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Winter 2000 cover

National Observer Home > No. 45 - Winter 2000 >Legal Notes

Homosexuals and the High Court

Members of the Australian public have recently been exposed to the unusual phenomenon of a High Court judge expressing controversial views on the practice of homosexuality. Justice Michael Kirby has formally revealed himself as a homosexual, and has even gone to the extent of setting out the name, not of a wife, but of a male "partner" in "Who's Who".

Perhaps predictably, Justice Kirby has made an attack on what he describes as "homophobia". The use of this term by homosexuals does nothing to advance their case. The term "phobia" refers to "fear", as is well known; and it is used in such words as claustrophobia, agoraphobia and so on, where fear or terror is involved. However the term "homophobia" has been adopted by homosexuals in order to stigmatise their critics (who disapprove of homosexuality but do not fear it). It is therefore a bad sign to find in a pro-homosexual apology references to "homophobia". Their presence indicates that an objective analysis is not being pursued.

In an address published in Quadrant1 Justice Kirby has taken a lack of objectivity to the extent of describing "homophobia" as "intrinsically evil". On the one hand this emphasises the logical difficulty of describing disapproval or criticism as a "phobia". On the other hand it suggests unduly emotional and illogical reactions on the part of Justice Kirby on the subject of homosexuality.

The Kinsey Report

In these circumstances it is not surprising that Justice Kirby has attempted to call in aid the Kinsey Report. In April 2000 he was reported as commenting on Kinsey's work:2

"It revealed how common homosexual activity is in the human species. It also suggested that about four per cent of males (and a smaller proportion of females) are exclusively homosexual all their lives."

However the Kinsey Report has suffered much in reputation since its publication in 1948. Subsequently it has been claimed that Kinsey himself was a homosexual and a masochist and that his sample of American males, although large, was also biased. So in particular it has been claimed that 26 per cent of his subjects were sex offenders and 25 per cent were actually in prison. It has been claimed that more recent studies have put the proportion of the population of exclusively homosexual bent as approximately one per cent.

The concept of exclusiveness is of particular importance here. One of the tactical objectives of the homosexual movement during recent years has been obtaining acceptance of the thesis that homosexuals have no choice: that their dispositions render them unable to engage in normal sexual activities, and that they have no choice but to engage in what is normally regarded as a perversion. But it is now clear statistically that the overwhelming majority of those who engage in homosexual acts also engage in normal, heterosexual acts. They exercise a preference from time to time, and may be described as bisexual. This fact supports the correctness of those who wish to reduce the incidence of homosexual conduct, as normally avoidable activity. In a small minority of cases there may be no choice, in that the subject's attitudes are exclusively aberrant, but in the majority of cases the subject may take up the option of normal heterosexual activity.

Justice Kirby appeared to disregard these circumstances in saying in February 2000:3

"In my experience, few if any gay and lesbian people choose their sexuality. It is like your gender, your skin colour or being left-handed. From earliest days of puberty, you just know that is how you are. And if that is how you know you are, that is how God meant you to be."

This analysis is demonstrably false. To suggest that sexual experiences in "the earliest days of puberty" indicate "how you are" thenceforth is irresponsible. It is accepted that at the time of early (and later) puberty many children or youths experiment with their undirected sexuality. Many of these have homosexual experiences with other children or youths, but subsequently a large proportion of them settle down to normal heterosexual activity.

To suggest that individuals' sexuality is determined "[f]rom the earliest days of puberty" is not only false, but is dangerous. It may lead children or young men and women to believe that immature activities represent their future, or determined sexuality.

The Kirby Doctrine

Justice Kirby's doctrine (that "[f]rom earliest days of puberty, you just know that [homosexual] is how you are") is especially dangerous in so far as it is calculated to mislead the young and encourage their elders on a false basis.

It is particularly unfortunate that this doctrine was expressed in his address to the students of St. Ignatius' College, Riverview, on 24 February 2000. Did the parents of those present know that their children would be exposed to an address attacking various critics of homosexuality and expressing the doctrine that from "the earliest days of puberty" you know "how you are"? School children are particularly vulnerable to misinformation, especially from sources with respectable trappings, like judges (and especially justices of the High Court). And presumably there was no balancing statement from a speaker presenting the orthodox view that homosexual behaviour is an aberration that should be avoided.

