Tolerance, diversity and using the power of the state to impose change on the church

By David Beswick, July 1999

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[Note: This is an edited version of a response I wrote recently to a request for comments on the draft of a paper, which is to be published widely in the church, on the problem of maintaining unity under the present conditions of debate, while the promotion of the homosexual cause in the Church continues with the encouragement of office holders in the Synod and Assembly. DB.]

A proposal that councils of the church might experiment to provide some opportunities for people living in homosexual relationships to provide leadership in some pastoral situations while the church otherwise maintains traditional policies may be too optimistic or generous. It is difficult to arrange for such a degree of tolerance to be allowed for conflicting opinion without causing severe disability and likely schism, due not so much to the difficulty of containing diverse opinions as to actions based on them being taken up in an undisciplined manner. At one point in particular the dangers are greater than is officially acknowledged at present, because the arguments presented for diversity deal only deals with conditions within the church without taking into account the social, political and legal context of the debate in the wider society.

The danger in our present legal framework of anti-discrimination laws, state and federal, is that inconsistency of practice within a church would mean that the protection of the law for people who do not wish to have a homosexual minister would be lost. Exemption from the anti-discrimination laws applies to religious bodies only if the grounds on which a person may be disadvantaged in employment or subject to criticism or discipline are part of the teaching of the body concerned and consistently maintained. That is not just my lay opinion. It is based on an interpretation of the law by a former state government commissioner for equal opportunity. If diversity of practice is officially permitted then there is no exemption and anyone who opposed an ordination or an appointment could be sued. Some threats of action against people who have raised objections have already been made by lawyers acting for homosexual clients. Once it is established that the church allows ministers living in homosexual partnerships to work in positions of teaching and pastoral leadership, the likelihood is that the church would be forced to make acceptance of such ministers universal or face the prospect of heavy claims for damages.

Whether the church leadership actually intends to use the powers of the state to impose a policy on the church through inaction and the promotion of diversity of practice is not clear. They have certainly had the possibility drawn to their attention. It is the aim of some groups within the church to establish conditions in which they can use the courts to achieve their objectives, and the conditions for it to be done will be in place once the required differences of practice are officially sanctioned either through active endorsement or deliberate inaction. Under present conditions it is only a matter of time before the civil courts are used to force the whole church to conform to the demands of a minority. The suggestion that some congregations might be allowed to "experiment" needs to be assessed in the light of the dangers of dissent and division that would arise if the anti-discrimination laws were, as a result, to be used against those in the church who disagreed. The effects of any such legal action within the church would be likely to be magnified by the influence of the public media, so that once the process began it would develop rapidly and schism of some sort would be very likely.

It is an interesting and difficult question whether traditional teaching can be maintained together with any degree of toleration of unacceptable behaviour. I can see a case being made for not expelling ministers who have served the church well and who, some time after ordination, when social conditions have changed, have claimed a homosexual identity and sought continuing recognition while they live in a homosexual partnership. A policy of tolerance of this kind might be adopted for practical pastoral reasons, together with a general policy of not approving such partnerships and not accepting candidates or ordaining people who live in that way or expect to do so. The church could make concessions in individual cases in the special circumstances of the present time with its confusion of doctrine and breakdown of discipline. In such circumstances a degree of tolerance could be seen to be an act of mercy and an admission of some shared responsibility for a minister's present situation. I believe that in fact there has always been a degree of tolerance without endorsement as a concession to human weakness, although what I am suggesting that we might consider in the present circumstances would represent a greater degree of tolerance than has been practised traditionally. Such a greater degree of tolerance might be justified for a time on the basis of confused leadership and teaching in which the church must bear some responsibility with the individuals concerned.

Much the same might apply to the small minority of congregations who wish to have such a ministry, but only as an exception, and it would have to be accepted by all concerned that the church would maintain its traditional teaching on sexual relationships as the norm. It may be doubted whether ministers who might be tolerated as proposed would be prepared to continue under those conditions. By and large, homosexual activists have sought endorsement by the church of their way of life, and not mere tolerance. It must, however, be a condition of toleration that traditional teaching is maintained, not as one voice among many but as the policy of the church. That means that received doctrines and discipline must be acknowledged as continuing unless and until any change is made by proper constitutional processes and not by establishing a fait accompli under a permissive regime in which the discipline is not enforced.

If the policy is clear enough and it is consistently maintained in all new decisions on ordination, it may be that the protection of exemption from the anti-discrimination laws could be assured, in spite of exceptions being allowed for continuing ministers under specified conditions as a transitional provision in the general policy; that is, we might have transitional arrangements as we recover from a state of disorder, in the sense of moving towards the recovery of effective discipline and the preservation of the received doctrines of the church as the normal expectation. The legal situation of the church under those conditions would need to be assessed with great care, and if protection could not be assured then the policy would have to be enforced without exception to avoid the great damage that would otherwise be done.

