From the thesis: The Church and the Law

After yesterday’s apology by the Victorian parliament to those convicted of crimes because of their homosexuality (hooray for Daniel Andrews!) I thought it might be timely to share some history about the Uniting Church and laws regulating homosexuality. 

Be warned, my thesis ended in 2000 and anti-discrimination laws have changed over the last 16 years. But the history is still right. 

In 1968 a survey was conducted to discover, among other things, whether church attendance affected Australians’ attitudes to the decriminalisation of homosexuality.[1] The survey questioned 1045 informants over the age of sixteen from all over Australia, and found that only 20 per cent of the strong, 17 per cent of the moderate, and 21 per cent of the infrequent churchgoers favoured decriminalisation. The numbers favouring decriminalisation were consistently small; only 33 per cent of the people who never went to church were in favour.[2]

These attitudes are not surprising in themselves. What is surprising is that they were not reflected in the leadership of the Uniting Church’s constituent churches. A year earlier, in 1967, the Presbyterian General Assembly of NSW had resolved ‘that homosexual behaviour between two consenting adults in private should no longer be a criminal offence’, and had asked ‘that the appropriate authorities be advised accordingly’.[3] The NSW Methodist General Conference also called for a re-examination of the law; possibly following the suggestion of the Rev. Ted Noffs of the Wayside Chapel, who claimed in 1966 that homosexual men were afraid to come forward for medical treatment because of the law.[4]

For a brief moment, before the formation of the Campaign Against Moral Persecution in 1970 and before the publication of Dennis Altman’s Homosexual: Oppression and Liberation in 1972, churches, including the Uniting Church in Australia, were part of the liberal consensus that led the movement for gay and lesbian rights in Australia.[5] For the next thirty years the Uniting Church in Australia consistently and strongly supported homosexual law reform. From the late nineteen sixties the predecessors of the Uniting Church called for the decriminalisation of male homosexuality, and in the eighties and nineties the leadership of the Uniting Church supported the addition of sexuality to the prohibited grounds of discrimination in equal opportunity legislation. The history of homosexual law reform clearly demonstrates the Church’s official commitment to social justice and political action, without necessarily demonstrating an official commitment to the acceptance of homosexuality.

This chapter will examine the part the Uniting Church played in Australia’s decriminalisation debates, and the influence decriminalisation had on the Church’s own sexuality debate. It will also examine the competing voices within the Uniting Church that left it in the apparently hypocritical position of opposing discrimination against homosexual people in society, while accepting it within the Church. Without a strong central authority, and with Church members in disagreement, the Uniting Church was unable to speak with one voice on the legal regulation of homosexuality.

The Decriminalisation of Homosexuality in Australia

The history of criminal sanctions against (male) homosexuality in Australia was a long one. The Australian law followed the English law, which since the nineteenth century had recognised two crimes in sexual activity between men: assault with intent to commit buggery (which was later changed to anal intercourse); and the offence of gross indecency. Sexual activity between women was not criminal. In Australia the description of the crimes varied. For example, the New South Wales Crimes Act condemned ‘the abominable crime of buggery’[6] while the Western Australian Criminal Code made ‘the carnal knowledge of another person against the order of nature’[7] an offence.

No matter what the taxonomy, legislation followed the English pattern, which meant that when the United Kingdom decriminalised homosexual acts between consenting adults in private through the Sexual Offences Act 1967 (UK), ten years after the Wolfenden Committee first recommended it, reconsideration of the Australian criminal law followed.

Decriminalisation of homosexual activity in Australia occurred over a twenty year period beginning with South Australia in 1972 and 1975, followed by the Australian Capital Territory in 1976,[8] Victoria in 1980,[9] New South Wales in 1984,[10] Western Australia in 1989,[11] Queensland in 1990,[12] and, finally, after an appeal to the United Nations Committee on Human Rights, Tasmania in 1997.[13]