The question of employing homosexuals in schools is, of course, very controversial. On the one hand, one does not wish to deny employment to individuals by reason of their private attitudes. But on the other hand too many homosexual teachers appear to wish to justify themselves and their at titudes by teaching students that homosexuality is "normal" or "a valid alternative lifestyle". In fact this is not the case. Homosexuals proceed by anal intercourse. The anus however is not an organ whose purpose is sexual. Rather it is an instrument of defecation, and its use for sexual purposes is widely viewed as sordid and unnatural.

Kirby's Attack on the Church

Justice Kirby's approach to the Churches is represented adequately by his statement:4

"Justification for the current position of most of the religions of the Book (Judaism, Christianity and Islam) certainly seems to be needed, because it appears difficult to defend objectively the intrinsic evil of the pain which organised religion has caused, and continues to cause, to homosexual people in all parts of the world."

However the Church perceives itself - correctly, it may be thought - to have a duty to uphold moral standards. It is certainly the case that homosexuality and buggery are disapproved in the Bible, and it would be surprising if this were not the case.

It is interesting to compare Justice Kirby's apologies with the calmer analysis of such as Anthony Nichols, the Bishop of North West Australia, who commented on a recent rejection by the Lambeth Conference of a call for the endorsement of the ordination of active homosexuals and for the endorsement of same sex relationships (which, not surprisingly, were promoted by various liberal American bishops particularly):5

"In the end the Lambeth conference voted by an overwhelming majority (526 for, 70 against, 45 abstentions) for a resolution that re-affirmed traditional Christian teaching on sexuality, 'rejecting homosexual practice as incompatible with Scripture'."

It was commented in the "Daily Telegraph" of those who thus affirmed traditional teaching,6 "They have kept open the arms of the Anglican Communion to that great majority that would like to believe, but find it hard enough as it is, without having to sanctify buggery.'"

Bishop Nichols has subsequently said, in support of the Anglican and Roman Catholic Archbishops of Sydney, who described the Sydney Gay and Lesbian Mardi Gras as gross exhibitionism promoting a homosexual lifestyle that is incompatible with the teaching of Scripture:

"The surprise lay not in [Justice Kirby's] defence of homosexual activity - he had revealed his own sexual orientation some time ago - but first in his choice of occasion, an address to adolescent boys at St. Ignatius College Riverwood, and secondly in the vehemence of his language . . .

Michael Kirby is a church member so it is extraordinary that he should castigate the Archbishops for restating what has been Christian teaching for 2000 years. Furthermore he may want homosexuals to be treated as normal human beings, but the Mardi Gras hardly helps. It has long since lost any significance as a civil rights event and simply flaunts sexual perversion. The sight of prancing feathers, sequins, flesh and leather only serves to reinforce the most crass homosexual stereotypes."

It is difficult to disagree with the Bishop in these regards. The Sydney Mardi Gras is presented by homosexuals and their supporters as one of the great public events in Australia, watched and applauded by many Australians and tourists (many of them being themselves homosexuals) and given much favourable publicity by the media. One would need to search far to find a spectacle of greater degeneracy. The Mardi Gras is an unfortunate reflection on the state of Australian society today.

Questions of Choice

Much of Justice Kirby's defence of homosexuality has been based on his claim that homosexuals have no "choice" and that they cannot change their orientation. As has been indicated here, his claims are much exaggerated. It is clear that many homosexuals, inguage . . .

Michael Kirby is a church member so it is extraordinary that he should castigate the Archbishops for restating what has been Christian teaching for 2000 years. Furthermore he may want homosexuals to be treated as normal human beings, but the Mardi Gras hardly helps. It has long since lost any significance as a civil rights event and simply flaunts sexual perversion. The sight of prancing feathers, sequins, flesh and leather only serves to reinforce the most crass homosexual stereotypes."

