Civil Union Bill and Human Rights Demands

Maxim Institute Director Bruce Logan presented the following lecture at the Society's AGM on Monday night 14 June entitled "Human Rights Demands, are they in the Public Good?" He made special reference to the Labour-led Government's anti-marriage and anti-family Civil Union and Omnibus Bills.

The lecture delivered at Connolly Hall, Guilford Tce, Thorndon, Wellington, can be viewed on the internet via windowsmedia player. Go to http://www.r2.co.nz/20040617

Lecture to Society by Bruce Logan, Director of Maxim Institute

We know we have made no discoveries, and we think that no discoveries are to be made, in morality; nor many in the great principles of government, nor in the ideas of liberty, which were not understood long before we were born.

Edmund Burke, Reflections on the Revolution in France

Burke is probably one of the most perceptive and original writers on conservatism. He would, and indeed did, understand the folly of what we now call "political correctness" or "rights speech". As a critic of the French Revolution he was a victim of the contemporary 18th Century version of PC.

Keep Burke’s quote in mind but let me recall a history class in a boys’ school in the mid-fifties. I remember one lesson in particular. I can even remember the room, the weather, the teacher and many of my friends. It was a history lesson about Rome, from a textbook called "From Ur to Rome" “an introduction to ancient history. Both the book and the topic are now long gone from the curriculum.

During this particular lesson there was a picture in the book that aroused class interest and discussion. It showed Roman instruments of abortion. Abortion was a mystery to a fifth form boy in the late fifties. Nevertheless everyone in the class took it for granted that abortion was wrong; a characteristic of Roman cruelty.

Our thinking, whether we knew it or not, was shaped by a belief in objective and permanent truth and the apparent superiority of our Judaeo-Christian tradition, particularly the British version of it. That was taken for granted because “well, it was obvious. Such a confidence in our past and consequently, in our present, created a loyalty that made us optimistic, even hopeful young citizens.

Maybe we were somewhat provincial, perhaps too cocky and a trifle ignorant, narrow-minded “yes, maybe all of these. But we were also responsible and reasonably trustworthy nonetheless. We believed in fair play “confident that justice was possible and would probably be done.

Cultural confidence and national loyalty were real because we knew that we shared common traditions and loyalties. We knew, in our own immature way, that democracy presupposed citizen virtue and obligation. We drank it with our milk.

Let me make a point here that I did not understand in the fifth form (year 11): national loyalty and confidence do not merely issue in democratic government, but is profoundly assumed by it. People bound by a national "we" can accept the legitimacy of opposition. None of these good things are to be found in states that are founded in the "we" of tribal identity, or even the "we" of faith. Neither can give a genuine rule of law nor a durable democracy. The contemporary fixation with tribal or personal "identity" must be secondary to national loyalty. That, however, does not mean that they are necessarily in conflict, although they might. For example, Christianity can live with democracy, indeed it will support it; I’m not sure the same can be said of Islam.

At high school I was taught about the Magna Carta; about the struggle for power between Parliament, the kings and queens and the right to have a fair trial before a dispassionate judge. Certainly it was British history, but that was where our ideas came from.

I didn’t understand it at the time, but part of the significance implicit in the rule of law was that, in our tradition, it was not enshrined in one document. The rule of law was immanent in the practices and conventions of government and law and culturally embedded in a tradition 800 years old.

I spoke of conservatism earlier, let me state what I mean by conservatism because it is critical to my entire talk this evening.

Conservatism, as I understand it, means understanding and maintaining the social order. Individual freedom is a part of this since without it social organisms cannot adapt. But freedom is not the sole goal of politics. Conservatism and conservation are two aspects of the best long-term policy, husbanding resources. These resources include the social capital embodied in laws, customs and institutions; it also includes the material capital contained in the environment, and the economic capital contained in a free but law-governed economy.

The purpose of politics, in my view, is not to rearrange society in the interests of some over-arching vision or ideal, such as equality, liberty or fraternity. It is to maintain a vigilant resistance to the forces that erode our social and ecological inheritance. The goal is to pass on to future generations, and when possible to improve, the order and equilibrium of which we are the temporary trustees.