As the time taken indicates, achieving decriminalisation was a difficult task. The story of decriminalisation was different in each state and only in Tasmania[14] was it simply a story of the increasing social acceptance of homosexuality and the recognition of the rights of homosexual people after a campaign by homosexual people themselves. In the other states chance and the coming of AIDS prompted decriminalisation, and the parliaments that passed the decriminalisation legislation made it clear that they did not support homosexuality.[15] In many states decriminalisation did not give homosexual activity legal equality with heterosexual activity. The Northern Territory, South Australia and Western Australia prohibit male homosexual activity in public, which can include ‘with more than one other person present’[16] or a place visible from a public place, including a car.[17] There is an unequal age of consent between homosexual and heterosexual conduct in New South Wales, the Northern Territory, Queensland, and Western Australia. The age of consent for women in these jurisdictions is 16, while men must be 21 to consent to homosexual sex in Western Australia, and 18 in New South Wales, the Northern Territory and Queensland. Victoria’s legal regulation of homosexuality is more liberal, with an equal age of consent and the legal recognition of same-sex relationships for most purposes.[18] New South Wales also recognises same-sex relationships for some purposes,[19] but they are recognised nowhere else in Australia.[20]

As the English law influenced the Australian law, so the responses of English churches to the 1957 Wolfenden Report influenced their Australian counterparts.[21] The Church of England’s support of the Wolfenden committee was widely reported in Australian newspapers, to the consternation of some members of the Church of England in Australia, who argued that it ‘reflected the “excessive humanitarianism prevalent in Britain to-day, including the revoking of the death penalty”’.[22]

In the late sixties and early seventies a variety of reports on homosexuality, all recommending decriminalisation, were released by the churches that would later make up the Uniting Church. In 1969 the Presbyterian Church in New South Wales released a report entitled The Responsibility of the Church, which argued that the church had no right to impose morality on the legal system; the national General Assembly of the Presbyterian Church then made a statement in 1970 that supported law reform,[23] a decision reported on the front page of the Sydney Morning Herald as ‘Church declares stand on deviates’.[24] Among the reasons given for this stand were the fact that the ‘law discriminate[d] unfairly against the homosexual as compared with the adulterer, fornicator and lesbian’ and that the law might encourage the seduction of children by men who would prefer adult contacts but who imagined that child seduction was less risky. Finally, the argument was made that sending a convicted homosexual to jail was ‘as therapeutically useless as incarcerating a sex maniac in a harem’.[25] The church did not want its support for decriminalisation to be confused with an acceptance of homosexuality as ‘normal’. Even so, some church members opposed the Church’s statement, including one who declared ‘that man was an animal of violent passions which had to be restrained by law’.[26]

Church declares stand on deviates

Sydney Morning Herald, 16 September 1970

In 1974 the Presbyterian Church of Victoria recommended decriminalisation in Victoria.[27] In 1975 the Methodist Department of Christian Citizenship followed.[28] The Rev. John Westerman said that Methodist policy saw homosexuality as a natural condition, and not one that should be subject to the law.[29] Thus by the time the Uniting Church was created in 1977 it had a history of supporting homosexual law reform that the Church could call upon in the debates about decriminalisation in Victoria and New South Wales in the 1980s.

The statements by the Presbyterian and Methodist churches originated in their justice units,[30] and were adopted by the whole church after much debate and discussion. The statements came from churches that believed that they had a right and a duty to comment on secular matters and from churches that could be moved by calls to stand in solidarity with the oppressed. The Uniting Church in Australia would inherit these characteristics along with the statements from the previous denominations, and continue the campaign that its predecessors had begun.

Victoria

When the Uniting Church was formed the reports and resolutions from the former denominations made up some of the work passed on to the social justice workers of the new church. In Victoria the new Division of Social Justice created the Taskgroup on Homosexuality in 1979, a support and education group that also became involved in the decriminalisation debate.[31] The Division supported the decriminalisation of homosexual acts based on the reports of its predecessors, and forwarded news of its support to the Victorian Government.[32]

When members of the Uniting Church heard about their Division’s support for decriminalisation there was some concern, and letters in opposition were written to the Church’s newspaper, Church and Nation.[33] Arguments against decriminalisation were couched in terms of the biblical prohibitions, but many letters betrayed a more visceral opposition to homosexuality on the part of their writers. For the most part, though, even those people who found homosexuality ‘disgusting’ argued that ‘[n]o compassionate person should object to decriminalisation of homosexual acts’.[34] Rev. Stuart Reid, who worked in the Division of Social Justice and who made educative visits around the state, believes:

we got through some of those resolutions in the early days because people hadn’t really got to grips with the issue. It was all right to decriminalise, we could keep it out there, but the actual discussion in the early days of the place of gays in the Church hadn’t really been raised.[35]

