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Judge Not: When Dissenters Become Dictators

This is an unedited version of this article that was published by The Gospel Coalition Australia.  

The original was edited purely and simply because of length….

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.

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Kirby is an activist judge. He was known as The Great Dissenter on account of the number of times he dissented from judicial decisions. Although he doesn’t like the term judicial activist (associating it with conservative criticisms) he does speak of judicial activism in ‘tune with the deeply felt emotions of ordinary citizens’.   Amongst other things he is well known for his gay activism. To some people’s surprise he identifies as a Protestant Anglican – although it is fair to say that he clashes with the current Sydney Anglican mainstream. He is critical of both past and present Archbishops – Philip Jenson and Glenn Davies. As regards the latter in the course of his talk he stated, to applause, that he was not going to ‘pack his bags’ and leave the Anglican Church.

With this in mind 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?

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

Although the talk was meant to be about LGBT issues in terms of mediation, most of it was a series of personal reminisces.

He had a powerful, and in my view legitimate critique of the repeal of the Medivac legislation. He argued that much of the support for this came from ‘religious’ people who should remember that Manus Island and Nauru were not compatible with the Christian teaching about loving your neighbour.     Although I’m sure that there are reasons that people could use to justify this repeal, it does come across as petty and vindictive.

Kirby then linked this issue with gay rights – and this is where his talk went downhill.   Not surprisingly he spoke of the Folau case and the settlement that had just been made public. His summary was enlightening. However there were a number of statements which were, to say the least, questionable. Statements that seemed to be accepted within the room as ‘Gospel’ truth and I suspect statements that reflect the current Establishment zeitgeist in todays Australia (and probably the UK and US as well). Let me summarise the issues as follows:

You don’t to 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.

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.

Kirby also admitted that he had used the name of Folau on a forthcoming paper because of ‘commercial’ advantage. I wonder whether there are Christians who also use ‘famous’ people and cases for ‘commercial’ advantage?

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His comments on the use of language were insightful. The Honourable 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 the issues was clever and disingenuous. And intimidating. Disagree if you dare!

Kirby then went on to the other issue of the day – transgender. There is a problem in the roll 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.   For example much of our health care is provided by churches – and to allow them ‘religious exemptions’ is to ‘allow people to be nasty to gay people in homes’. Kirby thus demonized the fine work done by Christian organisations such as Hammond Care and the Salvation Army, implying that holding to the view of marriage that Jesus taught, means that you are going to be ‘nasty’ to those we disagree with. Kirby’s idea that to disagree with someone is to be nasty, is one of the most insidious, dangerous and nasty doctrines of the new regressive ideology.   He also seems to forget that Christians are commanded to love their enemies.

Another problem was his cut ‘n’ paste, ‘pick ‘n’ mix view of the Bible.   There are some wonderful passages in the Bible especially in the NT, but there are quite a lot of nasty ones. Which being translated meaneth; ‘wonderful’ = the passages I like; ‘nasty’ = the passages I don’t like.

Speaking of nasty there was a somewhat tasteless comment about the ‘bloody’ people of Israel. Perhaps I am oversensitive but how is that different to the old ‘blood lust’ anti-Semitic meme?

The Bible v.s Jesus

For someone who does not like binary choices, Kirby was very good at presenting them to us. We could either go with ‘2,000 religious scripts’ or ‘Jesus Christ’s message of love and tolerance’! For a lawyer to make this remark seemed a bit illogical. How do we know what Jesus’s message of love and tolerance is except through the 2,000-year-old religious scripts that tell us? Unless of course what Kirby means is ‘my message of love and tolerance according to my values – which I can neatly tag on to my version of Jesus’.

Secular Britain?

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 a Christian one. 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.

I felt it was such an intimidatory atmosphere that I did not want to speak- I much preferred to sit at the back in silence….but my conscience bothered me. I felt it was wrong to keep silent. As I wrestled with whether to say something or not, I prayed and reluctantly put up my hand. It was a relief when Michael stated it was the last question and pointed to someone else! But then he changed his mind and asked ‘the man at the back’. So I asked him about the Kinsey report which has been thoroughly discredited – both for its methodology, samples and bias (i.e.…   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.

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There was also a hint that beneath the cuddly exterior there beats a more steely heart. The Honourable 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 patronized, 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 also argued 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 and treat all people the same. Much to my astonishment he rejected this and declared what we have all suspected, that bias plays a great deal in today’s society and that Judges should not ‘leave their values at the door’. What surprised me was how he affirmed and celebrated this.

Michael Kirby is an activist judge who sees his role as making the laws, as well as applying them. As such he is not alone. The old principles of classical liberal jurisprudence– the laws being made by democratically elected politicians and enforced by neutral judges – are being swept away. But what are they being replaced with? The laws of the powerful and the wealthy. If you have the money, you have the power. If you have the 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 Mr Kirby and his allies.

