The opening words of the Imperial Act which brought the Australian Constitution into being are:

Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble federal Commonwealth under the Crown…

Patrick McMahon Glynn is the author of that reference to humble reliance on the blessing of Almighty God. He was a colourful South Australian delegate to the Federal Convention who later served in the House of Representatives for 19 years. His words reflected what the elite of the Federation generation saw as fundamental.

They do not reflect what modern elites think. The public voices of modern elites are not humble. They conceive themselves to have entitlements and rights, not blessings. And they do not feel any gratitude to Almighty God for their entitlements and rights.

This lecture centres on the desire of modern elites to exclude any role for religion in Australian public discussion – and perhaps any role for religion at all in any sphere, public or private …

Some little time ago a particular point of view was publicised with the words: “Burn churches, not gays”. The level of taste which is integral to this contribution can be gauged from the remembrance it summons up – surely inevitably and probably intentionally – of the fact that the last organisation in the West with any power to burn places of worship was the Nazi regime, and the fact that that regime moved very quickly from burning Jewish synagogues in November 1938 to burning those who attended those synagogues from 1942 onwards – in their millions.

Let us look at a second charmless incident. More recently vandals daubed on the walls of a Baptist church the words “Crucify ‘No’ Voters”. The level of taste involved can be gauged from its deliberate and blasphemous allusion to a central element of Christian belief. This would not easily be seen by some elements in modern elites …

Does not the failure of modern elites to condemn these two examples of sub-human behaviour indicate an acceptance by the elites of their propriety and validity? …

These phenomena highlight an aspect of modern elites – the relativism of their beliefs and their conduct. It is all right for one element of public opinion to call for the physical destruction of places of worship and the death of those who worship in them. That is treated as merely routine, apparently fit to pass without comment. But it is not seen as all right for those who worship to state publicly the beliefs they hold, and to argue, whether on narrowly religious, or ethical or utilitarian grounds for or against particular policy positions under general debate.

It is all right for the elite to support a particular point of view, but intolerable for anyone else to oppose it. That is what modern elites call “tolerance”.

A fanatical anti-clericalism 

Until recently the approach of modern elites to religion was one of indifference. It is easy to understand how this came to be. The horrors of life in earlier times made it understandable that human beings were strongly attracted to seeking consolation in religious faith and in the hope of a better world after life in this world ended. We forget the extent to which some types of prosperity have become much more common in the West. And we forget how fast this has happened.

A century ago the great Dutch historian J. H. Huizinga commenced his work The Waning of the Middle Ages as follows, in a chapter entitled “The Violent Tenor of Life”:

… Calamities and indigence were more afflicting than at present; it was more difficult to guard against them, and to find solace. Illness and health presented a more striking contrast; the cold and darkness of winter were more real evils. Honours and riches were relished with greater avidity and contrasted more vividly with surrounding misery. We, at the present day, can hardly understand the keenness with which a fur coat, a good fire on the hearth, a soft bed, a glass of wine, were formerly enjoyed.1

In the century since Huizinga wrote those words, the contrast between the painful environment of past ages and the gluttonous and sensual milieu of the present has become far more marked. Now indifference based on rising wealth is insidiously damaging to religion. Prosperity has proved a graver foe than persecution. As the world we are in becomes more attractive, the less need is there for contemplating the possibility of some other more perfect world and the less adherence there is to a strict morality. Lord Acton said that “the moral law is written on the tablets of eternity”.

Apart from laying down the moral law, religion asks two questions. What is the nature of humanity? What is the destiny of humanity? It tries to transcend the trivial and the worldly. It looks for windows into another world. It may not stress a tragic vision of life. But it does try to stress a serious vision of life. To those satisfied with the pleasures of this world, now so freely available, questioning and searching of these kinds is of no interest.

