Time for Turnbull to walk the talk on gay marriage

Contributing editor-at-large Tess Lawrence says it is time for Malcolm Turnbull to not only talk the talk to support gay marriage but also walk the walk — across the floor, when it comes to a vote in Federal Parliament.

IT IS an abomination that Michael Kirby is gay.

Ever since Malcolm Turnbull introduced me to him in Sydney decades ago, when Kirby was Chairman of the Law Reform Commission, I’ve been besotted and rather hoped he would one day leap into the closet and declare his heterosexuality. As if.

Kirby was in the company of a charming LRC colleague and by the time we had finished a cuppa or two, I think the feral conversation had a speed dating velocity that left one with aching jaws from laughter and from discussing everything from the likes of Kafka, the Durrell brothers, Plutarch’s Lives, Nefertiti, the source of the Nile, domestic violence, drugs and the burgeoning underclass, such as our homeless and the dismal health of our indigenous brothers and sisters.

The Judge would not remember the meeting, but I have never forgotten it.

Kirby has a powerful and sexually charged intellectual energy sheathed in a scholarly gravitas.

His wicked sense of humour, Richard Burton-type pockmarked skin, that sonorous voice, infectious enthusiasm and affable inclusiveness is surely very attractive. Period.

And I’m not the only straight in the village who thinks so.

Kirby is one of those homo sapiens who is compelling and attractive to others, regardless of gender or sexual preference.

He makes a fascinating study.

People who have the courage and conviction to go against their tribe are rare.

His comments and honesty about his personal life as a gay man, his public pleadings for a shared humanity, his professional life as a Judge, including 13 years on the High Court, and his sense of justice seems to me to have been balanced with the weight of compassion and empathy for the human condition.

Unshackled by the formal protocols of his former office, his own website and easy manner reflects his talents as a communicator and unjealous sharer of knowledge.

His championing of same sex marriage has imbued judicial logic into the public conversation and encouraged others to speak out in similar defence despite igniting hatespeak and controversy, as fear and loathing often does.

It has always perplexed me that the relatively recent, relatively western habit of the legal sanction of marriage causes much angst and such anger against those who support and wish to participate in same sex marriages.

We seem to become histrionic and self-righteous when discussing this subject and yet remain largely diffident to the hourly obscenities of war, death, injury, starvation, poverty, domestic and other violence, child pornography, sexual and economic slavery, asylum seekers, illiteracy, murder, animal cruelty and addictions to drugs, alcohol and gambling et al — all this in our own unkempt backyard.

Just switch channel or switch off. It’s all too confronting; says too much about us as a community.

And it ain’t pretty.

But hey, adults loving each other — whoa, don’t go there! Unclean, unclean. How dare they try to capture sacred ground upon which religions trample and over which they assume to have eternal leasehold.

I wrote about this is Independent Australia on March 20 and it was interesting how many political and public figures supported me ‘off the record’ but didn’t want to publicly declare their position.

I understand their predicament, but not their political and ethical cowardice.

I wrote of the notion of a ‘conscience vote’ and how I believed that all votes made by our parliamentarians should be according to conscience and not to party factions.

The time has come for all good men and women to come to the same sex aid of the people — not the Party.

It is clear that in Australia at least, the majority of us endorse same sex marriage.

I for one, am tiring of religious leaders trying to force us into the missionary position.

On Saturday, Malcolm Turnbull posted on his website the text of his 2012 Michael Kirby Lecture, delivered on behalf of the Southern Cross University in conjunction with the School of Law and Justice.

Those attending the sixth lecture paid $150 (corporate discounts available) each for the lecture and dinner event that also included Kirby signing his latest book ‘A Private Life’  reviewed by his former colleague Ian Freckelton SC in Independent Australia on November 20 last year.

In this telling review that is worth revisiting, Freckelton, a humanist and prolific author himself, recounted:

I first met “His Honour”, as I knew him, in 1981 as an impressionable and raw graduand in law playing a suitably modest role at the Australian Law Reform Commission, of which Kirby was the founding chairman. Of course, I had heard of him and was appropriately in awe. It was not an encounter that he would recall but it prompted him to apply the epithet “jesuitical” to a proposition that I advanced, when he was getting himself his morning tea, and by extension to me — after he had heard where I had been to school. I knew almost nothing of his background then and was not sure how career-endangering his assessment of me was likely to prove. Over the succeeding five years I learned more about him at innumerable meetings — where he critiqued my work and that of others; when he saved me from the civil libertarian onslaught of High Court judge, Lionel Murphy, in full flight; and at the annual Christmas gatherings, which he hosted at his harbourside home. Much later, I was to appear in front of him in the High Court. Aside from his obvious acuity and his extraordinary industry and breadth of vision, the memories of the early experiences of Kirby that endure for me are of his good humour, his frighteningly deft skills in chairing meetings and facilitating them toward an outcome that he recommended, as well as of his warmth and inclusiveness. The firm view of his staff was that Kirby had no personal life. He started work by 5.30am and worked long after even the keenest of us had long departed the Commission. It was almost inconceivable that he had the time or inclination for a relationship with anyone, of either gender. How wrong we were! There, all the time, deep in the shadows, was his partner in life.