Under Pressure

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. (I leave out the Church from this list – we don’t need pressure from outside – we are already excellent at apostasising from the Law and Love of God! In general those of us who work in the Christian bubble will be left to destroy ourselves.) The real threat is to those Christians who work in the new Babylon, because the new illiberalism does not permit dissent. The Great Dissenters of the past have become the Great Dictators of the present.   They often don’t 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.

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Third Space – An Interview with The Gospel Coalition Australia

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  1. Yes , very well done and clearly
    Spoken out like a true lawyer, David, that is “without fear or favour,” as the Judge ought to be aware, to recognise, especially as it didn’t seem to be a debating forum, but a platform for the judge, not to discuss the “rule of law” but to set out his own hobby horse. He is to be a judge, not an advocate and it goes against all I held dear as a trained and practising solicitor in England and Wales, and I’m not naive, and have heard a lay magistrate, judge, say in a stage whisper, that the defendant was going to “get off”. So much for burden of proof and presumption of innocent till proved guilty beyond reasonable doubt.
    As a former lawyer, this is one of the most unsettling and depressing articles I’ve read concerning jurisprudence and blatant pre- judice in decision making, in effect, a prejudgement, interpretation of public policy from fixed personal self-interest views of a judge.
    Imagine that taking place in any other field, topic of justice, of law: there’d be an outcry, a holding to account. Justice not only needs to be done it needs to be seen to be done.

    1. Well stated David. But Geoff’s depression might well be deepened by what I am about to write.
      If the statement “over 40% of the Australian population were still against ‘equal’ marriage” comes from the Justice himself, then he is blatantly ignoring the fact that the Marriage Law, as amended in December 2017, now contains no ‘equality’ at all – certainly not for those who dissent from the established view that marriage is merely a state-endorsed two-person contract. The tidal wave of rainbow “marriage equality” meant that husband-wife marriage was airbrushed out of the Act completely; the Marriage Act was made a subsidiary of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. The implication is that for the Marriage Act to do other than say marriage is a “two person relationship” is to entertain a violation of human rights. And now the dogmatic imposition that marriage is indeed only and ever a civil right means that those who do not believe this will not be able to find grounds in the Marriage Act to ascribe due respect to husband-wife marriage, and belief thereof, in the subsequent administration of the law in this polity. Justice Kirby is completely wrong. To believe that marriage is exclusively a husband-wife relationship as Jesus himself certainly taught is not motivated by a desire to withhold rights from homosexuals. His line is a complete con. In fact, the entire judiciary in this country, and not just activists like Kirby, are now complicit in this legislative error based on an empirical mistake by their failure to reckon with a severe violation of freedom of belief. The freedom of religion debate that Turnbull (Kirby’s mate) generated by his turning away from parliamentary standards in order to keep his side from his much-feared fracture, has led to subsequent legislative attempts by a backbone-less Liberal Coalition government, that simply will not face up to this fact of the legislated injustice for the young woman and her fiancé who seek to be given due respect for their marital union as wife and husband in a civil ceremony. They are required by the Marriage Act to form their ceremony by allowing the celebrant to mouth the prescribed lecture confirming the Parliamentary endorsed ideology that marriage in Australia is simply a two-person contract. To get a Marriage Act that pretends to turn what isn’t marriage into marriage, the Federal Parliament legislated what is now a statist form of marriage.

      1. Bruce,
        I am reading and commenting to this on my aged phone, and have had to read it a couple of times.
        You said the Marriage Act is a subsiduary. Are the Acts in effect, consolidated? How are they in the words of statute to be read together?
        Are there any applicable “canons of construction” of statute?
        On the face of what you have written, there has been a legislative “stitch-up” But as an old former lawyer, I wouldn’t accept that it not beyond challenge, that it is watertight in its written construction.
        Of great concern to me would be what you describe as statist. It seems akin to swearing allegiance to a state dogma.
        Thank you for not making my day.

  2. So many points … and so scary to think that people who disagree with the learned judge need to be “educated”. There is an issue with something you wrote, though, about the “Christian value of tolerance”. I don’t recall Jesus teaching about tolerance. He taught us to love our neighbour, not “tolerate” him or her. Indeed, I can’t think of anything less loving than to say, “I tolerate you”: it assumes a certain moral superiority or self-righteousness that undermines the concept of Love. (It also says, “Go ahead and kill yourself if you want to – I don’t care.”) Love, on the other hand, can be very intolerant at times, if we see a brother or sister in error.