But members of modern elites are moving away from mere indifference. They are embracing a fanatical anti-clericalism. Some want to destroy faith itself. We know there have been recent persecutions in the Middle East of a kind and on a scale that have not been seen for centuries – rarely under the Ottomans until their treatment of the Armenians, not much under the states which succeeded the Ottoman Empire. …

But something which, though less severe, is equally uncompromising is emerging in Australia. Among the elites is developing a hostility to religion which has not been seen in the West since the worst excesses of the French Revolution, or at least the vengeful Premierships of Émile Combes in the early 20th century.

The hostility is demonstrated least against Hindus and Buddhists – for they are neither numerous nor highly visible. It is also not much demonstrated against Muslims, despite the threat and actuality of terrorist outrages, perhaps because the Muslim vote is the key to winning and losing parliamentary seats. It is beginning to be demonstrated against Jews. Their numbers are low, but those parts of the elites which respond to electoral hatred for the State of Israel are drifting back into an anti-Semitism which one had thought had been purged from Western life by the horrors of the Second World War and the persecution of Jews in communist eastern Europe and Russia after 1945. No allowance is made for the appalling dilemmas facing Israeli leaders, surrounded as they are by a sea of Muslim hate.

And hostility is increasing markedly against Catholics. One of the aphorisms of the great parliamentary leader of the German Centre Party, Ludwig Windhorst, is becoming true again: “Anti-Catholicism is the anti-Semitism of the intellectuals”. But no Christian denomination seems to be exempt from the new de-Christianisation campaign.

Now it is evil to invite anti-religious violence. It is also evil to damage the property of religious institutions. To fail to denounce those evils is to associate oneself with them. The case for the elites is weakened not only by their association with those evils. It is also weakened by their failure to appeal to reason.

There is among us here tonight the Reverend Peter Kurti, a licensed Anglican priest interested in the place of religion in Australian public life. He has recently written a remarkable book entitled The Tyranny of Tolerance: Threats to Religious Liberty in Australia. ”.2I owe a debt to it. For some of his themes underlie this address. In that book he argues that traditionally liberalism aimed to protect individuals against the encroaching power of the state. But this type of liberalism has been replaced. The new liberalism calls for the enervation of religious faith and religious practice. It sees faith as something which is at best an individual subjective profession of taste – a sort of hobby, harmless enough, but only if practiced in private. Instead real tolerance extends only to those who are alleged to be victims of discrimination.

The modern elites are tyrants of tolerance. They say: “You must listen to what I am going to say. Then you must either praise my virtue or shut up. Because if you try to say you disagree and why, you deserve to be, and you will be, hounded out of all decent society.” Thus the tyrants of tolerance pay lip-service, but only lip-service, to freedom of religion as a fundamental human right.

Peter Kurti wants to defend freedom of religion. It can be destroyed by persecution in the manner of some Roman emperors or ISIS. It can be destroyed as well by the tactics of the tyrants of tolerance. Section 116 of the Constitution prevents the enactment of any Commonwealth law prohibiting the free exercise of religion. The tyrants of tolerance react to what religious speakers may say with orchestrated vilification, insults, derision, scorn, fake outrage and bullying mockery. That howling down can do as much to prevent the free exercise of religion as any law falling foul of s 116.

In short, modern elites do not demand tolerance. They demand unconditional surrender. They want absolute victory for an uncontestable dogma which is unchallengeable – or at all events is not to be exposed to the risk of challenge. The modern elites call for their creeds to be tolerated. Then they call for them to be compulsory. Then they want them to be exclusive. One small saving grace is that the contents of these creeds, dogmatically and absolutely stated though they are, do seem to vary from time to time.

The decline of courtesy and reason

This authoritarian claim overlooks the roles of both courtesy and reason. In almost every way the last five or six decades have seen a massive change in courtesy, civility and mutual respect. Seats are not given up to the pregnant, the elderly and the infirm on public transport. Travellers are not given immunity from noise made by other travellers. Citizens are not free from noise made by their neighbours. Passers-by in suburban streets are tending not to greet each other with the politeness of former times. Public violence and drunkenness is more common. Triviality and loutishness prevail in commercial life, and at all levels of public life from parliamentary processes to community debate.