The virtue of our heritage is that it is the one system yet devised, which ensures the liberty of the citizen by promoting the rule of law which citizens themselves make, and to which all persons must render allegiance.

The rule of law in New Zealand is no academic theory, but the dynamic reality that began at least 600 years before 1840. That is the historical context in which our freedom sits. The rule of law is not a government invention, it is something that it has inherited and which gives it its own limited sovereignty over the people.

But now, of course, in 2004 all this is no longer obvious. Indeed, many people are positively hostile to the virtues I was taught as a child. Why? Who is right? What has been going on? Does it matter?

Well, yes, it does. When a democratic society loses confidence in its foundation, the centre of power moves from the people to the state. That kind of power is not the stuff of a liberal democratic state. Society tends to break up into self-interested and competing groups and the state becomes a kind of powerful "referee" in order to keep the peace.

Something has happened to law in New Zealand during the last 20 years. Human rights for groups have become much more important than the principle of individual equality before the law. Let me explain.

My central concern is the essential difference between the law and morality as a guide to how we should live. A simple question arises. Should the law (which is now more and more an increasing number of human rights) shape our morality or should morality shape the law?

I would argue that we now find ourselves in a situation in New Zealand where morality is increasingly being shaped by legislation, much of which is not motivated by any grassroots concern, but by a political and legal elite who are hostile to traditional morality. For example, the Prime Minister has said in a published interview in The Express newspaper that "Marriage has a lot of inappropriate connotations. It carries associations of religion, belief etc." Tim Barnett, M.P. for Central Christchurch would also like to see a new legislative process, "free of traditional and religious presuppositions and values."

Human rights when they become the basis of law, rather than a product of it, are in danger of becoming a de facto moral guide. This is certainly a pivotal issue in the current debate on civil unions and same-sex "marriage". (I will return to this shortly.)

There is a fundamental difference between "modern-liberal" and conservative thought. The conservative believes that human beings are imperfect and good government depends ultimately on private as well as public virtue.

The liberal, on the other hand, will emphasise the improvement of systems which, he hopes will bring about good government.

The conservative accepts that human beings are primarily self-interested. The liberal assumes that it is the system that gets in the way of altruism.

The assumptions made by liberals and conservatives are mutually exclusive. For example, the conservative’s assumption that human beings are flawed will make him suspicious of government power.

The "modern-liberal", on the other hand, believes humans are inherently good and will seek to use government to bring about social change and create some approximation of utopia. They have two entirely different concepts of freedom.

The conservative tends to see freedom as a consequence of control, exercised in self-discipline. The other tends to see it in self-realization or full potential.

Sometimes it is difficult to unravel the authority or authorities we draw on when we try to make sense of life. For example, the notion of human dignity is so deeply embedded in Western civilisation we sometimes assume that it has been arrived at by reason alone. But that is not the case. It is a Biblical notion derived from the book of Genesis. We have been created male or female in the image and likeness of God. Human dignity just might be implied by natural law, but it is debatable whether or not we would have arrived at the concept without the insight provided by scripture.

II

A little history might be helpful. When the Universal Declaration of Human Rights (UDHR) was being discussed after World War II, the nature of authority in this context was explored at length.1 The Chinese delegate, P.C. Chang, the Indian delegate, Mrs Lakshmi Menon, and the French delegate, Solomon Grumbach, along with many others, accepted the notion of inherent dignity because it was roughly consistent with their own thinking, and their desire to be "practical". They would not, however, accept any foundation argued for strongly by the Lebanese delegate, Charles Malik, who suggested that dignity resided in men and women because they were created in God’s image and likeness.

The question of authority was, and remains stark. The delegates were reminded of Jacques Maritain’s conclusion (in the UNESCO philosophers’ committee) that the nations should reach practical agreement on basic principles of human rights without achieving a consensus on their foundations.2 Pragmatism won the day.

The problem of revelation i.e. the role of the transcendent and ultimately human nature and dignity, is highlighted for us at a very practical level in the modern debate about human rights. In large part, this debate is a consequence of the unwillingness in 1948 to accept any foundation for human dignity in the UDHR.

