had to be between a man and a woman. This was only made specific by the amendment of 2004: Here is the 2004 Marriage Amendment Act in full:

1 Subsection 5(1)

Insert:

marriage means the union of a man and a woman to the exclusion

of all others, voluntarily entered into for life.

2 At the end of section 88B

Add:

(4) To avoid doubt, in this Part (including section 88E) marriage has

the meaning given by subsection 5(1).

3 After section 88E

Insert:

88EA Certain unions are not marriages

A union solemnised in a foreign country between:

(a) a man and another man; or

(b) a woman and another woman;

must not be recognised as a marriage in Australia.

That's it: very short, if not too sweet. The amendment, introduced by then Attorney-General Philip Ruddock, received bipartisan support in the Federal parliament, though there was very vocal dissent from Andrew Bartlett of the Democrats and Bob Brown of the Greens.
It's a kind of weird testament to the growth of the pro gay marriage lobby that this amendment was introduced  – for the specific purpose of excluding marriage between same sex couples. Bob Brown described the amendment as 'hateful', and it's very clear that it has no purpose other than to discriminate against same sex couples.

The argument used by the Liberals who introduced this amendment was that the institution of marriage 'needed to be protected' - they didn't add 'against homosexuality and homosexuals' but that was clearly what they meant. I cannot myself see how the acceptance of same-sex marriage endangers marriage as an institution. It is hardly a self-evident claim. It needs to be backed up. The opposition Labor party, in supporting the government, avoided making a statement of principal, merely claiming that the amendment brought the Act into correspondence with the common law definition of marriage. This simply shifts the philosophical issue over to the common law definition.

So first let me look at the legal issues from an Australian context, then I'll look at a general historical context, and then I'll return to the philosophical or ethical issues. 

First, the Australian Constitution, Section 55 [xxi] gives the Commonwealth government the power to make laws in respect of marriage [however defined]. Section 109 of the Constitution gives Federal law priority over State law, in cases where there is a contradiction. That's to say, the Federal law invalidates State law. The Marriage Act 1961, and the Marriage Amendment Act 2004, are therefore nationally binding.   

Of course, where same sex couples are concerned, the legal definition of marriage is absolutely crucial, so it's worth noting that the High Court, according to this research note from the Parliamentary Library, 'has not given any detailed consideration on the meaning of the term marriage'. What we have is a lot of individual High Court opinions on various case over the years. For example, back in 1908, J Higgins gave this view: 

Under the power to make laws with respect to 'marriage' I should say that the Parliament could prescribe what unions are to be regarded as marriages.

This leaves it completely open to the Parliament to the decide upon the very meaning of marriage. On the other hand, in 1962, J McTiernan took this view:

The term marriage bears its own limitations and Parliament cannot enlarge its meaning. In the context-the Constitution-the term 'marriage' should receive its full grammatical and ordinary sense: plainly in this contest it means only monogamous marriage. 

McTiernan here doesn't expand on these 'limitations' and plainly relies on a 'common-sense' definition of marriage - i.e. monogamous and, presumably, heterosexual. However, in the same case, J Windeyer dissented: 

It has been suggested that the Constitution speaks of marriage only in the form recognised by English Law in 1900 ... and that therefore the legislative power does not extend to marriages that differ essentially from the monogamous marriage of Christianity. That seems to me an unwarranted limitation. Marriage can have a wider meaning for law.

In 1984, J Brennan took much the same line as McTiernan: 

The scope of the marriage power conferred by sec. 51 (xxi) of the Constitution is to be determined by reference to what falls within the conception of marriage in the Constitution, not by reference to what the Parliament deems to be, or to be within, that conception.

 Unfortunately, this resort to the Constitution is unhelpful, as the Constitution comes nowhere near defining 'marriage' with any exactitude. In later opinions, Brennan took a different tack, as for example, here:

The nature and incidents of the legal institution which the Constitution recognises as 'marriage' ... are ascertained not by reference to laws enacted in purported pursuance of the power but by reference to the customs of our society, especially when they are reflected in the common law...

The emphasis is mine, and I will have more to say about customs later. In 1999, in an opinion that related specifically to same-sex marriage, J McHugh had this to say:

... in 1901 'marriage' was seen as meaning a voluntary union of life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably 'marriage' now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.

This little tour of High Court opinion is, I think, sufficient to show that there is no obvious legal barrier to Parliament legislating for same-sex marriage. Common law changes with custom, and custom changes all the time. 

Which brings me to a brief historical consideration of the custom of marriage, and of attitudes to homosexuality. 

Not surprisingly, some of the most vocal opposition to same-sex marriage comes from traditional established religion [the Catholic Church] and, in the Christian context, those denominations that, though sometimes modern in formation, are essentially reactionary in outlook. These groups tend to go on about the 'sacrament' of marriage, the 'union of couples with God' and so forth, and they're usually connected with a strong homophobic tendency. However, the idea of marriage as an essentially religious institution doesn't stand up to scrutiny. Taking only a Christian perspective, marriage - contractual and solemnized and ritualized - has predated Christianity by thousands of years. It formed the bedrock of the so-called pagan society that Christianity was born into, and of course it has been and still is fundamental to societies uninfluenced by Christianity. In Japan, a marriage ceremony conducted by religious authorities alone, no matter which religion, is not even considered legal. 