But there is more wrong with the approach of the elites than discourtesy. Their approach disables them from – makes them incapable of – presenting their point of view, for what it is worth, properly. To shout is not to argue. To censor is not to reason. To bawl is not to engage in persuasion.

There is a form of persuasion associated with the 8th Duke of Devonshire. So far as he is known now at all, he is best known as the Marquis of Hartington, under which name he sat in the House of Commons for 37 years until 1893. He had the unique distinction of being offered the Prime Ministership on three occasions, in 1880, 1886 and 1887, and each time refusing. … On 24 March 1908, he died with the words: “Well, the game is over, and I am not sorry.” When the news reached the House of Commons …the Leader of the Opposition, Mr A J Balfour, attempted to explain the source of the Duke’s stature, in a speech which was in its day famous:

I think of all the great statesmen I have known the Duke of Devonshire was the most persuasive speaker; and he was persuasive because he never attempted to conceal the strength of the case against him. … What made the Duke of Devonshire persuasive to friends and foes alike was that when he came before the House of Commons or any other Assembly, he told them the processes through which his own mind had gone in arriving at the conclusion at which he ultimately had arrived. Every man felt that this was no rhetorical device, but that he had shown in clear and unmistakable terms the very intimate processes by which he had arrived at the conclusion which he then honestly supported without fear or favour, without dread of criticism, without hope of applause. … In the Cabinet, in the House of Commons, in the House of Lords, on the public platform, wherever it was, every man said, ‘Here is one addressing us who has done his best to master every aspect of this question, who has been driven by logic to arrive at certain conclusions, and who is disguising from us no argument on either side which either weighed with him or moved him to come to the conclusion at which he has arrived. How can we hope to have a more clear-sighted or honest guide in the course we ought to pursue?’ That was the secret of his great strength as an orator.

The point is that to expose and deal with the difficulties in one’s case can be a passport to decisive intellectual success. It is not a technique employed by the elites. They will not concede any difficulty in their case. Or at least they will not concede any right in their opponents to expose any such difficulty.

The Christian origins of liberalism

Another curious feature of modern elites is this. They call themselves liberal and tolerant. Their “liberalism” and “tolerance” is the product of a long historical process. Modern liberalism in any genuine sense reveals several key characteristics – in a belief in individual liberty, in the moral equality of individuals, in a legal system based on equal treatment of like cases, and in a representative form of democratic government. In the West, modern liberalism also goes further, in calling for massive public expenditure – on education at all levels, on public health, and on support for the aged, the poor, those incapable of work and those unable to get it. Opinions may differ on what the precise mix of these latter characteristics ideally should be, but there is no real difference about the former key characteristics.

How did this modern ideal of liberalism arise? Out of the very religion which is now the most despised – Christianity.

From the time Christ walked the earth in Galilee trends began which though at varying speeds and in different ways and subject to various setbacks developed the modern age. The process has been traced in a fine book written by Sir Larry Siedentop.

Sir Larry Siedentop was brought up in the United States. But he has lived and taught in England for five decades. His book is Inventing the Individual: The Origins of Western Liberalism. He points out that before the Greek and Roman republics emerged, society was based on families run by patriarchs. The Greek republics were in effect tyrannies or oligarchies. Rome was originally run by kings, then by a republican oligarchy, then by emperors whose power in the first and last resort rested on military strength. In these societies so-called ‘citizens’ were few in number.

In different ways women, younger sons, slaves, captives and foreigners could enjoy only debased and limited roles. Even a genius like Aristotle viewed slavery as inevitable: “Some are free men, and others slaves by nature.”3 Thus natural inequality, and the natural superiority of the few over the many, were basic assumptions. The world was seen as dominated by many inscrutable deities and an uncontrollable and immutable fate.