This appears to have been the attitude not only within the Church, but also within society in general. The doom-mongers predicted that the decriminalisation of homosexuality was only the first step on the slippery slope to acceptance of homosexuality as ‘a perfectly moral and natural condition of the human kind’.[36] The Victorian bill was passed, according to statements made by the government, because it was believed that it would end the discussion around homosexuality. Decriminalising homosexuality would remove it from the public agenda and make it less, rather than more, visible. However the debate over decriminalisation was swiftly followed by discussion about equal opportunity legislation.

The logical step, once homosexuality ceased to be a crime, was to make sexuality one of the prohibited grounds of discrimination in the anti-discrimination statutes that were created through the eighties and nineties.[37] This step may have been logical, but it was not one that was easily supported by the Uniting Church. Despite the religious exemption provisions of the anti-discrimination legislation, for some people such legislation was getting too close to home.

The religious exemption clause in Victoria’s anti-discrimination legislation is the broadest in the country, with a provision unique in Australian law.[38] Section 77 states that: ‘Nothing in Part 3 applies to discrimination by a person against another person if the discrimination is necessary for the first person to comply with the person’s genuine religious beliefs or principles.’ Under section 77 anyone at all may discriminate if the discrimination is necessary to comply with ‘genuine religious beliefs or principles’. There have as yet been no cases on this section, but it would seem that it does not require the belief to be reasonable or in conformity with the official doctrines of that person’s religion.

The general religious exemption is not without its critics, both within and without the churches. In 1993 a Victorian parliamentary review of the Act questioned the need for the exemption. The Staff Association of Catholic Secondary Schools condemned the exemption[39] and the Age editorial asserted: ‘We should not tolerate intolerance. This is essentially what the churches are asking us to do when they insist on their right to discriminate.’[40] It was suggested that the churches’ hard line on the issue was a response to the recent ordination of women in the Anglican Church, and a fear that gay priests might be next.[41] The arguments made by the representatives of the Catholic and Anglican churches appeared to prevail; the exemption was rewritten and retained as section 75 of the act[42] and in 1995 section 77 was added. What Archbishop Little described as the ‘free exercise of religion’[43] was protected.

The Victorian Synod of the Uniting Church did not join the Anglican and Catholic churches in making a submission to the parliamentary review. In 1992 a recommendation had been brought to the annual Synod meeting asking that the Church’s exemption from the Equal Opportunity Act be reviewed. In its final form the recommendation read:

That the Synod Commission for Mission be requested:

  • to consider the issue of the perceived inconsistency of the acceptance by the Uniting Church of exemption from equal opportunity provisions of state legislation whilst taking an active role in opposing acts of discrimination.[44]

The report that was presented to the Synod next year argued that there was no perceived inconsistency in the Church’s policy because ‘the church does not sanction any beliefs or actions which are contrary to the Act’.[45] The report also reassured the Synod that:

The Act does not deal with ‘sexual preference.’ However, Section 38 permits religious bodies to make decisions that are ‘necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’ It does not pre-empt any future decisions that may be made by the church about homosexuality.[46]

The last sentence was a reference to the Assembly Sexuality Task Group which had just begun its work.

The Synod accepted the report after some discussion and passed two recommendations: one supporting section 38 of the Act;[47] and the other affirming that people should not be discriminated against in matters of employment, education, church membership or access to accommodation and other services provided by the Church.[48] The Synod’s list of prohibited causes of discrimination included gender, marital status, disability, race and age. The debate on the report and recommendation had included discussion of whether sexuality should be a prohibited category for discrimination, and when the question was raised the Commission for Mission answer was that it was not prohibited in the current legislation and the Synod resolution followed the legislation.[49]

The Synod’s exclusion of ‘sexuality’ in the 1993 resolution seems, on the face of it, to be reasonable. But when put alongside a resolution passed by the Synod in 1985 it appears that the Uniting Church was willing to demand a justice for homosexual people outside the Church that they were not willing to give them within it. At that time the Cain Labor Government was considering amendments to the Act and the Synod resolved:

To call upon all political parties in Victoria to support an amendment to the Equal Opportunity Act to ensure that individual homosexual citizens are not discriminated against in employment, housing or the provision of goods and services solely on the grounds of their homosexuality.[50]

The debate was heated, the recommendation was passed by the narrowest margin recorded in the Synod,[51] and five members of Synod asked that their dissent be recorded. The Synod then found its resolution (mis)reported in the secular media, who wanted to know when the Church would ordain homosexual people.[52] The Moderator had to reassure concerned members of the Church that: ‘The resolution is intended as a statement of human rights’ not a statement of the Church’s attitude to homosexuality.[53]

The Church’s statement turned out to have been made a decade too early; it was not until 1995 that ‘lawful sexual activity’ became a prohibited category of discrimination. When that amendment was proposed two letters were written to the then Premier, Jeff Kennett. The first, written on 31 January 1995, was over the signatures of the then Moderator, Rev. Dr Warren Bartlett, and the Acting Executive Director, Bronwyn Pike. The second, written on 30 March 1995, was signed by Pike and the General Secretary, Rev. Robert Johnson. The message of both letters was the same:

We understand that the proposed amendments to the Equal Opportunity Act have already been withdrawn on a previous occasion because of reactive pressure from certain sectors within the community. While we acknowledge that the issue of homosexuality may present some personal difficulties for some people the Uniting Church firmly believes this is a question of basic human rights which must be afforded all people within our society.[54]

The Victorian Synod leaders were enabled to write these letters by the most recent Synod in September 1994, which had again considered the question of anti-discrimination legislation to protect homosexual people. Gay and Lesbians Against Discrimination (GLAD) had released a report in February that year that detailed the discrimination faced by homosexual people.[55] In response to that report the Synod resolved to ask the Commonwealth Government to enact anti-discrimination legislation, and called on both State and federal governments to initiate inquiries into violence directed at homosexual people.[56] When the decision was reported Bronwyn Pike referred to the Church’s continuing ‘struggle’ with homosexuality ‘in a bid to develop a greater understanding and tolerance for gays.’[57]

The Victorian Synod was not alone in this call. When the Senate Legal and Constitutional References Committee held an Inquiry into Sexuality Discrimination[58] the Assembly sent Rev. Robert Stringer, national Secretary for Social Justice, to give evidence in support of the proposed bill, support that included the rejection of exemptions for church schools, hospitals and charities.[59] As the Church had supported decriminalisation, so it supported anti-discrimination legislation. One note of caution must be sounded, however. The final paragraph of the second letter to the Victorian Premier reassured him:

Please know that you have the full support of the Uniting Church synod and leadership as you press for these amendments to outlaw any discrimination on the grounds of ‘lawful sexual activity’.[60] (My bold)

No such promise of support could be made on behalf of the general Church membership.

The support of the Church leadership for anti-discrimination appears, at least publicly, to have been based firmly on its exemption from that legislation. In 1999 Rev. Walter Abetz brought the following recommendation to the Victorian Synod:

That the appointment of the Principal of Otira College by the Standing Committee…is understood neither to diminish or prejudice the current historical understanding of the Uniting Church in matters of sexuality, nor to diminish or prejudice the exemption that the Uniting Church has under Victorian and Commonwealth Equal Opportunity legislation, in view of that historical understanding.

The new Principal of Otira College was Rev. Jennifer Byrnes, who had been ‘outed’ at the 1996 Synod when she was nominated as Moderator.[61] Abetz was concerned that, as he put it in his speech: ‘The Standing Committee has given away the Uniting Church’s right to the equal opportunity exemption available to the Church.’[62] If the Church’s doctrines were not clear, any exemption on that basis might disappear. If the Uniting Church employed homosexual people, could discrimination still be necessary to protect the sensitivity of Church members as required under section 75?

The debate on the recommendation was swift. The five people who spoke in the debate that followed were all opposed to it. The general feeling was that the recommendation was a personal attack on Byrnes, and the recommendation was withdrawn with prolonged applause. But the longest speech on the recommendation was made by the Synod General Secretary, Rev. Dr Robert Johnson, who reassured the Synod that legal advice had been received that: ‘the claim that benefits of exemptions or defenses will be lost if this appointment is made does not seem to be found.’[63] The principle argument made by the Synod leadership was that the exemption was retained, not that it was an exemption that the Church could live without.