Little by little, Kirby has allowed that impression to change, starting from 1999 when he came out in Who’s Who in Australia by naming Johan van Vloten as his long-term partner.

In his lecture, Malcolm Turnbull reflected upon the early beginnings of his long friendship with Kirby.

By 1977, I had been hired by The Bulletin and in order to make myself indispensable (I enjoyed a full-time salary) I proposed to write a weekly column on the law, which became known as The Officious Bystander.

It was suitably disrespectful, combining latest decisions and legislation with gossip from bench and bar.

And that was how I met Michael. He was chairman of the Australian Law Reform Commission. He was young, ambitious and above all interested in shaking up the law. He wanted to raise his profile, but he was then painfully shy.

Over the years he got over the shyness becoming, by judicial standards at least, quite an extrovert. But his first major media outing was a profile I wrote about him in 1977 – under the headline “the high flyer with the non-slip heels”. I tried to encapsulate Michael’s combination of intellectual and professional ambition with a deep and cautious conservatism.

He has always been seen as something of a radical in the law and so many were surprised when he became a strident tribune for the monarchist cause.

But why was he a monarchist? Murray Gleeson then Chief Justice of NSW and later of Australia had a typically economic answer to that question: “Ulster.”

Michael has also been a campaigner for what has been termed “gay marriage” and to his dismay this is how he is best known today not least because he is a gay man and has lived with his partner Johan for over forty year.

So I trust Michael will forgive me tonight if, rather than concentrating on some other aspects of his work in the field of human rights, I concentrate on the issue of gay marriage which is a particularly timely one given there are several bills in the Parliament which, if passed, would have the effect of allowing unions between two people of the same sex to be described as a marriage.

The traditional view of marriage in our society has been stated to be that described by Lord Penzance in the case of Hyde v. Hyde and Woodmansee….

And it was in the course of that judgement that Lord Penzance gave what has been an enduring definition when he said:

“I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

Both The Age and The Sydney Morning Herald published an edited extract of Turnbull’s lecture.

Whilst inhaling, Turnbull was scathing of the notion that any marriage was

…undermined by two gay men or two lesbians setting up house down the road – whether it is called a marriage or not.

Agreed.

Regrettably, this aspect of the debate is dripping with the worst sort of hypocrisy, and the deepest pools are all too often found among the most sanctimonious.

Let us be honest with each other. The threat to marriage is not the gays. It is a lack of loving commitment – whether it is found in the form of neglect, indifference, cruelty or adultery, to name just a few manifestations of the loveless desert in which too many marriages come to grief.

And yet in an exhaling breath came this staggering utterance of contradictions:

A society that promotes freedom and equality under the law should accord gay men and women this right.

Many argue that the Liberals’ lack of a conscience vote means the gay marriage bills will not pass. I don’t think they have the numbers to pass, but I am far from convinced that in the present Parliament they would have the numbers even if a conscience vote were permitted.

It is important to remember that unlike the Labor Party, (the Coalition’s) members do not get expelled if they cross the floor.

So, in that sense, every vote is a conscience vote. However, in this case, because the leadership are not permitting a free vote, shadow cabinet ministers are bound to vote in accordance with the collective decision. If they want to cross the floor, they would be obliged to resign from the shadow ministry, and I do not propose to do that.

For the record, I think it unconscionable that this Parliament lacks moral courage to legislate and vote in favour of same sex marriage. A pox on all their diseased houses. They are as bad as one another.

But it is unworthy for Turnbull to even attempt to delude us into thinking that the Liberal Party enjoys the moral high ground because its members don’t get expelled if they cross the floor.

It is farcical when in the next breath he tells us that because leadership (read Tony Abbott) won’t allow a “free vote,” shadow cabinet ministers “would be obliged to resign” if they crossed the floor.

Turnbull makes all quite clear when he says “I do not propose to do that”

That is a great pity Malcolm Turnbull. It’s your call.

You’ve talked the talk.

Now walk the talk.

Cross the floor.

The Age’s Michelle Grattan, who it seems to me has sort of ‘manned up’ in the past year or two (or is it just me?) wrote that Turnbull’s speech defied the “Coalition’s opposition to changing the law.”

Grattan went on to say:

‘Mr Turnbull, a frontbencher who cannot vote for gay marriage because of Tony Abbott’s refusal to give Liberals a conscience vote...’

Excuse me Michelle? Wrong!

Mr Turnbull can vote for gay marriage. There is nothing stopping Mr Turnbull voting for gay marriage other than Mr Turnbull himself.

But as he has told us, even though he supports it, he has chosen not to cross the floor for reasons of political and personal expediency — and not out of a sense of justice or a matter of conscience.

Like many in this debate, Turnbull quotes the ubiquitous (Jekyll and) Hyde case and the infamous oft pirated and parroted quote of its Judge, Lord Penzance, that today still dominates this colony’s legal psyche and our skewed definition of marriage.