The advent of Christ revealed different values. He showed a concern for the ill, the socially marginal, the outsider, the destitute. He opposed self-righteousness and hypocrisy. He had no concern to associate with wealth, power or celebrity. His associates were humbler. Many of them were women. He saw little children as heirs to the Kingdom of Heaven. He encouraged a search for the beam in one’s own eye before identifying the mote in someone else’s. He encouraged his followers not merely to love their friends and neighbours, but also to forgive their enemies. He urged them not to meet violence with violence.

The social teachings of Christ were reflected, for example, in the monastic tradition later. Thus in the fourth century St Basil of Caesarea said: “It is God’s will that we should nourish the hungry, give the thirsty to drink, and clothe the naked.”4 They live on in religious charities even to this very day.

But above all Christ taught that all human beings were equal before God, and all could enter the kingdom of God. … Those equal in the eye of God came to be seen as equal in the eye of the law. For this reason Siedentop asks: “Was Paul the greatest revolutionary in human history?”6 And he states: “Through its emphasis on human equality, the New Testament stands out against the primary thrust of the ancient world, with its dominant assumptions of ‘natural’ inequality. Indeed the atmosphere of the New Testament is one of exhilarating detachment from the unthinking constraints of inherited social rules.”7

So Tertullian said that Christ had done “one mighty deed … – to bring freedom to the human person”.8 In due course this attracted hostility from the Roman Empire. The persecutions of some Roman Emperors – not just failures like Nero or military dictators like Trajan or desperate rulers like Decius and Valerian trying to save a collapsing state, but objects of modern veneration like the supposedly civilised Marcus Aurelius – assisted the spread of Christianity. As Tertullian also said, the blood of the martyrs was “the seed of the church”.9 The process was perhaps aided, perhaps hindered, by the gradual conversion of the somewhat flawed figure of the Emperor Constantine, with his unfortunate identification of Church and State …

Marginalising Christianity

Now the modern elites – the tyrants of tolerance – in seeking to marginalise or silence Christianity are not only rejecting the cultural tradition of Christianity. Not only are they rejecting a large part of the entire life and history of the nation – because Christianity is so integrated with the national life and history that to annihilate it is to destroy that national life, which can live only in memory.

They are also rejecting that fundamental part of the Christian tradition which is the source of the modern world and of their own favoured position within it. They are doing it whether they realise it or not. To do that is to run a risk of returning at least in part to what the Christian tradition replaced. And what it replaced is rule by patriarchs, or aristocracies, or oligarchical castes, heavily based on slavery, involving the subjugation of women, captives and younger sons and not recognising the status of aliens. It is to drift towards the opposite of Christianity.

Towards tyranny

Above all, the modern elites welcome tyranny. Why not? They are the tyrants of tolerance themselves, in tolerating only their mercurial views alone, even though those views change with the fickleness of fashion.

The Girondin leader Vergniaud said that the French Revolution, like Saturn, was devouring its own children. Like other Girondin leaders and many other revolutionary leaders from Danton and Robespierre down, he died under the guillotine. In Australia we see the reverse. The children of the Christian revolution, after denying that it was their father, are devouring the revolution.

Perhaps the last parts of the argument go too far.

Members of modern elites would incredulously deny that their protected position owed anything to Christianity. But some of them would accept, perhaps, that that protected position owes something to classical secular liberalism. Liberalism endeavoured to create governmental structures which protected a private sphere of individual freedom. In that sphere, religious belief could survive.

But some members of modern elites depart from their own origins in secular liberalism. By preventing any public expression of religious thought through ridicule and bullying, they tend to cause religion to wither away even in the private sphere. What can have no public expression will eventually cease to have any private existence. Thus the elites seek to destroy their inheritance from secular liberalism.

