by Martin Davie
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: