Justice Rothman responds to David Singer’s SSM article

September 29, 2017 by  
Read on for article

Justice Stephen Rothman writes to J-Wire on David Singer’s article on how non-voters could influence the outcome of the SSM postal vote.

Letter to J-Wire

Stephen Rothman

I was the proposer of the motion at the NSW Board of Deputies (“the Board”), which was carried overwhelmingly (one only opposed).  Its final wording was by others.

Since this survey on same-sex marriage can never come before me in Court, I am less restricted in commenting publicly on the issue.  I do so because misinformation ought to be corrected.

I usually enjoy speaking with David Singer about “Palestine” and the UN Charter and other matters.  I enjoy his articles.

David is a cousin whom I have admired for many years; both as a lawyer and as a “mensch”.  His foray into same-sex marriage is disappointing.  It is fundamentally wrong to take the comments by the Hon. Michael Kirby AC CMG out of context and use them to the exact opposite effect as their original intent.

Kirby argued that holding a survey or plebiscite was, itself, discriminatory; that Parliament should simply vote on the legislation; and to require a survey for legislation undoing this statutory discrimination against same-sex couples, and not for other minorities, it to treat same-sex couples as second-class citizens.  The comments, which I heard, cannot legitimately be used to argue for a “NO” vote, because the Government has not committed to the terms of the legislation.

My aim is to dispel that misrepresentation of Kirby’s views and other misinformation in the debate (not necessarily from David Singer).  There are a number of important and obvious aspects.

First, the combination of the power to legislate with respect to marriage and the promulgation of the Marriage Act 1961 (and to a lesser extent the Family Law Act 1975) results in the Federal Government (and no State or Territory) being able to legislate in this area.  There is no requirement for a survey and its result does not bind any member of Parliament.  The Parliament could have legislated without a survey and in those circumstances, we would not be heard on the principle and still not know, beforehand, the terms of the statute.

I do not criticise Prime Minister Turnbull for adhering to his undertaking to conduct a vote, plebiscite or survey.  These decisions are political; not philosophical.  I accept Prime Minister Turnbull’s expressed or implicit view that such a vote was necessary to ameliorate division between the parties (and within some of them) and to facilitate a conscience vote.  His intention, undoubtedly, was not to discriminate.

Secondly, the survey is to indicate the views of citizens to the members of Parliament on the issue.  The form of legislation is for Parliament.  The Constitution does not even permit manner and form provisions (terms in an Act that prescribe the means of amending or revoking it).  As a consequence, unusually, on this issue, most citizens have the opportunity to express a view.

Thirdly, the Board’s assertion (strongly or otherwise) of rights is not a qualification.  The Federal Government is forbidden from “prohibiting the free exercise of any religion” (s 116 of the Constitution).  Nevertheless, as a Jewish organisation, it is important to reiterate our concerns for freedom of religion.

Fourthly, were there insufficient protections, the Board would, as it always does, ensure alterations to that effect.  This is not a blind vote; it’s an expression of opinion on an issue or principle.

Fifthly, there is now, always has been, and will continue to be differences between religious marriages and civil marriages.  Orthodoxy does not recognise civil marriages between Cohanim and divorcees; second marriages of argunot (or anyone without a gett); and marriages to non-Jews.  Similarly, a Rabbi, who is not a registered celebrant can perform a wedding under Jewish law that is not recognised under civil law.  Further, where a civil divorce has been granted, without a gett, Jewish law will continue to recognise the Jewish marriage.

Sixthly, while there are differences between Rabbonim, “normative” Orthodox Judaism is against same-sex relations.  The opposition to that course has not been accepted by civil authorities.  It is understandable, in those circumstances, that those same Rabbonim seek to limit the conduct to that which has already been allowed and to allow no further practices.  But it cannot be said, on this issue, that Australian society has adopted a “Judeo-Christian ethos”.

There is much in Judaism and Christianity in Australian law.  That is true of most democracies throughout the world, almost all of whom permit members of the LGBTQI Community to marry.  While Israel permits only religious marriages, even Israel will recognise a same-sex marriage celebrated validly outside Israel.

