GAY JUDGE COPS BASHING

Gay judge cops a bashing of biblical proportions - for being respectable

Richard Ackland, smh

April 11, 2008

Old Testament thunderbolts are being hurled down from Bellevue Hill's Anglican parish onto the head of homosexual "sinner" Justice Michael Kirby.

The Reverend Richard Lane's missive emerged on Tuesday night at a forum at the Banco Court where Justice Kirby was conducting a "conversation" with the Herald journalist David Marr under the auspices of the Anglican parish of St James.

From the gentility of the Banco Court and the civilised dialogue on homosexuality, the church and the law, I lurched to a friend's shindig in Kings Cross to mark the opening of a hairdressing salon (don't ask).

The Banco Court assembly was Old Anglican with a sprinkling of those rather severe, if not repressed, gays. Unlike the Kings Cross hair boutique, they didn't have a fabulous drag queen called Rubella going full bore with Tina Turner's Proud Mary in an impossibly short frock and working herself into a lather of unrepressed excitement.

Frankly, if Lane is worried about Kirby's restrained and modest version of "sin", he should travel a few kilometres down the road to see how the other half do it in the real world.

The Kirby-Marr encounter was enlightening. Confirming the spirit of Lane's text, Marr observed that "the Bible doesn't like poofters".

Kirby, who keeps his Anglicanism, his homosexuality and the law all in the same gently rotating orbit, said that you've got to understand the issue of "same sex attraction" in the context in which you read the text of the Bible. He thought that, like the constitution, it's full of metaphors and that you have to be flexible in giving contemporary meaning to ancient passages.

Kirby has been a judge since 1975 and the law that decriminalised homosexuality was not passed in NSW until 1984. "So you were breaking the criminal law as a judge," said Marr.

Kirby thought this was "a load of bunkum" because the laws were not being enforced and anyway those enforcing the law would need evidence.

Still, this did not stop the prosecution of a man as recently as 2005 who allegedly had touched another man's penis before 1984. Kirby, like other gay men, could still technically be prosecuted today if plod got the evidence because the abolition of the crime did not apply retrospectively.

To clear up all uncertainty, what Vicar Lane and his ilk should be pushing for is a new law making it a crime to touch your own penis. Surely the Iemma Government would be receptive to that.

Marr suggested that Kirby had committed the even greater sin of "respectability", which has held him back. Kirby is a radical man but he's overborne by conservatism. "I'm still respectable," he said. "I'm not completely pure, but I don't shove it in people's face."

Yes, but look at your monarchical tendencies, cried his interlocutor. "There's no greater supporter of the monarchy than poofters."

But to Kirby the monarchy is a radical institution. "The freest countries are constitutional monarchies [nod, nod from David Flint]. I'm a rational republican. England is a crowned republic … A 'vanished' head of state is a clever idea."

This is radical stuff, because many people hitherto had mistakenly thought, if you have a Queen, you don't have a republic. As the judge made clear, we can have both.

What's the worst case the High Court ever decided? He didn't want to answer that because it would involve criticising an institution of which he is still a part.

What's the best decision of the High Court? Probably the one that struck down legislation seeking to abolish the Communist Party.

Interestingly, if you look at the High Court's decision in the Jack Thomas control orders case, there is some revisionist thinking about the wisdom of that 1951 decision, which just shows that along with Lane, judges are also capable of travelling a long way backwards.

Kirby returned to the nagging issue of whether he'd been "held back by his respectability".

Maybe it would have been better to have been more open about his homosexuality earlier but then, "if I was I would not have been appointed judicially".

If Kirby had been appointed earlier to the High Court his dissent rate would not have been so high. He would have sat alongside Justice William Deane, who was a guiding light on the court between 1982 and 1995. Kirby says he feels judicially closer to Deane than to Lionel Murphy.

The High Court is a frosty place these days. The Court of Appeal in NSW, on the other hand, was a collection of judges from quite diverse backgrounds, a mixture that managed to be cohesive.

During oral submissions Kirby used to draw little cartoons and doodles and pass them along to his colleagues sitting on the appeal bench. He invariably got a chortle or two. When he tried the same thing on the High Court, all he received were looks of horror. It's all rather stitched-up in Canberra.

The Marr-Kirby show was so bracing that they should take it on the road, do the club circuit.

They should take Rubella along too, as the warm-up act.

justinian@lawpress.com.au