  3. Have you listened to that episode of the marvellous series of discussions chaired by Justin Brierley (The Big Conversation) where Tom Holland and A.C.Grayling tackle the subject ” Did Christianity give us our human values?”

    Kirby isn’t an activist judge – he is a former member of the judiciary, now retired.

    “I also argued 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 and treat all people the same. Much to my astonishment he rejected this and declared what we have all suspected, that bias plays a great deal in today’s society and that Judges should not ‘leave their values at the door’. What surprised me was how he affirmed and celebrated this.”

    If only the law makers and the judges appointed to uphold those laws were robots. Judges are individuals and each and every one of them carry their personal bias – but they operate within the framework of the law and their decisions are subject to appeal.

    I think anyone who reads this blog would understand the futility of your attending this talk and observing a “vow of silence”.

    1. John,
      You are entering into straw man territory with reference to robots, and reduction into absurdity. Neither is the question of legal appeal to the main points.
      It it the blatant self interest revealed bias that is the point.
      He could and is likely to self justify he position as being mere practical application of his espousal of the theoretical “realist school of jurisprudence”, which far too simplistically proposes that law is a reflection of the personal views of those people in charge of enacting, applying, and enforcing it.
      If this particular judge were apply this theory, but with blatant bias across all fields of law, his fitness for balanced judgments, weighing the evidence and law would be called into question and there would be substantial breaches of the rules of natural justice.
      A judge is obliged to declare a conflict of interest. (In this present instance, the Judge serving on the Kinsey committee for 10 years.) It would be an obvious and blatant disregard of the rules of natural justice.
      Should a Judge who has accompanied a person to a euthanasia clinic be recused from sitting in a Court in England and Wales on an assisted suicide, criminal case. It is for lawyer and judges to work within the law as it is , not make it.

      1. Not a strawman at all – just pointing out that judges are people just like anyone else and we cannot ignore that the personality of a judge has an effect on their hearing of cases. Anyone involved in the law understands that when defending you may wish to have your case heard by a particular judge and if prosecuting you may desire another. It’s a simple reality.

        I assume you also know that judges take oaths when they are appointed.

        I’d be interested to hear exactly what cases you think a judge should excuse himself from because he served on the Kinsey committee.

        “Should a Judge who has accompanied a person to a euthanasia clinic be recused from sitting in a Court in England and Wales on an assisted suicide, criminal case.”

        The answer is no and you know as well as I do that in such a situation that judge would not have had such a matter listed in front of him.

  4. Where does it leave us Christians if as Tom HOlland points out Christian ethics are based on Christian myths like the resurrection? I have great respect for Tom Holland because he lacks the dogmatism of New Atheism or certain types of Christian evangelism. He doesn’t manipulate the evidence to support one view or the other. He points out in the last chapter that those opposing and supporting gay marriage or transgenderism have equal claim on the Bible. Perhaps that is the great achievement of the Bible, that you can use it to support or oppose marriage for gay people.
    On the one hand he points out how the West is Christian, but also acknowledges that the earliest parts of the Bible are myths, that Jesus and Paul believed the world was coming to an end within their lifetimes, that there was no resurrection, that the Sinai revelation is not historical. As John Gray and Holland point out, where does that leave Christian evangelism? Do we stick our fingers in our ears and simply say we believe just because we want to? (And this is a honest question because I would like to know what fellow Christians think, do we deny the evidence and hope for the best?)

    1. There is evidence for the bodily resurrection of Jesus. That and the poring out of Spirit were the drivers of Christianity, not values or ethics or morality. we do not worship a dead saviour. He lives and by His Spirit lives within us. If he was not raised it is all a waste of time. Much has been written about the reliability of evidence for the Resurrection.
      I’m sure one of David’s books will have covered it. But The New Evidence that Demands a Verdict, by Josh McDowell, certainly does, as does Tom Wright’s tome on the Resurrection, and Richard Beauchamp book on Eyewitness accounts.

      1. I assume you came to your faith through an evaluation of the “evidence” of the resurrection?

      2. John,
        I was a 47 year old atheist solicitor at the time of conversion, knowing and applying the laws and rules of evidence, burdens and standards, in criminal and civil courts.
        Your assumption is correct. Impressively, insightful of you.

      3. I was only asking because I suspect that the vast majority of those who profess a religious faith do not come to it through an examination of the supposed evidence for that faith.

        I am beginning to wonder just how many cases you won if you consider the evidence for the resurrection to be good.