The central conflict is whether human dignity is something given to us by God or by human law. Do governments establish and make law within the context of an evolutionary process, or is the foundation of law permanently there for us to discover and consequently obey? Is positive (statute law) all the law there is, or is there a law underlying that? For example, was Lianne Dalziel taking sense or nonsense when she said in relation to the Care of Children Bill “"we’ve tried to structure the law to reflect the way it is, rather than the way some people think it should be."

There were at least six major drafts of the UDHR. An examination of the process is revealing. For example, Article 1 of the Geneva Draft reads: All men are born free and equal in dignity and rights. They are endowed by nature with reason and conscience, and should act towards one another like brothers.

But the final version of Article 1 states: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

The process of writing the UDHR was a process of the secularisation of belief. Human dignity remained acceptable, but its source did not. God, as authority, was implicitly rejected, and of necessity “albeit somewhat slowly “replaced by the state, as I shall presently argue.

In the Geneva draft, we see echoes of God in, endowed by nature, and the phrase, like brothers has a Biblical echo. Both disappeared in the final version. It is not suggested what or who might have endowed human beings with dignity, and brotherhood is more political than religious. Also the replacement of "by" by "with" is telling.

It is inevitable that post-modern relativism will undermine the concept of universal and "inalienable" human rights implicit in the UDHR. Examples to illustrate this abound. Here’s one: In 1998, a few days before the 50th anniversary of the UDHR, Chinese activist Xu Wenli, who had spent twelve years in prison for his part in the 1978 "democracy wall" movement, was jailed for trying to register a new political party. The Beijing government issued its standard response to the charge that such treatment of dissidents violates human rights: "Rights are relative to local conditions, and many so-called human rights are merely parochial Western notions inapplicable to Chinese circumstances". The doctrine of cultural relativism, (or cultural diversity) now so prevalent, gives the West no answer to this. Neither has it any answer to the state as supreme authority.

The rejection of God and/or natural law comes at a price.

Indeed it is the problem of cultural relativism that permits, in the minds of many New Zealanders, a mother’s choice to trump the right to life of the child. Cultural relativism has no foundation for human dignity.

The problem of what universality might mean in a multicultural world has haunted the UN from the beginning. If HR’s are "inalienable" because we share a common humanity, how then, can they assume a local interpretation according to the latest demands by activists to "celebrate diversity"? In 1947 the American Anthropological Association (AAA) sent a letter to the Human Rights Commission warning that the UDHR could not be a statement of rights conceived only in terms of values prevalent in Western Europe and America.

The AAA said that the challenge is to formulate a statement of human rights that will do more than just give respect for the individual as a member of a social group, whose sanctioned lifestyles shape his behaviour, and in whose fate his own is inextricably bound.

Earlier that year, some of the world’s best-known philosophers had been asked to ponder the question, How is an agreement conceivable among men who come from the four corners of the earth and who belong not only to different cultures and civilizations, but to different spiritual families and antagonistic schools of thought?

The UNESCO philosophers responded: Where basic human values are concerned, cultural diversity has been exaggerated. The group found, after consulting with Confucian, Hindu, Muslim, and European thinkers, that a core of fundamental principles was widely shared in countries that had not yet adopted rights instruments and in cultures that had not embraced the language of rights. Their survey persuaded them that basic human rights rest on common convictions, even though those convictions "are stated in terms of different philosophic principles and on the background of divergent political and economic systems." The philosophers concluded that even people who seem to be far apart in theory can agree that certain things are so terrible in practice that one will publicly oppose them and that certain things are so good in practice that one will publicly approve them.

Well “perhaps. But the multi-faced doctrine of relativism or multiculturalism or diversity continues to muddy the water. We might well desire some kind of consensus but our human rights philosophy makes that impossible.

But whatever the case, human rights have become a "reasoned", and utilitarian response to a profound human problem. But without an agreed foundation clearly identified, "rights speak" must do two things: 1) It will slowly become its own authority; and 2) it will eventually be manipulated by the state. The state will give and declare human rights according to its own vision of "truth".

In a relativist and multicultural society we are left with competing visions of truth and the state must respond to them to find where justice lies. So human rights become about finding justice for individuals as members of competing groups rather than equality before the law for everybody. Without a transcendent vision tribalism tends to take over. The lofty universal status of human rights disintegrates into power for groups.