It is difficult to disagree with the Bishop in these regards. The Sydney Mardi Gras is presented by homosexuals and their supporters as one of the great public events in Australia, watched and applauded by many Australians and tourists (many of them being themselves homosexuals) and given much favourable publicity by the media. One would need to search far to find a spectacle of greater degeneracy. The Mardi Gras is an unfortunate reflection on the state of Australian society today.

Questions of Choice

Much of Justice Kirby's defence of homosexuality has been based on his claim that homosexuals have no "choice" and that they cannot change their orientation. As has been indicated here, his claims are much exaggerated. It is clear that many homosexuals, inguage . . .

Michael Kirby is a church member so it is extraordinary that he should castigate the Archbishops for restating what has been Christian teaching for 2000 years. Furthermore he may want homosexuals to be treated as normal human beings, but the Mardi Gras hardly helps. It has long since lost any significance as a civil rights event and simply flaunts sexual perversion. The sight of prancing feathers, sequins, flesh and leather only serves to reinforce the most crass homosexual stereotypes."

It is difficult to disagree with the Bishop in these regards. The Sydney Mardi Gras is presented by homosexuals and their supporters as one of the great public events in Australia, watched and applauded by many Australians and tourists (many of them being themselves homosexuals) and given much favourable publicity by the media. One would need to search far to find a spectacle of greater degeneracy. The Mardi Gras is an unfortunate reflection on the state of Australian society today.

Questions of Choice

Much of Justice Kirby's defence of homosexuality has been based on his claim that homosexuals have no "choice" and that they cannot change their orientation. As has been indicated here, his claims are much exaggerated. It is clear that many homosexuals, inguage . . .

Michael Kirby is a church member so it is extraordinary that he should castigate the Archbishops for restating what has been Christian teaching for 2000 years. Furthermore he may want homosexuals to be treated as normal human beings, but the Mardi Gras hardly helps. It has long since lost any significance as a civil rights event and simply flaunts sexual perversion. The sight of prancing feathers, sequins, flesh and leather only serves to reinforce the most crass homosexual stereotypes."

It is difficult to disagree with the Bishop in these regards. The Sydney Mardi Gras is presented by homosexuals and their supporters as one of the great public events in Australia, watched and applauded by many Australians and tourists (many of them being themselves homosexuals) and given much favourable publicity by the media. One would need to search far to find a spectacle of greater degeneracy. The Mardi Gras is an unfortunate reflection on the state of Australian society today.

Questions of Choice

Much of Justice Kirby's defence of homosexuality has been based on his claim that homosexuals have no "choice" and that they cannot change their orientation. As has been indicated here, his claims are much exaggerated. It is clear that many homosexuals, including those who engage in both homosexual and heterosexual activities, are able to moderate their conduct, and numbers of them do so and lead normal lives or at least reduce the incidence of abnormal activity.

The Position of High Court Judges

However there are in any event dangers in accepting a principle that people are not to be criticised if they merely indulge their "orientations". If that principle were valid it might be invoked by many other aberrant groups. For example, presumably what Justice Kirby puts forward in favour of homosexuals he would also, on a logical basis, put forward in favour of transvestites and transsexuals, so that perhaps there could one day be seen a High Court judge wearing women's dress.

It is very unfortunate that Justice Kirby has taken his strong public position in regard to homosexual questions. It is important that the High Court be respected by the community, and for this reason it has been accepted that its judges should not engage in controversial activities. What Justice Kirby has put forward is at least highly controversial, and many would say misguided.

Further, the controversy recently raised by Justice Kirby casts doubt on the desirability of appointing to the High Court persons with lifestyles of which many Australians disapprove strongly. Generally at least, persons appointed as judges should be limited to those whose personal lives are acceptable to the general Australian community.

I.C.F. Spry

1. "Quadrant", January-February 2000, pages 48-53.

2. "The Australian", 28 April 2000.

3. "The Sydney Morning Herald", 25 February 2000.

4. "Quadrant", January-February 2000, page 48.

5. Statement by Bishop Nichols, September 1998.

6. "The Daily Telegraph", 7 August 1998.

 

 

 

National Observer No. 45 - Winter 2000