Judge Not: When Dissenters Become Dictators

I had the great privilege of being a guest at a Christmas event at which the distinguished speaker was The Honourable Michael Kirby AC CMG, former High Court Justice. It was a fascinating evening that revealed a great deal about the current Zeitgeist in Australia. 

Kirby is an activist judge—dubbed The Great Dissenter on account of the number of times he dissented from judicial decisions. Amongst other things he is well known for his gay activism—surprising, given that he identifies as an Anglican. At one point in his talk, he declared—in an obvious reference to Bishop Davies—that he was not going to ‘pack his bags’ and leave the Anglican Church.

So I was looking forward to an ‘interesting’ evening. I went determined to keep silent and listen. I wanted to learn and understand. What did I learn?

First, that Michael Kirby is an excellent speaker, affable and engaging. He showed himself to be something of an independent thinker, not afraid to ruffle feathers. I liked him.

Second, he has an interesting perspective on LGBT issues. His summary of the Folau case was enlightening. However, there were a number of statements which were, to say the least, questionable, but which seemed to pass as self-evident truth amongst the establishment crowd. Let me try to summarise and critique his arguments:

You don’t choose your sexuality therefore it is wrong to put LGBT in a category with drunks, alcoholics, fornicators and thieves. These are behaviours you can change, but you can’t change your sexuality.

There was a strategy—to take over the ‘hate’ words and turn them against their opponents. Gay activists have largely succeeded. By gaining control of the language they have changed and devalued the Christian values of liberty and tolerance upon which our culture was built.

But both these premises are questionable. There are those who would argue for a genetic determinism which means that you cannot change your behaviour. The adulterer can argue that he cannot help it because it’s his genes—‘the way God made me’. And there are those, like Australian gay activist, Peter Thatchell, who argue that sexuality is on a spectrum and that many people can and do change. The Christian has a wider perspective. We regard behaviour and who ‘we are’ as inextricably linked. We don’t regard particular groups as being sinners, whilst the rest of us are righteous. All of us are ‘dead in sins and trespasses’. All of us need such a radical change that Jesus calls it being ‘born again’. It’s disappointing that a self-professing Christian does not seem to grasp the radical nature of the Gospel.

His comments on the use of language were revealing. Justice Kirby did not like being called Queer, but there was a strategy—to take over the ‘hate’ words and turn them against their opponents. I think that to some extent this is what Paul did—baptizing the Greek language and giving it a new meaning. The gay activists have largely succeeded in reversing that. By gaining control of the language they have changed and devalued the Christian values of liberty and tolerance upon which our culture was built.

The acceptance of same-sex marriage was not enough. Kirby was disappointed that over 40% of the Australian population were still against ‘equal’ marriage—including some ‘in this room’. As one of the ‘40%’ I felt the enormous pressure being applied in that room. Not least when Kirby pointed out that the more ‘educated’ you were the less likely you were to oppose SSM—unless you were one of those nasty religious people who want to deny medical care to refugees. Kirby’s conflation of LGBT rights with the Medevac controversy was clever but disingenuous. It was also intimidating. Disagree if you dare!

Kirby then went on to the other issue of the day—transgender. There is a problem in the role of the binary—male and female and nothing in between. His acceptance of ‘Queer Theory’ seemed to be based on little more than the Kinsey report.

But then came the somewhat surprising practical applications of his sermon. You should recuse yourself if you are involved in a case involving LGBT and do not support SSM. Preferred pronouns should always be used. 

In a rambling section about exemptions for religious bodies he allowed his prejudices free roam: demonizing organisations such as Hammond Care and the Salvation Army, and implying that holding to the view of marriage that Jesus taught, means that you are going to be ‘nasty’ to gay people. Kirby’s idea that to disagree with someone is to be nasty, is one of the most insidious, dangerous and mean-spirited doctrines of the new regressive ideology. He also seems to forget that Christians are commanded to love their enemies.

But Justice Kirby has a cut-’n-paste, pick-’n-mix view of the Bible. He spoke of ‘wonderful’ but also ‘nasty’ parts of Scripture—which apparently just means, respectively, passages he likes and doesn’t like.

For someone who does not like binary choices Kirby was very good at presenting them to us. We could either go with ‘2,000-year-old religious scripts’ or ‘Jesus Christ’s message of love and tolerance’! How illogical. How would we know about Jesus’ message of love and tolerance without those ancient scripts? Unless of course what he really means is ‘my message of love and tolerance according to my values—which I can neatly tag on to my version of Jesus’.

Kirby also failed in his historical/political analysis when he spoke of the ‘British principle of secularism in the public space.’ It is true that the UK has a secular government in that there is a separation of church and state. But it is not absolute and the UK constitution is fundamentally Christian. We have a Queen who swears to uphold the Christian faith. Our education, legal and welfare systems have fundamentally Christian roots. The UK is (or was) a model of Christian secularism. Kirby should know that. It is as we move away from the Christian foundation that we are losing the basic Christian principles of tolerance, diversity and equality before the Law.

As for my vow of silence? I wasn’t able to keep it.

It was such an intimidatory atmosphere that I did not want to speak. But my conscience bothered me. Finally, I prayed and reluctantly put up my hand to ask him about his reliance on the Kinsey report which has been thoroughly discredited—both for its methodology, samples and bias.

Part of his response was that he wasn’t happy because he had served on the Kinsey committee in Australia for ten years!

Here again, is a problem with the new regressive ideology. It is highly selective in terms of its evidential bias. Adopting a flawed report, just because it confirms what you want to be true, is the very definition of confirmation bias.

There was also a hint that beneath the cuddly exterior there beats a more steely heart. Justice Kirby’s main response to my argument was to point out how lucky I was to live in a country where I was permitted to dissent from his viewpoint. I felt suitably patronised, as though I were supposed to be grateful. But also a little threatened. The not so subliminal message was a warning to be careful how we used the freedom of expression—lest we lose it—in the name of tolerance.

I felt suitably patronised, but also a little threatened. The not so subliminal message was a warning to be careful how we used the freedom of expression—lest we lose it—in the name of tolerance.

Thus, when I suggested in response that we uphold the old western liberal view that everyone should be equal before the law (and that therefore judges should leave their personal political and philosophical prejudices aside) he unhesitatingly disagreed. Since bias plays a great deal in today’s society judges cannot and should not ‘leave their values at the door.’ 

Michael Kirby is an activist judge who sees his role as making the laws, as well as applying them. And he is not alone. The classic liberal model that laws should be made by democratically elected politicians and enforced by neutral judges—is being swept away. But what is it being replaced with? Government by the powerful and wealthy: if you have the money, you have power; if you have power you make the law. Instead of Lex Rex (the Law is King) we are returning to Rex Lex (the King is the Law)—with ‘Rex’ being Justice Kirby and his like.

One of the consequences of this is that if you work in a corporation, academia, the media, the legal or the arts establishments, you are under enormous pressure to conform. Those Christians who work in the new Babylon are finding it harder and harder because the new illiberalism does not permit dissent. The Great Dissenters of the past have become the Great Dictators of the present. They rarely need to use force or the law—ridicule, peer pressure and social engineering are usually enough (as witnessed that evening)—but if that doesn’t work, they can always rely on the instruments of the State to enforce their new doctrines.

It was a revealing and somewhat disturbing evening. They know not what they are doing. But there is hope. After the talk several people spoke to me and thanked me for speaking up. There are still those who have not bowed the knee to Baal.