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Law Service Address, delivered on 7 February 2018

Rabbi Dr Benjamin Elton, The Great Synagogue

Chief Justice, learned judges, Attorney-General, Leader of the Opposition, Members of Parliament, Mayors and Councillors, distinguished academics, communal and faith leaders, members of the legal profession, revered rabbinic colleagues, friends all. Once more The Great Synagogue is honoured to host the Jewish community’s Law Service. In our long history, which next month will enter its one hundred and fortieth year, this Synagogue has been the place where the Jewish and the wider community meet. That is a heritage we are proud to perpetuate. It is in the best traditions of Sydney and Australia that a minority faith group and the leaders of civil society can interact with such respect and esteem. You honour us by coming to our Synagogue, and we pray for God’s blessings upon you, as you undertake your arduous tasks on behalf of us all.

The greatest of the Jewish jurists and philosophers, Moses Maimonides, taught that a judge has to have several qualities: wisdom, humility, fear of God, loathing for money, love for truth, being beloved by people at large, and a good reputation. I understand that loathing for money is why many leave private practice and join the Bench. We are immensely fortunate in this State and in this country, that the judiciary, and the legal profession from which it is drawn, are of the highest quality, with an outstanding reputation for both integrity and ability.

Every year judges and lawyers attend not only this service, but also a service at St Mary’s Cathedral, St James’s Church, as well as Greek Orthodox and Muslim services. Religion and the law are seen to have a proper, balanced, and friendly relationship, each fulfilling its own role in an atmosphere of mutual regard. This year the nature of that relationship has been explored, even tested. Faith and Law intersected in an unusual way, with the debate and postal survey on same sex marriage. Several religious figures and organisations urged either a yes or a no vote, explicitly on the basis of their religious values. Some argued that principles of Divine love, and the creation of all people in the image of God required all people to be allowed to find and marry a partner for life. Others contended that a faith-based prohibition on homosexual relations made same sex marriage a step too far.

These appeals to religious imperatives were made despite the fact that the potential change to the Marriage Act would not affect religious weddings at all, it would only vary the types of civil marriage which were permissible. Nevertheless, some faith leaders took the view that they should urge their followers to vote one way or another. This turn of events brought to the fore this question, a perennial one: to what extent should our religious commitments inform our attitude towards secular law? Should it determine the way we vote or campaign on matters which are restricted to the law of the land, and which neither prohibit a religious activity, or force a particular course of action on a religious person, and which they may find anathema, or should religious be put aside when we consider ostensibly secular matters?

Taken at its simplest, it seems obvious that our religious persuasion will inform the way we approach even apparently secular questions. When we vote in an election, a referendum or a survey we do so as complete human beings. If we are thoughtful people, we have arrived at a view of the world based on a whole range of influences. If we are religious, then our faith and its texts will be one of the greatest of those influences, because those are the sources of what we believe to be fundamentally right or fundamentally wrong in the world. It was perceptively observed that the Church of England was the Conservative Party at prayer; while the British Labour Party was said to owe more to Methodism than to Marxism. Those two political parties were deeply informed by the religious background of their founders and leaders. In the United States, Jews are overwhelmingly Democrats, and there the joke is made, again with an explicit religious reference, that the Jewish community lives like Episcopalians and votes like Puerto Ricans.

If we examine this question more closely, it becomes clear that our political positions must be informed by our morality, in some cases the morality taught by our faith, because cannot view something as essentially wrong and then support it for mere pragmatic reasons. If there was a referendum to make euthanasia compulsory at seventy, it would be bizarre and repulsive for someone to walk into the voting booth and say to themselves ‘I believe that this would be murder, but it makes economic sense, so I am going to vote in favour’. A conscientious person would say with Emperor Ferdinand I, ‘fiat justitia, et pereat mundus - ‘let justice be done, though the earth perish’.

Should the same approach apply to questions like same sex marriage, when such a reform would either flow from or be opposed to, religious teachings? Should we always oppose in the secular realm what our religion opposes in the realm of faith? Here is it essential to make a distinction. Some regulations restrict the rights and freedoms of individuals. On the other hand, there are regulations which do not impose any restriction or make any interference whatsoever. That is the basic difference between compulsory euthanasia and same sex marriage. Of course, there might be reasons to be against same sex marriage, perfectly good ones, but I do not believe that they would be narrowly religious. That is to say, they would not refer back to religious precepts which believers consider themselves bound to obey. They would be arguments on pragmatic, policy grounds.

If there are individuals who believe those arguments are compelling, they are duty bound as good citizens to put them forward. Then there can be a full and open debate about the advantages and disadvantages of a proposed reform. But to restate, those arguments do not, and I suggest should not, have recourse to religious texts or dogmas. There is an anecdote of one of the greatest rabbis of early twentieth century Russia, Rabbi Israel Meir Kagan. During the campaign for the first Russian Duma in 1906, Rabbi Kagan was asked by his followers which candidate would be good for the Jews. He replied, ‘vote for who is good for Russia!’ Following Rabbi Kagan, we should campaign and argue for policies, which do not harm or restrict others freedom, not on the basis of what is in keeping with the laws of our faith, that is for our own private conduct, but rather what is good for Australia.

There are serious concerns that there might be infringements on religious freedoms, whether it is pressure to perform ceremonies, supply ancillary services, amend teaching in schools, or in diverse other ways. We have to remain alert to that possibility, but I would say this. The essence of the good administration of any system of law, whether religious or secular, is the ability to make fine but crucial distinctions. In the Jewish liturgy for the High Holidays, when we are all judged, we acclaim God as ‘’lehogeh de’ot beyom din’, the ‘One who analyses concepts on the day of judgement’. God Himself makes those careful distinctions in order to reach a fair and truthful outcome, and we should do the same.

Religious liberty is too serious and too subtle a subject for a broad-brush approach. When we consider any regulation that might be imposed upon religious institutions or individuals, we have to determine after great thought, whether it would be genuinely oppressive or objectionable. Only if we come to the conclusion that it is, should we protest. Often a closer examination will find that it is not so. In the Jewish community, we have a precedent for that. One fruit of the diaspora experience has been realisation that interaction with a different cultural, religious or faith system, one that we disagree with, does not mean that we endorse its ideas or its practices in theological terms or practical ways. Jews concluded long ago that not every act of engagement is an act of support or facilitation, and therefore even when we have the greatest ideological objections, many forms of engagement are not precluded by our religious principles.

Perhaps this is one way in which the already positive relationship demonstrated here this afternoon between the Jewish and legal communities can go deeper, and we can not only share a service, but also share wisdoms and insights, for the benefit of both, and our shared civil society. That is my prayer this afternoon. May God bless us all and the exercise of justice in our State. Amen.

Sun, 18 February 2018 3 Adar 5778