III

Consequently the Civil Union Bill and the Legal Recognition of Relationships (or Omnibus) Bill will be advanced soon as the solution to a perceived injustice against homosexuals, because they cannot get married or enter a civil union which is simply marriage by another name. As a member of a group the homosexual activist seeks justice, i.e. he seeks it as a homosexual, not as a human being. This is profoundly different from arguments based on race or sex. Here the argument for justice is on the basis of being the same, the homosexual argument is based on difference.

The debate is really about one thing: whether the publicly pledged life-long commitment of a man and woman to each other, and their children, provides a unique benefit to society. If so, then the only question remaining is whether it is justified to distinguish between marriage and other relationships.

It is no coincidence that marriage is almost universally recognised as an act meant to unite a man and a woman. It is based on the observable and plain fact that men and women are different and complementary “and how they refine, support, encourage and complete one another.

To maintain this traditional understanding of marriage is not to put others down. It is simply to acknowledge that our most precious and important social act is, by its very nature, the life-long union of a man and a woman. Marriage is something that men and women do as a man or as a woman, not on the basis of an erotic orientation.

Those supporting the Bills claim that because same-sex couples are not allowed to marry, they suffer "unjust discrimination" on the basis of their sexual orientation, and that de facto couples are likewise disadvantaged. The Bills’ sponsor, Associate Justice Minister David Benson-Pope, revealed the government thinking in an article in the Otago Daily Times: One in every five New Zealanders living in a relationship “some 300,000 people “choose not to marry but the law does not support that choice. Currently the law differentiates between couples in committed, exclusive and stable relation-ships depending on their marital status, with a number of legal rights and responsibilities accessible only to married couples. This relationship discrimination runs contrary to our human rights legislation “the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. More-over, I b

Benson-Pope has done what I suggested previously is inevitable when human rights are identified with groups and are consequently about the protection and affirmation of group identity.

He also assumes that all sexual relationships are the same in nature, and therefore offer the same contribution to society. Essentially, he believes that marriage makes absolutely no difference to the stability, exclusivity and commitment of a relationship. But as worldwide evidence proves, this couldn’t be further from the truth.

Certainly marriage has been badly damaged, but that in large part, is a consequence of a series of laws which have undermined it “no fault divorce, is one example.

Mr Benson-Pope is also confused about the law and about choice. The government does support the choices of people living in de facto relationships by not insisting that they marry. If two people who live together choose not to get married, there is absolutely no reason why they should have the benefits of the union they have rejected.

If the government automatically extends the status and privileges of marriage to de facto couples, it intrudes on their freedom to choose, as our choices must have different consequences in order to be meaningful. Allowing couples to define their relationship as either married, a civil union, or de facto gives the illusion that those differences will mean something. But they won’t “at least not in law if these Bills pass. In law in N.Z. marriage is already a civil union. All de facto couples have to do is get married. (And by the way, although much is made here of supporting de facto heterosexual couples, the impetus for these Bills is coming exclusively from homosexual activists).

Making distinctions in law between different relationships is not inherently unjust. It simply recognises differences.

The debate is not about unjust discrimination. It is about whether same-sex and de facto couples should be provided with the same legal rights and responsibilities as married couples. As a letter to MPs from the New Zealand Catholic Bishops pointed out: To simply equate ‘discrimination’ with ‘unjust discrimination’ is to overlook the meaning of language. To discriminate is to recognise difference, i.e. to differentiate (c.f. any standard dictionary). To presume that ‘discrimination’ based on marital status is unjust is to presuppose that marital status does not constitute an important difference “deserving of special recognition.

Mr Benson-Pope also fails to recognise that an "innate sense of fairness" is a misplaced ideal that could undermine civilization. If no sexual arrangement is better than any other, marriage becomes merely an emotional relationship which could include any grouping of "loving adults". If marriage has no meaning beyond the commitment of the people involved, then our understanding of marriage will be redefined. When law decides that the only criteria for marriage is the will of the parties concerned, on what basis can the privileges of marriage be withheld from other sexual arrangements?