As mentioned before, it was in the course of that judgement that James Plaisted Wilde, later Lord Penzance gave what has been an enduring definition:

“I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

Let us defer again to Turnbull’s legal expertise and explanation of the Hyde v Hyde and Woodmansee case:

In that case, brought in London, a man sought to have his marriage dissolved on the basis of his wife’s adultery. He had been married to his wife in 1853 in Utah, by the prophet Brigham Young himself, according to “the rites and ceremonies of the Mormons.” He subsequently left the Mormon faith and became a dissenting minister. In the meantime his wife, who had stayed in Utah, married another man also according to the Mormon rites.

The Court concluded that he could not be granted any relief on the fundamental ground that because Mormon marriages permitted polygamy any such marriage (even if contracted between a husband and only one wife) would not be recognised as a marriage under English law.

So why are we adhering to Lord Penzance’s ridiculous and opportunistic definition?

Because we are apparently still part of the displaced British Empire. Crikey, Canada chucked the Penzance definition 7 years ago and legalised gay marriage.

Why is no one listening to the likes of Alastair Nicholson, former Chief Justice of the Family Court who condemned clinging to the Penzance definition as far back as 2004?

Readers may be unaware that Lord Penzance may have been little more than a legal lackey for England’s Establishment, the Church of England, and indeed, the monarchy.

Both Wilde and his bride Lady Mary Pleydell-Bouverie  (daughter of the 3rd Earl of Radnor) married in 1860, the same year that James was knighted.

They wed rather late in life in life for the times, when Wilde was 44 and Lady Mary was 35.

Lady Mary would have been considered a spinster, maiden aunt and embarrassment (if she’d been a Catholic, she might have been ‘donated’ to the Church) and James would have probably endured whispers about him being considered a ‘confirmed bachelor’ (wink, wink, nudge, nudge) and probably informed that if he wanted to further his legal career, he should find a wife.

They bred roses, not children, and their garden in Godalming was rightly famous for roses named for the couple.

Two of the more famous roses were rosa eglanteria and the unfortunately but apparently well-named rosa foetida.

Why one would enthusiastically produce a foul smelling rose may well have been but one of the bonding agents shared by the couple.

Wilde may have had more than a touch of the eccentrics about him.

He named many of his roses after characters in the novels of Sir Walter Scott and his literary bent neither began nor ended there.

He also belonged to a group of people who believed that the philosopher, scientist and writer, Francis Bacon (also a QC and Judge) was the real author of works attributed to William Shakespeare.

Wilde and his mates held Bacon, who was most likely a pederast, in high regard.

It may be mere co-incidence that Wilde’s marriage at 45 was the same age as Bacon when he married.

Bacon brought home his bride.

She was merely 14.

It is curious that someone with the surname of Bacon would die of pneumonia when conducting an experiment on the freezing of meat.

Wilde served the establishment well, especially in a climate of anti-Catholicism and agin the Church of Rome.

He was frightfully useful for the Church of England, in what became known as the ‘ Ritualist Controversy’ and for what has been aptly described as the ‘sensational’ Mordaunt Case, that was basically a legal cover up to protect a member of the Royal Family.

The scandal would leave Downton Abbey for dead.

Pivotal to this scandal was Lady Harriet Mordaunt one of the famous Moncrieff daughters, whose wild beauty and untamed natures reflected some of their Scottish heritage and landscape.

In 1866, Harriet Sarah Moncrieff married Sir Charles Mordaunt and whilst she took the marriage vows, she was clearly unable to keep them and by all accounts shared her voluptuous body and voracious sexual appetite with a number of lovers who regularly visited the massive country pile, Walton Hall, in the superb Warwickshire countryside on the lip of a lake.

These visitations took place mostly when Sir Charles was sitting in Parliament or on a fishing trip or similar distraction.

Lady Mordaunt, not unsurprisingly, fell pregnant and when subsequently confessing all to Sir Charles gave him a list of possibilities of fatherhood, amongst them the Prince of Wales.

His cobber Lord Penzance heard the case and although HRH was questioned by Lady Mordaunt’s counsel, her poor husband’s lawyer did not cross examine him.

Of course, all the blokes trashed Lady Mordaunt’s reputation in a polite way, and the polite way, that continues through the courts today, is to declare her bonkers.

Being bonkers obviously accounted for her bonking.

Of course, it is not the fault of the Dear Men or His Royal Highness the Prince of Wales.

So, this is just part of the legal heritage upon which, on this day, we proscribe same sex marriage and our febrile and hypocritical politicians refuse to take our views into consideration in preference to this pathetic legal precedence.

Grow up Australia. Grow up Julia Gillard and Tony Abbott and grow up Malcolm Turnbull.

Cross the floor, Malcolm.

Walk the talk.

You will take us with you.

We have gone from tugging our forelock to tugging our pubic hair in deference to Lord Penzance’s ridiculous ruling.

If truth be known, it was just as hypocritical and unjust then, as it is now.

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