The problem is not so much that different opinions cannot be accommodated as the determination of one side in the current debate to push ahead and claim whatever territory they can whether by constitutional means or otherwise. Change is only envisaged in that strategy as possible in one direction. The demand for tolerance and diversity is such that it makes a demand for surrender of the other side as a condition of dialogue. Open discussion under conditions of mutual respect can proceed only if the rules are not changed by unilateral action. The fundamental condition for mutuality is trust, and there can be no trust and no point in debate when one side insists on acting as if what they seek has already been agreed. So, when you know how the power of the civil courts could be used to enforce conformity as a result of tolerating diversity, it is very difficult to envisage a degree of tolerance which does not give the game away in advance. There is a case for attempting to find some ground for agreement on toleration of exceptions as an interim measure while discussion continues on constitutionally valid changes, but only if invalid changes are not permitted, let alone officially promoted, in the meantime.

You cannot avoid chaos if one group insists on driving on the opposite side of the road while legislation to change the road laws is debated. No system of law, nor any social organisation, can survive if allowing debate on a proposal to do things differently automatically invalidates the way things have been done. Moderate and mutually agreed toleration can be allowed only if it does not thereby set up conditions for the whole structure to be overturned.

It is quite an extraordinary thing in what have been called liberal democracies, although the word 'liberal' now has a double meaning, for church leaders even to contemplate allowing, let alone promoting, conditions within the church in which the power of the state could be used by an elite minority to impose a change on the majority of members. Have they learned nothing from history! We do not know whether there is a conspiracy among church leaders to deprive members of their civil rights. Conspiracy theories are usually false. At the same time, it has been obvious for several years now that some in the church are determined to use the power of the state to achieve their ends without regard for the consequences in terms of loss and division in the church. The possibility has been known to officials and they have, at least in public statements, and after much consultation, deliberately ignored it or made re-assuring statements without foundation. Now is the time to remember the old adage about the price of liberty being eternal vigilance.

Appendix

Since this paper was written and a version prepared for publication in The Auburn Report, the following resolutions of the Standing Committee of the Victorian Synod have been published. The resolutions of advice and direction were made in response to questions raised by the organisation Evangelical Members of the Uniting Church (EMU) of which I am not a member but which I have been prepared to support because it is one of the points of effective resistance in the Church.

To advise the Evangelical Members within the Uniting Church (Victorian Synod) that the appointment of a particular person to a position of responsibility has no effect on their personal risks and responsibilities under the Victorian Equal Opportunity Act. The Act allows a person to discriminate against another person if the discrimination is necessary to comply with the person's genuine religious beliefs or principles. It does not deprive them of their right and responsibility to advocate doctrinal positions within the Victorian Synod of the Church.

To direct members and ministers of this Synod, that in the ongoing debate regarding the ordination or leadership within the Church of those living in committed same-gender relationships, that they should confine themselves strictly to matters of theology, policy and principle, and that they should not name or identify persons in such debate. To do so would expose them and the Church to the risk of complaints such as sexual harassment, homosexual vilification, and authorising or assisting another person to discriminate, under Australian antidiscrimination laws; and to the possibility of civil litigation; and would leave individuals open to discipline within the Church under Regulations 7.8.2(b) and (e).

What is important here is what the statement does not say. It does not address the main issues with which I was concerned in this paper. I would not wish to oppose my lay opinion to the legal advice the Synod has apparently received in so far as it is reflected in this statement, and the point in its first paragraph about protection for individual people who act in a way that is necessary to comply with the person's genuine religious beliefs or principles is somewhat reassuring, but it is a very limited individual liberty being restricted in this statement to advocacy of a point of view only in general and largely theoretical terms. It does not address the position of a church council which decided to act in accordance with the traditional teaching of the church. The statement does not address the principal concern of this paper that, when the conditions for it are established (which the statement appears to assume is already the case), opposition to the appointment of a homosexual minister could put a church council at risk and that individuals who advocated that a local church council or presbytery refuse an appointment on the grounds of a minister's homosexual behaviour could also be at risk of being sued. By such means it remains possible to require conformity with a policy which was put to the last Assembly and not approved. Nor does it deal with the position of a presbytery which sought to discipline a minister for engaging in unacceptable behaviour of a homosexual kind. The false assumption appears to be that the church has no policy or relevant doctrine to guide its councils and that individuals and councils are only able to act on their own responsibility and will therefore be subject to the full force of the law as if the church had no right to maintain its traditional teaching in the ordination, appointment and discipline of ministers. In some respects the situation is more serious than I had supposed.

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