Marriage is not a human right “it is an institution. Marriage existed before the state, and therefore should not be redefined by the state. The state, however, can change how it chooses to treat marriage. And that is what is at stake.

Proponents claim that marriage will not be adversely affected as the Marriage Act will not be changed. This wrongly assumes that marriage has no meaning beyond the Marriage Act. Why does everyone understand the terms "husband" and "wife" despite having never read marriage law? Because the universal nature of marriage endows it with significance and meaning. Even if the Marriage Act stays, other law changes will profoundly alter our perception of marriage.

There are presently three types of sexual connection in law: prohibited (e.g. rape, incest, polygamy), tolerated (e.g. de facto, same-sex, and now prostitution), and preferred (marriage). If this changes, and any sexual preference is given legal recognition, on what grounds can other relationship forms be denied? Polygamy and bigamy are two likely consequences. The Ministry of Women’s Affairs has already said that it appears to be discrimination for New Zealand to prohibit polygamous families from immigrating to New Zealand: New Zealand legislation gives a mixed message about what the State counts as family. For example only the male and one wife from a polygamous family are allowed to immigrate to New Zealand. There is an increasing recognition of the need to avoid enshrining in legislation concepts of family which are exclusive.

The legal privileges of marriage are not awarded because the partners are in love, or even committed to each other, but because their relationship is of public consequence. What other justification is there for the law’s involvement? If the broader social implications of marriage are no longer considered important, marriage is reduced to nothing more than a private contract. We need marriage to mean more to us than that.

Once the state ceases to observe marriage as it is, and redefine it as it wants it to be, marriage “at least in a legal sense “ceases to mean anything at all. And that is what civil unions will do: redefine marriage, free of any social obligation, opening the door for virtually any sexual arrangement to receive state endorsement. But marriage is more than a private affair; it is the glue that holds families and ultimately society together.

Let me change the perspective a little. The Human Rights Commission distinguishes between direct discrimination and indirect discrimination. Direct discrimination is when a person is treated favourably or less favourably in the same or similar circumstances. Indirect discrimination is when a rule or practice exists that appears neutral but in fact has a detrimental effect.

The question is, does a homosexual person who wants to get married but cannot, suffer either indirect or direct discrimination because of their orientation?

Context is important here. As I have said, marriage is something that men and women do. It exists because there are two sexes. As a man or a woman a homosexual can get married. But homosexuals want marriage on different grounds, that is they want to change the nature of marriage. Homosexuals are not discriminated against by not being able to marry or enter a civil union which in fact is the same as marriage. Quite the reverse. By permitting homosexuals to marry on the basis of their orientation, the state redefines marriage. There might be a case for the recognition of some form of limited relationship but in no way must it be allowed to be a counterfeit form of marriage.

When marriage is manipulated to conform to how some members of society think about themselves and to give those people the special status of marriage it is not just acceptance, or non-discrimination, it is affirmation not on the grounds of equal treatment but of special treatment.

We are not a society faced with demands for homosexual marriage by legions of excluded and marginalised homosexuals. We are rather, facing a cultural insurgency led by a prosperous middle class professional elite.

If the Bills are passed two things will happen. Homosexual sex will be made equivalent to sex between a man and a woman and therefore the state will see homosexuality as a public good and demand the rest of us do too. This is what I mean by the law shaping morality.

What we are really looking at is a direct assault on what we might call the genetic base of the Western Tradition, the most primary institution of its preservation and transmission “the family. Included among the standards that same-sex "marriage" proponents would delegitimise is the vast and highly nuanced complex of standards concerning sex and the family that is crucial to civilization.

In the name of the ancient Western principles of freedom and equality “principles traceable in the deepest and most important respect to the belief that man is made "in the image and likeness of God" “same-sex "marriage" denies the essential correlate to that teaching: "Male and female he created them."

In the rejection of that teaching, sex becomes "gender" and is reduced to the rank of a cultural construct, and as with the other constructs of culture construed by radical diversity, such differences all become a matter of either accident, preference, or indifference. This celebration of diversity, in its reach for exclusive dominance, brushes aside the diversity that is the sexual duality of male and female and sets out in its place a meaningless, and radically individualized eroticism. And on that basis a culture cannot survive.

Bruce Logan 14.6.04

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