Next, the most fundamental aspect of a democracy such as we enjoy is the rule of law.  Central to that concept is the norm of equal justice.  All people must be treated equally before the law and under the law.  It is that notion that prevents laws disentitling Jews from owning property or setting quotas for employment or education.

Lastly, this is not a religious issue.  It is an issue that affects civil society and civil law; not our religion.

Once same-sex relations are lawful (as they are now) and so long as the activity of same-sex couples, as a minority, does not interfere with the rights of others in society, it is important that all of us stand up for their right not to be the subject of discrimination under the law.

There is so much misinformation and misrepresentation in this debate that it is important to understand the issue properly.  It is also important to understand what is not being asked.

If you do not believe same-sex couples should be treated equally under the Marriage Act and allowed to marry, then you should vote “NO”.  As the ads say; it’s OK!

But the vote does not concern ending political correctness; it does not concern whether members of the LGBTQI community can adopt or become parents (which already happens).  Nor does it concern whether persons are disentitled to discriminate against same-sex couples.  That is already unlawful.

On the other hand a “YES” vote will, unfortunately, not end discrimination against same-sex couples.  Nor will it affect how we practise our religion.  Further, it will not bind Parliamentarians – it will give them an indication of the view of citizens on the principle.

Not all citizens have received a survey form.  I have not.  I think this omission is because I am a silent voter.  If I do receive it, I will answer “YES”.  Not because I have any personal interest in the outcome, but because equal rights are fundamental to democracy and to preserve democracy we need to speak out for all.

This survey will, if it returns a YES result, provide the opportunity to allow Parliamentarians a conscience vote.  But be under no misapprehension.  Whatever the outcome, the losing side will challenge the validity of the survey.  We will not have a 90% return of forms.  Anything less is likely to be the subject of political challenge by some.

Same-sex marriage may not be the most important issue facing the country.  It’s probably not even the most important issue facing the LGBTQI community or its members. But one thing is certain, unless legislation is passed to overcome this inequality, the issue will continue to distract everyone from other important issues; continue to divide the Government; and continue to divide the country.  It will also continue a form of statutory discrimination and in doing so undermine the principle of equality from which all Australians benefit.


Justice Stephen Rothman AM


The Great Synagogue,  Sydney


8 Responses to “Justice Rothman responds to David Singer’s SSM article”
  1. David Singer says:


    I am very disappointed that you have failed to reply to my comment dated 1 October.

    Please give me the courtesy of a reply.

    You might also care to comment on the press release from the NSW Law Society this afternoon – which stated in part:

    “Lawyers have an obligation to question any adverse consequence of a proposed change to the existing law, in particular how it will affect the dignity and equality of all Australians and the impact on justice, fairness and other freedoms. This is made difficult, if not impossible when there is no available draft legislation containing the proposed change.

    The Law Society will carefully scrutinise any draft legislation which ultimately becomes available to ensure that the proposed change does not have any adverse impact on religious or other traditional freedoms we presently enjoy.”

    The Law Society – like the Board of Deputies reservations contained in its Resolution – is rightly concerned to see that any legislation does not have an adverse impact on religious or other freedoms presently enjoyed.

    But what if it does and the Government remains unmoved to change such legislation?

    This could well be the outcome of the survey. Too late for the Board to then cry “foul”.

    The Board has made two mistakes:
    1. Buying into the issue at all.
    2. Encouraging its members to vote YES rather than remaining neutral on how they should vote.

  2. Sam Goldman says:

    I am completely out of my depth replying to Justice Rothman’s comment and to David Singer’s further comments. I can however agree with Justice Rothman’s comment that “same sex marriage may not be the most important issue facing the country”. (How it has become an issue that has taken over most of Parliamentary discussion time, cost the Country $120 million dollars plus and could potentially bring down a Government, is amazing). It could all have been solved and finished long ago if the LGBTQI, would have been able to compromise on the word MARRIAGE and used an alternate name/word for their union (eg Civil Union).
    What followed in Justice Rothman’s comment, implied that without passing any legislation to overcome the inequality, the issue will continue to distract Government and the Australian community. I interpret this to mean that we should agree with everything this minority group insists on and just vote “Yes”, get some as yet unknown legislation passed, just to get rid of the problem. There are many inequalities in Education, Justice, Religions, Business, etc that may be far more important than granting the LGBTQI their druthers.
    Passing some as yet unknown legislation for same sex marriage or marriage equality (they have become confused by the media pounding of the subject), would not get rid of marriage inequality. It would just open up a pandoras box of marriage issues. For instance a quarter of the world population believes in polygamy as well as child marriage. Whilst they are illegal here (same sex relations were once also illegal in this country too), enough propaganda could convince a majority of the Australian population that the law is discriminatory against those that wish to have these type of marriages. With enough stirring we may once again decide it is better to give in to these practices so as not to distract the Government or to divide the country. Is this what we want?