[1] P. R. Wilson and D. Chappell, ‘Australian Attitudes towards Abortion, Prostitution and Homosexuality’, The Australian Quarterly (June 1968), pp. 7-17, quoted in Hans Mol, Religion in Australia: a sociological investigation, Nelson, Melbourne, 1971, pp. 253-4.

[2] Mol, Religion in Australia, p. 253.

[3] ‘Reform of sex law sought’, Sydney Morning Herald, 19 May 1967.

[4] ‘Consenting adults’, Sydney Morning Herald, 28 July 1967.

[5] A support for homosexual law reform was one of the elements of the ‘new, liberal current in Australian political life’ that developed in the 1960s out of the emergence of a new middle class. Graham Willett, Living Out Loud: A history of gay and lesbian activism in Australia, Allen and Unwin, Sydney, 2000, pp. 19-30.

[6] Section 79.

[7] Section 181.

[8] With surprising ease, when it was decided that a House of Representatives motion that homosexual acts should not be ‘subject to the criminal law’ applied to the Territory. Emma Henderson, ‘Of Signifiers and Sodomy: Privacy, Public Morality and Sex in the Decriminalisation Debates’, Melbourne University Law Review, vol. 20 (1996), p. 1024.

[9] Crimes (Sexual Offences) Act 1980 (Vic).

[10] Crimes (Amendment) Act 1984 (NSW).

[11] Law Reform (Decriminalisation of Sodomy) Act 1989 (WA).

[12] Criminal Code and Another Act Amendment Act 1990 (Qld).

[13] Criminal Code (Amendment) Act 1997 (Tas).

[14] Miranda Morris, Pink Triangle: The gay law reform debate in Tasmania, UNSW Press, Sydney, 1995.

[15] For an excellent history of homosexual law reform in Australia see Willett, Living Out Loud, pp. 92-8, 148-65, 219-37.

[16] Criminal Code Act 1983 (NT) s. 126.

[17] McKenzie v Stratton [1971] VR 848.

[18] Section 1(2) of the Statute Law Amendment (Relationships) Act 2001 (VIC) states that ‘[t]he object of this Act is to recognise the rights and obligations of partners in domestic relationships where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner.’

[19] See, for example, the Superannuation Legislation Amendment (Same Sex Partners) Act 2000 (NSW).

[20] At the time of writing there is discussion in Tasmania about recognising same-sex relationships.

[21] Malcolm Cowan, ‘”Knowing” Sodom? Australian Churches and Homosexuality’, in Gary Wotherspoon (Ed), Gay and Lesbian Perspectives III: essays in Australian culture, Department of Economic History, University of Sydney, Sydney, 1996, p. 212. The Wolfenden Report also influenced churches in New Zealand, with the Methodists in 1960 and the Presbyterians in 1968 coming out in support of homosexual law reform. Laurie Guy, Worlds in Collision: The Gay Debate in New Zealand, 1960-1986, Victoria University Press, Wellington, 2002, pp. 53-6.

[22] For example, Archdeacon T. C. Hammond, reported in ‘Church in two minds on vice’, Sun-Herald (Sydney), 27 May 1956.

[23] ‘Church attacks sex law’, Australian, 16 September 1970.

[24] 16 September 1970.

[25] Graham Williams, ‘Big social reforms urged on church’, Australian, 9 September 1970.

[26] ‘Church declares stand on deviates’.

[27] ‘Churches back sex law reform’, Age (Melbourne), 10 April 1975.

[28] Cowan, ‘“Knowing” Sodom?’.

[29] ‘Churches back sex law reform’.

[30] Both churches, and later the synods and the Assembly of the Uniting Church, had offices that focused specifically on issues of ‘social justice’ usually presided over by a Social Justice Officer.

[31] Interview with Rev. Stuart Reid, 5 November 1999.

[32] Church and Nation (Melbourne), 17 December 1980, p. 3.

[33] For example letters from (Mrs) M. Pullen and Leonard Bluff, Church and Nation (Melbourne), 28 January 1981, p. 16.