Marriage is a universal custom, but the arrangement varies in detail from culture to culture. However, it is true to say that it has always, until recently, been between a man and a woman [or between a man and a girl, or a boy and a girl, and more rarely between a woman and a boy, but that certainly has happened, legally - to say nothing of polygamous and polyandrous marriages]. So why not accept that it should always be between a male and a female? After all, the reason for marriage's universality is surely that it provides a relatively stable environment for the raising of children. Gays don't breed, so what use do they have for marriage?

Such an argument could be used to prevent marriage between people who are beyond child-bearing age, or between sterile couples, or between couples who, as in the early days of Christian asceticism, preferred to remain celibate within marriage. In short, there are many weird and wonderful reasons why people choose to marry, and few would think it conscionable to prevent people from marrying if they had no plans to produce offspring. It follows that gay couples, too, would have a variety of reasons for wanting to solemnise their relationship [including, quite possibly, the raising of children]. 

Of course, the reason why marriage has always, until recently, been between males and females is not hard to seek. Homosexuality, in the past, has been 'beyond the pale', more or less universally. So beyond the pale, in fact, that, until a few generations ago, the idea of homosexual marriage was practically inconceivable. This, of course, explains why marriage has never had to be spelt out as between a male and a female. It is absolutely vital to recognise how completely attitudes towards homosexuality have changed in the west, despite the rearguard actions of reactionaries. It would be no exaggeration to claim the change as revolutionary, and historically unprecedented. Let me give a graphic illustration. Only a little over a hundred years ago, the famous writer Oscar Wilde was found guilty of 'gross indecency' and sentenced to two years' gaol with hard labour, a punishment that destroyed his health, and finally his life. 'Gross indecency', it should be noted, was a lesser crime than 'sodomy', which consisted of consensual sex with other males, something that occurs today in bedrooms throughout the country on a regular basis, and with complete legal sanction. It's worth remembering that, at the time, the presiding judge apologized for the leniency of the sentence, which he described as 'totally inadequate for a case such as this', though it was the maximum sentence he was able to give under law.  

How things have changed, and surely this change is as permanent as a change can be, for we can't return to a state of innocence after having eaten the fruit of the tree of knowledge. Our current understanding of homosexuality is based on science and on history. We know that a certain percentage of the human population, regardless of which nation or culture they belong to, will be predominantly homosexual in orientation, and that this percentage has remained stable, as far as we're aware, through human history. We also know that, despite being abominated, reviled, tortured, executed, and having their existence denied for century after century, in civilization after civilization, people have acted on their homosexual desires, having, after all, the same need for sexual satisfaction, love, tenderness, affection and long-term companionship as everyone else. And in modern times, in western countries, they're actually able to celebrate their sexual orientation in a public manner. It's an extraordinary and invigorating development. 

It's because of the extraordinariness of this development that we cannot look to tradition in the case of marriage. To turn to tradition is to return to the kind of exclusionary, discriminatory, abusive attitude towards homosexuality that we've finally [though of course not completely] managed to escape from. 

I repeat, tradition is not an argument. So, is there an argument, a real argument, for refusing to allow homosexuals to marry? I would like to hear one. The religious argument [which essentially amounts to 'god hates faggots'] is easily brushed aside. What else is there? There is only 'marriage needs to be protected from homosexuality', in other words, a mean-spirited, petty-minded refusal to allow homosexuals their place in the sun, their place as true equals.

The Marriage Amendment Act of 2004 will be seen, historically, as a tragic-comic moment in Australian history. It will be overturned, I'm one hundred percent certain of that, and when it is, people will wonder at how such a rearguard action against egalitarian values was allowed to get through so easily. They will wonder particularly at the supineness, the cowardice and the hypocrisy of the Australian Labor Party of that period, in failing to rise to the occasion, and instead joining with the illiberal coalition in enforcing the tyranny of the majority. We wait impatiently for something more enlightened than what is on offer at present.   

the spiritual dimension

Below is the first part of a new essay for 'the faith hope'.

There have been various strategies and concerns for those engaged in fighting back against the increasingly vocal atheism of recent times. One of them is a concern to rescue spirituality, from what is seen, no doubt sincerely, as the shallow understanding, or outright dismissal of that term by the opposition. A commentator to the religion section of the Huffington Post website, one ‘Larstein’, articulates well enough many of the themes and concerns:

“Spiritual consciousness is simply a different way of seeing reality, not as something supernatural, but as just the way it is, bursting with spirit, with the divine spark in every atomic particle that exists - the God Soup. It is what Quantum science has been pointing to for years now. We are all connected, everything is interdependent and on a sub-atomic level everything is made of light. Now if that isn't spiritual perception I don't know what is. Concepts of God are by now uninteresting and irrelevant. We need more spiritual experience, not conceptual argument.”