      4. And I suspect that the vast majority of those who profess the atheist faith do not come to it through an examination of the supposed evidence for that faith…

      5. John,
        This is bone-aching boring, from an atheistic set in concrete, Dawkinsian narrative, peddled by a flaccid, philosophy, bromide- brain, disciples, evidenced by your baseless, evidence-vacuum assumptions and wonderings.
        May you come to know Jesus, who will truly and expansively open-up your mind, from a closed materialist world view.
        He is indeed Immanuel, God with us, as we celebrate Christ first in Christ-mas.
        Treat yourself with the gift of Jesus, this Christmas. Joy to the world, the LORD has come.
        Every blessing in Jesus,

      6. People without religious belief don’t “profess a faith” David.

        They just get on with their lives.

      7. John,
        Every comment from you, here, is evidence of a profession of your faith.
        If you want to weigh- up how great your faith is, sceptical atheism that is, I’d suggest you stretch your mind by reading, “Making Sense of God”, by Tim Keller. He covers it at some length.
        It is doubtful that you will read it, though, if you listen to Premier radios “Unbelievable ” programme, you at be tempted to jeopardise your faith.
        May you find who you are looking for, for when you do you’ll realise He has been seeking you.
        As as Christmas Carol we, well over 100of us sang yesterday, may Christ be “born in you today”. And from arridity to fecundity your life will be turned, from death to life eternal, to God dwelling within you.
        God bless you with the life of Christ, with the life of God the Holy Spirit , with the life of the Father.
        Read John chpt 17.
        Then read Ephesians chpts 1 &2 which sets out reality – what’s there not to like, to desire , to long for, in the depth of your humanity.
        Read Romans chpt 7, but following it up with chpt 8.
        God bless you John.

  5. “basic Christian principles of tolerance, diversity and equality before the Law.”
    I don’t mean to contrary but Christianity hasn’t always been about tolerance, diversity or equality. In my country Britain, Catholics were persecuted until emancipation in the 1830s, women didn’t get the vote until 1918, homosexuality was illegal until the 1960s, blasphemy until 2008 (amazingly!). Lots of Christians supported tolerance of Catholicism, homosexual equality, freedom of speech, votes for women but lots of Christians didn’t. I suppose it depends on how we read the Bible through the guidance of the Holy Spirit.

  6. There is evidence for the bodily resurrection of Jesus. That and the poring out of Spirit were the drivers of Christianity, not values or ethics or morality. we do not worship a dead saviour. He lives and by His Spirit lives within us. If he was not raised it is all a waste of time. Much has been written about the reliability of evidence for the Resurrection.
    I’m sure one of David’s books will have covered it. But The New Evidence that Demands a Verdict, by Josh McDowell, certainly does, as does Tom Wright’s tome on the Resurrection, and Richard Beauchamp book on Eyewitness accounts.

  7. Excellent aside about the self destruction of the Christian church. The secular world has all but given up attacking us. They have long since decided that we are not a threat to them.

    I have on many occasions spoken up at intimidatory gatherings, mostly in the Church of Scotland. Like you, I usually came away with the only hope being in those, often self styled evangelicals, who spoke to me at the end and thanked me for speaking up. Sadly, I have had to conclude that these approaches were simply a salve to their own consciences. They never speak up themselves and never will.

    So where did that leave me, once the fear and anger subsided?

    With my only hope being in Jesus. Not a bad place to be. 🙂

    God bless

  8. An affable Jesus?
    Some insightful words from Dr A. W. Tozer:


    ‘To capture a city an enemy must first weaken or destroy its resistance, and so it is with the evangelical forces at any given time or place. It is impossible for Satan to storm the citadel of God as long as faithful watchmen stand on the walls to rouse her soldiers to action. The church will never fall as long as she resists. This the devil knows; consequently he uses any stratagem to neutralize her resistance.…
    He first creates a maudlin and wholly inaccurate concept of Christ as soft, smiling and tolerant. He reminds us that Christ was “brought as a lamb to the slaughter, and as a sheep before her shearers is dumb, so he openeth not his mouth,” and suggests that we go and do likewise. Then if we notice his foot in the door and rise to oppose him he appeals to our desire to be Christlike. “You must not practice negative thinking,” he tells us. “Jesus said, ‘He that is not against Me is for Me.’ Also He said ‘Judge not,’ and how can you be a good Christian and pass adverse judgment on any religious talk or activity? Controversy divides the Body of Christ. Love is of God, little children, so love everybody and all will be well.”
    Thus speaks the devil, using Holy Scripture falsely for his evil purpose; and it is nothing short of tragic how many of God’s people are taken in by his sweet talk. The shepherd becomes afraid to use his club and the wolf gets the sheep. The watchman is charmed into believing that there is no danger, and the city falls to the enemy without a shot.’

    Isaiah 53:7; Ezekiel 3:17; Matthew 12:30; Acts 20:28–31; 1 Peter 5:8–9
    ‘The Set of the Sail’, p. 114, 115.
    by A.W. Tozer

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