    • Michael Barnett says:

      “It could all have been solved and finished long ago if the LGBTQI, would have been able to compromise on the word MARRIAGE and used an alternate name/word for their union (eg Civil Union).”

      Segregation is not equality.

      • Sam Goldman says:

        If a word can cause segregation then we are all segregated and unequal in all aspects of living.

  3. Gary Luke says:

    Contrary to the BoD’s contention and the plenum approval based on this being exclusively a civic matter, not religious, Michael Barnett, who is an outspoken advocate in the community, says it will allow some Jewish marriages to undergo a change, and suggests that orthodoxy will take a little longer. Is there a division between civil and religious marriages, or is that not so? Can someone please clarify this.

    Quote MB, “If Jewish couples [viz, any gender] are seeking a religious marriage from Progressive or Masorti rabbis in Australia they will get one. If they are seeking a religious marriage from Orthodox rabbis, the wait will be longer. My guess is it will happen when synagogue boards put same-sex marriages in the job descriptions for their rabbis. It will happen.”

    • Michael Barnett says:

      Gary, all legal marriages solemnised in Australia are performed under civil law and must comply with the Marriage Act (1961). Religious marriages use the same paperwork as non-religious marriages. The only difference is that religious ministers are authorised to perform civil marriages in a religious context.

  4. david singer says:

    Dear Stephen

    You make two assertions about myself that I feel need to be corrected:

    1.You say my “foray into same-sex marriage is disappointing.”

    Surely I have a right to express my viewpoint – or is freedom of speech also a victim in this debate?

    My “foray” did not start with my article on the Board of Deputies resolution published in J Wire on 24 September. It began with my article in J Wire published on 10 September.

    Have you seen that earlier article? Your comments would certainly be welcomed.

    2. Apparently – as the proposer of the Board’s resolution – whose final wording you acknowledge was done by others – you were motivated to publish your letter:
    “because misinformation ought to be corrected.”

    This is what I actually wrote in criticising the Board’s resolution – which I believe is the source of the “misinformation” that needs to be corrected:

    “The Board’s resolution has fallen into error in claiming:
    • The question before Australia at the upcoming postal plebiscite is one relating to civil, not religious, marriage.”
    Two comments:
    1. The question makes no such claim or representation.
    The Board’s own concerns make this assertion ludicrous.
    2. A survey is not a plebiscite.
    The Board’s reference to a plebiscite is very puzzling.
    Michael Kirby – a former judge of the High Court – has described the postal survey as “unacceptable” and “irregular”.
    “This isn’t a plebiscite now. It’s a completely novel, voluntary, non-binding, non-compulsory vote of a few citizens and it’s just something we’ve never done in our constitutional arrangements of Australia,”
    Voting in a plebiscite is compulsory and would have been accompanied by the legislation that would be introduced if successfully carried.
    The survey is an open ended vote guaranteeing none of the Board’s concerns and sought after protections will be preserved.”

    I therefore ask you to clarify:
    (a) What misinformation do you claim is contained in the above statement?
    (b) Are there any other parts of my article where you claim misinformation ought to be corrected – and if so please detail your reasons.

    I quoted Justice Kirby to support my view that the Board’s resolution was in error in claiming the survey was a plebiscite – nothing more nothing less.

    I am more than happy to continue this discussion with you when you clarify your complaints.

  5. Michael Barnett says:

    Thank you Stephen.

Speak Your Mind

Comments received without a full name will not be considered
Email addresses are NEVER published! All comments are moderated. J-Wire will publish considered comments by people who provide a real name and email address. Comments that are abusive, rude, defamatory or which contain offensive language will not be published

Leave a Reply to Sam Goldman Cancel reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.