 It’s hard not to feel some sympathy with this line of thinking. After all, it’s positive, glowing with light, and, like the best soup, hearty and invigorating. One might be tempted to describe it as ‘new agey’, but that would of course box it and label it reductively and dismissively. In fact the ‘all is light’ claim links the passage to pre-Socratic philosophy and reminds us of the human tendency, still very much with us, to look for over-arching principles, an explanation for or basis for everything – a monotheistic god being one example.

Ideas of connectedness are rather too abstract to come under the purview of science, and yet in another sense they’re not abstract at all but deeply felt. A sense of connectedness to all things but to some things more than others, such as totemic plants and animals, seems to be a feature of the oldest religions. One can see how this might fairly be described as a spiritual feeling, without resort to the term ‘supernatural’, so beloved by non believers or sceptics, so much a source of irritation to theists.

I have mixed feelings about all this. A sense of interconnectedness, of being at one with the universe, is something we can all too easily imagine ourselves into, for our own security, and if we persist in emphasising this sense, in making it more rational, we can easily fall into the trap of seeing it validated everywhere, in scientific endeavour, in religious experience, in everything. People have cited living in a bustling city as bringing with it a thrill of interconnectedness. Others have felt the same way in the stillness of isolated landscapes, or in contemplation of the ocean. A sense of the interconnectedness of all things can come from looking a sperm whale in the eye, or even a pet dog or cat.

Of course, it might not be a trap at all. 'Larstein', above, mentions quantum mechanics as pointing to this 'God soup' of inter-connectedness. I doubt that a lot of physicists would agree with him, but quantum entanglement, the spooky action at a distance that Einstein was so keen to discredit, has understandably generated much metaphysical speculation. Yet one has to question what 'spiritual experience', this feeling of universal interconnectedness as 'larstein' describes it, really does for us, and why we need it, as he claims. Why should feeling spiritual be superior to analysing metaphysical concepts? The idea that everything is connected to everything else is far from new. It surely comes from the same ancient category of thought as 'all is...', and it suffers from the same weakness, in that, as knowledge, it gets us no further forward. For example, to say that all is God, an essentially pantheistic claim, doesn't move us a step forward in understanding the world around us. It doesn't even allow us to feel spiritually uplifted since we are no more, or less, god-like than our pet cat, or a bacterium, or an electron. Everything is lifted up with us, so we're all back on the same level. Similarly, our posited interconnectedness with all other things, though it might lead us to feel a greater sense of moral responsibility towards everything around us, doesn't help us one iota in making moral decisions. It might seem glib to say that to be connected with everything is to be connected with nothing, but for practical purposes it may as well be true.

I once wrote a definition of spirituality which went like this: Spirituality is the belief that there is more to this world than the things in this world, together with the sense that, in believing this, you are superior to those who have no sense of this.

Perhaps the 'more than this world' feeling just is this sense of inter-connectedness. Perhaps not. There's no doubt in my mind though about the second part of my definition. Spirituality is seen as a positive and a sign of superiority [by those who possess it], regardless of the observation that possessing it seems to make no difference to one's being-in-the world. You can be 'deeply spiritual' and withdraw to contemplate the interconnectedness of all things, or you can reach out to others as richly or as often as possible. It is no clear guide to action.

Not surprisingly, there's a reaction to this 'superior talk' from those who regard spirituality as incoherent or, at best – taking spirituality to mean 'a sense of interconnectedness' – true but trivial. After all, someone who rejects spirituality is often described as a materialist, with all the negative connotations that can be heaped on that term; selfishness, avarice, lack of imagination, closed-mindedness and so forth. Yet the 'this-worlders', if I might call them that, have their own weapons to use against more spiritual natures, and the most effective one is the phenomenal success of that most this-worldly project for comprehending our world – modern science and the methodologies associated with it. I've written elsewhere about the benefits of scientific development, not only in terms of productivity, amenity and comfort, but in terms of a deeper understanding of human nature and human flourishing, with its links to morality. Here I want to contrast the scientific push with what might be termed the spiritual push.

 I quoted 'Larstein' above on the need for spiritual experience rather than conceptual argument, but I've already pointed out that having the spiritual experience doesn't get us anywhere, though it might allow us to feel superior to those who don't have it. Conceptual arguments about gods and spirituality generally come under the heading of theology, though this might be broadened to include any discussion of spiritual experience – e.g. whether it really is about a sense of universal interconnectedness, or more, or other, than this. Now, theology has been something of a focus for many theists and agnostics who have carped at 'new atheists' for their ignorance of and disregard for the subject. The response of many atheists has been to cite the courtier's reply. This is a reference to the fable, 'The Emperor's new clothes'. The Emperor's courtier replies to a sceptic, who wonders whether there's anything useful to say about the clothes [since he doesn't appear to be wearing any], that the sceptic, not having studied haute couture, is not qualified to comment on such matters. In other words, atheists claim that ignorance of theology is not a barrier to criticising claims about gods or other-worldly entities, since theology, by and large, assumes the existence of at least some kind of other-worldly entity as a starting point for its subject. It is this assumption, which appears to have no empirical basis, that atheists reject.