Sometimes the stance of the elites is defended by contending that there is no element of religious discrimination or persecution involved in requiring or inducing those of religious faith not to proselytise, manifest it publicly, or employ it as a source for the discussion of public issues, so long as they are at liberty to practice their faith in private.

A bench of the United States Court of Appeals for the Seventh Circuit (Flaum C J, Posner and Williams J J) has denied this. The opinion, written by Judge Posner, pointed out that refugees are entitled to claim asylum on the basis of religious persecution even if they can escape the notice of their persecutors by concealing their religion. The Court said:

Christians living in the Roman Empire before Constantine made Christianity the empire’s official religion faced little risk of being thrown to the lions if they practiced their religion in secret; it doesn’t follow that Rome did not persecute Christians…11

Another argument which might be advanced for the elites, though it does not appear to have been, is that silencing religious persons by forcing them entirely out of the public arena is not discrimination, because it is not contrary to the Racial Discrimination Act 1975 (Cth). Section 9(1) of the Act provides:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

That contains no reference to religion. And in the highly controversial section 18C, para (1)(b), selects as a requirement for unlawfulness the doing of an act “because of the race, colour or national or ethnic origin of [a] person or of some or all of … people in [a] group” – but not religion. If s 18C is to stay, why is religion not given the protection it affords? …

A coming persecution?

But a threat to religious institutions may not stop there. It may eventually come from the law itself. If it does, it may begin a trend which is likely to extend to many other institutions whom the elites and the State which they tend to dominate come to dislike. That is why even those who are not members of religious institutions and have no particular sympathy for them ought to fear the current war on religious faith.13

But if the elites were able to proceed by force of law – whether by laws specifically directed against their religious enemy or by laws which have a damaging impact on that enemy unless protections are provided – some may think that the time for talking alone may have passed. Some may think that the time for resistance may have come.

Some may see it as necessary to deliver sermons attacking unjust laws with sufficient power to threaten the life of governments, as Cardinal von Galen did against Nazi involuntary euthanasia, at the price of incarceration in a concentration camp. Some may see it as necessary to endure imprisonment and exile as Cardinal Mindszenty did for his stand against Communist oppression and expropriation in Hungary after 1945. Some may see it as necessary to endure imprisonment and expropriation, as thousands of priests and churches did for opposing Bismarck’s anti-Catholic laws.

Australian law now prevents any repetition of the fate of St Ignatius of Antioch. But perhaps once again some persecution – less brutal physically, but just as real – will be the seed of the Church.

Let us return to the man honoured by this lecture. Had Glynn lived to see the days which a pessimist may consider to be coming, how would he have reacted to them? Probably with clear-headedness, but also with fire and passion.

Dyson Heydon served as a justice of the High Court of Australia from 2003 to 2013. This is an edited version of the inaugural PM Glynn Lecture on Religion, Law and Public Life delivered at the Australian Catholic University on October 17. The PM Glynn Institute was established by Australian Catholic University in 2016 to analyse public policy issues. 

Notes

1 The Waning of the Middle Ages (Penguin Books Ltd, transl. Ed. 1922), p. 1.

2 Peter Kurti, The Tyranny of Tolerance: Threats to Religious Liberty in Australia (Connor Court Publishing, 2017), p. 6.

3 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p. 118.

4 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p. 96.

51 Galatians 3:28.

6 Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p. 353.

7 Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p. 353.

8 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p. 77.

9 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p. 80.

10 Quoted by Sir Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Allen Lane, 2014), p. 89.

11 Muhur v Ashcroft, 355 F 3d 958 at 961 (7th Cir, 2004).

12 Christian Youth Camps Ltd v Cobow Community Health Service Ltd [2014] VSCA 75.

13 Peter Mulherin and Simon P Kennedy, “Archipelago or Landmass? Voluntary Associations, Civil Society and the Health of Liberal Democracy” (2017) 33(2) Policy 40.

Dyson Heydon is a former justice of the High Court of Australia.