[34] J. B. Longthorn, Letter to the editor, Church and Nation (Melbourne), 28 January 1981, p. 16.

[35] Interview, 5 November 1999.

[36] Michael Barnard argued that ‘The homosexual militant is not content with due and measured tolerance he or she must now have acceptance in the fullest sense; homage must be paid to their homosexuality as a perfectly moral and natural condition of the human kind…if the homosexual and the heterosexual stand equal before the law, why should not the homosexual, as a matter of simple equality, demand rights to homosexual marriage, to the adoption of children, to the full propagation of homosexual ‘education’ in schools and the like?’ His prediction was, of course, accurate. Michael Barnard, ‘Homosexuals and legal change’, Age (Melbourne), 28 November 1980.

[37] Seven jurisdictions in Australia have made sexuality in some form an unlawful ground of discrimination in anti-discrimination legislation. All these pieces of anti-discrimination legislation have exemptions for religious institutions. Unsurprisingly, the ordination and appointment of priests, ministers of religion or members of a religious order is completely exempt from the legislation in all jurisdictions, but the exemptions go further and enable discrimination to protect the ‘susceptibilities of the adherents’. Anti-Discrimination Act (NSW) s. 56(d); Discrimination Act 1991 (ACT) s. 44; Equal Opportunity Act 1984 (SA) s. 50; Equal Opportunity Act 1984 (WA) s. 72; Anti-Discrimination Act 1991 (Qld) s. 29; Equal Opportunity Act 1995 (Vic) s. 75.

[38] Wayne Morgan, ‘Still in the Closet: The Heterosexism of Equal Opportunity Law’, Critical inQueeries, vol. 1 (1996), p. 134.

[39] Joanne Painter, ‘Churches argue for the right to discriminate’, Age (Melbourne), 9 June 1993.

[40] Editorial ‘Religion and the law’, Age (Melbourne), 10 June 1993.

[41] Peter Weiniger, ‘Holiness or hypocrisy?’ Age (Melbourne), 10 June 1993.

[42] Section 75 states:

(1) Nothing in Part 3 applies to-

(a) the ordination or appointment of priests, ministers of religion or members of a religious order;

(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order;

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.

(2) Nothing in Part 3 applies to anything done by a body established for religious purposes that-

(a) conforms with the doctrines of the religion; or

(b) is necessary to avoid injury to the religious sensitivities of people of the religion.

(3) Without limiting the generality of its application, sub-section (2) includes anything done in relation to the employment of people in any educational institution under the direction, control or administration of a body established for religious purposes.

[43] Frank Little, ‘Religion and discrimination: the archbishop responds’, Age (Melbourne) 14 June 1993.

[44] Synod Minute 92.4.8.2

[45] Synod Of Victoria, Reports of the Sixteenth Synod, 1992, p. B3.5.

[46] ibid.

[47] Synod Minute 93.5.1.3

[48] Synod Minute 93.5.1.1

[49] This was two years before ‘lawful sexual activity’ was added to the Equal Opportunity Act in 1995.

[50] Synod Minute 85.2.1

[51] Church and Nation (Melbourne), 16 October 1985, p. 17.

[52] ‘When media bites the church’, Church and Nation (Melbourne), 16 October 1985, p. 5.

[53] A. J. Kilgour, ‘From the Moderator’, Church and Nation, 16 October 1985, p. 3.

[54] Letter written on 31 January 1995.

[55] Synod of Victoria, Reports of the Eighteenth Synod, 1994, p. S/B3.43

[56] Synod Minute 94.3.3.3

[57] Ben Hutchings, ‘Church calls on Canberra to make discrimination against gays illegal’, Australian (Sydney), 20 September 1994.

[58] Senate Legal and Constitutional References Committee, Inquiry into Sexuality Discrimination, AGPS, Canberra, 1997.

[59] David Marr, The High Price of Heaven, Allen and Unwin, Sydney, 1999, p. 256.

[60] Letter written on 30 March 1995.

[61] See Chapter Six, ‘Gifts and Graces’.

[62] Debate, 23 September 1999.

[63] Legal advice from Moira Rayner, quoted by Johnson in the course of the debate.

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