Law, morality and difficult love

Law, morality and difficult love

The legislation allowing same-sex ‘marriage’ in this country came into effect last Saturday and when asked for his comments on the matter the Archbishop of Canterbury declared in an interview with The Guardian ‘I think the Church has reacted by fully accepting that same-sex marriage is the law, and should react on Saturday by continuing to demonstrate in word and action, the love of Christ for every human being.’

Archbishop Justin is obviously correct in saying that the Church of England has fully accepted that the change that has taken place in the law means that same-sex ‘marriage’ has become legal in this country. However, what is not clear is why he thought that this was a point that needed to be made. There had never been any suggestion that the Church of England would bury its head in the sand and contend or pretend that the law had not really changed.

However, accepting that the law has changed is not the same as accepting that the law should have changed. In subsequent comments on the Sunday programme the Archbishop went on to say that the government was ‘perfectly within its rights to make this law.’ This is a problematic statement because whether or not it is correct depends on what the phrase ‘perfectly within its rights’ means.

If what this phrase means is that the government had a legal right to change the law then it is correct. There was nothing that legally prevented the government changing the law relating to marriage in this country providing it could get the change in the law agreed by parliament and that the change received royal assent. These conditions were met and so the change in the marriage law was perfectly legal.

However, saying that the government changed the law in a legally valid way is not the same as saying that the government had the moral right to change the law in the way that it did. Recent history is full of examples of laws that were legally enacted by governments, but were nevertheless morally wrong. Two examples from Southern Africa will serve to illustrate this point.

First, following its election victory in 1948 the National Party in South Africa introduced legislation that entrenched racial segregation in every area of the country’s life. This legislation was introduced perfectly legally, but it was morally wrong in that it gave expression to a racist ideology and led to decades of oppression for the black majority in the country. Secondly, after Zimbabwe achieved independence in 1980 the governing ZANU PF party introduced legislation that led to the confiscation of farms and other property owned by white commercial farmers. Once again, this legislation was introduced in a perfectly legal manner, but it was nonetheless immoral in that it was racist legislation that was designed undercut political opposition to the Zimbabwean government and to enrich the members of the ruling elite. The governments in both South Africa and Zimbabwe were ‘perfectly within their rights’ to do what they did, but what they did was nonetheless wrong.

What this means is that we cannot simply say ‘the law is the law,’ shrug our shoulders and get on with our lives. While accepting on the basis of biblical texts such as Proverbs 8:15, Romans 13:1-7 and 1 Peter 2: 13-17 the God given right of ruling authorities to enact and enforce law, the Christian theological tradition has always insisted that unjust or immoral laws have less authority than just laws and should in some cases be opposed. Thus in Summa Theologica I-II. Q 96. Art 4 St. Thomas Aquinas asks ‘whether human law binds a man’s conscience.’ His response is to argue that:

‘Human laws are either just or unjust. If they are just, they have the power to bind our conscience because of the eternal law from which they are derived. As Proverbs says, “Through me kings reign and lawmakers decree just laws” (Prov. 8:15).

Laws are said to be just either because of their end, when they are ordained to the common good; or because of their author, when the law does not exceed the power of the lawmaker; or because of their form, when burdens are distributed equitably among subjects for the common good. For since a man is part of the multitude, whatever he is or has belongs to the multitude as a part belongs to the whole. Thus nature inflicts harm on a part in order to save the whole. Accordingly laws which inflict burdens equitably are just, bind the conscience, and are legal laws.

Laws are unjust in two ways: First, they may be such because they oppose human good by denying the three criteria just mentioned. This can occur because of their end, when a ruler imposes burdens with an eye, not to the common good, but to his own enrichment or glory; because of their author, when someone imposes laws beyond the scope of his authority; or because of their form, when burdens are inequitably distributed, even if they are ordered to the common good. Such decrees are not so much laws as acts of violence, because, as Augustine says, ‘An unjust law does not seem to be a law at all.’ Such laws do not bind the conscience, except perhaps to avoid scandal or disturbance, on account of which one should yield his right. As Christ says, ‘If someone forces you to go a mile, go another two with him; and if he takes your tunic, give him your cloak ‘(Matthew 5:40-41).

Second, laws may be unjust because they are opposed to the divine good, as when the laws of tyrants lead men to idolatry or to something else contrary to divine law. Such laws must never be observed, because ‘one must obey God rather than men’ (Acts 5:29).’

The challenge that this quotation from Aquinas, and the tradition of Christian thought that it represents, present to the Church of England is how to respond to the fact that the new legislation on same sex ‘marriage’ introduced by the British government seems to fall into the category of laws that are ‘opposed to the divine good’ because is ‘contrary to the divine law.’

To quote the words of the marriage service in the Book of Common Prayer, the Church of England, like the Christian Church as whole, holds that marriage is not simply a human invention. Rather, it is something that is God given, being ‘instituted of God in the time of man’s innocency’ (see Genesis 2:18-25 and Matthew 19:4-7). Furthermore, God has given laws relating to marriage and ‘so many as are coupled together otherwise than God’s law doth allow are not joined together by God; neither is their matrimony lawful.’

In addition, according to the theology of the Church of England, marriage as given by God is an exclusive relationship between ‘one man and one woman’ entered into for life (see Canon B 30). This means that a ‘marriage’ entered into by two people of the same sex is not a lawful Christian marriage, in just the same way as a marriage entered into by more than two people or a marriage entered into on a time limited basis would not be. Such a marriage may be lawful in the eyes of the state, but it is not lawful in the sight of God and therefore cannot be lawful in the eyes of the Church.

What the Church of England therefore has to wrestle with is how to maintain a consistent witness in word and deed to the uncomfortable truth that some forms of what the government, the law, the media and society in general call marriage are not truly marriages at all, while at the same time, as the Archbishop rightly says, ‘continuing to demonstrate in word and action, the love of Christ for every human being.’

There are, of course, voices who will say that this is an impossible combination; that it is impossible to demonstrate love to people while refusing to recognise their relationships. This is not a position that a Christian can accept. Jesus showed love to the Samaritan woman at the well, but he did not shy away from raising the fact that after five marriages she was now sleeping with someone who was not her husband at all (John 4:16-18).

Love is not the same as unconditional affirmation. Love means valuing every single human as someone made in the image and likeness of God and for whom Christ died, and acting in a way that gives expression to that value. This frequently means challenging people about their behaviour so that they can change where necessary and so become more fully the people God intends them to be. It is this kind of difficult love that members of the Church of England need to learn how to show in the new social context that that government’s legislation has introduced.

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One thought on “Law, morality and difficult love

  1. Hi Martin, very interesting and thoughtful article. I cannot, of course, comment on the theology, but I thought that you might be interested in my responses to your reflections on the law. You have said that laws may be just for three reasons – when they are ordained for the common good, when they do not exceed the power of the lawmaker, and when they distribute burdens equitably within society. This formulation does not really get to the heart of the problem, which is that, to consider the matter as a physicist or mathematician might approach it, societies and communities, forming the jurisdiction in which laws operate, are complex structures. This means that the consequences of introducing laws is, literally, incalculable. Laws which are intended for the common good, are passed within power and which, at least in theory, may distribute burdens equitably, may, and frequently do, operate unjustly when implemented.

    The other issue which sprang to my mind is this: it seems to me that marriage is both a civil and an ecclesiastical institution. Insofar as it is a civil institution it is, in essence, a contract, the identification of which performs an important function in identifying relationships for purposes of property owning, succession, superannuation, insurance and so forth. As an ecclesiastical institution it has a different significance. The problem is that the word “marriage” attaches to both.

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