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Legality and Validity

Legality and Validity

By Mark Thompson
December 13, 2013

Does something become legitimate by virtue of legislative enactment? Does the decision of a parliamentary majority or of a court of law suffice to settle the question of whether a course of action is appropriate, or legitimate or valid? Can Christians recognise the legal or constitutional reality of a situation without for a moment consenting to its reality in a deeper sense - something that legitimately exists in a world constituted by God's word?

Two recent developments in Australia raise this question in stark terms for us. The first is the conduct of same sex 'marriage' services in the Australian Capital Territory last weekend. These services went ahead despite a resolution of the High Court of Australia to reserve its decision on a challenge to the Territory's legislation until 12 December. How are we to view such marriages? Would we view them any differently if the High Court had already delivered its decision and it was in favour of the ACT's legislation?

Words from the marriage service in the Book of Common Prayer (1662) come to mind: For be ye well assured, that so many as are coupled together otherwise than God's Word doth allow are not joined together by God; neither is their Matrimony lawful. The more recent Common Prayer: Resources for gospel-shaped gatherings (2012), produced in the Diocese of Sydney, follows the wording of An Australian Prayer Book (1978) in both forms of the marriage service provided: For be assured that those who marry otherwise than God's word allows are not joined together by God, neither is their marriage lawful in his sight. Most obviously the intent of these words was never to deny the authority of parliaments and the judicial system. After all, Cranmer, the original author of the words (the 1549 and 1552 Prayer Books are identical in wording to the BCP, with allowance for variations in spelling) was an Erastian who believed very strongly in the authority of the State in religious matters as well as secular matters. Yet not entirely. The king was 'singular protector, supreme lord and even, so far as the law of Christ allows, supreme head of the English Church and clergy' and it is a simple matter of record that the king did not annul his marriage to Catherine of Aragon on his own authority. Cranmer, acting on decisions of a number of convocations of clergy, was the one who declared the marriage invalid on 23 May 1533. The law of the land (in Cranmer's time virtually equivalent to the will of the king) was one thing, but there was a higher authority to whom appeals such as this needed to be made. At the very least the appearance of deference to that authority needed to be preserved.

In the end, it does not matter what authority is used to declare a marriage valid - one of Henry VIII's own arguments was that even the Pope (by the special dispensation allowing Henry to marry Catherine in 1509) could not overturn the teaching of Scripture on the matter - marriage gains its definition and dignity, not from the State or the consensus of the people, but from the word of God. Given the clear teaching of Scripture that homosexual activity (not temptation or orientation but activity) is contrary to the will of God and itself a peculiar expression of that depravity into which the race has fallen by its 'exchange of the truth for a lie', the expression 'same-sex marriages' is an oxymoron, a contradiction in terms.

So the ACT government, or the Federal Government may well redefine marriage in a way that includes the union of same-sex couples, and the High Court of Australia might well declare such legislation constitutionally valid, but it will make no difference to the real status of these unions before the only jurisdiction that ultimately counts. Those who marry otherwise than God's word allows are not joined together by God, neither is their marriage lawful in his sight.

The second development is the consecration of women as bishops in the Anglican Church of Australia. Following the failure of successive attempts to get legislation permitting the consecration of women bishops through the General Synod, an appeal to the highly-politicised Appellate Tribunal resulted in an opinion from that body in 2007 that no such legislation was necessary but that the implication of women in the episcopate was carried within the legislation which enabled women presbyters (aka priests). Since then three women have been consecrated: Kay Goldsworthy in Perth (2008), Barbara Darling in Melbourne (2008) and Genieve Blackwell in Canberra-Goulburn (2012). Last month, Sarah Macneil of Canberra-Goulburn was elected to be Bishop of Grafton, so she will be the first female diocesan bishop in Australia.

There can be no suggestion that anything other than proper legal process was followed in the election or appointment of each of these women. Properly constituted groups or persons proposed and considered their names and the decisions made are beyond dispute. According to the legal processes of the Anglican Church of Australia each of these women are bishops.

However, many of us cannot recognise them as bishops in a more important sense. Given the teaching of the New Testament on the headship of men in marriage and in a Christian congregation, - headship, it should be noted, that must always be characterised by self-sacrificial service patterned upon the headship of Christ and the recognition of that headship by the church -and given the explicit instructions about men, women and teaching in the Pastoral Epistles, the ordination of women as presbyters or the consecration of women as bishops is a matter of deep concern. In order to avoid a prima facie reading of these biblical texts all sorts of hermeneutical manoeuvres must be attempted and hypothetical reconstructions proposed that would relativise what is being taught or at least restrict its application to a set of specific conditions that no longer apply today. These manoeuvres and these proposals are very often made in good conscience. But to many of us it seems that whatever the intentions of those involved, the net effect is to overturn or to evade the teaching of Scripture and so is another instance of human disobedience.

A similar argument applies to that used in the previous example. It doesn't in the end matter how legally proper the process that ended up in these elections or nominations, it doesn't matter what endorsement is supplied, whether from a diocesan synod, the General Synod, the Appellate Tribunal or even the Lambeth Conference. If this is indeed contrary to the teaching of Scripture then it is impossible to recognise these women or any others as validly consecrated or legitimately bishops.

These are enormous challenges but how to conduct ourselves with grace and courtesy in the face of such very significant differences on these issues is every bit as challenging. I suspect the way ahead, though, can hardly be to pretend those differences do not exist. The stakes are so high - who we were created to be as human beings, the nature of the image of God, God's gift of marriage, the headship of Christ and the church, the health of the Christian congregation and, indeed of society as a whole - that these issues cannot be relegated to 'matters of secondary importance'. If they are indeed addressed in the Scriptures then in each case it is a matter of Christian faith and of genuine discipleship with all that this implies. If God has spoken, then the appropriate Christian response is gratitude, faith and joyful obedience.

Those supporting the consecration of these women and many of those who support the solemnising of same-sex unions do so conscientiously believing themselves to be doing the will of God. In the case of women bishops, much use is made of the language of a divine call, their call to be a bishop from God through the agency of the church. We are bound to ask whether the use of such language is itself useful or appropriate given the Bible's teaching on the call of God and the nature of Christian ministry.

Nevertheless, those with whom we disagree on these matters are real people, people created by God and loved by him, men and women for whom Christ died. Many of them are our brothers and sisters with whom we can expect to share eternity. How we treat them, while holding on to truth and not giving the slightest ground to error, is itself part of the challenge of our times. God is love and he is also light. We must be faithful and courageous and at the same time people of grace.

The Rev. Dr. Mark Thompson is Senior Lecturer in Theology at Moore Coolege, Sydney, New South Wales

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